Priests for Life v. United States Department of Health & Human Services ( 2015 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Filed: May 20, 2015
    No. 13-5368
    PRIESTS FOR LIFE, ET AL.,
    APPELLANTS
    v.
    UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
    SERVICES, ET AL.,
    APPELLEES
    Consolidated with 13-5371, 14-5021
    Appeals from the United States District Court
    for the District of Columbia
    (No. 1:13-cv-01261)
    (No. 1:13-cv-01441)
    On Petition for Rehearing En Banc
    BEFORE: GARLAND, Chief Judge; HENDERSON, ROGERS,
    TATEL, BROWN**,GRIFFITH, KAVANAUGH**, SRINIVASAN*,
    MILLETT*, PILLARD, AND WILKINS, Circuit Judges.
    2
    ORDER
    Appellants/cross-appellees’ joint petition for rehearing en
    banc and the response thereto were circulated to the full court,
    and a vote was requested. Thereafter, a majority of the judges
    eligible to participate did not vote in favor of the petition.
    Upon consideration of the foregoing, it is
    ORDERED that the petition be denied.
    Per Curiam
    FOR THE COURT:
    Mark J. Langer, Clerk
    BY:       /s/
    Deputy Clerk
    * Circuit Judges Srinivasan and Millett did not participate in
    this matter.
    ** Circuit Judges Brown and Kavanaugh would grant the
    petition.
    A statement by Circuit Judge Pillard, joined by Circuit
    Judges Rogers and Wilkins, concurring in the denial of
    rehearing en banc, is attached.
    A statement by Circuit Judge Brown, joined by Circuit
    Judge Henderson, dissenting from the denial of rehearing en
    banc, is attached.
    A statement by Circuit Judge Kavanaugh, dissenting from
    the denial of rehearing en banc, is attached.
    PILLARD, Circuit Judge, joined by ROGERS and WILKINS,
    Circuit Judges, concurring in the denial of rehearing en banc:
    A majority of the court has voted to deny the petition for
    rehearing en banc in this case. In two thoughtful opinions,
    Judge Kavanaugh, and Judge Brown joined by Judge
    Henderson, dissent from that denial. The panel’s opinion
    speaks at length to the issues they take up. The panel
    members write further only to underscore why our court’s
    approach accords with the Supreme Court’s decision in
    Burwell v. Hobby Lobby Stores, Inc., 
    134 S. Ct. 2751
    (2014).
    The dissenters and we agree that the Religious Freedom
    Restoration Act provides robust protection for religious
    liberty—without regard to whether others might view an
    adherent’s beliefs or practices as irrational, trivial, or wrong.
    Nothing in our opinion should be seen to detract from that
    vital guarantee. Where we part ways is that the dissenters
    perceive in Hobby Lobby a potentially sweeping, new RFRA
    prerogative for religious adherents to make substantial-burden
    claims based on sincere but erroneous assertions about how
    federal law works. They believe we ignored that prerogative
    here. The dissenters read more into the Supreme Court’s
    decision than it supports. Hobby Lobby embraced adherents’
    claim about the religious meaning of the undisputed operation
    of a federal regulation; this case involves a claim that courts
    must credit religious adherents’ incorrect assertions about
    how a different federal regulation operates. Because Hobby
    Lobby did not address that distinct issue, we see no conflict.
    The Court in Hobby Lobby invalidated the requirement
    that closely-held, for-profit businesses with religious
    objections to contraception nonetheless must buy health-
    insurance coverage for their employees that pays for
    contraception, or else face taxes or 
    penalties. 134 S. Ct. at 2759
    . No opt out was available to those businesses. The
    parties in Hobby Lobby did not dispute what the law required,
    nor its practical effects: All agreed that the Affordable Care
    2
    Act regulations mandated that employer-sponsored health
    plans include contraception, and that as a result plaintiffs’
    employees got access to contraception paid for, in part, by
    their employers. See 
    id. at 2762.
    What the parties in Hobby
    Lobby contested were the moral and religious implications of
    the businesses’ conceded role. The plaintiff business owners
    believed that “providing the coverage demanded . . . is
    connected to the destruction of an embryo in a way that is
    sufficient to make it immoral for them to provide the
    coverage.”     
    Id. at 2778.
         The government disagreed,
    contending that employees’ intervening choices whether to
    use contraception broke the chain of moral culpability, and
    hence the law did not substantially burden the businesses’
    religious exercise. 
    Id. at 2777-78.
    In rejecting the government’s position in Hobby Lobby,
    the Supreme Court emphasized that courts may not second-
    guess religious beliefs about the wrongfulness of facilitating
    another person’s immoral act. 
    Id. at 2778.
    RFRA forbids
    courts from “provid[ing] a binding national answer to . . .
    religious and philosophical question[s]” or “tell[ing] the
    plaintiffs that their beliefs are flawed.” Id.; see also 
    id. at 2779
    (“[I]t is not for us to say that [plaintiffs’] religious
    beliefs are mistaken or insubstantial. Instead, our ‘narrow
    function in this context is to determine’ whether the line
    drawn reflects ‘an honest conviction.’” (alteration marks
    omitted) (quoting Thomas v. Review Bd., 
    450 U.S. 707
    , 716
    (1981))). The context makes clear that the Court’s discussion
    of facilitation simply restates the basic tenet of the religious
    freedom cases that judges may not question the correctness of
    a plaintiff’s religious beliefs.
    That reasoning is inapplicable here. The dispute between
    the government and the Plaintiffs in this case, unlike in Hobby
    Lobby, is not about religious implications of acknowledged—
    3
    but perhaps attenuated—support for contraceptive use; the
    parties disagree here about how the law functions, and
    therefore whether there is any causal connection at all
    between employers’ opt-out notice and employees’ access to
    contraception. Plaintiffs challenge the accommodation, not
    available in Hobby Lobby, based on their assertion that what
    causes their employees to receive contraceptive coverage is
    their compliance with the accommodation’s precondition that
    they give notice of their sincere religious objections to such
    coverage. As Plaintiffs characterize it, their act of excusing
    themselves from legal liability for not providing contraceptive
    coverage is what made such coverage available to employees,
    and hence violated their Catholic faith.
    We held that Plaintiffs miscast the accommodation. The
    regulation allows Plaintiffs to continue to do just what they
    did before the ACA: notify their insurers of their sincere
    religious objection to contraception, and arrange for
    contraception to be excluded from the health insurance
    coverage they provide.1 As before, insurers may sell plans
    1
    Judge Kavanaugh is perplexed as to why, if not for an
    impermissible reason, the government requires any form at all.
    Kavanaugh Dissent at 12-13 & n.5. The form is far from
    “meaningless,” 
    id., because it
    acts as “the written equivalent of
    raising a hand in response to the government’s query as to which
    religious organizations want to opt out,” and extricates those
    objectors in a manner consistent with the contraceptive coverage
    requirement. Priests for Life v. U.S. Dep’t of Health & Human
    Servs., 
    772 F.3d 229
    , 250 (D.C. Cir. 2014). Only once an insurer
    becomes aware of the employer’s religious objection can it take the
    steps needed to effectuate the opt out, such as: exclude
    contraceptive coverage from the employer’s group health plan,
    prevent the employer’s payment from funding contraception, notify
    the beneficiaries that the employer plays no role in administering or
    4
    that exclude contraception to their religious-nonprofit
    customers. The difference is that now the ACA and its
    regulations require that contraceptive coverage be provided to
    all insured women. In the case of women who get their
    insurance coverage through an accommodated employer, the
    law requires insurers to offer the women contraception under
    a separate plan—completely segregated from the objecting
    employer’s plan and its payments.
    The judges who urge us to rehear the case say that Hobby
    Lobby leaves no room for us to question Plaintiffs’
    characterization of how the challenged regulations operate,
    including their assertions that the regulations force Plaintiffs
    to facilitate the provision of contraception. As they read it,
    Hobby Lobby forbids a court deciding a claim under RFRA to
    assess whether a plaintiff’s belief about what a law requires
    him to do is correct. See, e.g., Kavanaugh Dissent at 8-11;
    Brown Dissent at 10-12. Both dissents argue that Hobby
    Lobby’s discussion of facilitation requires us simply to accept
    funding contraceptive coverage, and arrange for separate mailings
    and accounting.       
    Id. (citing regulatory
    provisions).      Judge
    Kavanaugh would hold that including the insurer’s identity in the
    form is unnecessarily restrictive of religious exercise because,
    extending our metaphor, he says it requires the objecting employer
    “both to raise its hand and to point to its insurer.” Kavanaugh
    Dissent at 24 n.11. But it is more apt to say that, if the employer
    opts to raise its hand where the insurer cannot see it (i.e. via the
    alternative notice delivered to the government rather than the
    insurer, see 45 C.F.R. § 147.131(c)(1); 29 C.F.R. § 2590.715-
    2713A(b)(1)(ii)), the government must be in a position promptly to
    communicate the religious objection to the insurer, or else the
    employer’s insurance plan will continue to include contraceptive
    coverage. An insurer that is kept in the dark about an employer’s
    religious objections cannot do what it must to honor the opt out.
    5
    whatever beliefs a RFRA plaintiff avows—even erroneous
    beliefs about what a challenged regulation actually requires.
    Neither the holding nor the reasoning of Hobby Lobby
    made that leap. RFRA understandably accorded Hobby
    Lobby Stores a victory in a contest over what religious
    meaning to ascribe to the Stores’ payment for contraceptive
    coverage. That holding does not require us to credit Priests
    for Life’s legally inaccurate assertions about the operation of
    the regulation they challenge. See Univ. of Notre Dame v.
    Burwell, No. 13-3853, slip op. at 11, 15 (7th Cir. May 19,
    2015); see also 
    id. at 34
    (Hamilton, J., concurring). But see
    
    id. at 44-46
    (Flaum, J., dissenting). Our panel opinion
    explains that it is the mandate on insurers that causes
    Plaintiffs’ employees to receive contraceptive coverage, and
    not anything Plaintiffs are required to do in claiming their
    accommodation. The panel thus held that Plaintiffs suffered
    no substantial burden triggering RFRA strict scrutiny.
    The dispute we resolved is legal, not religious. Under the
    ACA regulations, a woman who obtains health insurance
    coverage through her employer is no more entitled to
    contraceptive coverage if her employer submits the disputed
    notice than if it does not. The ACA obligation to provide
    contraceptive coverage to all insured women does not depend
    on that notice. Nothing in RFRA requires that we accept
    Plaintiffs’ assertions to the contrary.
    RFRA protects religious exercise. In no respect do we,
    nor could we, question Plaintiffs’ sincere beliefs about what
    their faith permits and forbids of them. But we can and must
    decide which party is right about how the law works. We
    concluded that the regulation challenged in this case does not,
    as a matter of law or fact, give Plaintiffs’ conduct the
    contraception-facilitating effect of which they complain.
    6
    Indeed, it bears emphasis that the whole point of the
    challenged regulation is to scrupulously shield objecting
    religious nonprofits from any role in making contraception
    available to women. The accommodation is itself evidence of
    the fundamental commitment of this Nation to religious
    freedom that RFRA embodies. The regulation is, of course,
    properly subject to judicial scrutiny to verify that it comports
    with governing law, including Hobby Lobby. Because we
    conclude that it does, we believe that en banc review is not
    warranted in this case.
