Gilardi v. United States Department of Health & Human Services

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2013 Decided November 1, 2013
No. 13-5069
FRANCIS A. GILARDI, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00104)
Francis J. Manion, pro hac vice, argued the cause for
appellants. With him on the briefs were Colby M. May and
Carly F. Gammill.
Kimberlee Wood Colby was on the brief for amici curiae
Association of Gospel Rescue Missions, et al., in support of
appellants.
Deborah J. Dewart was on the brief for amicus curiae
Liberty, Life, and Law Foundation in support of appellants.
Dwight G. Duncan was on the brief for amici curiae 28
Catholic Theologians, et al. in support of appellants.
2
Lawrence J. Joseph was on the brief for amicus curiae
Eagle Forum Education & Legal Defense Fund in support of
appellants.
William Lee Saunders, Jr. was on the brief for amici
curiae American Association of Pro-Life Obstetricians and
Gynecologists, et al. in support of appellants.
Dorinda C. Bordlee was on the brief for amici curiae
Abortion Breast Cancer Coalition, et al. in support of
appellants.
Noel J. Francisco was on the brief for amicus curiae
Archdiocese of Cincinnati in support of appellants.
Michael Dewine, Attorney General, Office of the
Attorney General of the State of Ohio, and Jennifer L. Pratt,
Assistant Attorney General, were on the brief for amcius
curiae State of Ohio in support of appellants.
Michael F. Smith was on the brief for amicus curiae Life
Legal Defense Foundation in support of appellants.
Alisa B. Klein, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the briefs were
Stuart F. Delery, Acting Assistant Attorney General, Ronald
C. Machen, Jr., U.S. Attorney, Beth S. Brinkmann, Deputy
Assistant Attorney General, and Mark B. Stern, Attorneys.
Lisa S. Blatt, Robert J. Katerberg, Andrew S. Macurdy,
and Julianna S. Gonen were on the brief for amici curiae
Center for Reproductive Rights, et al. in support of appellees.
3
Charles E. Davidow and Marcia D. Greenberger were on
the brief for amici curiae American Association of University
Women, et al. in support of appellees.
Ayesha N. Khan, Gregory M. Lipper, and Daniel Mach
were on the brief for amici curiae Americans United for
Separation of Church and State, et al. in support of appellees.
Michelle A. Kisloff was on the brief for amici curiae
Ovarian Cancer National Alliance, et al. in support of
appellees.
Martha Jane Perkins was on the brief for amici curiae
National Health Law Program, et al. in support of appellees.
Jennifer C. Pizer, Camilla B. Taylor, and Thomas W.
Ude, Jr. were on the brief for amicus curiae Lambda Legal
Defense and Education Fund, Inc. in support of appellees.
Bruce H. Schneider was on the brief for amici curiae
Physicians for Reproductive Health, et al. in support of
appellees.
Before: BROWN, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN,
with whom Senior Circuit Judge EDWARDS joins except as to
parts VI, VII, and VIII, and with whom Senior Circuit Judge
RANDOLPH joins except as to parts III and IV.
Opinion concurring in part and concurring in the
judgment filed by Senior Circuit Judge RANDOLPH.
4
Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge EDWARDS.
BROWN, Circuit Judge. Two years after our decision
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), we are
asked to revisit the behemoth known as the Affordable Care
Act. This time, however, we are not confronted with a
question of constitutional authority. Instead, we must
determine whether the contraceptive mandate imposed by the
Act trammels the right of free exercise—a right that lies at the
core of our constitutional liberties—as protected by the
Religious Freedom Restoration Act. We conclude it does.
I
Two brothers, Francis and Philip Gilardi, are equal
owners of Freshway Foods and Freshway Logistics—both
companies are closely-held corporations that have elected to
be taxed under Subchapter S of the Internal Revenue Code.
The two companies collectively employ about 400 employees
and operate a self-insured health plan through a third-party
administrator and stop-loss provider.
As adherents of the Catholic faith, the Gilardis oppose
contraception, sterilization, and abortion. Accordingly, the
two brothers—exercising their powers as owners and
company executives—excluded coverage of products and
services falling under these categories.
But along came the Affordable Care Act. Part of the Act
directs all group health plans and health insurance issuers to
provide, without cost-sharing requirements, preventive care as
determined by the Health Resources and Services
Administration. 42 U.S.C. § 300gg-13(a)(4). In turn, the
Administration issued guidelines requiring coverage for “all
5
Food and Drug Administration-approved contraceptive
methods, sterilization procedures, and patient education and
counseling for all women with reproductive capacity,” as
prescribed by a healthcare provider. Women’s Preventive
Services Guidelines, HEALTH RES. & SERVS. ADMIN.,
http://www.hrsa.gov/womensguidelines/; see Group Health
Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the Patient Protection Affordable
Care Act, 77 Fed. Reg. 8725, 8725–26 (Feb. 15, 2012) (citing
the online HRSA Guidelines); see also 29 C.F.R. § 2590.715-
2713(a)(1)(iv); 45 C.F.R. 147.131(c).1 There are
exceptions—some ephemeral, some permanent—for
grandfathered plans, religious organizations, and small
businesses. See 26 U.S.C. § 4980H(a); id. § 4980H(c)(2)(A);
42 U.S.C. § 18011; 45 C.F.R. §§ 147.130(a)(1)(iv)(A)–(B).
But the Freshway companies do not fall into any of these
categories. As a result, the Gilardis were faced with two
choices: adjust their companies’ plans to provide the
mandated contraceptive services in contravention of their
religious beliefs, or pay a penalty amounting to over $14
million per year.2
Finding themselves on the horns of an impossible
dilemma, the Gilardis and their companies filed suit in district
court, alleging the contraceptive mandate violated their rights
under the Religious Freedom Restoration Act (RFRA), 42
U.S.C. § 2000bb et seq., the Free Exercise Clause, the Free
Speech Clause, and the Administrative Procedure Act. The
plaintiffs moved for a preliminary injunction, but the district
1
For ease of reference, we will refer to this provision as “the
contraceptive mandate.”
2
The Gilardis could have dropped their healthcare coverage
altogether, but they regard this option as morally unthinkable. See
J.A. at 41 ¶ 10; J.A. at 52 ¶ 10.
6
court denied their request. With respect to the Freshway
companies, the court determined they could not “exercise”
religion and thus no substantial burden on religious exercise
was demonstrable under RFRA. As for the Gilardis, the court
found any burden on the Gilardis’ religious beliefs was
indirect.
The plaintiffs timely filed an interlocutory appeal and
moved for an injunction pending appeal. After having
initially denied their motion, we issued, sua sponte, an order
giving them a temporary reprieve from the mandate.
II
Our standard of review for a denial of a preliminary
injunction rests upon what aspect of the district court’s
decision we are examining. Insofar as our review concerns
the district court’s consideration of the preliminary-injunction
factors and the ultimate decision to grant or deny the
injunction, we review for an abuse of discretion. See In re
Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012). But
we review the legal conclusions underlying the decision de
novo and review findings of fact for clear error. Id.;
Chaplaincy of Full Gospel Churches v. England, 454 F.3d
290, 297 (D.C. Cir. 2006).
“In ruling on a preliminary injunction a key issue—often
the dispositive one—is whether the movant has shown a
substantial likelihood of success on the merits.” Greater New
Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. &
Urban Dev., 639 F.3d 1078, 1083 (D.C. Cir. 2011). To
determine this likelihood, we must answer whether the
contraceptive mandate of 45 C.F.R. § 147.130(a)(1)(iv), as
applied to the Appellants, violates their free-exercise rights as
protected by RFRA. As the parties have made eminently
7
clear, we must separately examine the claims by the Freshway
companies and their owners.
III
We begin with the Freshway companies. Before
addressing the merits of their RFRA claim, we must first ask
whether they may bring the challenge at all. The statute
allows “[a] person whose religious exercise has been
burdened” to seek judicial relief, but leaves us bereft of
guidance on who a “person” is. See 42 U.S.C. § 2000bb-1(c)
(emphasis added).
For at least one of our sister circuits (as well as the
Appellants), the Dictionary Act, 1 U.S.C. § 1, dispositively
answers the question. See Hobby Lobby Stores, Inc. v.
Sebelius, 723 F.3d 1114, 1129, 1132 (10th Cir. 2013) (en
banc). Under the Act, the definition of “person” extends to
“corporations, companies, associations, firms, partnerships,
societies, and joint stock companies”—in other words, it
encompasses the corporeal and the incorporeal. 1 U.S.C. § 1.
The Freshway companies largely depend on the Dictionary
Act’s elision of the differences in identity, hoping it applies to
their RFRA claim.
But the focus on personhood is too narrow; instead, we
must construe the term “person” together with the phrase
“exercise of religion.” See Rasul v. Myers, 512 F.3d 644, 668
(D.C. Cir. 2008) (“Because RFRA prohibits the Government
from ‘substantially burden[ing] a person’s exercise of
religion’ instead of simply the exercise of religion, 42 U.S.C.
§ 2000bb-1(a), we must construe ‘person’ as qualifying
‘exercise of religion.’” (emphasis in original)), vacated and
remanded on other grounds by 555 U.S. 1083 (2008); see also
42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise
8
has been burdened in violation of this section may . . . obtain
appropriate relief against a government.” (emphasis added)).
And RFRA provides us with no helpful definition of “exercise
of religion”; all we can glean from the statute is that
“‘religious exercise’ includes any exercise of religion,
whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A).
We must therefore turn to the full body of our free-exercise
caselaw to discern whether the Freshway companies are
persons capable of religious exercise under the statute. See
Rasul, 512 F.3d at 671; see also Autocam Corp. v. Sebelius, --
- F.3d ----, 2013 WL 5182544, at *7 (6th Cir. Sept. 17, 2013);
Hobby Lobby, 723 F.3d at 1167 (Briscoe, C.J., concurring in
part and dissenting in part).
IV
The query is simple: do corporations enjoy the shelter of
the Free Exercise Clause? Or is the free-exercise right a
“purely personal” one, such that it is “unavailable to
corporations and other organizations because the ‘historic
function’ of the particular guarantee has been limited to the
protection of individuals”? First Nat’l Bank of Bos. v.
Bellotti, 435 U.S. 765, 778 n.14 (1978) (quoting United States
v. White, 322 U.S. 694, 698–701 (1944)). We turn to the
“nature, history, and purpose” of the Clause for our answer.
Id.At the time of the Framing, a great debate raged on the
precise formulation of what we now know as the Free
Exercise Clause. See Michael W. McConnell, The Origins
and Historical Understanding of Free Exercise of Religion,
103 HARV. L. REV. 1409, 1480–85 (1990). The earliest drafts
from the House of Representatives focused on the protection
of conscience, rather than the “exercise of religion.” See id. at
9
1482; see also 1 ANNALS OF CONGRESS 729 (1789) (noting a
later amendment to change the Clause’s prototype to read:
“no religion shall be established by law, nor shall the equal
rights of conscience be infringed”). And as the debates went
on, strong concerns arose that the rights of religious sects
would not be “well secured under the . . . Constitution.” 1
ANNALS OF CONGRESS 730 (remarks of Daniel Carroll, Aug.
15, 1789). To address these concerns and others, the House
continued to tinker and toil; once the dust had settled, it
eventually proposed a constitutional amendment barring
Congress from “prevent[ing] the free exercise” of religion and
“infring[ing] the rights of conscience.” 1 id. at 766. But the
Senate had different ideas, and in the end, it was the free
exercise of religion—standing alone—that was sent to the
states for ratification. See McConnell, supra, at 1488; see
also LOUIS FISHER, RELIGIOUS LIBERTY IN AMERICA:
POLITICAL SAFEGUARDS 56 (2002).
This history reveals two things about the Clause’s
purpose relevant to our inquiry today. First, the constitutional
guarantee “extended the broader freedom of action to all
believers,” allowing for the inclusion of “conduct as well as
belief.” McConnell, supra, at 1490. Second, the adopted
formulation encompassed both individual judgment, as well
as “the corporate or institutional aspects of religious belief.”
Id. Because the word religion “connotes a community of
believers,” the prohibition against the impingement on
religious free exercise must be understood to cover the
activities of both individuals and religious bodies. See id.
And these two groups have been the beneficiaries of the
Supreme Court’s free-exercise jurisprudence. To be sure, the
right has largely been understood as a personal one. Before
incorporation, the Court described the free-exercise right as
an individual one—“the indefeasible right to worship God
10
according to the dictates of conscience.” Cummings v.
Missouri, 71 U.S. 277, 304 (1866). Incorporation did nothing
to alter that sentiment; shortly after Cantwell v. Connecticut,
310 U.S. 296 (1940), the Court reaffirmed the personal nature
of the right as part of “the mind and spirit of man.” See Jones
v. City of Opelika, 316 U.S. 584, 594 (1942), overruled on
other grounds by 319 U.S. 103 (1943); see also Sch. Dist. of
Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963) (“[The
purpose of the Free Exercise Clause] is to secure religious
liberty in the individual by prohibiting any invasions thereof
by civil authority.” (emphasis added)). And that
understanding still resonates with the modern Court. See
Zelman v. Simmons-Harris, 536 U.S. 639, 679 n.4 (2002)
(Thomas, J., concurring) (“In particular, these rights inhere in
the Free Exercise Clause, which unlike the Establishment
Clause protects individual liberties of religious worship.”).
