Cutler v. United States Department of Health & Human Services , 797 F.3d 1173 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2015 Decided August 14, 2015
No. 14-5183
JEFFREY CUTLER,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-02066)
Robert J. Muise argued the cause for appellant. With him
on the briefs was David E. Yerushalmi.
Katherine Twomey Allen, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were Benjamin C. Mizer, Acting Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney at the time the brief was
filed, and Mark B. Stern and Alisa B. Klein, Attorneys.
Before: HENDERSON, ROGERS and MILLETT, Circuit
Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: Jeffrey Cutler’s insurance
company cancelled his health insurance plan because it did
not comply with the requirements of the Patient Protection
and Affordable Care Act (“Affordable Care Act” or “Act”),
Pub. L. No. 111-148, 124 Stat. 119 (2010). He objects to the
requirement that he buy compliant insurance for personal, but
not religious, reasons. So he filed suit challenging the
religious exemption in the Affordable Care Act as an
unconstitutional establishment of religion. He also argues
that the Administration’s decision to temporarily suspend
enforcement of some of the Act’s requirements for a
transitional period deprived him of the equal protection of the
laws. While we disagree with the district court’s holding that
he lacked standing to press his Establishment Clause
challenge, long-settled precedent dooms his claim on the
merits. Cutler lacks standing to assert his equal protection
claim because nothing in the transitional policy requires him
to buy insurance; his inability to maintain his old plan was the
independent choice of his insurer.
I
Statutory and Regulatory Framework
Congress enacted the Affordable Care Act in 2010 in an
effort to “increase the number of Americans covered by
health insurance and decrease the cost of health care.”
National Federation of Independent Business v. Sebelius, 132
S. Ct. 2566, 2580 (2012). Key to the Act’s “interlocking
reforms,” King v. Burwell, No. 14-114, 576 U.S. ___, slip op.
at 1 (June 25, 2015), is a general requirement that individuals
must maintain health insurance coverage or pay a tax penalty
to the Internal Revenue Service. 26 U.S.C. § 5000A.
Without that obligation to obtain insurance, Congress found,
“many individuals would wait to purchase health insurance
3
until they needed care,” 42 U.S.C. § 18091(2)(I), creating an
“adverse selection * * * death spiral” that would destabilize
insurance markets, King, slip op. at 2.1
Consistent with the statutory goals of near-universal
coverage and protecting the efficient functioning of the health
insurance market, 42 U.S.C. § 18091(2)(D) and (I), Congress
allowed only carefully limited exceptions to the general
obligation to maintain health insurance. See Seven-Sky v.
Holder, 661 F.3d 1, 6 (D.C. Cir. 2011). Of relevance here,
the Affordable Care Act generally exempts those with sincere
religious objections to purchasing health insurance. See 26
U.S.C. § 5000A(d)(2). Specifically, the Act provides for a
“religious conscience exemption” that applies to an individual
1
“Adverse selection” is an economic term of art that describes
problems that can arise in insurance markets when the healthy have
insufficient incentive to purchase health insurance, and thus the
resulting pool of insureds consists predominantly of the sick and
those actively using their insurance. As the Supreme Court
explained in King v. Burwell, some state-level precursors to the
Affordable Care Act, by banning the denial of insurance for
preexisting conditions, had
encouraged people to wait until they got sick to buy
insurance. Why buy insurance coverage when you are
healthy, if you can buy the same coverage for the same
price when you become ill? This consequence—known as
‘adverse selection’—led to a second: Insurers were forced
to increase premiums to account for the fact that, more and
more, it was the sick rather than the healthy who were
buying insurance.
No. 14-114, 576 U.S. ___, slip op. at 2.
4
who is both “(i) a member of a recognized religious sect or
division thereof which is described in [26 U.S.C.] section
1402(g)(1),” and “(ii) an adherent of established tenets or
teachings of such sect or division as described in such
section.” 26 U.S.C. § 5000A(d)(2)(A)(i)–(ii).