    BROWN, Circuit Judge, with whom HENDERSON, Circuit
    Judge, joins, dissenting from the denial of rehearing en banc:
    The French say: plus ça change et plus c'est la même chose.
    The more things change; the more they remain the same.
    There was once a time when the church was the state and the
    church as the state embodied all hope of human well-being.
    R.W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE
    MIDDLE AGES 23 (1970). To challenge the church was to
    undermine civilization. Thus, the imposition of orthodoxy
    was deemed necessary, and dissent, which amounted to
    heresy, was met with coercion and violence. See ST. THOMAS
    AQUINAS, SUMMA THEOLOGIÆ pt. II-II, q. 11, art. 3.
    This history prompted John Locke to urge toleration and
    stress the necessity of distinguishing “the business of civil
    government from that of religion” and establishing clear
    boundaries between them. John Locke, A Letter Concerning
    Toleration, reprinted in 5 THE WORKS OF JOHN LOCKE 5, 9
    (12th ed. 1824). The Framers went further, establishing not
    only a limited government, but recognizing the primacy of
    individual conscience and seeking the line between freedom
    and justice. Thus, the Bill of Rights “grew in soil which also
    produced a philosophy that . . . liberty was attainable through
    mere absence of governmental restraints, and that government
    should be entrusted with few controls and only the mildest
    supervision over men’s affairs.” W. Va. State Bd. of Educ. v.
    Barnette, 
    319 U.S. 624
    , 639–40 (1943).              The federal
    government was given no authority over men’s souls. For the
    Founders, the not-so-distant history of persecution
    engendered a fierce commitment to each individual’s natural
    and inalienable right to believe according to his “conviction
    and conscience” and to exercise his religion “as these may
    dictate.” James Madison, Memorial and Remonstrance
    Against Religious Assessments, reprinted in 2 WRITINGS OF
    JAMES MADISON 183, 184 (G. Hunt ed. 1901). “If there is any
    fixed star in our constitutional constellation, it is that no
    official, high or petty, can prescribe what shall be orthodox in
    2
    politics, nationalism, religion, or other matters of opinion or
    force citizens to confess by word or act their faith therein.”
    
    Barnette, 319 U.S. at 642
    .
    Of course, the right to freely exercise one’s religion is
    not—and was not intended to be—absolute. The Founders
    recognized state coercion would at times be necessary, with
    Madison himself stating “full and free exercise . . . according
    to the dictates of conscience” could be limited where “the
    preservation of equal liberty . . . and the existence of the
    [government] may be manifestly endangered.” G. Hunt,
    Madison and Religious Liberty, 1 ANNUAL REPORT OF THE
    AMERICAN HISTORICAL ASSOCIATION, H.R. Doc. No. 702,
    57th Cong., 1st Sess., 163, 166–67 (1901). However, “[t]he
    essence of all that has been said and written on the subject is
    that only those interests of the highest order . . . can
    overbalance legitimate claims to the free exercise of religion.”
    Wisconsin v. Yoder, 
    406 U.S. 205
    , 215 (1972).
    The soil of the eighteenth century has eroded and that
    fixed star grown surprisingly dim. We live in a time where
    progress is sought “through expanded and strengthened
    governmental controls.” 
    Barnette, 319 U.S. at 640
    . In a
    sense the government now fills the role formerly occupied by
    the church, embodying the hope of human well-being. For
    the government to pursue the good and to solve society’s
    problems, it must first identify that which is good and that
    which is problematic through subjective and value-laden
    judgments.      Cf. Laurence H. Tribe, Disentangling
    Symmetries: Speech, Association, Parenthood, 28 PEPP. L.
    REV. 641, 651–53 (2001) (stating that when the government
    takes a side in a “direct clash of competing images of ‘the
    good life,’” it “is making an intrinsically contestable
    statement about the rightness or wrongness” of ideals).
    Consequently, orthodoxy has been rehabilitated, and dissent
    3
    from the government’s determinations may be quelled
    through coercion—onerous fines or banishment from
    commerce and the public square.
    Despite the parallels, we do not find ourselves full circle
    quite yet. Religious adherents may still seek refuge from
    unnecessary governmental coercion through the Religious
    Freedom Restoration Act (“RFRA”). When the federal
    government substantially burdens free exercise, it may do so
    only in pursuit of a compelling interest and even then must
    use the least restrictive means. 42 U.S.C. § 2000bb-1.
    Further, the conscience of the individual remains protected in
    that he must “answer to no man for the verity of his religious
    views.” United States v. Ballard, 
    322 U.S. 78
    , 87 (1944).
    But, in our respectful view, the panel in this case failed to
    apply these protections. The panel conceded Plaintiffs
    sincerely “believe that the regulatory framework makes them
    complicit in the provision of contraception,” Slip Op. at 27
    (quoting Mich. Catholic Conf. v. Burwell, 
    755 F.3d 372
    , 385
    (6th Cir. 2014), vacated and remanded, No. 14-701, 
    2015 WL 1879768
    , at *1 (U.S. Apr. 27, 2015)). That acknowledgement
    should end our inquiry into the substance of their beliefs.
    Viewed objectively, Plaintiffs’ belief that the acts the
    regulations compel them to perform would facilitate access to
    contraception in a manner that violates the teachings of their
    Church may “seem incredible, if not preposterous,” to some
    people. 
    Ballard, 322 U.S. at 87
    . However, this Court is
    neither qualified nor authorized to so scrutinize any religious
    belief. The panel trespassed into an area of inquiry Supreme
    Court precedent forecloses. It then proceeded to accept
    evidence that is insufficient under the rulings of the Supreme
    Court to find the purported compelling interest. For these
    reasons we believe this exceptionally important case is worthy
    of en banc review.
    4
    I
    We begin by addressing the panel’s opening observations
    and by making some of our own with the hopes of
    distinguishing between fact and fancy. First, this case is not
    about denying any woman access to contraception. A
    woman’s right to obtain and use contraception was recognized
    long ago, and nothing about this case calls for the issue to be
    revisited. See Griswold v. Connecticut, 
    381 U.S. 479
    (1965).
    Second, this case is about the religious freedom of these
    religiously-affiliated organizations and not about the free
    exercise concerns of the plaintiffs in Burwell v. Hobby Lobby
    Stores, Inc., 
    134 S. Ct. 2751
    (2014). In that case, the
    Supreme Court found the Department of Health and Human
    Services’ (“HHS”) approach to religious nonprofits
    demonstrated there were less restrictive means available to
    deal with conscientious objectors among for-profit
    corporations. 
    Id. at 2781–82.
    The Court expressly reserved
    judgment on whether HHS’s approach “complies with RFRA
    for purposes of all religious claims.” 
    Id. at 2782.
    While the
    government’s approach to religious non-profits may—or may
    not—fully put to rest the Hobby Lobby plaintiffs’ religious
    objections, that is irrelevant to our consideration of the
    religious objections put forth by Plaintiffs in this case. The
    present Plaintiffs are entitled to their own personal beliefs.
    Third, this case is not “paradoxical” because Plaintiffs
    object to regulatory requirements the government intended as
    a religious accommodation. Slip Op. at 24 (quoting Univ. of
    Notre Dame v. Sebelius, 
    743 F.3d 547
    , 557 (7th Cir. 2014),
    vacated and remanded, 
    135 S. Ct. 1528
    (2015)). That the
    government’s expressed intent in enacting the regulations at
    issue was to allay religious adherents’ concerns about the
    contraception mandate is not determinative of the ultimate
    5
    question of whether Plaintiffs were in fact accommodated.
    Where the government imposes a substantial burden on
    religious exercise and labels it an “accommodation,” that
    burden is surely as distressing to adherents as it would be if
    imposed without such a designation. Therefore, heightened
    skepticism is not appropriate. We should look at Plaintiffs’
    claims as we would any RFRA claim. After all, in the
    substantial burden analysis, the government’s motivations—
    no matter how benevolent—are irrelevant; we ask only
    whether the government’s action operates to place
    “substantial pressure on an adherent to modify his behavior
    and to violate his beliefs.” Thomas v. Review Bd., 
    450 U.S. 707
    , 718 (1981).
    Fourth, this case is not one in which Plaintiffs’ “only
    harm . . . is that they sincerely feel aggrieved by their inability
    to prevent what other people would do to fulfill regulatory
    objectives after they opt out.” Slip Op. at 24. The regulations
    compel Plaintiffs to take actions they believe would amount
    to “impermissibly facilitating access to abortion-inducing
    products, contraceptives, and sterilization” in violation of
    their religious tenets. Pet. for Reh’g En Banc at 1. Make no
    mistake: the harm Plaintiffs complain of—and the harm this
    Court therefore is called to assess—is from their inability to
    conform their own actions and inactions to their religious
    beliefs without facing massive penalties from the government.
    II
    The panel’s substantial burden analysis is inconsistent
    with the precedent of the Supreme Court and this Court,
    which identifies both permissible and impermissible lines of
    inquiry in the substantial burden analysis of a RFRA claim.
    6
    A
    As we have recognized, whether a burden is “substantial”
    for purposes of RFRA is a question of law for the court to
    answer, not a “question[] of fact, proven by the credibility of
    the claimant.” Mahoney v. Doe, 
    642 F.3d 1112
    , 1121 (D.C.
    Cir. 2011). Relying on longstanding precedent, the Supreme
    Court recently described permissible lines of inquiry for a
    court to pursue in determining whether an adherent’s religious
    exercise has been substantially burdened, both in Hobby
    Lobby and in Holt v. Hobbs, 
    135 S. Ct. 853
    (2015), a case
    involving the Religious Land Use and Institutionalized
    Persons Act of 2000, 42 U.S.C. §2000cc et seq, (RLUIPA).1
    The plaintiff bears ‘the initial burden of proving [the law or
    regulation at issue] implicates his religious exercise.” 
    Holt, 135 S. Ct. at 862
    . While RFRA forecloses asking whether the
    exercise is “compelled by, or central to, a system of religious
    belief,” 42 U.S.C. § 2000cc-5(7)(A), the court does ask
    whether the plaintiff’s beliefs are sincere. The answer is no if
    his claims are not “sincerely based on a religious belief” but
    instead on “some other motivation.” 
    Holt, 135 S. Ct. at 862
    ;
    see also Hobby 
    Lobby, 134 S. Ct. at 2774
    n.28 (“To qualify
    for RFRA’s protection, an asserted belief must be ‘sincere.’”).
    Next, the plaintiff bears the “burden of proving that the
    [law or regulation] substantially burden[s] that exercise of
    religion.” 
    Holt, 135 S. Ct. at 862
    . The court asks whether he
    has been “put[] to th[e] choice” of either “‘engag[ing] in
    conduct that seriously violates [his] religious beliefs” or
    1
    RLUIPA “targets two areas of state and local action: land use
    regulation, 42 U.S.C. § 2000cc (RLUIPA § 2), and restrictions on
    the religious exercise of institutionalized persons, § 2000cc–1
    (RLUIPA § 3).” Sossamon v. Texas, 
    131 S. Ct. 1651
    , 1656 (2011).