That is not to say the Court views organizations as
constitutional outliers—indeed, its jurisprudence reflects the
foundational principle that religious bodies—representing a
communion of faith and a community of believers—are
entitled to the shield of the Free Exercise Clause. The Court
has heard free-exercise challenges from religious entities and
religious organizations. See Jimmy Swaggart Ministries v.
Bd. of Equalization of Cal., 493 U.S. 378, 381 (1990); Corp.
of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 330 (1987); Tony &
Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 292
(1985); Kedroff v. St. Nicholas Cathedral of Russian
Orthodox Church in N. Am., 344 U.S. 94, 107–08 (1952). It
has listened to the grievances of religious sects and member
congregations. See Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, 132 S. Ct. 694, 699 (2012);
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 425 (2006); Church of the Lukumi Babalu Aye,
11
Inc. v. City of Hialeah, 508 U.S. 520, 524 (1993). It has even
entertained claims by religious and educational institutions.
See Bob Jones Univ. v. United States, 461 U.S. 574, 579–80
(1983).
Beyond these cases involving religious organizations,
however, we glean nothing from the Court’s jurisprudence
that suggests other entities may raise a free-exercise
challenge. But that the Court has never seriously considered
such a claim by a secular corporation or other organizational
entity is not to say it never will. For the nonce, only one
aberrational case comes to mind. In Gallagher v. Crown
Kosher Super Market of Massachusetts, Inc., 366 U.S. 617(1961), a corporation operated by members of the Orthodox
Jewish faith challenged the constitutionality of
Massachusetts’ Sunday closing laws. See id. at 618. The
Court summarily disposed of the corporation’s free-exercise
claim, tersely noting that Braunfeld v. Brown, 366 U.S. 599(1961), obviated the need for further discussion. See Crown
Kosher, 366 U.S. at 631. Technically speaking, the Court did
rule on the merits of the case. But it remained dubitante
about standing—perhaps the novelty of a secular corporation
bringing a free-exercise challenge was too novel. See id.(“Since the decision in [Braunfeld] rejects the contentions
presented by these appellees on the merits, we need not
decide whether appellees have standing to raise these
questions.”); cf. Hobby Lobby, 723 F.3d at 1150 (Hartz, J.,
concurring). Meanwhile, we need not base a right of free
exercise for nonreligious organizations on so thin a reed of
caselaw, especially as both we and the Supreme Court have
expressed strong doubts about that proposition. See, e.g.,
Harris v. McRae, 448 U.S. 297, 321 (1980) (explaining that a
free-exercise challenge is “one that ordinarily requires
individual participation”); Holy Land Found. for Relief &
Dev. v. Ashcroft, 333 F.3d 156, 167 (D.C. Cir. 2003) (noting
12
“the dubious proposition that a charitable corporation not
otherwise defined can exercise religion as protected in the
First Amendment”).
Citing Citizens United v. FEC, 558 U.S. 310 (2010), the
Freshway companies argue that corporations—religious or
otherwise—are entitled to the full array of First Amendment
protections, including the right to free exercise. They are not
the only proponents of this position. See Hobby Lobby, 723
F.3d at 1135 (majority opinion) (“Because Hobby Lobby and
Mardel express themselves for religious purposes, the First
Amendment logic of Citizens United, where the Supreme
Court has recognized a First Amendment right of for-profit
corporations to express themselves for political purposes,
applies as well.” (citation omitted)); see also Conestoga Wood
Specialties Corp. v. Sec’y of the U.S. Dep’t of Health &
Human Servs., 724 F.3d 377, 400 (3d Cir. 2013) (Jordan, J.,
dissenting) (citing Citizens United, 558 U.S. at 342). There is
an appeal to this simple reasoning; after all, the free-exercise
and free-speech rights are enshrined in the same constitutional
provision, separated only by a semicolon.
Perhaps Appellants’ constitutional arithmetic, Citizens
United plus the Free Exercise Clause equals a corporate free-
exercise right, will ultimately prevail. But we must be
mindful that Citizens United represents the culmination of
decades of Supreme Court jurisprudence recognizing that all
corporations speak. See Conestoga Wood, 724 F.3d at 384.
When it comes to the free exercise of religion, however, the
Court has only indicated that people and churches worship.
As for secular corporations, the Court has been all but silent.
Consider Bellotti—the progenitor of Citizens United.
When the Bellotti Court declared “political speech does not
lose First Amendment protection ‘simply because its source is
13
a corporation,’” Citizens United, 558 U.S. at 342 (quoting
Bellotti, 435 U.S. at 784), it reviewed many cases in which
the Court invalidated a state law because it “infringe[d on]
protected speech by corporate bodies.” Bellotti, 435 U.S. at778 n.14. In other words, Bellotti crystallized a robust body
of caselaw giving rise to the constitutional right of corporate
political speech, which the Citizens United Court could rely
on as a firm foundation.
No such corpus juris exists to suggest a free-exercise
right for secular corporations. Thus, we read the “nature,
history, and purpose” of the Free Exercise Clause as
militating against the discernment of such a right. When it
comes to corporate entities, only religious organizations are
accorded the protections of the Clause. And we decline to
give credence to the notion that the for-profit/non-profit
distinction is dispositive, as that, too, is absent from the
Clause’s history. Fortunately, we need not opine here on
what a “religious organization” is, as the Freshway companies
have conceded they do not meet that criterion.
The Freshway companies alternatively assert they can
vindicate the free-exercise rights of their owners. They
reason that if “a company is owned and controlled by a few
like-minded individuals who share the same religious values
and run the company pursuant to those values,” the company
may serve as the owners’ surrogate. Appellants’ Br. at 50.
This pass-through theory of corporate standing is logically
and structurally appealing in light of the government’s shell
game. And EEOC v. Townley Engineering & Manufacturing
Co., 859 F.2d 610 (9th Cir. 1988) provides longstanding, if
illusory, support. In Townley, the Ninth Circuit concluded—
without much in the way of legal substantiation—that the
corporation was “merely the instrument through and by which
[the owners] express[ed] their religious beliefs.” Id. at 619.
14
Admittedly, there is a certain theological congruence to
Townley’s characterization. The Bible says “faith without
works is dead.” James 2:26 (King James). As amici point
out, not only are Catholic employers morally responsible for
the management of their companies, “instructing or
encouraging someone else to commit a wrongful act is itself a
grave moral wrong—i.e., ‘scandal’—under Catholic
doctrine.” Br. of Catholic Theologians at 3. Thus, amici
reason, “the Mandate thrusts Catholic employers into a
‘perfect storm’ of moral complicity in the forbidden actions.”
Br. of Catholic Theologians at 5; see also Br. of the
Archdiocese of Cincinnati at 16–17 nn. 6, 7. When even
attenuated participation may be construed as a sin, see, e.g.,
United States v. Lee, 455 U.S. 252, 261 n.12 (1982), it is not
for courts to decide that the corporate veil severs the owner’s
moral responsibility.
But dogma does not dictate justiciability. Though
Townley’s conclusion is theologically defensible, its standing
bona fides, supported only by a reference to a footnote in
Tony & Susan Alamo Foundation v. Secretary of Labor, 471
U.S. 290 (1985), are more dubious. The Alamo Foundation
Court relied on a theory of religious associational standing; in
other words, the organization could raise a free-exercise
defense on behalf of one of its executives because the
executive was an adherent to the group’s religious creed. See
id. at 303 n.26. How this supports standing for a secular
corporation to vindicate its owners’ free-exercise rights is
unclear.
Townley’s misconception of religious associational
standing has spread from one free-exercise case to another,
even creeping its way into the current contraceptive mandate
challenges. See Stormans, Inc. v. Selecky, 586 F.3d 1109,
15
1120 (9th Cir. 2009); see also Monaghan v. Sebelius, 931 F.
Supp. 2d 794, 800–02 (E.D. Mich. 2013); Geneva Coll. v.
Sebelius, 929 F. Supp. 2d 402, 428 (W.D. Pa. 2013). While
we decline the Freshway companies’ invitation to accept
Townley’s ipse dixit that closely held corporations can
vindicate the rights of their owners, we understand the
impulse. The free exercise protection—a core bulwark of
freedom—should not be expunged by a label. But for now,
we have no basis for concluding a secular organization can
exercise religion.
V
That leaves the Gilardis.3 Obviously, they have no
difficulty satisfying the threshold inquiry to which their
enterprises succumbed; they are, most assuredly, “persons”
under RFRA. See also Rasul v. Myers, 563 F.3d 527, 533
(D.C. Cir. 2009) (Brown, J., concurring) (“RFRA does not
define ‘person,’ so we must look to the word’s ordinary
meaning. There is little mystery that a ‘person’ is ‘an
individual human being . . . as distinguished from an animal
or a thing.’” (quoting WEBSTER’S NEW INTERNATIONAL
DICTIONARY 1606 (1981)). And there is no dispute that the
mandate, as directed to the Gilardis, is a palpable and
discernible infringement of free exercise. All that stands
between the Gilardis and the hope of vindication is the
3
We agree with Judge Edwards that the Gilardis’ Article III
standing is indisputable. See Op. of Edwards, J., at 6–7.
16
uncertain4 barrier of the shareholder-standing rule and an
inchoate concern about prudential standing—a “jurisdictional
issue which cannot be waived or conceded” in this circuit.
Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 674
(D.C. Cir. 2013).
The shareholder-standing rule gives us little pause; we
are satisfied that the Gilardis have been “injured in a way that
is separate and distinct from an injury to the corporation.”
See Crosby v. Beam, 548 N.E.2d 217, 219 (Ohio 1989); see
also Rawoof v. Texor Petroleum Co., 521 F.3d 750, 757 (7th
Cir. 2008) (employing the state-law derivative action rule to
address shareholder standing in a federal question case). If
the companies have no claim to enforce—and as nonreligious
corporations, they cannot engage in religious exercise—we
are left with the obvious conclusion: the right belongs to the
Gilardis, existing independently of any right of the Freshway
companies. Thus, the Gilardis’ injury—which arises
4
We assume, without deciding, that Congress did not intend to
abrogate the prudential-standing requirement in enacting RFRA.
We share Judge Edwards’ concerns about whether prudential-
standing principles apply to RFRA challenges and whether the
shareholder-standing rule is part of the prudential-standing
equation. See Op. of Edwards, J., at 9–12. But it would be
imprudent to decide these questions without the benefit of full
briefing on this issue, especially as the Gilardis can easily surmount
the shareholder-standing hurdle.
17
therefrom—is “separate and distinct,” providing us with an
exception to the shareholder-standing rule.5
VI
We now reach the heart of the Gilardis’ RFRA claim.
The Act requires the Gilardis to “allege[] a substantial burden
on [their] religious exercise.” Kaemmerling v. Lappin, 553
F.3d 669, 677 (D.C. Cir. 2008). Religious exercise is broadly
defined as “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); see also id. § 2000bb-2. A “substantial
burden” is “substantial pressure on an adherent to modify his
behavior and to violate his beliefs.” Kaemmerling, 553 F.3d
at 678 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707, 718 (1981)).
We begin with the peculiar step of explaining what is not
at issue. This case is not about the sincerity of the Gilardis’
religious beliefs, nor does it concern the theology behind
Catholic precepts on contraception. The former is
unchallenged, while the latter is unchallengeable. See id. at
5
Our conclusion is buttressed by other considerations. First, Ohio
caselaw does not treat the derivative-action rule as an unyielding
one; to the contrary, some flexibility has been shown when it comes
to close corporations such as the Freshway companies. See, e.g.,
Yackel v. Kay, 642 N.E.2d 1107, 1109–10 (Ohio Ct. App. 1994).
Moreover, none of the principles underlying the shareholder-
standing rule is offended by allowing the Gilardis’ suit to
proceed—there is no danger of multiple lawsuits, and no creditor or
shareholder interests will be compromised as a result of their RFRA
challenge. See 12B W. FLETCHER CYCLOPEDIA OF THE LAW OF
CORPORATIONS § 5911.50 (2006). We recognize that shareholders
of large public corporations will be subject to different constraints
and will likely find the burden threshold insuperable.
18
716 (“Particularly in this sensitive area, it is not within the
judicial function and judicial competence to inquire whether
the petitioner or his fellow worker more correctly perceived
the commands of their common faith. Courts are not arbiters
of scriptural interpretation.”); see also United States v.
Ballard, 322 U.S. 78, 86 (1944) (“Men may believe what they
cannot prove. They may not be put to the proof of their
religious doctrines or beliefs.”). Equally uncontroverted is the
nature of the Gilardis’ religious exercise: they operate their
corporate enterprises in accordance with the tenets of their
Catholic faith. See Hobby Lobby, 723 F.3d at 1189
(Matheson, J., concurring in part and dissenting in part).