Section 1402(g)(1) of Title 26, in turn, houses the
religious exemption from Social Security and Medicare taxes,
which Congress enacted as part of the Social Security
Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286. That
provision allows an individual who, because of religious faith,
is “conscientiously opposed to acceptance of the benefits of
any private or public [health] insurance,” to opt out of the
Social Security and Medicare programs. 26 U.S.C.
§ 1402(g)(1).2
To qualify for the exemption, an individual must prove
“membership in, and adherence to the tenets or teachings of,
2
Section 1402(g)(1) provides in full:
Any individual may file an application (in such form and
manner, and with such official, as may be prescribed by
regulations under this chapter) for an exemption from the
tax imposed by this chapter if he is a member of a
recognized religious sect or division thereof and is an
adherent of established tenets or teachings of such sect or
division by reason of which he is conscientiously opposed
to acceptance of the benefits of any private or public
insurance which makes payments in the event of death,
disability, old-age, or retirement or makes payments
toward the cost of, or provides services for, medical care
(including the benefits of any insurance system established
by the Social Security Act).
26 U.S.C. § 1402(g)(1).
5
the sect or division thereof” and must waive “all benefits and
other payments” under the Social Security and Medicare
programs. 26 U.S.C. § 1402(g)(1)(A)–(B). In addition, the
Commissioner of Social Security must find that (i) the “sect
or division thereof has the [relevant] established tenets or
teachings[,]” (ii) “it is the practice * * * for members of such
sect or division thereof to make provision for their dependent
members,” and (iii) “such sect or division thereof has been in
existence at all times since December 31, 1950.” Id.
§ 1402(g)(1)(C)–(E).3
3
Specifically, an application for religious exemption under Section
1402(g)(1) “may be granted only if the application contains or is
accompanied by—
(A) such evidence of such individual’s membership in, and
adherence to the tenets or teachings of, the sect or division
thereof as the Secretary may require for purposes of
determining such individual’s compliance with the preceding
sentence, and
(B) his waiver of all benefits and other payments under titles II
and XVIII of the Social Security Act on the basis of his wages
and self-employment income as well as all such benefits and
other payments to him on the basis of the wages and self-
employment income of any other person,
and only if the Commissioner of Social Security finds that—
(C) such sect or division thereof has the established tenets or
teachings referred to in the preceding sentence,
(D) it is the practice, and has been for a period of time which
he deems to be substantial, for members of such sect or
division thereof to make provision for their dependent
members which in his judgment is reasonable in view of their
general level of living, and
(E) such sect or division thereof has been in existence at all
times since December 31, 1950.
26 U.S.C. § 1402(g)(1)(A)–(E).
6
The Affordable Care Act religious exemption thus comes
as a package deal with the Medicare and Social Security
religious exemption. The qualifications for each include not
only sincere religious belief, but also membership in a group
with an established track record of providing care for its
members in need and thus ensuring that the cost of their care
is not transferred to the public.
Aside from the coverage requirement for individuals, the
Affordable Care Act imposes a number of requirements on
insurance providers and employers who offer health insurance
to their workers, such as the guaranteed availability of
coverage and a prohibition on refusing coverage due to an
applicant’s pre-existing medical condition. See 42 U.S.C.
§ 300gg-1. The Centers for Medicare and Medicaid Services
(“the Centers”), which is part of the Department of Health and
Human Services, oversees the implementation of many of the
legislatively mandated changes.
Several of the Affordable Care Act’s new requirements
were scheduled to take effect on January 1, 2014, including
provisions governing insurance premiums and discrimination
on the basis of preexisting conditions. See 42 U.S.C. § 300gg
(relating to fair health insurance premiums); id. § 300gg-1
(relating to guaranteed availability of coverage and ban on
pre-existing condition requirements); id. § 300gg (note)
(effective date). But the Centers determined that many
“affected individuals and small businesses * * * [were]
finding that [Affordable Care Act-compliant] coverage would
be more expensive than their current coverage, and thus they
may be dissuaded from immediately transitioning to such
coverage.” Letter from Gary Cohen, Director, Center for
Consumer Information and Insurance Oversight, Centers for
Medicare and Medicaid Services, to State Insurance
7
Commissioners, Nov. 14, 2013, at 1.4 Accordingly, the
Centers announced a “transitional policy” under which
“health insurance issuers may choose to continue coverage
that would otherwise be terminated or cancelled” as non-
compliant with the Affordable Care Act, and the renewed
plans “will not be considered to be out of compliance” with
the statute. Id. The announcement also “encouraged” state
insurance regulators to “adopt the same transitional policy[.]”