    It “borrows important elements from RFRA . . . but is less
    sweeping in scope.” 
    Id. 7 facing
    “serious” consequences. 
    Id. (quoting Hobby
    Lobby,
    134 S. Ct. at 2775
    ); see also 
    Thomas, 450 U.S. at 718
    (stating
    a substantial burden exists when the government places
    “substantial pressure on an adherent to modify his behavior
    and to violate his beliefs”). The answer is no if the plaintiff
    can identify “no [compelled] action or forbearance on his
    part.” 
    Kaemmerling, 553 F.3d at 679
    (plaintiff objecting to
    the government’s extraction of DNA information from fluid
    or tissue samples but not to providing DNA samples); see also
    Bowen v. Roy, 
    476 U.S. 693
    , 699–700 (1986) (plaintiff
    objecting to the government’s independent utilization of his
    daughter’s social security number, which he himself was not
    required to provide or use). The answer is also no where the
    pressure being placed upon a person to act contrary to his
    beliefs or the consequences he faces for not doing so are not
    substantial. See 
    Thomas, 450 U.S. at 717
    (assessing the
    “coercive impact” of being “put to a choice between fidelity
    to religious belief or cessation of work”). Finally, this Court
    has “inquir[ed] into the importance of a religious practice” to
    the individual. Henderson v. Kennedy, 
    265 F.3d 1072
    , 1074
    (D.C. Cir. 2001) (denying rehearing en banc). In doing so, we
    have found no substantial burden exists where a regulation is
    “at most a restriction on one of a multitude of means” for an
    individual to engage in his desired religious exercise.
    Henderson v. Kennedy, 
    253 F.3d 12
    , 17 (D.C. Cir. 2001) (the
    plaintiffs could spread the gospel any number of ways, just
    not the prohibited means of selling t-shirts on the National
    Mall); see also 
    Mahoney, 642 F.3d at 1120
    –21 (the plaintiff
    had ample alternative means of spreading his religious
    message besides chalking the sidewalk in front of the White
    House).2
    2
    While the propriety of this sort of inquiry in pure free exercise
    cases is arguably called into question by recent Supreme Court
    8
    Here, Plaintiffs’ faith compels them to provide their
    employees and students with health insurance plans. Oral
    Arg. Tr. at 19:5–15. Their religious beliefs forbid them not
    only from providing or paying for contraception, but also
    from facilitating its provision. Pls. Br. at 15. Plaintiffs
    therefore believe they exercise their religion by providing
    health insurance plans that do not facilitate access to
    contraception. 
    Id. at 11-12,
    15, 24–25. In determining
    whether an act constitutes impermissible facilitation Plaintiffs
    are informed by “the Catholic doctrines of material
    cooperation and scandal.” 
    Id. at 36.
    The sincerity of
    Plaintiffs’ beliefs has not been questioned. Slip Op. at 26.
    Plaintiffs identify at least two acts that the regulations
    compel them to perform that they believe would violate their
    religious obligations: (1) “hiring or maintaining a contractual
    relationship with any company required, authorized, or
    incentivized to provide contraceptive coverage to
    beneficiaries enrolled in Plaintiffs’ health plans,” Pet. for
    Reh’g En Banc at 3; and (2) “filing the self-certification or
    notification,” 
    id. at 4.
    Plaintiffs have therefore shown both
    that they are being compelled to modify their behavior and
    that, if undertaken, the modification would be a violation of
    their religious beliefs. They are unlike the plaintiffs in
    Kaemmerling and Bowen, as they have shown they are
    themselves being compelled to modify their behavior.
    If Plaintiffs do not act in violation of their beliefs,
    however, they face two alternatives. First, they may offer
    coverage that does not include contraceptives and face
    onerous fines. 26 U.S.C. § 4980D(b)(1). Alternatively, they
    precedent, see 
    Holt, 135 S. Ct. at 862
    , it is not relevant to this case.
    That the practice Plaintiffs defend here is of sufficient importance
    to them to form the basis of a substantial burden under RFRA has
    not been questioned.
    9
    may stop providing health insurance altogether, which would
    also be a violation of their religious beliefs. Oral Arg. Tr. at
    19:5–15.     Imposing such harsh consequences certainly
    substantially pressures Plaintiffs to alter their behavior in a
    way inconsistent with their religious beliefs. See Hobby
    
    Lobby, 134 S. Ct. at 2759
    (stating if “heavy” financial
    penalties “do not amount to a substantial burden, it is hard to
    see what would”). Plaintiffs have therefore demonstrated
    their free exercise is substantially burdened: they are being
    “put[] to [the] choice” of either “‘engag[ing] in conduct that
    seriously violates [their sincere] religious beliefs’” or facing
    “serious” consequences. 
    Holt, 135 S. Ct. at 862
    (quoting
    Hobby 
    Lobby, 134 S. Ct. at 2775
    ).
    B
    The panel’s opinion parts ways with precedent by wading
    into impermissible lines of inquiry. The panel did not dispute
    that federal law operates to compel Plaintiffs to maintain a
    relationship with an issuer or TPA that will provide the
    contraceptive coverage and to execute the self-certification or
    alternative notice. Their disagreement with Plaintiffs is about
    the significance of those compelled acts; in other words, the
    panel rejected the “adherents’ claim about the religious
    meaning of the undisputed operation of [] federal
    regulation[s].” Concurring Op. at 1; see also Eternal Word
    Television Network, Inc. v. Sec’y, Dep’t of Health & Human
    Servs., 
    756 F.3d 1339
    , 1340 (11th Cir. 2014) (Pryor, J.
    specially concurring) (disposing of the argument that the
    plaintiff’s complaint should “fail[] because [the plaintiff]
    holds an erroneous legal opinion about how the contraception
    mandate works” because the plaintiff “offer[ed] no evidence
    that its complaint turns on the advice of counsel” but instead
    offered “undisputed declarations . . . about the ancient
    teachings of the Catholic Church”). With a thorough analysis
    10
    of the regulations, the panel determined they “do not compel”
    Plaintiffs to “provide, pay for, and/or facilitate access to
    contraception, sterilization, abortion, or related counseling in
    a manner that violates the teachings of the Catholic Church.”
    Slip Op. at 26 (quoting Pls.’ Br. at 15). The panel explained
    the regulations allow Plaintiffs to “wash[] their hands of any
    involvement in providing insurance coverage for
    contraceptive services.” 
    Id. Therefore, the
    panel concluded,
    Plaintiffs have been subjected to only to a de minimis burden
    of completing a form, and their RFRA claim fails. 
    Id. at 31.
    In declaring that—contrary to Catholic Plaintiffs’
    contentions—it would be consistent with the teaching of the
    Catholic Church for Plaintiffs to comply with the regulations
    the panel exceeded both the “judicial function and [the]
    judicial competence.” 
    Thomas, 450 U.S. at 716
    . What
    amounts to “facilitating immoral conduct,” Pet. for Reh’g En
    Banc at 1, “scandal,” 
    id. at 7,
    and “material” or
    “impermissible cooperation with evil,” id.; Slip Op. at 14, are
    inherently theological questions which objective legal
    analysis cannot resolve and which “federal courts have no
    business addressing.” Hobby 
    Lobby, 134 S. Ct. at 2778
    ; see
    also 
    id. (stating “the
    circumstances under which it is wrong
    for a person to perform an act that is innocent in itself but has
    the effect of enabling or facilitating the commission of an
    immoral act by another” is “a difficult and important question
    of religion and moral philosophy”). The causal connection
    sufficient to create impermissible “facilitation” in the eyes of
    a religious group may be very different from what constitutes
    proximate cause in the common law tradition. See Univ. of
    Notre 
    Dame, 743 F.3d at 566
    (Flaum, J., dissenting) (“[W]e
    are judges, not moral philosophers or theologians; this is not a
    question of legal causation but of religious faith.”). Likewise,
    where civil authorities may conclude an individual has
    “wash[ed his] hands of any involvement,” Slip Op. at 26,
    11
    adherents of a faith may examine the same situation and, in
    their religious judgment, reach the opposite conclusion.
    Pontius Pilate, too, washed his hands, but perhaps he
    perceived the stain of complicity remained. See Matthew
    27:24.
    Under the panel’s analysis, it seems no claim of
    substantial burden may prevail where the religious
    significance of conduct under scripture as interpreted by a
    faith tradition differs from the legal significance of that
    conduct under the laws of the United States as interpreted by
    federal judges.     But RFRA would be an exceedingly
    shallow—perhaps nonexistent—protection of religious
    exercise if adherents were only permitted to give the same
    meaning to their actions or inactions as does the secular law.
    Plaintiffs, including an Archbishop and two Catholic
    institutions of higher learning, say compliance with the
    regulations would facilitate access to contraception in
    violation of the teachings of the Catholic Church. What law
    or precedent grants this Court authority to conduct an
    independent inquiry into the correctness of this belief?
    Instead, where one sincerely believes performing certain acts
    would cause him to cross the line between permissible
    behavior and sin, the Supreme Court has instructed, “it is not
    for us to say that the line he drew was an unreasonable one.”
    Hobby 
    Lobby, 134 S. Ct. at 2778
    (quoting 
    Thomas, 450 U.S. at 715
    ).       Plaintiffs’ sincere determination about the
    obligations their religion imposes is between them and their
    God and need not be “acceptable, logical, consistent, or
    comprehensible to others in order to merit . . . protection.”
    
    Thomas, 450 U.S. at 714
    . This is so even when, in the
    government’s opinion, Plaintiffs’ determination is based on a
    misunderstanding of the nature of their legal obligations, their
    religious obligations, or both—as the two could certainly
    12
    overlap.3 RFRA’s concern is with the sincerity of religious
    beliefs and not their accuracy. For example in United States
    v. Lee, Mr. Lee claimed he could not pay social security taxes
    without violating an obligation under his Amish faith to care
    for fellow church members. 
    455 U.S. 252
    , 257 (1982). The
    Supreme Court refused to consider the government’s
    argument that paying social security taxes did not actually
    interfere with exercise of this belief, as the Amish would
    3
    Confusion remains as to the legal obligations the regulations
    impose on third party administrators (“TPAs”). In Wheaton
    College v. Burwell, Justice Sotomayor explained a TPA does not
    have an independent obligation but instead “bears the legal
    obligation to provide contraceptive coverage only upon receipt of a
    valid self-certification.” 
    134 S. Ct. 2806
    , 2814 n.6 (2014)
    (Sotomayor, J., dissenting) (citing 26 C.F.R. § 54.9815–
    2713A(b)(2) (2013); 29 C.F.R. § 2510.3–16(b) (2013)). Even
    evaluating the new regulations as supplemented in light of the
    Supreme Court’s ruling in Wheaton College, the panel did not
    identify any scenario under which a TPA is obligated to provide
    contraceptive coverage until the TPA is designated a “plan
    administrator” for purposes of ERISA. Slip Op. 41–43. As the
    regulations currently stand, this designation occurs only after a
    religious nonprofit has either completed the self-certification form
    or the alternative notice and after the TPA agrees to enter into or
    remain in a contractual relationship with the nonprofit organization.