The only dispute touches on the characterization of the
burden. The burden is too remote and too attenuated, the
government says, as it arises only when an employee
purchases a contraceptive or uses contraceptive services. We
disagree with the government’s foundational premise. The
burden on religious exercise does not occur at the point of
contraceptive purchase; instead, it occurs when a company’s
owners fill the basket of goods and services that constitute a
healthcare plan. In other words, the Gilardis are burdened
when they are pressured to choose between violating their
religious beliefs in managing their selected plan or paying
onerous penalties. See Thomas, 450 U.S. at 717–18;
Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (“The impact
of the compulsory-attendance law on respondents’ practice of
the Amish religion is not only severe, but inescapable, for the
Wisconsin law affirmatively compels them, under threat of
criminal sanction, to perform acts undeniably at odds with
fundamental tenets of their religious beliefs.”); Kaemmerling,
553 F.3d at 678.
The Framers of the Constitution clearly embraced the
philosophical insight that government coercion of moral
19
agency is odious. Penalties are impertinent, according to
Locke, if they are used to compel men “to quit the light of
their own reason, and oppose the dictates of their own
consciences.” JOHN LOCKE, A LETTER CONCERNING
TOLERATION 13–14 (J. Brook ed., 1792) (1689). Madison
described conscience as “the most sacred of all property,”
James Madison, Property, NAT’L GAZETTE, Mar. 29, 1792, at
174, reprinted in JAMES MADISON’S “ADVICE TO MY
COUNTRY” 25, 83–84 (David B. Mattern ed., 1997), and
placed the freedom of conscience prior to and superior to all
other natural rights. Religion, he wrote, is “the duty which we
owe to our Creator . . . being under the direction of reason and
conviction only, not of violence or compulsion,” 1 MADISON
PAPERS 174 (1962), “precedent” to “the claims of Civil
Society,” JAMES MADISON, MEMORIAL AND REMONSTRANCE
AGAINST RELIGIOUS ASSESSMENTS (1785); see also United
States v. Macintosh, 283 U.S. 605, 633–34 (1931) (Hughes,
C.J., dissenting) (“[I]n the forum of conscience, duty to a
moral power higher than the state has always been
maintained. . . . The essence of religion is belief in a relation
to God involving duties superior to those arising from any
human relation.”).
From thence sprang the idea that the right to free exercise
necessarily prohibits the government from “compel[ling] a
man to furnish contributions of money for the propagation of
opinions which he disbelieves.” THOMAS JEFFERSON, THE
VIRGINIA ACT FOR ESTABLISHING RELIGIOUS FREEDOM
(1786). And that prohibition has plainly manifested itself
throughout the years as an integral component of the free-
exercise guarantee. Justice Brennan, writing for the Court in
Sherbert v. Verner, 374 U.S. 398 (1963), put it well:
“Government may neither compel affirmation of a repugnant
belief, nor penalize or discriminate against individuals
20
because they hold religious views abhorrent to the
authorities.” Id. at 402 (citations omitted).
The contraceptive mandate demands that owners like the
Gilardis meaningfully approve and endorse the inclusion of
contraceptive coverage in their companies’ employer-
provided plans, over whatever objections they may have.
Such an endorsement—procured exclusively by regulatory
ukase—is a “compel[led] affirmation of a repugnant belief.”
See id. That, standing alone, is a cognizable burden on free
exercise. And the burden becomes substantial because the
government commands compliance by giving the Gilardis a
Hobson’s choice. They can either abide by the sacred tenets
of their faith, pay a penalty of over $14 million, and cripple
the companies they have spent a lifetime building, or they
become complicit in a grave moral wrong. If that is not
“substantial pressure on an adherent to modify his behavior
and to violate his beliefs,” we fail to see how the standard
could be met. See Thomas, 450 U.S. at 718.
In suggesting that no substantial burden lies with the
Gilardis, the government invokes the principles undergirding
the bargain for the corporate veil. True, it is an elementary
principle of corporate law that “incorporation’s basic purpose
is to create a distinct legal entity, with legal rights,
obligations, powers, and privileges different from those of the
natural individuals who created it, who own it, or whom it
employs.” Cedric Kushner Promotions, Ltd. v. King, 533
U.S. 158, 163 (2001). And as part of that fiction,
shareholders forgo certain rights pertaining to the corporation.
See Grote v. Sebelius, 708 F.3d 850, 858 (7th Cir. 2013)
(Rovner, J., dissenting). But we cannot simply stop there.
Shareholders make such a sacrifice because the corporation
can generally exercise some analogue of the forgone right.
As a corporation is “capable of making and executing
21
contracts, possessing and owning real and personal property
in its own name, suing and being sued,” a shareholder cannot
expect to exercise the right to take these actions in his or her
personal capacity. See 1 W. FLETCHER CYCLOPEDIA OF THE
LAW OF CORPORATIONS § 25 (2006). This is no less true with
constitutional rights. See Franks v. Rankin, Nos. 11AP-934,
11AP-962, 2012 WL 1531031, at *10 (Ohio Ct. App. May 1,
2012) (rejecting a shareholder’s due process claim brought on
behalf of the corporation).
Mindful of these principles, consider the ramifications of
the government’s argument. It contends free exercise is an
individual right. If the Gilardis had run their businesses as
sole proprietorships, they would presumably have a viable
RFRA claim under the government’s theory. Cf. Braunfeld,
366 U.S. at 601 (describing individual merchants who
challenged a Sunday closing law under the Free Exercise
Clause). But the government, relying on what is perhaps an
incomplete understanding of corporate law, argues the
Gilardis lose the ability to make such a claim by taking
advantage of state incorporation law. And as a corollary to
the government’s expansive theory, the party being
regulated—the corporation—cannot make a free-exercise
claim, as it is not an individual capable of exercising religion.
So, in the government’s view, there is no corporate analogue,
and the individual right disappears into the ether.
This interpretation is perplexing and troubling. It is
perplexing because we do not believe Congress intended
important statutory rights to turn on the manner in which an
individual operates his businesses. The government’s logic is
also quite troubling because it would eventually reach First
Amendment free-exercise cases. The same language,
“exercise” “of religion,” appears both in the Constitution and
RFRA. Compare U.S. CONST. AMEND. I (“Congress shall
22
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .”), with 42 U.S.C. §
2000bb-1(a) (“Government shall not burden a person’s
exercise of religion . . . .”). Thus, if the government is
correct, the price of incorporation is not only the loss of
RFRA’s statutory free-exercise right, but the constitutional
one as well. And that would create a risk of an
unconstitutional condition in future cases. See Perry v.
Sindermann, 408 U.S. 593, 597 (1972) (“[T]his Court has
made clear that even though a person has no ‘right’ to a
valuable governmental benefit and even though the
government may deny him the benefit for any number of
reasons, there are some reasons upon which the government
may not rely. It may not deny a benefit to a person on the
basis that infringes on his constitutionally protected interests .
. . .” (emphasis added)).
A parade of horribles will descend upon us, the
government exclaims, if religious beliefs could serve as a
private veto for the contraceptive mandate. Hyperbole aside,
we note it was Congress, and not the courts, that allowed for
an individual’s religious conscience to prevail over
substantially burdensome federal regulation. In Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418(2006), the Supreme Court provided an apt response:
The Government’s argument echoes the classic rejoinder
of bureaucrats throughout history: If I make an exception
for you, I’ll have to make one for everybody, so no
exceptions. But RFRA operates by mandating
consideration, under the compelling interest test, of
exceptions to “rule[s] of general applicability.” 42
U.S.C. § 2000bb-1(a). Congress determined that the
legislated test [of RFRA] “is a workable test for striking
23
sensible balances between religious liberty and
competing governmental interests.” § 2000bb(a)(5).
Id. at 436 (alteration in original).
VII
As the Gilardis have demonstrated the substantial nature
of their burden, we now turn to strict scrutiny, a “searching
examination” where the onus is borne exclusively by the
government. Fisher v. Univ. of Tex., 133 S. Ct. 2411, 2419
(2013); see also 42 U.S.C. § 2000bb-1(b). “[U]nless the
government demonstrates a compelling governmental interest,
and uses the least restrictive means of furthering that interest,”
the mandate must be set aside. See Holy Land, 333 F.3d at
166 (internal quotation marks omitted); see also 42 U.S.C. §
2000bb. While “strict scrutiny must not be strict in theory,
but fatal in fact,” neither should it be “strict in theory but
feeble in fact.” Fisher, 133 S. Ct. at 2421 (internal quotation
marks omitted).
A
It is difficult to divine precisely what makes an interest
“compelling,” but a few reliable metrics exist. The interest
cannot be “broadly formulated”—the test demands
particularity. See O Centro, 546 U.S. at 431 (citing Yoder,
406 U.S. at 213, 221). The “compelling” nature of the
interest is contingent on its context. See id. (citing Grutter v.
Bollinger, 539 U.S. 306, 327 (2003); Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 228 (1995)). And the interest
must be “of the highest order,” Yoder, 406 U.S. at 215,
meaning it cannot leave “appreciable damage to [a]
supposedly vital interest unprohibited,” Lukumi, 508 U.S. at
547 (quoting Florida Star v. B.J.F., 491 U.S. 524, 541–42
24
(1989) (Scalia, J., concurring in part and concurring in the
judgment)).6
The government cites several concerns to bolster its
claim that the contraceptive mandate serves a compelling
interest (or interests), but its recitation is sketchy and highly
abstract. Perhaps the government thought it best to focus on
justiciability, hoping its ipse dixit would be sufficient to
survive strict scrutiny. After all, if no one has standing to
object, the state avoids the searching inquiry into its means.
Here, the articulated concerns range from “safeguarding the
public health” to “protecting a woman’s compelling interest in
autonomy” and promoting gender equality. But the
government does little to demonstrate a nexus between this
array of issues and the mandate.
For example, as a standalone principle, “safeguarding the
public health” seems too broadly formulated to satisfy the
compelling interest test. It has been used to justify all manner
of government regulations in other contexts. See Roe v.
Wade, 410 U.S. 113, 154 (1973) (abortion laws); Loxley v.
Chesapeake Hosp. Auth., No. 97-2539, 1998 WL 827285, at
*4 (4th Cir. Dec. 1, 1998) (competence of medical personnel);
Dunagin v. City of Oxford, 718 F.2d 738, 747 (5th Cir. 1983)
(en banc) (liquor advertisement rules). And here, the
government relies on the broad sweep of that interest once
more, citing Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C.
2011), an individual-mandate case in which a district court
found the public health interest sufficient. But the invocation
of the interest in Mead seems empty, reflexive, and
6
Much ink has already been spilled on how the government’s
interests leave “appreciable damage” unprohibited. See Conestoga
Wood, 724 F.3d at 413–14 (Jordan J., dissenting); Hobby Lobby,
723 F.3d at 1143–44. We share these concerns, but need not repeat
them here.
25
talismanic. The government cites Mead as if to say, “once a
compelling interest, always a compelling interest.” It fails to
recognize that “safeguarding the public health” is such a
capacious formula that it requires close scrutiny of the
asserted harm. See O Centro, 546 U.S. at 431. We cannot be
satisfied with the government’s representation as to the
compelling nature of the interest simply because other courts
have reached that conclusion in the generality of cases. See
Yoder, 406 U.S. at 221.
The nebulousness of the government’s interest, however,
prevents us from engaging in the type of exacting scrutiny
warranted here. What exactly is the government trying to
ameliorate? Is it the integrity of “the health and insurance
markets”? Surely, that cannot be the answer; the
comprehensive sweep of the Affordable Care Act will remain
intact with or without the mandate. Or is it a need to provide
greater access to contraceptive care? If so, as we note below,
the reasons underpinning that need are tenuous at best. If we
are to assess whether an exemption for the Gilardis would
pose an “impediment to [a governmental] objective[],” we
must first be able to discern what that objective is. See id. at
221, 236. Simply reciting Mead is not enough.
The government’s invocation of a “woman’s compelling
interest in autonomy” is even less robust. The wording is
telling. It implies autonomy is not the state’s interest to
assert. Nevertheless, the government, quoting Eisenstadt v.
Baird, 405 U.S. 438 (1972), claims the mandate protects a
woman’s ability to decide “whether to bear or beget a child.”
See id. at 453.
Our difficulty in accepting the government’s rationale
stems from looking at the Eisenstadt quote in its entirety: “If
the right of privacy means anything, it is the right of the
26
individual, married or single, to be free from unwarranted
governmental intrusion into matter so fundamentally affecting
a person as the decision to bear or beget a child.” Id.(emphasis added). Regardless of what this observation means
for us today,7 it is clear the government has failed to
demonstrate how such a right—whether described as
noninterference, privacy, or autonomy—can extend to the
compelled subsidization of a woman’s procreative practices.
Again, our searching examination is impossible unless the
government describes its purposes with precision. As with
Mead, simply invoking Eisenstadt is not enough.
Equally unconvincing is the government’s assertion that
the mandate averts “negative health consequences for both the
woman and the developing fetus.” From the outset, we note
the science is debatable and may actually undermine the
government’s cause. For the potential mother, as one amicus
notes, the World Health Organization classifies certain oral
contraceptives as carcinogens, marked by an increased risk
for breast, cervical, and liver cancers. Br. of the Breast
Cancer Prevention Institute, at 8–9. On the other hand, the
contraceptives at issue have been approved by the Food and
Drug Administration, supported by research touting their
benefits. See Op. of Edwards, J., at 30. This tug-of-war gives
us pause because the government has neither acknowledged
nor resolved these contradictory claims.