Id. at 3. That transition period was ultimately extended until
October 1, 2016. See Centers for Medicare and Medicaid
Services, Insurance Standards Bulletin Series – Extension of
Transitional Policy through Oct. 1, 2016 (March 5, 2014).5
Factual and Procedural History
Jeffrey Cutler is a resident of Pennsylvania. Complaint
¶ 1, J.A. 11. He is “financially stable, has an annual income
that requires him to file federal tax returns, and could afford
health insurance if he wanted to obtain such coverage.” Id.
¶ 5, J.A. 12. He is non-observant in his religion, and does not
qualify for the Affordable Care Act’s religious exemption. Id.
He is “not covered, nor wishes to be mandated to be covered,
under any health insurance plan” meeting the Affordable Care
Act’s requirements. Id. ¶ 15, J.A. 15. He alleges that he “had
health insurance which was cancelled due to the changes
specified by regulations that altered the law as approved.” Id.
4
Available at http://www.cms.gov/CCIIO/Resources/Letters/
Downloads/commissioner-letter-11-14-2013.PDF (last visited
August 6, 2015).
5
Available at http://www.cms.gov/CCIIO/Resources/Regulations-
and-Guidance/Downloads/transition-to-compliant-policies-03-06-
2015.pdf (last visited August 6, 2015).
8
¶ 24, J.A. 17. He “does not want to be forced to purchase
health insurance.” Id.
Cutler, proceeding pro se, filed suit in the United States
District Court for the District of Columbia to challenge the
Affordable Care Act as unconstitutional, both facially and as
applied to him. Complaint ¶ 20, J.A. 16. Specifically, his
complaint alleged that the religious exemption in the
Act violates the First Amendment’s guarantee of religious
freedom. Id. ¶ 1, J.A. 11.
Cutler later filed a motion for partial summary judgment,
in which he raised for the first time a separate claim that the
transitional policy, as implemented, violates his “rights under
the Equal Protection Clause in the Fourteenth Amendment[.]”
Plaintiff’s Motion for Partial Summary Judgment at 2, J.A.
23. Specifically, he objected that “state insurance
commissioners are now empowered to override the law—‘if
you like your plan you can keep it, but only in NY, CT, CA,
etc.’” Id.
The district court granted the government’s motion to
dismiss, reasoning that Cutler lacked standing to bring either
claim. See Cutler v. Department of Health and Human
Services, 52 F. Supp. 3d 27, 33 (D.D.C. 2014). As for equal
protection, the court noted that Cutler “makes no claim as to
how he is injured * * * by the alleged fact that the Act will be
enforced differently in different states.” Id. at 35 n.4.6
6
Although Cutler brought his equal protection challenge under the
Fourteenth Amendment, which applies to the States and not to the
federal defendants, the district court treated Cutler’s claim as if it
were brought under the equal protection component of the Fifth
Amendment’s Due Process Clause, which applies to the federal
government. Cutler, 52 F. Supp. 3d at 31 n.3; see also, e.g.,
9
With respect to the Establishment Clause challenge, the
district court found no standing because Cutler “bases his
challenge to the religious exemption on the fact that such
exemptions harm everyone by their mere existence and not
that the exemption personally harms him.” Cutler, 52 F.
Supp. 3d at 37. The court reasoned that, even if Cutler’s
Establishment Clause challenge succeeded, “[h]e would be
subject to the individual mandate and would be required to
either obtain health insurance coverage or pay the penalty,”
and so “the fact that he is subject to the individual mandate[]
is not redressed by declaring the religious exemption invalid.”
Id. at 38. The court did not agree with Cutler that, if it found
the religious exemption invalid, it would have to strike down
the entire law. Id.