    See 26 C.F.R. § 54.9815-2713AT(b)(2) (2014) (“If a third party
    administrator receives a copy of the self-certification from an
    eligible organization or a notification from the Department of Labor
    [sent after the religious nonprofit provides notice of its objection to
    the Department] . . . and agrees to enter into or remain in a
    contractual relationship with the eligible organization . . . the third
    party administrator shall provide or arrange for payments of
    contraceptive services . . . .”) (emphasis added). If the panel relied
    on a mistaken assumption about the regulations imposing an
    independent obligation on TPAs to provide contraceptive coverage,
    rehearing en banc is all the more warranted.
    13
    remain free to care for their own community if they paid
    social security taxes but did not collect benefits. 
    Id. Instead the
    Court simply accepted Mr. Lee’s “contention that both
    payment and receipt of social security benefits is forbidden by
    the Amish faith,” explaining “[c]ourts are not arbiters of
    scriptural interpretation.” Id. (quoting 
    Thomas, 450 U.S. at 716
    ).
    The panel’s analysis further parts ways with precedent by
    recasting Plaintiffs’ objection to the facilitation of access as
    an objection to the conduct of third parties. Slip Op. at 34.
    The panel relied on Bowen and Kaemmerling to find Plaintiffs
    may not object “to the role of [their] action in the broader
    regulatory scheme.” Slip Op. at 35. There are two problems
    with this analysis. First, in this case the government is
    requiring Plaintiffs to perform objectionable acts. In contrast,
    the Bowen and Kaemmerling plaintiffs’ objections were to the
    government’s actions. See 
    Bowen, 476 U.S. at 699
    –700;
    
    Kaemmerling, 553 F.3d at 678
    . The claims in Bowen and
    Kaemmerling are different in kind from a claim that the
    government is compelling the individual himself to undertake
    actions he believes are sinful.
    Second, the actions to which Plaintiffs object—which
    may seem innocent if examined devoid of context—must be
    understood in light of the broader regulatory scheme. When
    the Supreme Court has considered claims involving beliefs
    about facilitation of immoral conduct, it has not employed the
    panel’s approach of requiring the adherent to view their own
    actions in isolation. Instead the Court found a substantial
    burden where the plaintiffs were compelled to take actions
    they believed to be impermissible based on the actions’ place
    in a chain of events. See, e.g., Hobby 
    Lobby, 134 S. Ct. at 2759
    (the plaintiffs objected to providing access to
    abortifacients because others’ use of the drugs may result in
    14
    the destruction of a human embryo); 
    Thomas, 450 U.S. at 710
    (plaintiff objected to fabricating turrets because those turrets
    would then be affixed by others to military tanks and used by
    others in warfare). This makes good sense, as the concept of
    facilitation inherently involves a view of one’s conduct in
    relation to that of others’. Logic and precedent therefore
    compel us to permit persons to object to performing an act
    that would be itself innocent but for its illicit consequences.
    Plaintiffs object to maintaining a relationship with an issuer or
    third-party administrator (“TPA”) that will use Plaintiffs’
    health insurance plans as vehicles to provide contraceptive
    coverage. They object to completing, as the panel describes
    it, an “opt-out mechanism that shifts to third parties the
    obligation to provide contraceptive coverage.” Slip Op. at 36.
    Such claims do not fall outside the purview of RFRA.
    III
    As Plaintiffs have demonstrated a substantial burden on
    their free exercise, the government may only prevail by
    demonstrating the regulations further a compelling interest
    and employ the least restrictive means of doing so. 42 U.S.C.
    § 2000bb–1. A compelling interest is an interest “of the
    highest order.” 
    Yoder, 406 U.S. at 215
    . To satisfy strict
    scrutiny, the government must “specifically identify an actual
    problem in need of solving” and the burden on free exercise
    “must be actually necessary to the solution.” Brown v. Entm’t
    Merchs. Ass’n, 
    131 S. Ct. 2729
    , 2738 (2011) (internal
    citations and quotations omitted). The panel found the
    government demonstrated a compelling interest in “seamless
    provision of contraceptive services.” Slip Op. at 49. The
    panel then rejected any less restrictive means of providing
    contraceptive coverage without cost sharing that would
    require women to complete additional steps to obtain the
    coverage, explaining such means “make the coverage no
    15
    longer seamless from the beneficiaries’ perspective.” 
    Id. at 24.
    Even assuming for the sake of argument that the
    government possesses a compelling interest in the provision
    of contraceptive coverage without cost sharing, it has not
    succeeded in demonstrating a compelling interest in the
    “seamless” provision of coverage. The government has
    pointed to no evidence in the record demonstrating its
    purported interest in providing contraceptive coverage
    without cost-sharing is harmed when women must undergo
    additional administrative steps to receive the coverage. The
    government cites only to one page in the Federal Register to
    support the proposition that coverage must be provided
    seamlessly.4 Gov’t Supp. Br. at 20 (citing 78 Fed. Reg.
    39,870, 39,888 (Jul. 2, 2013)). This page provides no
    evidence that a procedure under which individuals must take
    additional steps to receive contraceptive coverage poses a
    “problem in need of solving,” but instead offers only
    conclusory and unsubstantiated statements that surely cannot
    be sufficient for the government to meet its burden in strict
    scrutiny analysis. That “additional steps” would be so
    burdensome as to hinder women’s access to contraception is
    pure speculation. For example, if all that was required was
    that the employee or student fills out a “simple, one-step
    form,” that would be a “de minimis requirement” to which we
    assume the panel would have no objection. Slip Op. at 26,
    31; see also Roman Catholic Archdiocese of New York v.
    4
    The government also references pages of a 2011 Institute of
    Medicine Report entitled, “Clinical Preventative Services for
    Women: Closing the Gaps.” Gov’t Supp. Br. at 20 (citing pages
    103–07).     These pages of the report discuss benefits of
    contraceptive services and do not reference, much less weigh, the
    comparative advantage or disadvantage of procedures for accessing
    those services.
    16
    Sebelius, 
    987 F. Supp. 2d 232
    , 256 (E.D.N.Y. 2013) (“If these
    steps only entail filling out a form, it seems that the burden of
    filling out that form should fall on those who have no
    religious objection to doing so.”).
    Further, the government cannot meet its burden of
    demonstrating a compelling interest where it leaves
    “appreciable damage to [the] supposedly vital interest
    unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City
    of Hialeah, 
    508 U.S. 520
    , 547 (1993) (quoting Fla. Star v.
    B.J.F., 
    491 U.S. 524
    , 542 (1989) (Scalia, J., concurring)); see
    also Republican Party of Minn. v. White, 
    536 U.S. 765
    , 780
    (2002) (stating a law’s purpose is undermined when it is “so
    woefully underinclusive as to render belief in [its] purpose a
    challenge to the credulous”). As the panel notes, the
    Affordable Care Act permits employers to “ceas[e] to offer
    health insurance as an employment benefit, and instead pay[]
    the shared responsibility assessment and leav[e] the
    employees to obtain subsidized health care coverage on an
    insurance exchange.” Slip Op. at 23. While Plaintiffs state
    they cannot exercise this option without violating their
    religious obligations, Oral Arg. Tr. at 19:5–15, the panel
    nevertheless reminds them it would be acceptable under the
    law. Slip Op. at 23. The untold many whose employers
    provide no health insurance and instead pay the assessment
    must face “logistical, informational, and administrative
    burdens,” 
    id. at 63,
    in arranging for subsidized coverage on a
    health insurance exchange. They must “take steps to learn
    about, and to sign up for,” 78 Fed. Reg. at 39,888, health
    insurance on their own. The government simply cannot argue
    with a straight face that women who gain access to
    contraceptive coverage by identifying and signing up for a
    subsidized health insurance plan on a government exchange
    receive that coverage “seamlessly.” Cf. Hobby Lobby, 134 S.
    Ct. at 2783. Therefore, in leaving “appreciable damage” to its
    17
    “supposedly vital interest” in seamless provision of
    contraceptive coverage, the government’s regulations cannot
    survive strict scrutiny. Church of the Lukumi Babalu 
    Aye, 508 U.S. at 547
    (quoting Fla. 
    Star, 491 U.S. at 542
    (Scalia, J.,
    concurring)).
    The question of least restrictive means then becomes the
    other side of the same coin. The government could treat
    employees whose employers do not provide complete
    coverage for religious reasons the same as it does employees
    whose employers provide no coverage. This would entail
    providing for subsidized—or in this case free—contraceptive
    coverage to be made available on health care exchanges. An
    employee of a religious objector then would face the same
    administrative burdens as those who find complete
    coverage—including contraceptive services coverage—on the
    exchanges. However, just like others who use the exchanges,
    after overcoming these administrative hurdles, employees of
    religious objectors would have contraceptive coverage
    without cost sharing. Such a mechanism would therefore be
    effective and would minimize the burden on religious
    adherents, demonstrating its viability as a less restrictive
    means than the current regulations.
    IV
    The Supreme Court has interpreted the First Amendment
    to deprive individuals of constitutional protection against
    neutral laws—meaning almost any law where the government
    does not announce its intention “to infringe upon or restrict
    practices because of their religious motivation.” Church of
    the Lukumi Babalu 
    Aye, 508 U.S. at 533
    . Genuine neutrality,
    however, would “allow[] many different and contending
    voices to be represented in public discourse.” Michael W.
    McConnell, Why is Religious Liberty the “First Freedom”?,
    18
    21 CARDOZO L. REV. 1243, 1262 (2000). When the state
    quells disparate voices, declaring a winner on one side of the
    culture wars, neutrality becomes a proxy for majoritarianism
    and secularism. 
    Id. Priests for
    Life is an organization that exists solely for the
    purpose of countering the benign narrative that contraception
    and abortion are beneficial to women. The other Plaintiffs
    exist, at least in part, to engender a counter-cultural narrative
    that “life begins at the moment of conception . . . and that
    certain ‘preventative’ services that interfere with conception
    or terminate a pregnancy are immoral.” Pls. Br. at 15. Those
    who accept employment with these organizations and students
    who enroll at these schools do so with full awareness of their
    mediating stance. Nevertheless, though the government
    acknowledges that a primary goal of such organizations is to
    oppose the government’s mission of increasing access to and
    use of contraception, it places them outside its grudging
    religious exemption and offers only one real choice—they can
    renounce their religious scruples overtly or in practical effect.
    If the government coopts their contractors and administrative
    structures to dispense advice, drugs, and services that
    contravene their religious views, in effect, it has written
    contraceptive care, including access to abortifacients, into
    Plaintiffs’ employment contracts and student health care
    agreements. Commandeering is not accommodation, and, in
    this context, “seamlessness” is just shorthand for surrender.
    The French have another saying, mocking the Bourbon
    restoration: ils n'ont rien appris, ni rien oublié. Learning
    nothing and forgetting nothing. The modern maxim does the
    Bourbon monarchs one better: learning nothing and forgetting
    everything.      Alas, preserving the fragile ark of our
    constitutionalism requires us to remember that the first
    19
    principle of liberty is freedom from gratuitous coercion. We
    respectfully dissent.