Even giving the government the benefit of the doubt, the
health concerns underpinning the mandate can be variously
described as legitimate, substantial, perhaps even important,
7
See A. Raymond Randolph, Before Roe v. Wade: Judge
Friendly’s Draft Abortion Opinion, 29 HARV. J.L. & PUB. POL’Y
1035, 1048 (2006) (describing the transformation of the right
described in Griswold and Roe).
27
but it does not rank as compelling, and that makes all the
difference. Cf. Hutchins v. District of Columbia, 188 F.3d
531, 541 (D.C. Cir. 1999) (en banc). Caselaw concerning the
analogous context of abortion is particularly illuminating in
this regard. Time and again, the government’s interest in such
cases has been deemed legitimate and substantial. See
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846
(1992); see also Gonzales v. Carhart, 550 U.S. 124, 145
(2007). But it has never been compelling. See Casey, 505
U.S. at 932 (Blackmun, J., concurring in part and dissenting
in part) (“[W]hile a State has ‘legitimate interests from the
outset of the pregnancy in protecting the health of the woman
and the life of the fetus that may become a child,’ legitimate
interests are not enough. To overcome the burden of strict
scrutiny, the interests must be compelling.”). And we have no
reason to believe otherwise here. While we do not exclude
the possibility that the state’s interest in safeguarding
maternal or fetal health sometimes may be compelling, we
cannot draw such a conclusion in this particular context. See
O Centro, 546 U.S. at 431.
Finally, we note “gender equality” is a bit of a misnomer;
perhaps the government labeled it as such for the veneer of
constitutional importance attached to the term. More
accurately described, the interest at issue is resource parity—
which, in the analogous abortion context, the Supreme Court
has rejected as both a fundamental right and as an equal-
protection issue. See Harris, 448 U.S. at 317–18 (“Although
the liberty protected by the Due Process Clause affords
protection against unwarranted government interference with
freedom of choice in the context of certain personal decisions,
it does not confer an entitlement to such funds as may be
necessary to realize all the advantages of that freedom.”);
Maher v. Roe, 432 U.S. 464, 471 (1977) (“But this Court has
28
never held that financial need alone identifies a suspect class
for purposes of equal protection analysis.”).
The government cites Roberts v. U.S. Jaycees, 468 U.S.
609 (1984), to advance its “gender equality” interest. There,
the Court observed that “[a]ssuring women equal access to
such goods, privileges, and advantages clearly furthers
compelling state interests.” Id. at 626. But when that
observation is put into context, it fails to support the
government’s case. U.S. Jaycees concerned an organization
that had shut women out entirely from a superior class of
membership; it did not involve disparate membership fees or
any resource-parity issue that may sustain the government’s
argument. See id. at 613, 628. This case is quite different.
Beyond the question of access, it is difficult for the
government to suggest the interests of women are monolithic,
and unlike U.S. Jaycees, the government’s proposed solution
clearly impinges on other core prerogatives.
B
Let us assume, however, the government has a
compelling interest. Even then, we cannot see how the
mandate is “the least restrictive means of furthering that . . .
interest.” See 42 U.S.C. § 2000bb-1. It suffers from two
flaws that cannot be overcome. First, there are viable
alternatives—presented by the Gilardis and others—that
would achieve the substantive goals of the mandate while
being sufficiently accommodative of religious exercise. See
Appellants’ Br. at 61; see also Conestoga Wood, 724 F.3d at
414–15 (Jordan, J., dissenting). The government could defeat
these alternatives by proving they would “present an
administrative problem of such magnitude, or . . . afford the
exempted class so great a competitive advantage, that such a
requirement would . . . render[] the entire statutory scheme
29
unworkable.” Sherbert, 374 U.S. at 408–09. But it has made
no such case; for all we know, a broader religious exemption
would have so little impact on so small a group of employees
that the argument cannot be made.
Moreover, the mandate is self-defeating. When a
government regulation “fail[s] to prohibit nonreligious
conduct that endangers [its asserted] interests in a similar or
greater degree” than the regulated conduct, it is
underinclusive by design.8 See Lukumi, 508 U.S. at 543. And
that underinclusiveness can suggest an inability to meet the
narrow-tailoring requirement, as it raises serious questions
about the efficacy and asserted interests served by the
regulation. In this case, small businesses, businesses with
grandfathered plans (albeit temporarily), and an array of other
employers are exempt either from the mandate itself or from
the entire scheme of the Affordable Care Act. Therefore, the
mandate is unquestionably underinclusive. See Hobby Lobby,
723 F.3d at 1143; see also Conestoga Wood, 724 F.3d at 414
(Jordan, J., dissenting) (“It cannot legitimately be said to
vindicate a compelling governmental interest because the
government has already exempted from its reach
grandfathered plans, employers with under 50 employees, and
what it defines as ‘religious employers’, thus voluntarily
8
Underinclusiveness is generally a relevant consideration of the
narrow-tailoring inquiry. See Lukumi, 508 U.S. at 546 (“First, even
were the governmental interests compelling, the ordinances are not
drawn in narrow terms to accomplish those interests. As we have
discussed, all four ordinances are overbroad or underinclusive in
substantial respects.” (emphasis added)). We recognize the
considerable overlap between narrow-tailoring underinclusiveness
and the “appreciable damage” component of the compelling-
interest prong. Nevertheless, we need not reconcile the distinctions
between the two—under both formulations, the government falls
short. See supra at 24 n.6.
30
allowing millions upon millions of people—by some
estimates 190 million—to be covered by insurance plans that
do not satisfy the supposedly vital interest of providing the
public with free contraceptives.” (internal citations omitted)).
A word on Lee. We would be remiss if we omitted this
observation by the Court:
When followers of a particular sect enter into commercial
activity as a matter of choice, the limits they accept on
their own conduct as a matter of conscience and faith are
not to be superimposed on the statutory schemes which
are binding on others in that activity.
455 U.S. at 261. The government understands this quote to
foreclose free-exercise claims by employers like the Gilardis.
But once again, context matters. We mention Lee in our
narrow-tailoring discussion because that is where it belongs.9
The Court made the statement quoted above while evaluating
whether the “limitation on religious liberty . . . [was] essential
to accomplish an overriding governmental interest.” Id. at
257. In engaging in that inquiry, the Court examined
“whether accommodating the Amish belief [would] unduly
interfere with fulfillment of the governmental interest [of
assuring contribution to the Social Security scheme].” Id. at
259.
9
Lee also reinforces our doubts about whether the government’s
asserted interests are sufficiently compelling. The proper
functioning of the tax system was perceived as an interest of “a
high order,” see 455 U.S. at 260, akin to interests of “public safety,
peace, or order” that justified government intrusions on religious
exercise in the past, see Sherbert, 374 U.S. at 403. Given our many
doubts about the interests posited, we are skeptical about whether
the mandate is designed to address “the gravest abuses, endangering
paramount interest.” See Sherbert, 374 U.S. at 406.
31
Lee was a rare case in which the government fended off a
strict-scrutiny challenge by proving exemptions would
“present an administrative problem of such magnitude . . . that
such a requirement would have rendered the entire statutory
scheme unworkable.” Sherbert, 374 U.S. at 408–09; see Lee,
455 U.S. at 158 (“Moreover, a comprehensive national social
security system providing for voluntary participation would
be almost a contradiction in terms and difficult, if not
impossible, to administer.”). Proving the incompatibility of
the requested religious exemption was necessary to prove that
the government had employed the least-restrictive means. See
Lee, 455 U.S. at 259–60 (“Unlike the situation presented in
[Yoder], it would be difficult to accommodate the
comprehensive social security system with myriad exceptions
flowing from a wide variety of religious beliefs.”). Congress
had carefully determined the breaking point of Social
Security—any uncontemplated exemptions could render the
statutory scheme unworkable. See id. at 258.
In contrast, the government has not proven—nay, even
asserted—statutory unworkability here. Its “private veto”
concern is somewhat on point, but without substance or
substantiation, is nowhere near enough. If we found narrow
tailoring satisfied by mere ipse dixit, the strict-scrutiny
inquiry would become feeble indeed. And unlike Lee, where
the government successfully asserted the Social Security
system required every contribution that Congress did not
otherwise exempt, there is nothing to suggest the preventive-
care statute would become unworkable if employers objecting
on religious grounds could opt out of one part of a
comprehensive coverage requirement. The Gilardis’
employees will still receive an array of services such as well-
woman visits, gestational-diabetes screenings, HPV testing,
counseling for sexually-transmitted infections, support for
32
breastfeeding, and counseling for interpersonal and domestic
violence. See Women’s Preventive Services Guidelines,
HEALTH RES. & SERVS. ADMIN.,
http://www.hrsa.gov/womensguidelines/. The provision of
these services—even without the contraceptive mandate—by
and large fulfills the statutory command for insurers to
provide gender-specific preventive care. At the very least, the
statutory scheme will not go to pieces.
VIII
We conclude the district court erred in denying a
preliminary injunction for the Gilardis on the grounds that
their case was unlikely to succeed on the merits; therefore, we
reverse the district court’s denial of a preliminary injunction
for the individual owners. Because the court premised its
decision entirely on a question of law, we must remand for
consideration of the other preliminary-injunction factors. See
Chaplaincy of Full Gospel Churches, 454 F.3d at 304. We
affirm the district court’s denial of a preliminary injunction
with respect to the Freshway companies.
So ordered.
RANDOLPH, Senior Circuit Judge, concurring in part and
concurring in the judgment:
I do not join parts III and IV of Judge Brown’s opinion
because I do not believe we need to reach the potentially far-
reaching corporate free-exercise question. Other courts in
contraceptive-mandate cases have “decline[d] to address the
unresolved question of whether for-profit corporations can
exercise religion.” Tyndale House Publishers, Inc. v. Sebelius,
904 F. Supp. 2d 106, 114 (D.D.C. 2012); see Legatus v.
Sebelius, 901 F. Supp. 2d 980, 988 (E.D. Mich. 2012); cf. Hobby
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013)
(en banc) (majority opinion) (addressing only claims by
corporate, but not individual, plaintiffs). The same approach
may be used without deciding the rights of the Freshway
Corporations because the government could enforce the mandate
against the corporations only by compelling the Gilardis to act.
Since “it is not necessary to decide more, it is necessary not to
decide more.” PDK Labs. Inc. v. U.S. Drug Enforcement
Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment).
We should be particularly hesitant to pass unnecessarily on
such a complex issue. If secular for-profit corporations can
never exercise religion, what of profitable activities of organized
religions? See Hernandez v. Comm’r, 490 U.S. 680, 709 (1989)
(O’Connor, J., dissenting). If only religious for-profit
organizations have a free-exercise right, how does one
distinguish between religious and non-religious organizations?
See Hobby Lobby Stores, 723 F.3d at 1136-37 & n.12; id. at
1170-75 (Briscoe, C.J., concurring in part and dissenting in
part). Why limit the free-exercise right to religious organizations
when many business corporations adhere to religious dogma?
See Mark L. Rienzi, God and the Profits: Is There Religious
Liberty for Money-Makers?, 21 GEO. MASON L. REV.
(manuscript at 11-24) (forthcoming fall 2013). If non-religious
organizations do not have free-exercise rights, why do non-
2
religious natural persons (athiests, for example) possess them?
Torcaso v. Watkins, 367 U.S. 488, 495-96 & n.11 (1961). If a
corporate free-exercise right is recognized, in any form, there
are equally challenging secondary questions. How should the
beliefs of a religious corporation be determined? Can publicly
traded corporations be religious? If so, do they take on the
religions of their shareholders as a matter of course? If a
religious corporation is sold, does it retain its religious identity?
These questions, challenging in themselves, would confront us
in different permutations across the diverse entity forms and
organizational structures of the American business landscape.
I also write separately to emphasize the importance of the
Freshway Corporations’ election to be taxed under subchapter
S of the Internal Revenue Code. I.R.C. §§ 1361–1379. As a
result, the Freshway Corporations do not pay corporate income
taxes. See I.R.C. § 1363(a). Instead, the income of the Freshway
Corporations passes through, pro rata, to their shareholders, the
Gilardis. See I.R.C. § 1366(a)(1). Subchapter S disregards the
corporate form for purposes of the corporate income tax. We
must ask why Congress would have disregarded the corporate
form for subchapter S corporations but then wanted it imposed
to prevent their owners from asserting free-exercise rights under
RFRA. There is no good answer, or at least we have received
none. It would be incongruous to emphasize the corporate veil
in rigid form for RFRA purposes while disregarding it for tax
purposes under subchapter S. This inference is particularly
compelling because both subchapter S and the “tax” that
enforces the contraceptive mandate are part of the Internal
Revenue Code. I.R.C. § 4980D.
The pass-through provisions of subchapter S matter for an
additional reason. If the Gilardis do not order the Freshway
Corporations to comply with the mandate, then their individual
tax returns will be directly affected. As shareholders of an S
3
Corporation (technically, they are treated as one shareholder
under I.R.C. § 1361(c)(1)(A)(ii)), they would “take[] into
account” their “pro rata share of the corporation’s . . . income”
in determining their income tax liabilities. I.R.C. § 1366(a)(1).