Nevertheless, “given the evolution of the taxpayer
standing doctrine and in an abundance of caution,” the court
addressed Cutler’s exemption challenge on the merits. Cutler,
52 F. Supp. 3d at 38 (internal citations omitted). The court
followed the Fourth Circuit’s decision in Liberty University v.
Lew, 733 F.3d 72 (4th Cir. 2013), and held that the exemption
served a secular legislative purpose, had the primary effect of
ensuring coverage rather than advancing or inhibiting
religion, and created no excessive entanglement with religion.
See Cutler, 52 F. Supp. 3d at 39–40. The district court also
noted that the religious exemption in the Affordable Care Act
“incorporates the same provision of the Social Security
Amendments of 1965,” which courts have repeatedly upheld
against Establishment Clause challenge. Id. at 40 n.8.
Pollack v. Duff, --- F.3d ---, 2015 WL 4079788 (D.C. Cir. July 7,
2015) (“[T]he principle of equal protection indisputably applies to
the federal government as well as to the states.”). We do likewise.
10
II
Analysis
Standard of Review
We review the district court’s dismissal of Cutler’s
complaint on both standing and merits grounds de novo. See
Brown v. Whole Foods Market Group, Inc., 789 F.3d 146, 150
(D.C. Cir. 2015). In so doing, we accept the factual
allegations in the complaint as true, and grant Cutler the
benefit of all reasonable inferences that can be drawn in his
favor. See id. And because Cutler proceeded below without
counsel, we hold his district court filings to “less stringent
standards than formal pleadings drafted by lawyers[.]”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Establishment Clause Challenge
Standing
The first thing we must decide is whether we can decide.
If Cutler lacks standing to bring his claims in federal court,
then we are powerless to decide the case and must dismiss it.
See, e.g., Florida Audobon Society v. Bentsen, 94 F.3d 658,
663 (D.C. Cir. 1996) (“[A] showing of standing ‘is an
essential and unchanging’ predicate to any exercise of our
jurisdiction.”) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)).
The “irreducible constitutional minimum of standing” is
that (i) the plaintiff suffered an “injury in fact,” meaning “an
invasion of a legally protected interest” that is “concrete and
particularized” and “actual or imminent, not conjectural or
11
hypothetical”; (ii) the injury must be “fairly traceable to the
challenged action of the defendant”; and (iii) a favorable
decision by the court must be likely to redress the injury.
Lujan, 504 U.S. at 560–561 (internal citations, quotation
marks, and alterations omitted).
The party invoking federal jurisdiction bears the burden
of showing each of those elements, “with the manner and
degree of evidence required at the successive stages of the
litigation.” Lujan, 504 U.S. at 561. Because the district court
dismissed this case at the complaint stage, Cutler need only
make a plausible allegation of facts establishing each element
of standing. See Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002) (“[W]here the
defendant contests only the legal sufficiency of plaintiff’s
jurisdictional claims, the standard is similar to that of Rule
12(b)(6), under which dismissal is warranted if no plausible
inferences can be drawn from the facts alleged that, if proven,
would provide grounds for relief.”). In evaluating standing at
this juncture, we must assume that the party asserting federal
jurisdiction is correct on the legal merits of his claim, “that a
decision on the merits would be favorable and that the
requested relief would be granted[.]” In re Thornburgh, 869
F.2d 1503, 1511 (D.C. Cir. 1989).
Applying those standards, we conclude that Cutler has
standing to bring his Establishment Clause challenge to the
religious exemption. His objection is straightforward:
Because he is neither a member of a religious group that
qualifies for the religious exemption nor religiously opposed
to obtaining insurance, he must either pay for a statutorily
compliant insurance plan or pay a penalty. Cutler argues that
allowing individuals to avoid both paying for insurance and
paying the penalty if they abjure insurance for religious
reasons, but not if they abjure it for secular reasons, violates
12
the Establishment Clause because it favors faith over his non-
belief. In so doing, Cutler has adequately alleged an injury in
fact to his constitutional right not to be treated differently—
not to be penalized for lacking insurance—just because he is
not religiously motivated. See, e.g., McCreary County,
Kentucky v. American Civil Liberties Union of Kentucky, 545
U.S. 844, 860 (2005) (“[T]he First Amendment mandates
governmental neutrality between * * * religion and
nonreligion.”) (internal citation and quotation marks omitted).