    KAVANAUGH, Circuit Judge, dissenting from the denial
    of rehearing en banc: In my respectful view, the panel
    opinion misapplies the Religious Freedom Restoration Act
    and contradicts the Supreme Court’s recent decisions in
    Burwell v. Hobby Lobby Stores, Inc., 
    134 S. Ct. 2751
    (2014),
    Wheaton College v. Burwell, 
    134 S. Ct. 2806
    (2014), and
    Little Sisters of the Poor Home for the Aged v. Sebelius, 
    134 S. Ct. 1022
    (2014). I would grant rehearing en banc and rule
    for the plaintiff religious organizations.
    At the outset, it is important to recognize that two of the
    key Supreme Court precedents here – Hobby Lobby and
    Wheaton College – were divided decisions with vigorous
    dissents. Some believe that those two decisions tilted too far
    in the direction of religious freedom. Others, by contrast,
    think that those decisions did not go far enough in the
    direction of religious freedom. We are a lower court in a
    hierarchical judicial system headed by “one supreme Court.”
    U.S. Const. art. III, § 1. It is not our job to re-litigate or trim
    or expand Supreme Court decisions. Our job is to follow
    them as closely and carefully and dispassionately as we can.
    Doing so here, in my respectful view, leads to the conclusion
    that the plaintiff religious organizations should ultimately
    prevail on their RFRA claim, but not to the full extent that
    they seek.
    Some background: The Affordable Care Act requires
    most employers, including non-profit organizations, to
    provide health insurance coverage for their employees or else
    pay a significant monetary penalty to the Government. By
    regulation, that insurance must cover all FDA-approved
    contraceptives, including certain methods of birth control that,
    some believe, operate as abortifacients and result in the
    destruction of embryos.
    As a religious accommodation, the regulations exempt
    religious non-profit organizations from the contraceptive
    2
    mandate. To be exempt from the monetary penalty, however,
    the religious organizations must either submit a form with
    certain required information to their insurer or submit a letter
    with certain required information to the Secretary of Health
    and Human Services. 1 (For ease of reference, I will use the
    term “form” to cover both documents.) The insurer must
    continue to provide contraceptive coverage to the religious
    organizations’ employees, albeit with separate funds provided
    either by the insurer itself or by the United States.
    Many prominent religious organizations around the
    country – including the plaintiffs in this case – have bitterly
    1
    The form submitted to a religious organization’s insurer must
    certify that the organization (1) opposes providing coverage for
    some or all of the contraceptive services required by the
    contraceptive mandate on account of religious objections; (2) is
    organized and operates as a non-profit entity; and (3) holds itself
    out as a religious organization. See 29 C.F.R. § 2590.715-
    2713A(a), (b)(1)(ii), (c)(1); 45 C.F.R. § 147.131(b), (c)(1). In
    certain circumstances, the form must also “include notice” of the
    insurer’s obligations to provide contraceptive coverage to the
    religious organization’s employees.          29 C.F.R. § 2590.715-
    2713A(b)(1)(ii)(A).
    The letter to the Secretary of Health and Human Services must
    include the following information: (1) the name of the religious
    non-profit organization; (2) the basis on which it qualifies for an
    accommodation; (3) its objection based on sincerely held religious
    beliefs to providing coverage for some or all contraceptive services,
    including notice of the subset of contraceptive services to which it
    objects; (4) its insurance plan’s name and type; and (5) the name
    and contact information for any of the insurance plan’s third party
    administrators and health insurance issuers. See 29 C.F.R.
    § 2590.715-2713A(b)(1)(ii)(B),         (c)(1)(ii);   45       C.F.R.
    § 147.131(c)(1)(ii); Coverage of Certain Preventative Services
    Under the Affordable Care Act, 79 Fed. Reg. 51,092, 51,094-95
    (Aug. 27, 2014).
    3
    objected to this scheme. They complain that submitting the
    required form contravenes their religious beliefs because
    doing so, in their view, makes them complicit in providing
    coverage for contraceptives, including some that they believe
    operate as abortifacients. They say that the significant
    monetary penalty for failure to submit the form constitutes a
    substantial burden on their exercise of religion. They
    contend, moreover, that the Government has less restrictive
    ways of ensuring that the employees of the religious
    organizations have access to contraception without making
    the organizations complicit in the scheme in this way.
    The plaintiffs in this case have sued under the Religious
    Freedom Restoration Act, known as RFRA. RFRA grants
    individuals and organizations an exemption from generally
    applicable federal laws that “substantially burden” their
    “exercise of religion,” unless the Government demonstrates
    that the law furthers a “compelling governmental interest” and
    is the “least restrictive means” of furthering that interest. 42
    U.S.C. § 2000bb-1. 2 As the Supreme Court has explained,
    “RFRA was designed to provide very broad protection for
    religious liberty.” Hobby 
    Lobby, 134 S. Ct. at 2767
    , slip op.
    at 17. RFRA statutorily incorporated the compelling interest
    test that the Supreme Court had applied in cases such as
    Sherbert v. Verner, 
    374 U.S. 398
    (1963), and Wisconsin v.
    Yoder, 
    406 U.S. 205
    (1972). 42 U.S.C. § 2000bb(b)(1).
    Under RFRA and the relevant Supreme Court case law,
    we must consider three questions here. First, do the
    2
    The relevant section of RFRA provides in full: “Government
    may substantially burden a person’s exercise of religion only if it
    demonstrates that application of the burden to the person – (1) is in
    furtherance of a compelling governmental interest; and (2) is the
    least restrictive means of furthering that compelling governmental
    interest.” 42 U.S.C. § 2000bb-1(b).
    4
    regulations – which compel religious organizations to submit
    the required form or else pay significant monetary penalties –
    “substantially burden” the religious organizations’ “exercise
    of religion”? Second, if so, does the Government have a
    “compelling” interest in facilitating access to contraception
    for the employees of these religious organizations? Third, if
    the Government does have such a compelling interest, do the
    regulations represent the “least restrictive” means of
    furthering that interest?
    I conclude as follows:
    First, under Hobby Lobby, the regulations substantially
    burden the religious organizations’ exercise of religion
    because the regulations require the organizations to take an
    action contrary to their sincere religious beliefs (submitting
    the form) or else pay significant monetary penalties.
    Second, that said, Hobby Lobby strongly suggests that the
    Government has a compelling interest in facilitating access to
    contraception for the employees of these religious
    organizations.
    Third, this case therefore comes down to the least
    restrictive means question. Under Hobby Lobby, Wheaton
    College, and Little Sisters of the Poor, requiring the religious
    organizations to submit this form is not the Government’s
    least restrictive means of furthering its interest in facilitating
    access to contraception for the organizations’ employees.
    Rather, the Government can achieve its interest even if it
    accepts the less restrictive notice that the Supreme Court has
    already relied on in the Wheaton College and Little Sisters of
    the Poor cases. Unlike the form required by current federal
    regulations, the Wheaton College/Little Sisters of the Poor
    notice does not require a religious organization to identify or
    5
    notify its insurer, and thus lessens the religious organization’s
    complicity in what it considers to be wrongful. And even
    with just the Wheaton College/Little Sisters of the Poor
    notice, the Government can independently determine the
    identity of the organization’s insurer and thereby ensure that
    the same insurer continues to provide the same contraceptive
    coverage to the organization’s employees. Hence, the
    Wheaton College/Little Sisters of the Poor notice is a less
    restrictive way for the Government to achieve its compelling
    interest.
    I
    First, under Hobby Lobby, this regulatory scheme
    imposes a substantial burden on plaintiffs’ exercise of
    religion.
    Under RFRA, a substantial burden on the exercise of
    religion occurs when, for example, the Government imposes
    sanctions or punishment on someone, or denies a benefit to
    someone, for exercising his or her religion. Thus, if the
    Government requires someone (under threat of incurring
    monetary sanctions or punishment, or of having a benefit
    denied) to act or to refrain from acting in violation of his or
    her sincere religious beliefs, that constitutes a substantial
    burden on the exercise of religion. See Burwell v. Hobby
    Lobby Stores, Inc., 
    134 S. Ct. 2751
    , 2775-79, slip op. at 31-38
    (2014); Thomas v. Review Board of Indiana Employment
    Security Division, 
    450 U.S. 707
    , 717-18 (1981); Sherbert v.
    Verner, 
    374 U.S. 398
    , 403-04 (1963).
    That is precisely what has happened here.
    The “substantial burden” in this case comes from the
    large monetary penalty imposed on religious organizations
    6
    that choose not to submit the required form. Cf. Hobby
    
    Lobby, 134 S. Ct. at 2775
    -76, 2779, slip op. at 31-32, 38. It is
    settled that a direct monetary penalty on the exercise of
    religion constitutes a “substantial burden.” See 
    id. (penalty for
    not providing contraceptive coverage); Wisconsin v.
    Yoder, 
    406 U.S. 205
    , 208, 218-19 (1972) (fine for not sending
    children to high school); 
    Sherbert, 374 U.S. at 404
    (describing
    hypothetical fine for Saturday worship). 3
    Therefore, the remaining question with respect to the first
    prong of the RFRA analysis is whether submitting the form
    actually contravenes plaintiffs’ sincere religious beliefs. In
    analyzing that question, we must first understand the context
    in which the question arises. In most religious liberty cases,
    the Government has said in essence: “Do X or suffer a
    penalty.” The religious objector responds that X violates his
    3
    The Supreme Court has determined that denying benefits to
    (and not just imposing penalties on) someone engaged in conduct
    mandated by religious belief imposes a substantial burden on the
    exercise of religion. In denial-of-benefits cases, “[w]hile the
    compulsion may be indirect, the infringement upon free exercise is
    nonetheless substantial.” 
    Thomas, 450 U.S. at 718
    . Congress
    incorporated that broad understanding of substantial burden into
    RFRA. Of course, the question of indirect burdens from the denial
    of government benefits is not at issue in this case. Here, we have
    the classic direct monetary penalty compelling conduct that
    contravenes religious belief. There has never been a question that
    such a direct penalty imposes a substantial burden on the exercise
    of religion. See Hobby 
    Lobby, 134 S. Ct. at 2775
    -76, 2779, slip op.
    at 31-32, 38; 
    Yoder, 406 U.S. at 208
    , 218; 
    Sherbert, 374 U.S. at 404
    . Put simply, it is black-letter law that a “substantial burden” on
    the exercise of religion occurs when, as here, the government
    “compel[s] someone to do something that violates his religious
    beliefs, or prohibit[s] someone from doing something that is
    mandated by his religious beliefs.” Eugene Volokh, The First
    Amendment and Related Statutes 1060 (5th ed. 2014).
    7
    or her religious beliefs. For example, in the recent Holt v.
    Hobbs case, it was “shave your beard or suffer a penalty.”
    See Holt v. Hobbs, 
    135 S. Ct. 853
    , 860-61, slip op. at 4
    (2015). Or in the classic Wisconsin v. Yoder case, it was
    “send your children to high school or pay a $5 fine.” 