In other words, as a direct result of the mandate’s operation the
Gilardis themselves will have less income in each taxable year.
This underscores the “pressure on [the Gilardis] to modify
[their] behavior and to violate [their] beliefs.” Thomas v. Review
Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981).
EDWARDS, Senior Circuit Judge, concurring in part and
dissenting in part:
TABLE OF CONTENTS
I. STANDING
A. The Companies Have No Standing to Pursue a Cause
of Action Under RFRA
B. The Owners of the Companies Have Standing in This
Case to Pursue a Cause of Action Under RFRA
II. FREE EXERCISE JURISPRUDENCE
A. First Principles: The Limited Reach of the Free
Exercise Clause
B. The Evolution of the Substantial Burden/Compelling
Governmental Interest Test During the Twenty-seven
Years from Sherbert to Smith
C. Congress’ Enactment of RFRA in Reaction to Smith:
Restoration of the Substantial Burden/Compelling
Governmental Interest Test
III. THE MANDATE DOES NOT SUBSTANTIALLY BURDEN
APPELLANTS’ RELIGIOUS OBJECTIONS TO THE USE OF
CONTRACEPTIVE PRODUCTS
IV. COMPELLING GOVERNMENTAL INTERESTS JUSTIFY THE
MANDATE
****
I agree that Appellants Francis and Phil Gilardi have
standing to pursue a cause of action under the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb–
2000bb-4. I also agree with Judge Brown that the corporate
2
entities that are solely owned by the Gilardis, Freshway
Logistics, Inc. and Fresh Unlimited, Inc., d/b/a Freshway
Foods (collectively “Freshway”), do not have standing to seek
relief under RFRA.
However, I strongly disagree with the majority’s holding
on the merits. Under the Patient Protection and Affordable
Care Act of 2010 (“Affordable Care Act”), 42 U.S.C. §
300gg-13(a)(4), Freshway is required to include in its health
care plan “[a]ll Food and Drug Administration approved
contraceptive methods, sterilization procedures, and patient
education and counseling for all women with reproductive
capacity.” See Group Health Plans and Health Insurance
Issuers Relating to Coverage of Preventative Services Under
the Patient Protection and Affordable Care Act, 77 Fed. Reg.
8725, 8725 (Feb. 15, 2012); see id. at 8725 n.1 (providing
hyperlink to the applicable Health Resources and Services
Administration guidelines). The Gilardis contend that
compliance with this directive—also known as “the
Mandate”—will force them to violate “their Catholic religious
beliefs” against contraception. Br. of Appellants at 14.
No one doubts the sincerity of the Gilardis’ religious
beliefs against contraception. Their legal claim, however, is
seriously wanting. The Gilardis complain that the Mandate
imposes a “substantial burden” on their “exercise of religion”
under RFRA, 42 U.S.C. § 2000bb-1(a), because their
companies are required to provide health insurance that
includes contraceptive services. This is a specious claim.
It has been well understood since the founding of our
nation that legislative restrictions may trump religious
exercise. Braunfeld v. Brown, 366 U.S. 599, 603 (1961). Were
it otherwise, “professed doctrines of religious belief [would
be] superior to the law of the land, and in effect . . . permit
3
every citizen to become a law unto himself. Government
could exist only in name under such circumstances.” Reynolds
v. United States, 98 U.S. 145, 167 (1878). As the Court noted
in Lyng v. Northwest Indian Cemetery Protective Association,
485 U.S. 439 (1988):
The First Amendment must apply to all citizens alike,
and it can give to none of them a veto over public
programs that do not prohibit the free exercise of
religion. The Constitution does not, and courts cannot,
offer to reconcile the various competing demands on
government, many of them rooted in sincere religious
belief, that inevitably arise in so diverse a society as ours.
That task, to the extent that it is feasible, is for the
legislatures and other institutions.
Id. at 452.
The Gilardis’ claim in this case finds no support in the
law. They are not required to use or endorse contraception,
and they remain free to openly oppose contraception. The
Mandate requires nothing more than that the companies, not
the Gilardis, offer medical insurance that includes coverage
of contraceptive services for those employees who want it.
The Supreme Court has never applied the Free Exercise
Clause to find a substantial burden on a plaintiff’s religious
exercise where the plaintiff is not himself required to take or
forgo action that violates his religious beliefs, but is merely
required to take action that might enable other people to do
things that are at odds with the plaintiff’s religious beliefs.
Therefore, the Gilardis cannot claim to be substantially
burdened by the Affordable Care Act—a neutral statute of
general applicability that regulates public health and welfare
and in no way limits their exercise of religion.
4
If I were to indulge the implausible suggestion that the
Mandate imposes a substantial burden on Appellants’ exercise
of religion, I would disagree with the majority’s conclusion
that the Government has failed to establish that the Mandate is
the least restrictive means of furthering a compelling interest.
When the record in this case is viewed through the lens of
well-established precedent, the Mandate easily satisfies the
requirements of the compelling governmental interest test.
As the Supreme Court made clear in United States v. Lee,
455 U.S. 252 (1982), a decision that has been repeatedly cited
and never questioned:
Congress and the courts have been sensitive to the needs
flowing from the Free Exercise Clause, but every person
cannot be shielded from all the burdens incident to
exercising every aspect of the right to practice religious
beliefs. When followers of a particular sect enter into
commercial activity as a matter of choice, the limits they
accept on their own conduct as a matter of conscience
and faith are not to be superimposed on the statutory
schemes which are binding on others in that activity.
Id. at 261 (emphasis added). Freshway and the Gilardis get no
pass on this rule merely because the companies are solely
owned by the Gilardis. Lee and other like authorities show
that Appellants’ claim on the merits is spurious.
5
I. STANDING
A. The Companies Have No Standing to Pursue a Cause
of Action Under RFRA
Although the Supreme Court has long recognized Free
Exercise protection for individuals and religious
organizations, “the nature, history, and purpose” of the Clause
counsel against extending the right to nonreligious corporate
entities. See First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 778 n.14 (1978); Grote v. Sebelius, 708 F.3d 850, 857
(7th Cir. 2013) (Rovner, J., dissenting) (“General business
corporations do not, separate and apart from the actions or
belief systems of their individual owners or employees,
exercise religion.” (quoting Hobby Lobby Stores, Inc. v.
Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012)));
see also Conestoga Wood Specialties Corp. v. Sec’y of U.S.
Dep’t of Health & Human Servs., 724 F.3d 377, 384 (3d Cir.
2013) (“Citizens United [v. FEC, 558 U.S. 310 (2010),] is . . .
grounded in the notion that the Court has a long history of
protecting corporations’ rights to free speech. . . . [T]here is
[not] a similar history of courts providing free exercise
protection to corporations.”).
The dispositive point here is that while general business
corporations may engage in expression related to their
business interests, independent of their owners’ interests,
general business corporations “do not pray, worship, observe
sacraments or take other religiously-motivated actions
separate and apart from the intention and direction of their
individual actors.” Grote, 708 F.3d at 857 (Rovner, J.,
dissenting) (quoting Hobby Lobby, 870 F. Supp. 2d at 1291).
Therefore, “[r]eligious exercise is, by its nature, one of those
‘purely personal’ matters referenced in [Bellotti, 435 U.S. at778 n.14] which is not the province of a general business
6
corporation.” Id. Freshway has conceded that it is not a
religious organization for purposes of the Free Exercise
Clause; therefore, the companies have no standing to pursue a
claim under RFRA.
B. The Owners of the Companies Have Standing in This
Case to Pursue a Cause of Action Under RFRA
Unlike Freshway, the Gilardis satisfy the requirements of
Article III and are not barred for want of standing from
pursuing a cause of action under RFRA.
The Government argues that
Plaintiffs cannot circumvent the distinction between
religious organizations and secular companies by
attempting to shift the focus of the RFRA inquiry from
Freshway Foods to the Gilardis, who are the
corporations’ controlling shareholders. . . . The[]
obligations [of the Affordable Care Act] lie with the
corporations themselves. The Gilardis cannot even
establish standing to challenge the contraceptive-
coverage requirement, much less demonstrate that the
requirement may be regarded as a substantial burden on
their personal exercise of religion.
Br. for the Appellees at 24 (emphasis added). It appears that
the Government has conflated the requirements of Article III
standing with the merits of the Gilardis’ claim under RFRA.
Indeed, apart from the foregoing passing reference to
“standing,” the Government never bothers to address the
requirements of Article III. Rather, it rests principally on its
claim that an action to redress injuries to a corporation cannot
be maintained by a stockholder in his own name. Id. at 25.
7
To satisfy Article III’s standing requirements, a plaintiff
must show that (1) he or she has suffered an “injury in fact”
that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). The Gilardis easily satisfy these
requirements.
As the sole owners of the companies, the Gilardis are
inextricably tied to Freshway. They therefore suffer injury in
fact because they cannot operate their businesses according to
their faith. Br. of Appellants at 16-17. Furthermore, the
Gilardis injury is imminent and concrete, it is caused by the
Mandate, and it will be redressed by a favorable judicial
decision. Therefore, the Gilardis have Article III standing to
pursue a cause of action under RFRA.
It is true that when a plaintiff’s asserted injury is based on
governmental regulation of a third party, proof of standing
may be problematic. See, e.g., Allen v. Wright, 468 U.S. 737,
758-59 (1984); Simon v. E. Ky. Welfare Rights Org., 426 U.S.
26, 41-46 (1976); Nat’l Wrestling Coaches Ass’n v. Dep’t of
Educ., 366 F.3d 930, 938-39 (D.C. Cir. 2004). This is because
the necessary elements of causation and redressability in such
a case rest on the independent choices of the regulated third
party. As such, “it becomes the burden of the plaintiff to
adduce facts showing that those choices have been or will be
made in such manner as to produce causation and permit
redressability of injury.” Defenders of Wildlife, 504 U.S. at
562. There is no such third-party standing problem with
respect to the Gilardis’ claim.
8
This case presents a situation in which a for-profit
corporation is fully owned by two related shareholders.
Freshway and the shareholder-owners are separate legal
entities, but are otherwise inextricably connected. The
Gilardis control the corporations and feel a concomitant
responsibility to manage the companies’ business activities
consistent with their Catholic faith. This connection between
the Government Mandate and Freshway’s conduct leaves
little doubt regarding the requirements of causation and
redressability under Article III. We have upheld standing in
cases involving Government regulation of third parties where
the connection between the Government action and the third-
party conduct was less clear than it is in this case. See, e.g.,
Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301,
309-10 (D.C. Cir. 2001) (holding that the Government’s
addition of dioxin to the list of known carcinogens caused
municipalities and companies to reduce or end their use of
PVC plastic produced by the plaintiff-manufacturer, and that
a decision setting aside the Government’s action likely would
give redress to the manufacturer). There is no question here
that the Mandate compels Freshway to take action that the
Gilardis challenge under RFRA. Therefore, causation and
redressability are satisfied.
Finally, because RFRA provides that “[s]tanding to assert
a claim or defense under [the Act] shall be governed by the
general rules of standing under article III of the Constitution,”
42 U.S.C. § 2000bb-1(c), the Gilardis clearly have met the
only requirements for standing that are set forth in RFRA.
The Government ignores the requirements of Article III
standing and, instead, rests its argument on “the bedrock
principle that a corporation is ‘a distinct legal entity, with
legal rights, obligations, powers, and privileges different from
9
those of the natural individuals who created it, who own it, or
whom it employs.’” Br. for the Appellees at 26 (citing Cedric
Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001)).
Apparently, the Government means to suggest that this
“bedrock principle” effectively forecloses the Gilardis’
standing to pursue a claim under RFRA. Or, to put it another
way, the Government seems to contend that the cited principle
is the foundation for a prudential rule that limits a claimant’s
right to pursue a cause of action under RFRA even when the
claimant has satisfied the requirements of Article III. The
Government cites no Supreme Court authority to support this
proposition, and I can find none.
First, contrary to the Government’s argument, the general
rule relating to shareholder suits is not inviolate. As the
Supreme Court noted in Franchise Tax Board of California v.
Alcan Aluminium Limited, there is “an exception to this rule
allowing a shareholder with a direct, personal interest in a
cause of action to bring suit even if the corporation’s rights
are also implicated.” 493 U.S. 331, 336 (1990). The Gilardis’
claim under RFRA asserts a cause of action in their own right
for an alleged denial of their exercise of religion. This does
not offend the shareholder standing rule.
Second, although the Government does not explicitly
assert that the shareholder standing rule is a prudential
standing requirement, the Sixth Circuit reached this
conclusion in Autocam Corporation v. Sebelius, No. 12-2673,
2013 WL 5182544 (6th Cir. Sept. 17, 2013). While
recognizing that RFRA provides only that the Article III
requirements must be met for standing, the Sixth Circuit
nonetheless concluded that prudential requirements must also
be satisfied. The Autocam decision first points out that
“‘Congress legislates against the background of [the Supreme
Court’s] prudential standing doctrine, which applies unless it
10
is expressly negated.’” Id. at *4 (quoting Bennett v. Spear,
520 U.S. 154, 163 (1997)). The decision then goes on to say
that, because “RFRA makes no mention of prudential
standing” nor states “that Article III constitutes the exclusive
set of requirements for standing,” prudential standing
requirements must apply in RFRA cases in addition to Article
III requirements. Id. Finally, the decision holds that the
shareholder standing rule is an established component of
prudential standing doctrine. Id. I respectfully disagree.