That injury, in turn, stems directly from the religious
exemption in the Affordable Care Act, as that is what causes
him to be subject to a penalty when religious objectors to
purchasing insurance are not. See Sissel v. United States
Dep’t of Health and Human Services, 760 F.3d 1, 5 (D.C. Cir.
2014); see generally Lujan, 504 U.S. at 560 (injury must be
“fairly traceable to the challenged action of the defendant”)
(internal quotation marks and alterations omitted).
Finally, because we must assume at this stage that the
requested relief would be granted, Cutler satisfies the
redressability prong of the standing inquiry. In his complaint,
Cutler seeks wholesale invalidation of the Affordable Care
Act, see Complaint, Prayer ¶ 4, while his appellate briefing
suggests that he might be satisfied with a court order
“enjoining the enforcement of the penalty provision as applied
against Plaintiff,” Cutler Br. 18. Either way, if this court were
to give Cutler what he wants, his Establishment Clause
injury—the differential treatment because of his lack of
religious objection—would disappear. See In re Thornburgh,
869 F.2d at 1511 (“[T]he redressability test asks whether a
plaintiff’s injury would be likely to be redressed if the
requested relief were granted.”) (emphasis in original).
The district court read Cutler’s complaint as asserting
injury solely in his objection to the existence of a religious
13
exemption, which the court deemed to be the type of
“generalized grievance” that will not support standing.
Cutler, 52 F. Supp. 3d at 37. That was mistaken. Cutler is
explicit that he is injured by being forced to choose between
paying for compliant insurance and paying a penalty. That is
the type of direct and concrete injury that satisfies Article III,
see Sissel, 760 F.3d at 5, regardless of how many other people
face the same financial choice. “[A]n injury shared by a large
number of people is nonetheless an injury.” Center for Auto
Safety v. National Highway Traffic Safety Admin., 793 F.2d
1322, 1324 (D.C. Cir. 1986); see also Federal Election
Comm’n v. Akins, 524 U.S. 11, 24 (1998) (“[W]here a harm is
concrete, though widely shared, the Court has found injury in
fact.”) (internal citation and quotation marks omitted).
The government argues that removing the religious
exemption—while leaving the rest of the Affordable Care Act
in place—would leave Cutler in precisely the same position
with respect to his own obligations under the Act. The
Supreme Court rejected the exact same standing argument in
Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221
(1987). The Arkansas Writers’ Project challenged the
constitutionality of a tax exemption afforded to some
newspapers and journals, but not to its magazine. Just as the
government argues here, the state supreme court had ruled
that the constitutional challenge that the tax was “invalid, as
discriminatory” was not properly raised: “[I]t would avail
[appellant] nothing if it wins its argument” since “it is the
exemption that would fall, not the tax against” the appellant.
Id. at 226 (quoting Ragland v. Arkansas Writers’ Project, 698
S.W.2d 802, 803 (Ark. 1985)) (brackets in original).
The U.S. Supreme Court thought otherwise. Reasoning
that the “constitutional attack holds the only promise of
escape from” the differential “burden,” the Supreme Court
14
held that the Arkansas Writers’ Project did have Article III
standing. Arkansas Writers’ Project, 481 U.S. at 227
(quoting Orr v. Orr, 440 U.S. 268, 273 (1979)). To adopt the
state’s “notion of standing,” the Supreme Court concluded,
would “effectively insulate underinclusive statutes from
constitutional challenge[.]” Id.
Moreover, in analyzing the redressability prong of
standing, it must be remembered that “a court sustaining” an
equal protection claim faces “‘two remedial alternatives: [it]
may either declare [the statute] a nullity and order that its
benefits not extend to the class that the legislature intended to
benefit, or it may extend the coverage of the statute to include
those who are aggrieved by the exclusion.’” Heckler v.
Matthews, 465 U.S. 728, 738–739 (1984)) (quoting Welsh v.