    See 406 U.S. at 208
    . Or in United States v. Lee, it was “pay the Social
    Security tax or suffer a penalty.” See 
    455 U.S. 252
    , 254-55
    (1982). Simple enough.
    Here, the situation is only slightly more complicated.
    The Government has said in essence: “Do X or Y or suffer a
    penalty.” X is provide contraceptive coverage. Y is submit
    the form. All agree that X – providing contraceptive coverage
    – implicates plaintiffs’ “exercise of religion.” But religious
    organizations can avoid that option by choosing Y –
    submitting the form. In other words, the Government is
    exempting      religious   organizations     from   providing
    contraceptive coverage but is still saying: “Submit the form
    or suffer a penalty.”
    As a result, the key inquiry under the first prong of
    RFRA is whether submitting the form violates plaintiffs’
    sincere religious beliefs. The form is part of the process by
    which the Government ensures that the religious
    organizations’ insurers provide contraceptive coverage to the
    organizations’ employees.        To plaintiffs, the act of
    “submitting” this form would, “in their religious judgment,
    impermissibly facilitate[] delivery” of contraceptive and
    abortifacient coverage. Plaintiffs’ Supplemental Br. 1.
    As the Supreme Court stated in Hobby Lobby, such a
    question of complicity – that is, when “it is wrong for a
    person to perform an act that is innocent in itself but that has
    the effect of enabling or facilitating the commission of an
    immoral act by another” – is “a difficult and important
    8
    question of religion and moral philosophy.” Hobby 
    Lobby, 134 S. Ct. at 2778
    , slip op. at 36. Judge Gorsuch has
    explained well the complicity issue that arises in these
    circumstances: “All of us face the problem of complicity. All
    of us must answer for ourselves whether and to what degree
    we are willing to be involved in the wrongdoing of others.
    For some, religion provides an essential source of guidance
    both about what constitutes wrongful conduct and the degree
    to which those who assist others in committing wrongful
    conduct themselves bear moral culpability. [Plaintiffs] are
    among those who seek guidance from their faith on these
    questions. Understanding that is the key to understanding this
    case.” Hobby Lobby Stores, Inc. v. Sebelius, 
    723 F.3d 1114
    ,
    1152 (10th Cir. 2013) (Gorsuch, J., concurring).
    But what if the religious organizations are misguided in
    thinking that this scheme – in which the form is part of the
    process by which the Government ensures contraceptive
    coverage – makes them complicit in facilitating contraception
    or abortion? That is not our call to make under the first prong
    of RFRA. The Supreme Court has emphasized that judges in
    RFRA cases may question only the sincerity of a plaintiff’s
    religious belief, not the correctness or reasonableness of that
    religious belief. See Hobby 
    Lobby, 134 S. Ct. at 2774
    n.28,
    2777-79, slip op. at 29 n.28, 35-38; see also 
    Thomas, 450 U.S. at 714
    -16. 4 The Supreme Court has long stated, moreover,
    4
    In that regard, it is important to note at least three limits on a
    claimant’s ability to prevail under RFRA.
    First, RFRA does not provide protection to philosophical,
    policy, political, or personal beliefs, for example. It protects only
    religious beliefs. 42 U.S.C. § 2000bb-1(a) (“Government shall not
    substantially burden a person’s exercise of religion even if the
    burden results from a rule of general applicability, except as
    provided in subsection (b) of this section.”) (emphasis added).
    9
    that religious beliefs need not be “acceptable, logical,
    consistent, or comprehensible to others” in order to merit
    protection. 
    Thomas, 450 U.S. at 714
    . As Justice Brennan, the
    primary architect of the body of religious freedom law now
    incorporated into RFRA, once put it: “[R]eligious freedom –
    the freedom to believe and to practice strange and, it may be,
    foreign creeds – has classically been one of the highest values
    Second, RFRA does not cover insincere religious beliefs – that
    is, beliefs that are not truly held – such as when someone asserts a
    personal objection dressed up as a religious objection. Under
    RFRA, the courts must police sincerity. As the Supreme Court has
    explained, RFRA reflects Congress’s confidence in “the ability of
    the federal courts to weed out insincere claims.” Hobby 
    Lobby, 134 S. Ct. at 2774
    , slip op. at 29. And the Hobby Lobby Court
    approvingly cited a number of cases where courts have inquired
    into the sincerity of religious claims. 
    Id. at 2774
    nn.28-29, slip op.
    at 29-30 nn.28-29 (citing United States v. Quaintance, 
    608 F.3d 717
    , 718-19 (10th Cir. 2010); Abate v. Walton, 
    77 F.3d 488
    , 
    1996 WL 5320
    , at *5 (9th Cir. Jan. 5, 1996); Ochs v. Thalacker, 
    90 F.3d 293
    , 296 (8th Cir. 1996); Green v. White, 
    525 F. Supp. 81
    , 83-84
    (E.D. Mo. 1981); Winters v. State, 
    549 N.W.2d 819
    , 819-20 (Iowa
    1996)). As the Supreme Court has previously stated: “[W]hile the
    truth of a belief is not open to question, there remains the
    significant question whether it is truly held. This is the threshold
    question of sincerity which must be resolved in every case.” United
    States v. Seeger, 
    380 U.S. 163
    , 185 (1965) (internal quotation
    marks omitted). In short, in these religious freedom cases, the
    courts appropriately “inquir[e] into the sincerity” of a claimant’s
    “professed religiosity.” Cutter v. Wilkinson, 
    544 U.S. 709
    , 725
    n.13 (2005) (applying the related Religious Land Use and
    Institutionalized Persons Act).
    Third, as explained more fully below, RFRA’s compelling
    interest standard allows the Government to compel or proscribe
    action in certain circumstances even though, by doing so, the
    Government may be substantially burdening someone’s religion.
    10
    of our society.” Braunfeld v. Brown, 
    366 U.S. 599
    , 612
    (1961) (Brennan, J., concurring in part and dissenting in part).
    That bedrock principle means that we may not question
    the wisdom or reasonableness (as opposed to the sincerity) of
    plaintiffs’ religious beliefs – including about complicity in
    wrongdoing.        In Hobby Lobby, the Supreme Court
    emphatically confirmed that point. There, as here, the
    Government argued that the employers’ alleged complicity in
    providing contraception did not infringe on the employers’
    religious beliefs. In particular, the Government claimed that
    “the connection between what the objecting parties must do”
    (pay for insurance) and “the end that they find to be morally
    wrong (destruction of an embryo)” was “simply too
    attenuated” because the end would occur only as a result of
    intervening decisions by individual covered employees.
    Hobby 
    Lobby, 134 S. Ct. at 2777
    , slip op. at 35.
    The Supreme Court adamantly rejected the basic premise
    of the Government’s argument. The Court emphasized that
    federal courts have “no business” trying to answer whether
    the religious beliefs asserted in a RFRA case – including the
    complicity belief at issue in Hobby Lobby – are correct or
    reasonable. 
    Id. at 2778,
    slip op. at 36. A federal court may
    not tell the objectors that “their beliefs are flawed,” and thus
    may not arrogate to itself “the authority to provide a binding
    national answer to this religious and philosophical question”
    of complicity. 
    Id. at 2778,
    slip op. at 36-37. Instead, the
    “narrow function” of federal courts is to determine whether
    the belief is sincere and “reflects an honest conviction.” 
    Id. at 2779,
    slip op. at 37-38 (internal quotation marks omitted). In
    doing so, moreover, courts must keep in mind that RFRA
    protects “any exercise of religion, whether or not compelled
    by, or central to, a system of religious belief.” 42 U.S.C.
    § 2000cc-5(7)(A) (defining “religious exercise” for purposes
    11
    of the related Religious Land Use and Institutionalized
    Persons Act); see 
    id. § 2000bb-2
    (incorporating that Act’s
    definition set forth in § 2000cc-5 into RFRA).
    As a matter of religious belief, plaintiffs in this case say
    that the act of submitting the required form makes them
    complicit in moral wrongdoing. Importantly, no one here
    disputes that plaintiffs’ religious belief is sincere and reflects
    an honest conviction. Cf. Wheaton College v. Burwell, 134 S.
    Ct. 2806, 2808, slip op. at 4 (2014) (Sotomayor, J.,
    dissenting) (“The sincerity of Wheaton’s deeply held religious
    beliefs is beyond refute.”); 
    id. at 2812,
    slip op. at 11.
    Therefore, plaintiffs’ decision to decline to submit the
    required letter or form is an “exercise of religion” under
    RFRA. No one disputes, moreover, that plaintiffs will be
    required to pay huge monetary penalties if they do not submit
    the required form. Those large monetary penalties plainly
    represent a “substantial burden” on plaintiffs’ exercise of
    religion. See Hobby 
    Lobby, 134 S. Ct. at 2759
    , slip op. at 2.
    Judge Flaum persuasively summarized the point in a
    similar case that involved Notre Dame: “Yet we are judges,
    not moral philosophers or theologians; this is not a question of
    legal causation but of religious faith. Notre Dame tells us that
    Catholic doctrine prohibits the action that the government
    requires it to take. So long as that belief is sincerely held, I
    believe we should defer to Notre Dame’s understanding.”
    University of Notre Dame v. Sebelius, 
    743 F.3d 547
    , 566 (7th
    Cir. 2014) (Flaum, J., dissenting), vacated and remanded, 
    135 S. Ct. 1528
    (2015). Judge Pryor has likewise cogently
    explained: “So long as the [religious organization’s] belief is
    sincerely held and undisputed – as it is here – we have no
    choice but to decide that compelling the participation of the
    [religious organization] is a substantial burden on its religious
    exercise.”     Eternal Word Television Network, Inc. v.
    12
    Secretary, Department of Health & Human Services, 
    756 F.3d 1339
    , 1348 (11th Cir. 2014) (Pryor, J., specially concurring).
    In short, under Hobby Lobby, the regulations
    substantially burden plaintiffs’ exercise of religion.
    The panel opinion concludes, however, that there is no
    substantial burden on plaintiffs’ exercise of religion. In
    particular, the panel opinion says that plaintiffs are wrong to
    think that they would be complicit in moral wrongdoing if
    they submit this form, as required by the Government. But to
    reiterate: Judicially second-guessing the correctness or
    reasonableness (as opposed to the sincerity) of plaintiffs’
    religious beliefs is exactly what the Supreme Court in Hobby
    Lobby told us not to do. See Hobby 
    Lobby, 134 S. Ct. at 2778
    , slip op. at 36. And Hobby Lobby was not the first
    Supreme Court case to say as much. See 
    Thomas, 450 U.S. at 714
    -16.