Autocam cites Franchise Tax in support of the
proposition that the shareholder standing rule is a component
of prudential standing doctrine. But Franchise Tax merely
stated that “we think” the “shareholder standing” rule is
“related to” the principle of prudential standing that requires a
plaintiff to assert his own legal interests. 493 U.S. at 336.
Franchise Tax did not actually rely on the shareholder
standing rule to conclude that the plaintiff lacked standing. Id.
at 338. We can find no Supreme Court decision applying the
shareholder standing rule to uphold the dismissal of a party’s
law suit for want of “prudential standing,” nor can we find a
decision citing Franchise Tax for this general idea.
Autocam’s reliance on Bennett v. Spear also seems
misplaced. In Bennett, the prudential standing doctrine to
which the Court was referring was the “zone of interest” test,
not the shareholder standing rule. 520 U.S. 162-63. In many
cases involving challenges to administrative agency actions,
in addition to determining whether a petitioner has Article III
standing, a court must also determine “whether the interest
sought to be protected by the complainant is arguably within
the zone of interests to be protected or regulated by the statute
or constitutional guarantee in question.” Ass’n of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153
(1970). The zone of interest inquiry, which is “basically one
11
of interpreting congressional intent,” Clarke v. Sec. Indus.
Ass’n, 479 U.S. 388, 394 (1987), is a prudential requirement
that applies unless expressly negated by Congress. See
Bennett, 520 U.S. at 163. There is not the slightest doubt in
this case that the Gilardis’ cause of action is within the zone
of interests protected by RFRA.
As already noted, the Autocam decision rests in part on
the assumption that “Congress did not remove [the] prudential
[shareholder] standing limitations when it enacted RFRA.”
2013 WL 5182544, at *4. This reasoning is fallacious because
neither the Government nor the Sixth Circuit cites any
authority holding that the shareholder standing rule was a
prudential limitation governing Free Exercise claims before
the enactment of RFRA. Since the Supreme Court has never
held that such a prudential standing requirement limits who
may pursue Free Exercise claims, it is a non sequitur to say
that “Congress legislates against the background of [the
Supreme Court’s] prudential standing doctrine.” Id.(alterations in original).
Third, Bennett makes clear that prudential standing can
be negated by Congress. If there were any prudential standing
requirements applicable to Free Exercise claims before the
enactment of RFRA, Congress eliminated them when RFRA
was passed. In Bennett, the Court held that a statutory
provision stating that “any person may commence a civil suit”
was sufficient to make it clear that any party who satisfied the
requirements of Article III could bring suit to challenge an
agency action under the statute. 520 U.S. at 164. The holding
in Bennett controls the disposition in this case with respect to
prudential standing. RFRA tellingly states that “[s]tanding to
assert a claim or defense . . . shall be governed by the general
rules of standing under article III of the Constitution.” 42
U.S.C. § 2000bb–1(c). The phrase “shall be governed by”
12
makes it plain that Article III, and nothing more, controls with
respect to claims under RFRA.
In sum, I agree with the majority that the Gilardis have
standing to pursue a claim under RFRA. It is important to
note, however, that the Gilardis’ standing rests on their
inextricable ties to Freshway. The companies are operated as
an extension of the two owners’ religious beliefs; there are no
minority shareholders with different views. Thus, the
cognizable constitutional injury—an alleged encroachment on
personal religious exercise—only exists in this case because
the Gilardis’ fully-owned companies are a vehicle by which
they express their personal religious views, e.g., they direct
delivery trucks to display bumper stickers conveying “their
religious views regarding the sanctity of human life to the
public.” Br. of Appellants at 11-12.
The Mandate applying to their companies touches the
Gilardis’ religious exercise rights under RFRA. The touching
is not substantial, but it is sufficient to satisfy the
requirements of Article III. The merits of the Gilardis’ claim
under RFRA is quite another matter, however.
II. FREE EXERCISE JURISPRUDENCE
A. First Principles: The Limited Reach of the Free
Exercise Clause
Through the entire history of Free Exercise
jurisprudence, the Supreme Court has remained true to the
principle that the Free Exercise Clause does not ensure
freedom from any regulation to which a party holds a
religious objection. Indeed, the Court has consistently
recognized that any such rule would be problematic because it
“would place beyond the law any act done under claim of
13
religious sanction.” Cleveland v. United States, 329 U.S. 14,
20 (1946); accord Reynolds, 98 U.S. at 167 (“To permit this
would . . . in effect . . . permit every citizen to become a law
unto himself. Government could exist only in name under
such circumstances.”).
In early cases, the Supreme Court routinely held that
religious activities must be subordinate to general public
welfare legislation. Mormons were thus not exempt for the
sake of religious exercise from laws criminalizing polygamy.
Reynolds, 98 U.S. at 145; Cleveland, 329 U.S. at 20. A child
who wished to distribute religious literature with her family
was not exempt from child labor laws. Prince v.
Massachusetts, 321 U.S. 158, 167 (1944) (“[T]he state has a
wide range of power for limiting parental freedom and
authority in things affecting the child’s welfare; and that
includes, to some extent, matters of conscience and religious
conviction.”). And in Braunfeld v. Brown, the Court upheld
the application of a Sunday closing law to Jewish merchants
who observed the Sabbath on Saturday, even though the law
“ma[de] the practice of their religious beliefs more expensive”
by forcing them to close two days a week. 366 U.S. at 605;
accord McGowan v. Maryland, 366 U.S. 420 (1961). The
Sunday closing law was intended to establish a “day of
community tranquility, respite and recreation” for the general
well-being of citizens, Braunfeld, 366 U.S. at 602, and “[t]o
strike down . . . legislation which imposes only an indirect
burden on the exercise of religion . . . would radically restrict
the operating latitude of the legislature.” Id. at 606.
When one studies the history of Free Exercise
jurisprudence in the United States, it is inescapable that the
Free Exercise Clause of the First Amendment has been
narrowly defined for good reasons. This point was amplified
by Justice O’Connor in Lyng:
14
However much we might wish that it were otherwise,
government simply could not operate if it were required to
satisfy every citizen’s religious needs and desires. A broad
range of government activities—from social welfare
programs to foreign aid to conservation projects—will
always be considered essential to the spiritual well-being
of some citizens, often on the basis of sincerely held
religious beliefs. Others will find the very same activities
deeply offensive, and perhaps incompatible with their own
search for spiritual fulfillment and with the tenets of their
religion. The First Amendment must apply to all citizens
alike, and it can give to none of them a veto over public
programs that do not prohibit the free exercise of religion.
The Constitution does not, and courts cannot, offer to
reconcile the various competing demands on government,
many of them rooted in sincere religious belief, that
inevitably arise in so diverse a society as ours. That task,
to the extent that it is feasible, is for the legislatures and
other institutions.
485 U.S. at 452.
B. The Evolution of the Substantial Burden/Compelling
Governmental Interest Test During the Twenty-seven
Years from Sherbert to Smith
RFRA states in relevant part:
(a) In general
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.
15
(b) Exception
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.
RFRA was enacted to overturn the Supreme Court’s
decision in Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990), which
had vitiated the substantial burden/compelling governmental
interest test enunciated in Sherbert, 374 U.S. 398. See 42
U.S.C. § 2000bb(b)(1) (stating that a purpose of the statute is
“to restore the compelling interest test as set forth in”
Sherbert). It is also undisputed that, in passing RFRA,
Congress meant to restore the entire body of Free Exercise
jurisprudence that developed during the twenty-seven years
following the Court’s decision in Sherbert up until the Court’s
decision in Smith. See, e.g., S. REP. NO. 103-111, at 8-9
(1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898; H.R.
REP. NO. 103-88, at 6-7 (1993). An examination of the
relevant case law during these twenty-seven years confirms
that, when it enacted RFRA, Congress never meant to
abandon the first principles that have historically limited the
reach of the Free Exercise Clause.
The compelling interest framework was first articulated
in Sherbert, where the Court held that South Carolina violated
the plaintiff’s Free Exercise rights when it denied her
16
unemployment benefits on the grounds that observing the
Sabbath did not constitute “good cause” for declining work on
Saturday. 374 U.S. at 400-01. The Court explained that the
state must show a compelling interest for refusing to
accommodate the plaintiff’s Sabbath observance. Sherbert
cited Braunfeld approvingly. Unlike Sherbert, Braunfeld
involved a situation in which there was “a strong state interest
in providing one uniform day of rest for all workers,” and
“[r]equiring exemptions for Sabbatarians . . . appeared to
present an administrative problem of such magnitude, or to
afford the exempted class so great a competitive advantage,
that such a requirement would have rendered the entire
statutory scheme unworkable.” Id. at 408-09. In Sherbert,
however, as the Court later explained, the Government acted
pursuant to a statutory scheme that created “a mechanism for
individualized exemptions.” Bowen v. Roy, 476 U.S. 693, 708
(1986). When a “state creates such a mechanism, its refusal to
extend an exemption to an instance of religious hardship . . .
tends to exhibit hostility, not neutrality, towards religion.” Id.In the majority of the Free Exercise cases decided during
the twenty-seven years following Sherbert, the Court applied
this compelling interest framework to hold either (a) that there
was no substantial burden on religious exercise, or (b) that the
burden was justified by the Government’s interest in
administering a statutory scheme that, by its nature, required
uniform enforcement in order to be administrable. The Court
amplified these lines of analysis in Lee.
In Lee, the Court upheld the Government’s application of
Social Security taxes to an Amish employer who held a
religious objection to the Social Security system. Accepting
the plaintiff’s “contention that both payment and receipt of
social security benefits is forbidden by the Amish faith,” the
Court concluded that Social Security taxes imposed a
17
substantial burden on Lee’s Free Exercise. 455 U.S. at 257.
Nonetheless, the Court found the burden justified because in
Lee, as in Braunfeld, uniform application of the law was
necessary to make general public welfare regulations
administrable: “[M]andatory participation [by all covered
employers and employees] is indispensable to the fiscal
vitality of the . . . system,” id. at 258, and “[t]he tax system
could not function if denominations were allowed to
challenge [it] because tax payments were spent in a manner
that violates their religious belief.” Id. at 260.
In at least six more Free Exercise cases decided during
the twenty-seven years post-Sherbert, the Court applied the
substantial burden/compelling governmental interest
framework to hold that the disputed Government action or
regulation imposed no substantial burden, or that the burden
was justified under the reasoning in Lee and Braunfeld:
 Gillette v. United States, 401 U.S. 437, 461 (1971)
(the Military Selective Service Act, exempting persons
who oppose participating in war generally, but not
those who hold religious objections to a particular
war, does not violate Free Exercise) (“Our cases do
not at their farthest reach support the proposition that a
stance of conscientious opposition relieves an objector
from any colliding duty fixed by a democratic
government.”).
 Bob Jones Univ. v. United States, 461 U.S. 574, 603-
04 (1983) (denying tax-exempt status to a religious
school that practiced racial discrimination as part of a
religious belief against interracial dating and marriage
did not violate Free Exercise) (“Th[e] governmental
interest [in eradicating racial discrimination]
substantially outweighs whatever burden denial of tax
18
benefits places on petitioners’ exercise of their
religious beliefs.” (citing Lee, 455 U.S. at 259-60;
Prince, 321 U.S. at 170; Gillette, 401 U.S. 437; and
Reynolds, 98 U.S. 145)).
 Hernandez v. Comm’r, 490 U.S. 680, 698 (1989)
(denying tax deductible status to fees paid for training
sessions that were “the central practice of
Scientology” did not violate Free Exercise); id. at 699-
700 (“Lee establishes that even a substantial burden
would be justified by the ‘broad public interest in
maintaining a sound tax system,’ free of ‘myriad
exceptions flowing from a wide variety of religious
beliefs.’” (quoting Lee, 455 U.S. at 260)).
 Tony & Susan Alamo Found. v. Sec’y of Labor, 471
U.S. 290, 303 (1985) (the Fair Labor Standards Act
did not burden the religious exercise of a non-profit
religious organization or its “associates,” who
received food and shelter in exchange for work
carrying out the organization’s commercial
enterprises).
 Bowen, 476 U.S. at 706-07 (rejecting a claim that
using a social security number to administer
Government programs violated the Free Exercise of
Native Americans who believed the number would
impair their child’s spirit) (“[T]he nature of the burden
is relevant to the standard the government must meet
to justify the burden. . . . [A]dministration of complex
[benefits] programs requires certain conditions and
restrictions. Although in some situations, a mechanism
for individual consideration will be created, a policy
decision . . . to treat all applicants alike and . . . not . . .
to become involved in case-by-case inquiries into the
19
genuineness of each religious objection . . . is entitled
to substantial deference.” (citing Thomas v. Review
Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18
(1989); Sherbert, 374 U.S. at 404)).
 Lyng, 485 U.S. at 442 (no substantial burden on
religious exercise even though building a road across a
stretch of national forest that would “cause serious and
irreparable damage to the sacred areas which are an
integral and necessary part of the belief systems and
lifeway” of the Native American tribes); id. at 450-51(“[Sherbert] does not and cannot imply that incidental
effects of government programs, which may make it
more difficult to practice certain religions but which
have no tendency to coerce individuals into acting
contrary to their religious beliefs, require government
to bring forward a compelling justification. . . .”).