United States, 398 U.S. 333, 361 (1970) (Harlan, J.,
concurring in the result)); see also, e.g., Jacobs v. Barr, 959
F.2d 313, 317 (D.C. Cir. 1992) (same); Dumaguin v.
Secretary of Health and Human Services, 28 F.3d 1218, 1222
(D.C. Cir. 1994) (same). Thus, because one response to the
differential-treatment challenge would be for the government
to expand the exemption and treat Cutler’s non-religious
objection to obtaining insurance equally, and “we have no
way of knowing how the [government] will in fact respond,”
Cutler “must be held to have standing here.” Orr v. Orr, 440
U.S. 268, 272 (1979).
Challenges to the Religious Exemption
Settled precedent answers Cutler’s argument that the
Affordable Care Act’s religious accommodation provision
runs afoul of the Establishment Clause. The religious
exemption in the Affordable Care Act, like its counterpart in
the Social Security Act, accommodates religion by exempting
all believers whose faith system provides an established,
15
alternative support network that ensures individuals will not
later seek to avail themselves of the federal benefits for which
they did not contribute. Cutler is correct that the Affordable
Care Act withholds a similar exemption for non-believers.
But the Supreme Court has repeatedly held that “the
government may accommodate religious practices without
violating the Establishment Clause.” Cutter v. Wilkinson, 544
U.S. 709, 713 (2005) (internal citations, quotation marks, and
alterations omitted); see also Locke v. Davey, 540 U.S. 712,
718 (2004); Hobbie v. Unemployment Appeals Comm’n of
Florida, 480 U.S. 136, 144 (1987).
Even more to the point, the Supreme Court has addressed
the religious exemption in the Social Security Act that the
Affordable Care Act replicates as an “accommodat[ion], to
the extent compatible with a comprehensive national program,
[of] the practices of those who believe it a violation of their
faith to participate in the social security system.” United
States v. Lee, 455 U.S. 252, 260 (1982). In creating that
exemption, the Supreme Court continued, Congress “provided
for a narrow category which was readily identifiable,” in a
manner “sensitive to the needs flowing from the Free Exercise
Clause.” Id. at 260–261.
The religious accommodation in the Affordable Care Act,
like the Social Security exemption it mirrors, is narrow. The
exemption is available only to those (i) whose sincere
religious beliefs prevent them from subscribing to any form of
health insurance, and (ii) whose faith communities have a
demonstrated track record of taking care of their dependent
members. Those factors together alleviate any Establishment
Clause concerns in two ways.
First, by limiting the exemption to those whose sincerely
held faith beliefs flatly forbid participation in the federal
16
program, the accommodation is carefully confined to
“alleviat[ing] exceptional government-created burdens on
private religious exercise.” Cutter, 544 U.S. at 720.
Democratic government, after all, cannot survive if every
political or personal objection to a government-imposed
obligation must be accommodated. Confining the exemption
to members of faith groups for whom an established and pre-
existing belief system forbids the benefits as well as the
burdens of the governmental program allows those believers
to avoid “a hard choice between contravening imperatives of
religion and conscience or suffering penalties.” Gillette v.
United States, 401 U.S. 437, 445 (1971); see also
Employment Division, Dep’t of Human Resources of Oregon
v. Smith, 494 U.S. 872, 890 (1990) (“[A] society that believes
in the negative protection accorded to religious belief can be
expected to be solicitous of that value in its legislation as
well.”); Lee v. Weisman, 505 U.S. 577, 628 (1992) (Souter, J.,
concurring) (“[G]eneral rules can unnecessarily offend the
religious conscience when they offend the conscience of
secular society not at all.”); Board of Education of Kiryas Joel
Village School District v. Grumet, 512 U.S. 687, 715 (1994)
(O’Connor, J., concurring in part and concurring in the
judgment) (“What makes accommodation permissible, even
praiseworthy, is not that the government is making life easier
for some particular religious group as such. Rather, it is that
the government is accommodating a deeply held belief.”).