    The panel opinion responds that plaintiffs are simply
    misunderstanding the law and that the law, properly
    understood, does not actually make plaintiffs complicit in
    providing contraceptive coverage. But there is no dispute that
    the Government is requiring plaintiffs to submit a form (to the
    Government or to the insurer) or else pay a penalty. And
    there is no dispute that the form is part of the process by
    which the Government ensures that the religious
    organizations’ insurers provide contraceptive coverage to the
    organizations’ employees. In other words, the form matters
    and plays a role in this scheme. After all, if the form were
    meaningless, why would the Government require it? The
    Government is requiring plaintiffs to submit the form
    precisely because the form is part of the process by which the
    Government ensures that the religious organizations’ insurers
    provide contraceptive coverage to the organizations’
    13
    employees. 5    Plaintiffs in turn sincerely believe that
    submitting the form under those circumstances makes them
    complicit in wrongdoing in contravention of their religious
    beliefs. See Plaintiffs’ Supplemental Br. 1. Compelling
    submission of the form therefore imposes a substantial burden
    under RFRA. 6
    The panel opinion separately notes that the Government
    intended the form to accommodate religious organizations so
    that the organizations themselves would not have to provide
    5
    If the form were meaningless, the Government presumably
    would not require it and perpetuate this rancorous dispute with
    religious organizations around the country.
    6
    The panel’s concurrence in the denial of rehearing en banc
    largely echoes Justice Sotomayor’s dissent in Wheaton College.
    Compare Panel Concurrence at 5 (“In no respect do we, nor could
    we, question Plaintiffs’ sincere beliefs about what their faith
    permits and forbids of them. But we can and must decide which
    party is right about how the law works.”), with Wheaton 
    College, 134 S. Ct. at 2812
    , slip op. at 10 (Sotomayor, J., dissenting)
    (“Wheaton is mistaken – not as a matter of religious faith, in which
    it is undoubtedly sincere, but as a matter of law . . . . Any provision
    of contraceptive coverage by Wheaton’s third-party administrator
    would not result from any action by Wheaton; rather, in every
    meaningful sense, it would result from the relevant law and
    regulations.”). But the Supreme Court, by a 6-3 margin, did not
    agree with Justice Sotomayor’s dissent in Wheaton College, at least
    for purposes of the injunction. The Court instead granted an
    injunction under the All Writs Act to Wheaton College, which the
    Court could do only if it concluded that the required form
    “indisputably” would impose a substantial burden on Wheaton
    College’s exercise of religion. See Turner Broadcasting System,
    Inc. v. Federal Communications Commission, 
    507 U.S. 1301
    , 1303
    (1993) (Rehnquist, C.J., in chambers) (internal quotation marks
    omitted); Wheaton 
    College, 134 S. Ct. at 2808
    , slip op. at 4
    (Sotomayor, J., dissenting) (internal quotation marks omitted).
    14
    contraceptive coverage. But the panel opinion has been faked
    out by the Government’s accommodation.                      The
    accommodation provides an alternative, but the alternative
    itself imposes a substantial burden on the religious
    organizations’ exercise of religion. Again, this case arises in
    a “Do X or Y or pay a penalty” posture. All agree that X –
    providing contraceptive coverage – infringes plaintiffs’
    exercise of religion. But so does Y – submitting the form.
    What the panel opinion misses is that submitting this form is
    itself an act that contravenes the organizations’ sincere
    religious beliefs. It is no different from the recent Holt case,
    in which the act that contravened the Muslim prisoner’s
    sincere religious beliefs was shaving his beard. Submitting
    the form = shaving your beard. Or the Yoder case, in which
    the act that contravened the Amish parents’ beliefs was
    sending their children to high school. Submitting the form =
    sending your children to high school. Or the Lee case, in
    which the act that contravened the Amish employer’s
    religious beliefs was paying Social Security taxes.
    Submitting the form = paying the Social Security tax. Or the
    Sherbert case, in which the act that contravened the Seventh-
    day Adventist’s belief was working on Saturday, the Sabbath
    day of the faith. Submitting the form = working on the
    Sabbath.
    In all of those cases, the Supreme Court recognized that
    the act in question represented a sincere religious belief that
    the Government could not override except by employing the
    least restrictive means to further a compelling governmental
    interest. The same is true here. The panel opinion does not
    fully come to grips with that critical point, in my view.
    The panel opinion therefore also does not appreciate that
    the substantial burden on plaintiffs’ exercise of religion comes
    from the monetary penalty (which in this case happens to be
    15
    huge) that the organizations will have to pay if they adhere to
    their religious beliefs and do not submit the required form. In
    Holt, the substantial burden came from the discipline the
    prisoner would receive if he refused to shave his beard. In
    Yoder, it was the $5 monetary fine for the parents whose
    children did not attend high school. In Lee, it was the
    monetary penalty for failure to pay taxes. In Sherbert, it was
    the denial of unemployment benefits for not working on the
    Sabbath.
    The essential principle is crystal clear: When the
    Government forces someone to take an action contrary to his
    or her sincere religious belief (here, submitting the form) or
    else suffer a financial penalty (which here is huge), the
    Government has substantially burdened the individual’s
    exercise of religion. So it is in this case.
    To be clear, that conclusion does not mean that plaintiffs
    prevail on their RFRA claim. Rather, it means only that they
    prevail on the first prong of the three-part RFRA inquiry and
    that we now must move on to the second and third prongs.
    The Government may still be able to compel plaintiffs to
    submit the required form if the Government prevails on those
    second and third prongs. Cf. 
    Lee, 455 U.S. at 257
    , 261
    (Government may force Amish employer to pay Social
    Security taxes notwithstanding substantial burden on Amish
    employer’s religion).
    II
    Second, does the Government have a compelling interest
    in facilitating women’s access to contraception – in particular,
    in facilitating access to contraception for the employees of
    these religious organizations? See 42 U.S.C. § 2000bb-1(b)
    (“Government may substantially burden a person’s exercise
    16
    of religion only if it demonstrates that application of the
    burden to the person . . . is in furtherance of a compelling
    governmental interest.”) (emphasis added); Gonzales v. O
    Centro Espirita Beneficente Uniao do Vegetal, 
    546 U.S. 418
    ,
    430-31 (2006) (compelling interest test focuses on interest as
    applied to particular plaintiffs).
    The plaintiff religious organizations strenuously argue
    that there is no such compelling governmental interest. As I
    see it, however, plaintiffs’ argument cannot be squared with
    the views expressed by a majority of the Justices in Hobby
    Lobby.
    To begin with, how do we determine whether the
    Government has a “compelling interest” in overriding a
    fundamental constitutional or statutory right such as RFRA’s
    right to religious freedom? Good question. No code or
    history book lists the Government’s compelling interests.
    Rather, courts have developed those interests over time, in
    common-law-like fashion. 7 What we do know, to put it in
    colloquial and somewhat question-begging terms, is that the
    asserted governmental interest must be so critically important
    that it justifies overriding certain fundamental individual
    rights in certain circumstances. To quote the Supreme Court,
    7
    The compelling interest nomenclature took root somewhat
    ignominiously in free speech cases as a way to justify the
    Government’s suppression of Communist speech. See, e.g.,
    Konigsberg v. State Bar of California, 
    366 U.S. 36
    , 49-52 (1961);
    Barenblatt v. United States, 
    360 U.S. 109
    , 126-27 (1959); Sweezy v.
    New Hampshire, 
    354 U.S. 234
    , 265-67 (1957) (Frankfurter, J.,
    concurring in result). In any event, the compelling interest override
    is now an established part of various constitutional doctrines,
    including the First and Fourteenth Amendments. And Congress
    expressly incorporated it into the Religious Freedom Restoration
    Act.
    17
    the interest must be “of the highest order.” Wisconsin v.
    Yoder, 
    406 U.S. 205
    , 215 (1972); see Burwell v. Hobby Lobby
    Stores, Inc., 
    134 S. Ct. 2751
    , 2781, slip op. at 41 (2014).
    Examples of compelling interests from past Supreme Court
    cases include conducting the military draft, maintaining the
    tax system, running the Social Security program, and
    preventing discrimination against third parties. See Gillette v.
    United States, 
    401 U.S. 437
    , 461-63 (1971); Hernandez v.
    Commissioner of Internal Revenue, 
    490 U.S. 680
    , 699-700
    (1989); United States v. Lee, 
    455 U.S. 252
    , 257-59 (1982);
    Bob Jones University v. United States, 
    461 U.S. 574
    , 603-04
    (1983). 8
    In this case, we do not have to tackle the compelling
    interest question without guidance from above. Justice
    Kennedy strongly suggested in his Hobby Lobby concurring
    opinion – which appears to be controlling de facto if not also
    de jure on this particular issue – that the Government
    generally has a compelling interest in facilitating access to
    contraception for women employees. Hobby Lobby, 134 S.
    Ct. at 2785-86, slip op. at 2 (Kennedy, J., concurring); see
    also 
    id. at 2779
    -80, slip op. at 39-40 (majority opinion); 
    id. at 2799-2801,
    slip op. at 23-27 (Ginsburg, J., dissenting); cf.
    Marks v. United States, 
    430 U.S. 188
    , 193 (1977). In
    particular, Justice Kennedy referred to the “premise” of the
    Court’s decision: namely, its “assumption” that the
    8
    As noted above, at least three aspects of RFRA limit the
    statute’s reach and thus help answer the parade of horribles
    sometimes raised in opposition to religious freedom claims. First,
    RFRA covers only religious objections.           Second, insincere
    religious claims are excluded from RFRA’s protection. Third,
    RFRA’s compelling interest standard allows the Government to
    compel or proscribe action in certain circumstances even though, by
    doing so, the Government may be substantially burdening
    someone’s religion.
    18
    Government has a “legitimate and compelling interest” in
    facilitating access to contraception. Hobby 
    Lobby, 134 S. Ct. at 2786
    , slip op. at 2 (Kennedy, J., concurring). Justice
    Kennedy’s use of the term “compelling” in this context was
    no doubt carefully considered. And the four dissenting
    Justices likewise stated that the Government had a compelling
    interest in facilitating women’s access to contraception. 
    Id. at 2799-2801,
    slip op. at 23-27 (Ginsburg, J., dissenting).
    It is not difficult to comprehend why a majority of the
    Justices in Hobby Lobby (Justice Kennedy plus the four
    dissenters) would suggest that the Government has a
    compelling interest in facilitating women’s access to
    contraception. About 50% of all pregnancies in the United
    States are unintended. The large number of unintended
    pregnancies causes significant social and economic costs. To
    alleviate those costs, the Federal Government has long sought
    to reduce the number of unintended pregnancies, including
    through the Affordable Care Act by making contraceptives
    more cheaply and widely available. It is commonly accepted
    that reducing the number of unintended pregnancies would
    further women’s health, advance women’s personal and
    professional opportunities, reduce the number of abortions,9
    and help break a cycle of poverty that persists when women
    who cannot afford or obtain contraception become pregnant
    unintentionally at a young age. In light of the numerous
    benefits that would follow from reducing the number of
    unintended pregnancies, it comes as no surprise that Justice
    Kennedy’s opinion expressly referred to a “compelling”
    governmental interest in facilitating women’s access to
    contraception.
    9
    As the panel opinion in this case accurately pointed out, as of
    now about 40% of all unintended pregnancies end in abortion.
    19
    In short, even if the Court did not formally hold as much,
    Hobby Lobby at least strongly suggests that the Government
    has a compelling interest in facilitating access to
    contraception for the employees of these religious
    organizations. 10
    III
    Third, in light of those two conclusions, we must
    consider the least restrictive means issue. When, as here, a
    law substantially burdens the exercise of religion, but the law
    furthers a compelling governmental interest, RFRA requires
    the Government to use the “least restrictive means of
    furthering that compelling governmental interest.” 42 U.S.C.