During this same twenty-seven year period, the Court
found Free Exercise violations only when the disputed
governmental policy allowed for individualized or discrete
exemptions, and the state declined to grant exemptions or
exceptions to accommodate religious beliefs. Three of the
four successful Free Exercise cases, like Sherbert, presented a
discretionary decision as to whether the plaintiff had “good
cause” for refusing employment that conflicted with their
religious practice. Thomas, 450 U.S. 707 (claimant denied
unemployment benefits because he refused a job assembling
weapons on the grounds of a religious objection); Hobbie v.
Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987)
(claimant was denied unemployment benefits because of
refusal to work on the Sabbath); Frazee v. Ill. Dep’t of Emp’t
Sec., 489 U.S. 829 (1989) (claimant denied unemployment
benefits because he refused to work on Sunday).
20
In the fourth case, Wisconsin v. Yoder, 406 U.S. 205(1972), the Court held that the state lacked a compelling
interest in requiring Amish families to send their children to
school for the ninth and tenth grades. The Court reiterated that
“[i]t is true that activities of individuals, even when
religiously based, are often subject to regulation . . . to
promote the health, safety, and general welfare.” Id. at 220
(citing Gillette, 401 U.S. 437; Braunfeld, 366 U.S. 599;
Prince, 321 U.S. 158; Reynolds, 98 U.S. 145). But it
concluded that the state had not shown why its educational
objectives required Amish children to attend “an additional
one or two years of formal high school . . . in place of their
long-established program of informal vocational education.”
Id. at 222. In other words, there was no demonstrated need for
a uniform attendance rule. Indeed, the accommodation sought
by the Amish was not at odds with the state’s objective of
ensuring meaningful education for minors. Therefore, the
Court concluded that the Government simply had not shown
that the state’s educational objectives would be compromised
by granting a discrete exemption for Amish students.
In sum, a careful reading of the Supreme Court’s Free
Exercise decisions during the twenty-seven years post-
Sherbert shows that Free Exercise challenges to generally
applicable, neutral Government policies were rarely
successful. See Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103
HARV. L. REV. 1409, 1417 (1990) (“Since 1972, the Court has
rejected every claim for a free exercise exemption to come
before it, outside the narrow context of unemployment
benefits governed strictly by Sherbert.” (footnotes omitted)).
21
C. Congress’ Enactment of RFRA in Reaction to Smith:
Restoration of the Substantial Burden/Compelling
Governmental Interest Test
After twenty-seven years of consistently applying the
substantial burden/compelling governmental interest
framework to decide cases arising under the Free Exercise
Clause, the Supreme Court inexplicably discarded this
analytical framework in Smith, 494 U.S. 872. The reaction
from Congress was swift and clear.
In Smith, the Court held that criminalizing the use of
peyote did not violate the free exercise of Native American
sects that traditionally used the hallucinogen during religious
ceremonies. The Court did not require the state to provide a
compelling justification for denying an exemption, stating that
the Sherbert compelling interest test was “inapplicable” to “an
across-the-board criminal prohibition on a particular form of
conduct.” Id. at 884-85. While pre-Smith cases had often
applied the compelling interest framework to conclude that a
claimant’s religious exercise was not substantially burdened,
or that the Government’s compelling interest justified any
burden, Smith went a step further by eliminating this
framework entirely.
In response to Smith, Congress enacted RFRA. The
statute notes that “the Supreme Court virtually eliminated the
requirement that the government justify burdens on religious
exercise imposed by laws neutral toward religion.” 42 U.S.C.
§ 2000bb(a)(4). It then states that the purpose of RFRA is to
“restore the compelling interest test as set forth” in Sherbert
and Yoder and to “guarantee its application in all cases where
free exercise of religion is substantially burdened.” Id.
§ 2000bb(b)(1).
22
Reports from both houses make clear that Congress
sought to restore the entire body of Free Exercise
jurisprudence as it existed during the twenty-seven years post-
Sherbert. S. REP. NO. 103-111, at 9 (“Pre-Smith case law
makes it clear that only governmental actions that place a
substantial burden on the exercise of religion must meet the
compelling interest test. . . . The act thus would not require
such a justification for every government action that may
have some incidental effect on religious institutions. . . . [T]he
compelling interest test generally should not be construed
more stringently or more leniently than it was prior to
Smith.”); H.R. REP. NO. 103-88, at 7 (“This bill is not a
codification of any prior free exercise decision but rather the
restoration of the legal standard that was applied in those
decisions. . . . [T]he [compelling interest] test generally
should not be construed more stringently or more leniently
than it was prior to Smith.”); 139 CONG. REC. S26178 (daily
ed. Oct. 26, 1993) (statement of Sen. Kennedy) (“Not every
free exercise claim will prevail, just as not every claim
prevailed prior to the Smith decision.”). Indeed, RFRA itself
says that “the compelling interest test as set forth in prior
Federal court rulings is a workable test for striking sensible
balances between religious liberty and competing prior
governmental interests.” 42 U.S.C. § 2000bb(a)(5) (emphasis
added).
Senator Hatch, a sponsor of RFRA, explained that the bill
was amended to add the word “substantial” before “burden”
so as to be “consistent with the case law developed by the
Court prior to the Smith decision” that “does not require the
Government to justify every action that has some effect on
religious exercise.” 139 CONG. REC. S26180 (daily ed. Oct.
26, 1993) (statement of Sen. Hatch).
23
Since the passage of RFRA, the Supreme Court has
confirmed that, as Congress intended, RFRA reinstates the
full body of pre-Smith jurisprudence. In Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006),
the Court held that declining to permit a “Christian Spiritist”
sect’s sacramental use of hoasca, a hallucinogenic tea
prohibited by the Controlled Substances Act, violated Free
Exercise under RFRA. The Government conceded that
prohibiting the sect from using hoasca imposed a substantial
burden on the group’s religious exercise. Id. at 426. The Court
made clear that the principles of Braunfeld and Lee still apply
under RFRA, explaining that “the Government can
demonstrate a compelling interest in uniform application of a
particular program by offering evidence that granting the
requested religious accommodations would seriously
compromise its ability to administer the program.” Id. at 435.
Applying these principles, the Court concluded that the
Government failed to prove that the Controlled Substances
Act required uniform application in order to be administrable.
Critical to this conclusion was the fact that the Controlled
Substances Act authorized the Attorney General to “‘waive
the requirement for registration of certain manufacturers,
distributors, or dispensers if he finds it consistent with the
public health and safety.’” Id. at 432 (quoting 21 U.S.C.
§ 822(d)). Furthermore, the Act granted an exemption to all
members of Native American tribes for the sacramental use of
peyote. Id. at 433. “The well-established peyote exception
also fatally undermines the Government’s broader contention
that the Controlled Substances Act establishes a closed
regulatory system that admits of no exceptions under RFRA.”
Id. at 434. O Centro easily fits within the body of Free
Exercise cases decided during the twenty-seven years post-
Sherbert.
24
III. THE MANDATE DOES NOT SUBSTANTIALLY
BURDEN APPELLANTS’ RELIGIOUS OBJECTIONS
TO THE USE OF CONTRACEPTIVE PRODUCTS
Requiring Freshway’s health plan to cover contraceptive
products does not substantially burden the Gilardis’ personal
objection to using contraception. The Gilardis have standing
in this case only because of the alleged injuries that arise from
the Mandate’s application to their companies, not to them.
Their alleged injuries are sufficient to satisfy the requirements
of Article III, but they have failed to show that the Mandate
substantially burdens their personal religious activities.
There are three reasons why the Mandate does not
substantially burden the Gilardis’ “exercise of religion.” First,
the Mandate does not require the Gilardis to use or purchase
contraception themselves. Second, the Mandate does not
require the Gilardis to encourage Freshway’s employees to
use contraceptives any more directly than they do by
authorizing Freshway to pay wages. Finally, the Gilardis
remain free to express publicly their disapproval of
contraceptive products.
Because the Mandate does not require the Gilardis to
personally engage in conduct prohibited by their religious
beliefs, this case differs from every case in which the Court
has found a substantial burden on religious exercise. In
O Centro and Yoder, for instance, there was no dispute as to
whether the regulations substantially burdened the plaintiffs’
religious exercise. The disputed Government policies in those
cases very plainly prevented the plaintiffs, personally, from
engaging in their religious practices (using hoasca and home-
schooling one’s children), and the only question was whether
the burdens were justified.
25
In contrast, the Gilardis cannot claim that they are being
forced to use contraceptives, which would directly conflict
with their religious beliefs. Rather, they complain that
because their companies are required to purchase insurance
that includes coverage for contraception, they as owners are
enabling third parties to engage in conduct that they oppose.
This is a specious claim. The Gilardis can find no support for
their position in the controlling case precedents. No Free
Exercise decision issued by the Supreme Court has
recognized a substantial burden on a plaintiff’s religious
exercise where the plaintiff is not himself required to take or
forgo action that violates his religious beliefs, but is merely
required to take action that might enable other people to do
things that are at odds with the plaintiff’s religious beliefs.
Furthermore, the Mandate does not require the Gilardis to
directly facilitate employees’ use of contraception. The
Gilardis do not contend that their religious exercise is violated
when Freshway pays wages that employees might use to
purchase contraception, and the Mandate does not require the
Gilardis to facilitate the use of contraception any more
directly than they already do by authorizing Freshway to pay
wages. Amici supporting the Gilardis’ position attempt in
vain to distinguish between the Mandate and paying wages.
First, they argue that the Mandate requires the Gilardis to
become an “essential cause” of increasing the number of
employees who use contraception. Br. of 28 Catholic
Theologians and Ethicists at 22-23. But the Gilardis are no
more of an “essential cause” of increasing the use of
contraception when they authorize Freshway to pay for a
benefits plan that employees might use to get contraception
than they are when they authorize wages that an employee
might use to purchase contraception she would not otherwise
be able to afford.
26
Amici also attempt to distinguish between the Mandate
and paying wages by arguing that covering contraceptive
products is akin to the difference between giving an underage
person a “gift certificate” to buy beer, and giving him money
that he might spend on beer. Id. at 21-22. But this analogy
fails. Health coverage under the Mandate is not like giving a
gift certificate to buy beer specifically, but more like a gift
certificate to a supermarket where the recipient may purchase
whatever is available, including beer. Just as the Government
does not directly encourage religion when it provides
vouchers that recipients may choose to spend on religious
schools, the Gilardis do not directly encourage the use of
contraception when they provide insurance coverage that
recipients may choose to spend on contraceptives. Zelman v.
Simmons-Harris, 536 U.S. 639, 652 (2002) (“The incidental
advancement of a religious mission, or the perceived
endorsement of a religious message, is reasonably attributable
to the individual recipient, not to the [party granting the
benefits], whose role ends with the disbursement of
benefits.”).
Amici also contend that the difference between the
Mandate and paying wages is akin to the difference between a
person who opposes the death penalty being required to pay
taxes that fund executions, and being required to “purchase
the drugs for a lethal injection and personally deliver them to
the facility where the execution will take place.” Br. of
28 Catholic Theologians and Ethicists at 19. The problem
with this rather extraordinary example is that the Mandate
does not require the Gilardis to have nearly this degree of
personal involvement in providing contraceptives. The
Mandate does not require the Gilardis to transfer funds from
Freshway’s accounts directly to the manufacturers or retailers
of contraception. Nor are the companies required to deliver or
distribute contraception to employees. Under the Employee
27
Retirement Income Security Act, 29 U.S.C. § 1132(d)(1),
Freshway is a distinct legal entity from its self-insured group
health plan. The plan is operated by a third-party
administrator, and, pursuant to health privacy regulations, the
Gilardis are actually prohibited from being informed whether
individual employees purchase contraceptive products, or
about any other information regarding employees’ health care
decisions. See Br. of Americans United for Separation of
Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508;
45 C.F.R. § 164.510). Moreover, the Gilardis are free to
procure Mandate-compliant coverage for their employees
through an entirely independent, third-party insurance carrier,
rather than administering their own group health plan. Id. This
is a far cry from personally purchasing contraceptives and
delivering them to employees.
Finally, the Gilardis suggest that because Freshway is
required to offer health insurance that includes contraception,
they as owners are being pressed to effectively endorse the
use of contraception. This claim fails because the Supreme
Court has held that a party’s First Amendment rights are not
violated when he must comply with a Government policy that
sends a message contrary to his beliefs. Hence, an institute of
higher education may be required to host military recruiters
on campus, even if it strongly opposes military policy. See
Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
547 U.S. 47 (2006). Parties who comply with a regulation
contrary to their beliefs “remain[] free to disassociate
[themselves] from those views.” Id. at 65 (citation omitted).
The Gilardis likewise remain free to “disassociate”
themselves from any message that might suggest that they
endorse contraception. They may denounce publicly the use
of contraception, for instance, by issuing a statement to
Freshway’s employees expressing their disapproval of the
Mandate and contraception; and they are free to continue
28
authorizing Freshway to display slogans on company delivery
trucks expressing their views about the sanctity of human life.