Second, the requirement that the faith system have a
proven track record of providing an alternative safety net for
members helps to ensure that the religious adherents will not
later seek to avail themselves of public services to which they
have not contributed. The Affordable Care Act, just like the
Social Security exemption, is carefully calibrated to protect
the government—and thus taxpayers who do not share the
religious sensibilities of those covered by the exemption—
17
from later having to pick up the tab from which the adherent
has been exempted. See Cutter, 544 U.S. at 722 (“Our
decisions indicate that an accommodation must be measured
so that it does not override other significant interests.”).
Cutler argues that the exemption impermissibly
discriminates between religions, exempting only those that
meet the foregoing criteria. That argument fails because the
qualifications for exemption are not drawn on sectarian lines;
they simply sort out which faiths have a proven track record
of adequately meeting the statutory goals. And the exemption
promotes the Establishment Clause’s concerns by ensuring
that those without religious objections do not bear the
financial risk and price of care for those who exempt
themselves from the tax. As configured by this specific
statutory framework, that is an objective, non-sectarian basis
for cabining the exemption’s reach. See Cutter, 544 U.S. at
720 (government “must take adequate account of the burdens
a requested accommodation may impose on
nonbeneficiaries”); see also Children’s Healthcare is a Legal
Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1091 (8th Cir.
2000).
Equal Protection Claim
Cutler alleges that the transitional policy, which allows
States to permit the issuance of non-Affordable Care Act
compliant insurance plans for an interim period, deprives him
of equal protection of the law. As Cutler understands the law,
the transitional policy allows States to choose not only to
delay implementation of the Affordable Care Act’s
requirements and thus allow non-compliant plans, but also to
force insurers to continue to offer non-compliant plans.
Cutler claims that Arkansas has done just that, requiring
insurers to continue issuing policies that flunk the Affordable
18
Care Act’s requirements. Pennsylvania, where Cutler lives,
has merely opted to allow—but not demand—non-compliant
plans to continue. So, according to Cutler’s allegations, if he
lived in Arkansas, his old insurance plan would have
remained available to him, and he would not have to pay a tax
penalty. Because he lives in Pennsylvania where the law
permitted his insurance company to cancel his plan, he cannot
go back to his old insurance plan and, as a result, Cutler must
either pay the penalty or subscribe to a different plan against
his will.
It is highly dubious whether that argument even plausibly
alleges an Article III injury because Arkansas law, on its face,
does not require insurers to offer non-compliant plans. A
quick glance at the Arkansas insurance bulletin upon which
Cutler relies (but declines to quote) reveals that Arkansas, like
Pennsylvania, permits but does not compel the continuation of
non-compliant plans during the transition period. See
Arkansas Insurance Dep’t, Bulletin No. 6-2014 (March 6,
2014) (“[T]he Department suggests that insurers credit or
adjust rates for those groups which have already renewed
under [Affordable Care Act] compliance rates, and permit re-
enrollment of the group in the earlier [i.e., non-compliant]
plan, if the group desired or desires to renew under the earlier
non-grandfathered plan.”) (emphasis added).7 In other words,
Cutler has not even colorably alleged a differential-treatment
injury because there is no differential treatment.
In any event, Cutler lacks Article III standing to pursue
his equal protection challenge because his alleged injury is
not fairly traceable to the transitional policy, nor would it be
7
Available at http://www.insurance.arkansas.gov/Legal/
Bulletins/6-2014.pdf (last visited August 6, 2015).
19
redressed by striking down that policy. The transitional
policy applies evenhandedly across the United States, so if
Cutler cannot obtain the insurance he desires and others can,
that is because his own insurer cancelled his policy. Cutler’s
injury is thus the result of the action of his private insurer, not
the transitional policy, and it is purely speculative whether an
order in this case would alter or affect the non-party insurers’
decision. See Simon v. Eastern Kentucky Welfare Rights
Org., 416 U.S. 26, 41–42 (1976); National Wrestling Coaches
Ass’n v. Department of Education, 366 F.3d 930, 938 (D.C.
Cir. 2004) (no standing because it is “purely speculative that a
requested change in government policy will alter the behavior
of the regulated third parties that are the direct cause of the
plaintiff’s injuries”).
III
Conclusion
Cutler has standing to litigate his Establishment Clause
claim, but it fails on the merits. He lacks standing to press his
equal protection challenge.
So ordered.