    § 2000bb-1(b). The Supreme Court has emphasized that the
    “least-restrictive-means      standard    is     exceptionally
    demanding.” Burwell v. Hobby Lobby Stores, Inc., 
    134 S. Ct. 2751
    , 2780, slip op. at 40 (2014).
    Congress adopted the least restrictive means requirement
    to help thread the needle between two conflicting principles.
    The least restrictive means requirement, properly applied,
    allows religious beliefs to be accommodated and the
    Government’s compelling interests to be achieved – a win-
    win resolution of these often contentious disputes. See
    Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
    
    546 U.S. 418
    , 436 (2006) (quoting 42 U.S.C. § 2000bb(a)(5))
    (RFRA “‘is a workable test for striking sensible balances
    between religious liberty and competing prior governmental
    interests.’”). As a leading First Amendment scholar has put
    10
    Justice Kennedy’s Hobby Lobby opinion did not expressly
    discuss whether a compelling governmental interest in ensuring
    general coverage for contraceptives encompasses ensuring coverage
    for those specific drugs and services that, some believe, operate as
    abortifacients and result in the destruction of embryos.
    20
    it: “If there’s some way of granting an exemption and yet
    accomplishing the government’s goal, then there’s no real
    need to interfere with the religious practice, so the exemption
    must be granted.” Eugene Volokh, The First Amendment and
    Related Statutes 986 (5th ed. 2014).
    Requiring religious organizations to submit the form
    mandated by current federal regulations is not the
    Government’s least restrictive means of furthering its interest
    in facilitating access to contraception for the organizations’
    employees. That is because the Government can still achieve
    its interest by allowing the religious organizations to submit
    the less restrictive notice that the Supreme Court has already
    twice indicated should be good enough to satisfy the
    Government’s interest.
    In the Wheaton College and Little Sisters of the Poor
    cases, the Supreme Court carefully specified that the religious
    organizations would satisfy their current legal obligations by
    submitting a simple notice to the Secretary of Health and
    Human Services “in writing that it is a nonprofit organization
    that holds itself out as religious and has religious objections to
    providing coverage for contraceptive services.” Wheaton
    College v. Burwell, 
    134 S. Ct. 2806
    , 2807, slip op. at 1
    (2014); see also Little Sisters of the Poor Home for the Aged
    v. Sebelius, 
    134 S. Ct. 1022
    , 1022, slip op. at 1 (2014) (notice
    should be “in writing that they are non-profit organizations
    that hold themselves out as religious and have religious
    objections to providing coverage for contraceptive services”);
    cf. Eternal Word Television Network, Inc. v. Secretary,
    Department of Health & Human Services, 
    756 F.3d 1339
    ,
    1349 (11th Cir. 2014) (Pryor, J., specially concurring) (“The
    United States, for example, could require the [religious
    organization] to provide a written notification of its religious
    objection to the Department of Health and Human Services.”).
    21
    By contrast to the form required by current federal
    regulations, the Wheaton College/Little Sisters of the Poor
    notice does not require the religious organizations to identify
    or notify their insurers, and thus (according to plaintiffs)
    lessens the religious organizations’ degree of complicity in
    what they consider to be wrongful as a matter of religious
    belief. See Plaintiffs’ Supplemental Br. 10. And even with
    the less detailed Wheaton College/Little Sisters of the Poor
    notice, the Government can independently determine the
    identity of the organizations’ insurers and thereby ensure that
    the insurers provide contraceptive coverage to the
    organizations’ employees.        The Wheaton College/Little
    Sisters of the Poor notice may create some administrative
    inconvenience for the Government, because the Government
    itself will have to identify the religious organizations’
    insurers. But administrative inconvenience alone does not
    negate the feasibility of an otherwise less restrictive means –
    unless the administrative problem would be “of such
    magnitude” that it would render “the entire statutory scheme
    unworkable.” Sherbert v. Verner, 
    374 U.S. 398
    , 408-09
    (1963); see also Bowen v. Roy, 
    476 U.S. 693
    , 731 (1986)
    (O’Connor, J., concurring in part and dissenting in part)
    (“[A]dministrative inconvenience is not alone sufficient to
    justify a burden on free exercise unless it creates problems of
    substantial magnitude.”).
    If a religious organization does not use the currently
    required form but instead uses the Wheaton College/Little
    Sisters of the Poor notice, how would that affect third parties,
    namely the religious organizations’ employees?            That
    question matters because the Supreme Court has stated that
    “courts must take adequate account of the burdens a requested
    accommodation may impose on nonbeneficiaries.” Cutter v.
    Wilkinson, 
    544 U.S. 709
    , 720 (2005) (applying the related
    22
    Religious Land Use and Institutionalized Persons Act). In
    Hobby Lobby, the Court reiterated that this consideration
    “will often inform the analysis of the Government’s
    compelling interest and the availability of a less restrictive
    means of advancing that interest.” Hobby 
    Lobby, 134 S. Ct. at 2781
    n.37, slip op. at 42 n.37. As Justice Kennedy put it in
    his concurrence, the accommodation must not “unduly restrict
    other persons, such as employees, in protecting their own
    interests.” 
    Id. at 2787,
    slip op. at 4 (Kennedy, J., concurring).
    But here, the religious organizations’ employees would
    still receive the same insurance coverage from the same
    insurer for contraceptives. As the Supreme Court explained
    in its Wheaton College order: “Nothing in this interim order
    affects the ability of the applicant’s employees and students to
    obtain, without cost, the full range of FDA approved
    contraceptives” or “precludes the Government from relying
    on this notice, to the extent it considers it necessary, to
    facilitate the provision of full contraceptive coverage under
    the Act.” Wheaton 
    College, 134 S. Ct. at 2807
    , slip op. at 1-2.
    So accommodating the religious organizations by allowing
    them to use the Wheaton College/Little Sisters of the Poor
    notice would not, to use Justice Kennedy’s formulation,
    “unduly restrict” third parties. Cf. Douglas NeJaime & Reva
    B. Siegel, Conscience Wars: Complicity-Based Conscience
    Claims in Religion and Politics, 124 Yale L.J., at 116
    (forthcoming 2015) (version of Apr. 10, 2015) (“Wheaton
    College, like Hobby Lobby, appears to tie accommodation to
    the fact that the government has other ways of providing for
    the statute’s intended beneficiaries so that no third-party harm
    would result from the accommodation.”).
    Although the Supreme Court’s Wheaton College and
    Little Sisters of the Poor orders were not final merits rulings,
    they at least qualify as extremely strong signals from the
    23
    Supreme Court about how to resolve the least restrictive
    means issue in this case. In particular, the Court in Wheaton
    College granted an injunction under the All Writs Act, which
    is appropriate “only where the legal rights at issue are
    indisputably clear.” Wheaton 
    College, 134 S. Ct. at 2808
    , slip
    op. at 4 (Sotomayor, J., dissenting) (internal quotation marks
    omitted). Moreover, the Court issued the Wheaton College
    order just days after its Hobby Lobby decision, and it did so
    over a detailed and forceful dissent.
    In any event, regardless of whether we as a lower court
    are formally bound by the Supreme Court stay orders in
    Wheaton College and Little Sisters of the Poor, the notice
    identified by the Supreme Court in those two cases is
    undoubtedly a less restrictive way for the Government to
    further its interest than the form required by current federal
    regulations. It necessarily follows that the form required by
    current regulations is not the “least restrictive means”
    available to the Government. As the Supreme Court said a
    few months ago in a similar context: If “a less restrictive
    means is available for the Government to achieve its goals,
    the Government must use it.” Holt v. Hobbs, 
    135 S. Ct. 853
    ,
    864, slip op. at 11 (2015) (internal quotation marks omitted).
    So too here.
    To be sure, some religious organizations claim that even
    the less restrictive Wheaton College/Little Sisters of the Poor
    notice still imposes a substantial burden on their religious
    beliefs. But that obviously does not help the Government’s
    argument in support of the current, even more burdensome
    form. The key point here is that the Wheaton College/Little
    Sisters of the Poor notice is less restrictive (that is, less
    burdensome) than the currently required form and yet still
    furthers the Government’s compelling interest. Under RFRA,
    24
    the Government therefore must employ that less restrictive
    means. 11
    Put simply, the Government need not – and therefore
    under RFRA may not – pursue its compelling interest in
    facilitating access to contraception by requiring religious non-
    profit organizations to submit the form required by current
    federal regulations. 12
    11
    The Wheaton College/Little Sisters of the Poor notice
    requires a religious organization to, in effect, raise its hand to opt
    out. But contrary to what the panel’s concurrence in the denial of
    rehearing en banc says, see Panel Concurrence at 3-4 n.1, the
    currently required form requires a religious organization both to
    raise its hand and to point to its insurer. From the perspective of
    the plaintiff religious organizations, the currently required form is
    therefore more burdensome because it makes the organizations
    identify or notify their insurers, which the organizations believe
    makes them more complicit in the provision of contraceptive
    coverage to which they object as a matter of religious belief.
    12
    As the Court in Hobby Lobby noted, the Government could
    directly subsidize or provide contraceptives to employees of
    religious non-profit organizations. See Hobby 
    Lobby, 134 S. Ct. at 2780-81
    , slip op. at 41. The direct funding option raises certain
    feasibility issues. A means that is not a reasonably feasible way of
    furthering the Government’s interest cannot be deemed a less
    restrictive means of furthering that interest. In Little Sisters of the
    Poor, Hobby Lobby, and Wheaton College, the Court did not say
    that direct funding was the least restrictive means of furthering the
    Government’s interest.       If it had, then even the Wheaton
    College/Little Sisters of the Poor notice would itself be too
    restrictive. In any event, what matters in the present case is that the
    Wheaton College/Little Sisters of the Poor notice is less restrictive
    than the form required by the current federal regulations but still
    achieves the Government’s interest.
    25
    One final note for clarity: The Government may of
    course continue to require the religious organizations’
    insurers to provide contraceptive coverage to the religious
    organizations’ employees, even if the religious organizations
    object. As Judge Flaum correctly explained, “RFRA does not
    authorize religious organizations to dictate the independent
    actions of third-parties, even if the organization sincerely
    disagrees with them.” University of Notre Dame v. Sebelius,
    
    743 F.3d 547
    , 567 (7th Cir. 2014) (Flaum, J., dissenting),
    vacated and remanded, 
    135 S. Ct. 1528
    (2015). “That is true
    whether the third-party is the government, an insurer, a
    student, or some other actor.” 
    Id. “So long
    as the
    government does not require” religious organizations
    themselves “to take action, RFRA does not give” the religious
    organizations “a right to prevent the government from
    providing contraceptives to” the religious organizations’
    employees. 
    Id. *** In
    sum, I respectfully would grant rehearing en banc and
    rule for the plaintiff religious organizations on the ground that
    the Wheaton College/Little Sisters of the Poor notice is a less
    restrictive way than the currently mandated form for the
    Government to achieve its compelling interest in facilitating
    access to contraception for the organizations’ employees.