There are countless ways the Gilardis can make clear that
their involuntary compliance with federal law does not signify
that they endorse the use of contraception. See Group Health
Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the Patient Protection and
Affordable Care Act, 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012)
(“Nothing in these final regulations precludes employers or
others from expressing their opposition, if any, to the use of
contraceptives, requires anyone to use contraceptives, or
requires health care providers to prescribe contraceptives if
doing so is against their religious beliefs.”).
For the foregoing reasons, the Gilardis simply cannot
establish that the Mandate substantially burdens their personal
objection to contraception. The Mandate does not regulate the
Gilardis; it regulates their companies. So the Mandate
requires nothing of the Gilardis, save what is required of any
managers of business operations subject to federal law. And
we do not normally assume that managers of for-profit
companies are personally affronted by the requirements of
federal law.
More particularly, the Mandate does not require the
Gilardis to use or purchase contraception themselves; it does
not require them to facilitate Freshway’s employees’ use of
contraceptives any more directly than they do by authorizing
Freshway to pay wages; and they remain free to publicly
express their disapproval of contraceptive products. Because
the Gilardis cannot show a substantial burden on their
personal religious exercise, they cannot prevail on the merits
of their RFRA claim as a matter of law. I would therefore
affirm the District Court’s denial of a preliminary injunction
29
on this ground, without inquiring into whether the Mandate
serves a compelling governmental interest.
IV. COMPELLING GOVERNMENTAL INTERESTS
JUSTIFY THE MANDATE
Even though I would deny the preliminary injunction on
the ground that the Gilardis cannot show that the Mandate
substantially burdens their exercise of religion, I will also
address the Government’s compelling interests in order to
respond to my colleagues’ opinion on this point.
In O Centro, the Court made clear that “the Government
can demonstrate a compelling interest in uniform application
of a particular program by offering evidence that granting the
requested religious accommodations would seriously
compromise its ability to administer the program.” 546 U.S. at
435. The Government has met this test in defending the
Mandate. The Mandate therefore satisfies the compelling
interest test under O Centro, Lee, Braunfeld, and Hernandez.
The Mandate obviously serves the compelling interests of
promoting public health, welfare, and gender equality. Br. for
the Appellees 38-40. See, e.g., Bd. of Dirs. of Rotary Int’l v.
Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (“Even if
[the Act] does work some slight infringement on [plaintiffs’]
right of expressive association, that infringement is justified
because it serves the State’s compelling interest in eliminating
discrimination against women.”); Roberts v. U.S. Jaycees, 468
U.S. 609, 626 (1984) (“Assuring women equal access to . . .
goods, privileges, and advantages clearly furthers compelling
state interests.”); Prince, 321 U.S. 158 (upholding child labor
laws); Olsen v. DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989)
(upholding laws regulating drug use).
30
Contraceptive products are used for health care purposes
beyond preventing unwanted pregnancy. They are prescribed
to prevent disease. Contraceptives reduce the risk of ovarian,
endometrial, and gynecologic cancers. See Br. of the Ovarian
Cancer Nat’l Alliance, et al. at 5-25 (describing how the
Mandate is based, in part, on ensuring that women have
access to cancer-preventative benefits unrelated to preventing
pregnancy). Contraceptives and sterilization also preserve the
health of adult women with diabetes, lupus, and heart
conditions, who would be at physical risk if they became
pregnant. See Br. of Nat’l Health Law Program, et al. at 7-13.
Coverage for contraceptive products eliminates gender
discrimination because the cost of contraception falls
disproportionately on women, and the costs of health care are
generally much higher for women than men. Br. for the
Appellees at 41 (“Congress found that . . . ‘women of
childbearing age spend 68 percent more in out-of-pocket
health care costs than men.’” (quoting 155 CONG. REC.
S28843 (daily ed. Dec. 1, 2009) (statement of Sen.
Gillibrand))). Gender inequality in the cost of health care is
caused, in part, by the fact that many health services specific
to women have historically been excluded from insurance
coverage. See Br. for Nat’l Women’s Law Center, et al. at 7
(“Congress intended . . . to help alleviate the ‘punitive
practices of insurance companies that charge women more
and give [them] less in benefits.’” (quoting 155 CONG. REC.
S28842 (Dec. 1, 2009) (statement of Sen. Mikulski))).
Furthermore, it is critical to the functioning of the
Affordable Care Act’s statutory scheme that exemptions from
the Mandate are, like exemptions from the Social Security
tax, extremely limited. Allowing religious exemptions to for-
profit, secular corporations would undermine the universal
coverage scheme: If the Gilardis’ companies were exempted
31
from covering contraception, another corporation’s owners
might just as well seek a religious exemption from covering
certain preventative vaccines. A Christian Scientist, whose
religion has historically opposed conventional medical
treatment, might claim that his corporation is entitled to a
religious exemption from covering all medical care except
healers who treat medical ailments with prayer. Paul Vitello,
Christian Science Seeks Truce with Modern Medicine, N.Y.
TIMES, Mar. 24, 2010, at A20, available at
http://www.nytimes.com/2010/03/24/nyregion/24heal.html?p
agewanted=all&_r=0 (last visited Oct. 13, 2013). Muslim or
Jewish business owners might claim a religious exemption
from covering any medication derived from pork products
(for instance, the gelatin used to make capsules or coating of
many pills). S. Pirzada Sattar & Debra A. Pinals, Letter to the
Editor, When Taking Medications Is a Sin, 53 PSYCHIATRIC
SERVICES 213 (2002), available at
http://journals.psychiatryonline.org/article.aspx?Volume=53&
page=213&journalID=18 (last visited Oct. 13, 2013). Just as
in Lee and Braunfeld, “[t]he whole point of . . . a ‘uniform’
[policy] would . . . be[] defeated by exceptions.” O Centro,
546 U.S. at 435 (quoting Sherbert, 374 U.S. at 408(discussing Braunfeld, 366 U.S. at 608-09)).
The existing exemptions to the Mandate do not establish
that the Government lacks a compelling interest in enforcing
it against all large, for-profit secular employers. First, the
exemptions are not as broad as the Gilardis make them out to
be. The exemption for grandfathered plans is temporary,
intended to be a means for gradually transitioning employers
into mandatory coverage. A health plan loses grandfathered
status as soon as it changes its cost-sharing, benefits, or
employer-contribution terms. 45 C.F.R. § 147.140(g). The
Department of Health and Human Service’s “mid-range
estimate” is that 66% of small employer plans and 45% of
32
large employer plans will relinquish their grandfathered status
by the end of 2013. Interim Final Rules for Group Health
Plans and Health Insurance, 75 Fed. Reg. 34,538, 34,552
(June 17, 2010).
In fact, the Gilardis voluntarily relinquished Freshway’s
grandfathered status by increasing the employees’ co-
payments for doctor visits. Br. for the Appellees at 43; Joint
Appendix at 25. That the Gilardis voluntarily relinquished
grandfathered status despite their opposition to the Mandate
supports the Department’s prediction that most other
employers are likely to do so in the short term, as they will
inevitably modify their coverage plans to accommodate
changes in the cost of health care.
Furthermore, contrary to the Gilardis’ suggestion,
employers with fewer than fifty employees are not
specifically exempted from the Mandate. Rather they are
exempt altogether from being required to provide health
coverage under the Affordable Care Act. 26 U.S.C.
§ 4980H(c)(2)(A). Small businesses that do elect to provide
health coverage—as many do in order to offer more
competitive benefits to employees and to receive tax
benefits—must provide coverage that complies with the
Mandate. Br. for the Appellees at 42. In other words, the
Mandate would apply to the Gilardis even if they had fewer
than fifty employees, so long as they chose to provide health
coverage, as they contend they are committed to doing. Br. of
Appellants at 13-14.
The only permanent, specific exemption from the
Mandate is for religious, non-profit employers. 45 C.F.R.
§ 147.130(a)(1)(iv)(B) (current rules defining religious non-
profits in terms of Internal Revenue Code status); Coverage of
Certain Preventative Services Under the Affordable Care Act,
33
78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (proposed rules
exempting any non-profit organization that holds itself out as
a religious organization). This exemption for religious non-
profits surely does not undermine the Government’s position
that uniform enforcement is essential to the scheme, in the
way that the exemption for Native American tribes using
peyote was fatal to such a claim in O Centro. In O Centro, the
existing exemption for the religious use of peyote by Native
American tribes was much larger than the exemption sought
by the 130 members of the Christian Spiritist sect. If the
Controlled Substances Act was administrable with a much
larger exemption for all Native Americans, why would a
smaller exemption for 130 hoasca users defeat the scheme?
Furthermore, the nature of the exemption sought in
O Centro—the Christian Seperatist sect’s sacramental use of
hoasca—was essentially indistinguishable from the nature of
the exemption that had already been granted for the Native
American tribes’ sacramental use of peyote.
This case is a far cry from the situation seen in O Centro.
The exemption sought by the Gilardis for secular, for-profit
corporations is potentially much larger than the exemption for
non-profit religious entities that exists under the Mandate. In
addition, the exemption sought in this case is fundamentally
different from the exemption that has already been granted.
The Court has long recognized that federal workplace
regulations apply differently to secular, for-profit corporations
than to non-profit religious organizations. E.g., Hosanna-
Tabor Evangelical Lutheran Church and School v. EEOC,
132 S. Ct. 694 (2012) (Free Exercise Clause shields a minister
of a religious non-profit from being sued for violating the
Americans with Disabilities Act); Corp. of Presiding Bishop
of Church of Jesus Christ of Latter-day Saints v. Amos, 483
U.S. 327 (1987) (Title VII’s exemption of non-profit churches
from provisions prohibiting religious discrimination does not
34
violate Establishment Clause); NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490 (1979) (interpreting the National
Labor Relations Act as exempting Church-operated
educational institutions from National Labor Review Board’s
jurisdiction). In exempting religious non-profits, the
Department of Health and Human Services reasoned that
“[r]eligious accommodations in related areas of federal law,
such as the exemption for religious organizations under Title
VII of the Civil Rights Act of 1964, are available to nonprofit
religious organizations but not to for-profit secular
organizations.” Coverage of Certain Preventive Services
Under the Affordable Care Act, 78 Fed. Reg. 8456, 8462
(Feb. 6, 2013). The Americans with Disabilities Act also
exempts religious non-profits, but not for-profit, secular
corporations. 42 U.S.C. § 12113(d)(1), (2).
If an exemption for religious non-profits were taken as
proof that the Government lacks a compelling interest in
enforcing regulations against secular, for-profit corporations,
this would suggest that secular corporations should likewise
be entitled to religious exemptions from Title VII, the
National Labor Relations Act, and the Americans with
Disabilities Act. Furthermore, the Mandate’s exception for
religious non-profits is nothing like the exceptions in Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520 (1993), where the ordinances prohibiting animal
sacrifices were so replete with exceptions that the Court
concluded their purpose was “suppression of . . . the Santeria
worship service.” Id. at 534.
It is very important to recall that the Court in Lee rejected
the argument that limited exemptions from the Social Security
tax proved the Government lacked a compelling interest in
uniform enforcement all for-profit employers. The Court
explained that Congress was justified in “dr[awing] a line . . .
35
exempting the self-employed Amish but not all persons
working for an Amish employer.” 455 U.S. at 261. The
Court’s reasoning is equally applicable here: “When followers
of a particular sect enter into commercial activity as a matter
of choice, the limits they accept on their own conduct as a
matter of conscience and faith are not to be superimposed on
the statutory schemes which are binding on others in that
activity.” Id. The Court explained that “[g]ranting an
exemption from social security taxes to an employer operates
to impose the employer’s religious faith on the employees.”
Id.; accord Hernandez, 490 U.S. at 700 (“The fact that
Congress has already crafted some deductions and
exemptions in the Code also is of no consequence, for the
guiding principle is that a tax ‘must be uniformly applicable
to all, except as Congress provides explicitly otherwise.’”
(quoting Lee, 455 U.S. at 261)).
Freshway, the employer in Lee, and other for-profit
corporations are different from religious non-profits in that
they use labor to make a profit, rather than to perpetuate a
religious values-based mission. In choosing to use labor for
financial gain, the corporation and its owners submit
themselves to legislation—such as Title VII, the Fair Labor
Standards Act, the Americans with Disabilities Act, and the
Affordable Care Act—designed to protect the health, safety,
and welfare of employees. They cannot voluntarily capitalize
on labor but invoke their personal religious values to deny
employees the benefit of laws enacted to promote employee
welfare.
Because the Gilardis have voluntarily chosen to capitalize
on labor, they have agreed to accept certain limitations on
their conduct that arise from the Government’s compelling
interest in securing the safety and welfare of their employees.
For this reason, even if the Mandate were a substantial burden
36
on the Gilardis’ religious exercise—which it is not—this
record supports the conclusion that the burden is justified by
the Government’s compelling interest in enforcing a public-
welfare statutory scheme that, like the Social Security tax,
simply “could not function” if for-profit employers of various
“denominations were allowed to challenge the . . . system
because . . . payments were spent in a manner that violates
their religious belief.” O Centro, 546 U.S. at 435 (quoting
Lee, 455 U.S. at 258).
The judgment of the District Court should be affirmed.