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Date: 06-30-2014

Case Style: Burwell v. Hobby Lobby Stores, Inc.

Case Number: 13-345

Judge: Aliot

Court: Supreme Court of the United States on certiorari to the United States Court of Appeals for the Tenth Circuit on appeal from the Eastern District of Oklahoma

Plaintiff's Attorney: Eric S. Baxter, Stuart K Duncan, Derek B Ensminger, Charles E Geister, III, Adele A Keim, Mark L Rienzi, Lori H Windham

Defendant's Attorney: Michelle R Bennett

Description: We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,42 U. S. C. §2000bb et seq., permits the United StatesDepartment of Health and Human Services (HHS) to demand that three closely held corporations providehealth-insurance coverage for methods of contraceptionthat violate the sincerely held religious beliefs of thecompanies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the
2 BURWELL v. HOBBY LOBBY STORES, INC.
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Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organizetheir businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish torun their businesses as for-profit corporations in the manner required by their religious beliefs.
Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections toabortion, and according to their religious beliefs the fourcontraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe theywill be facilitating abortions, and if they do not comply,they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount toa substantial burden, it is hard to see what would.
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approvedcontraceptives.
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In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coveragewithout cost sharing for all FDA-approved contracep- tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why thesame system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes analternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objectingparties in these cases is unlawful.
As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissentalleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws)they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations havefree rein to take steps that impose “disadvantages . . . onothers” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggestthat “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women em4
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ployed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
I
A
Congress enacted RFRA in 1993 in order to provide verybroad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494
U. S. 872 (1990), which largely repudiated the method ofanalyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U. S. 398 (1963), and Wisconsin v. Yoder, 406 U. S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408–409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406
U. S., at 210–211, 234–236. In Smith, however, the Court rejected “the balancing —————— 1See also post, at 8 (“The exemption sought by Hobby Lobby and
Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”)
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test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes.When they sought unemployment benefits, the State ofOregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court,applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875.
This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997).
Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).2 If the Government substantially burdens a person’s exercise of religion,under the Act that person is entitled to an exemption from the rule unless the Government “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 govern——————
2The Act defines “government” to include any “department” or“agency” of the United States. §2000bb–2(1).
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mental interest.” §2000bb–1(b).3
As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at
532.
Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited categoryof governmental actions. See Cutter v. Wilkinson, 544
U. S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition ofthe “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition
—————— 3In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requirement was not used in the pre-Smith jurisprudence RFRA purported to codify.” Id., at 509. On this understanding of our pre-Smith cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions. 4See, e.g., Hankins v. Lyght, 441 F. 3d 96, 108 (CA2 2006); Guam v. Guerrero, 290 F. 3d 1210, 1220 (CA9 2002).
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made reference to the First Amendment. See §2000bb–2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation fromFirst Amendment case law, Congress deleted the referenceto the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”§2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by theterms of this chapter and the Constitution.” §2000cc– 3(g).5
B At issue in these cases are HHS regulations promul- gated under the Patient Protection and Affordable Care Actof 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with
ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ——————
5The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase“exercise of religion,” as it appears in RLUIPA, must be interpretedbroadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion”under RFRA must be given the same broad meaning that applies under RLUIPA.
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ual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges,the employer must pay $2,000 per year for each of its fulltime employees. §§4980H(a), (c)(1).
Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit groupof volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012).
In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS
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in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.7
HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.”45 CFR §147.131(a). That category encompasses “churches,their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26
U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/womensguidelines.
In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg.39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan ——————
6We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments.
7Online at http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm. The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, e.g., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them.
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and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).8 Although this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.9
In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42
U. S. C. §§18011(a), (e). And employers with fewer than
50 employees are not required to provide health insurance ——————
8In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must“provide or arrange payments for contraceptive services” for the organization’s employees without imposing any cost-sharing requirements onthe eligible organization, its insurance plan, or its employee beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815– 2713A(b)(2)). The regulations establish a mechanism for these thirdparty administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total[exchange] user fees.” 78 Fed. Reg. 39882.
9In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-partyadministrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. ___ (2014).
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at all. 26 U. S. C. §4980H(c)(2).
All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million non elderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.10 The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50employees is 34 million workers. See The White house, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.11
II
A
Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”12
Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company,Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania ——————
10While the Government predicts that this number will decline overtime, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out.
11Online at http://www.whitehouse.gov/files/documents/health_ reform_for_small_businesses.pdf.
12Mennonite Church USA, Statement on Abortion, online at http://www.mennoniteusa.org/resource-center/resources/statements-and-resolutions/statement-on-abortion/.
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law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control itsboard of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.
The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013).To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No.13–356, p. 94 (complaint).
As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that“human life begins at conception.” 724 F. 3d 377, 382, and
n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the group health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients. Id., at 382.
The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA approved contraceptives that may operate after the fertilization of an egg.13 These include two forms of emergency
—————— 13The Hahns and Conestoga also claimed that the contraceptive
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contraception commonly called “morning after” pills and two types of intrauterine devices.14
In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “for profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F. 3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id., at 389.
B David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and-crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F. 3d, at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law. One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under Oklahoma law. Though these two businesses have expanded over the —————— mandate violates the Fifth Amendment and the Administrative Procedure Act, 5 U. S. C. §553, but those claims are not before us. 14See, e.g., WebMD Health News, New Morning-After Pill Ella WinsFDA Approval, online at http://www.webmd.com/sex/birth-control/news/20100813/new-morning-after-pill-ella-wins-fda-approval.
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years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8.15
Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint).Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays,even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use;they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted).
Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. 723 F. 3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at 1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan
—————— 15The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723
F. 3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. Ibid.
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because Hobby Lobby elected not to retain grandfatheredstatus before the contraceptive mandate was proposed. Id., at 1124.
The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.16 The District Court denied a preliminary injunction, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law.
The court then held that the corporations had established a likelihood of success on their RFRA claim. 723
F. 3d, at 1140–1147. The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.
The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the“least restrictive means” of furthering the Government’s asserted interests. Id., at 1143–1144 (emphasis deleted;internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the
—————— 16They also raised a claim under the Administrative Procedure Act, 5
U. S. C. §553.
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court reversed and remanded for the District Court to consider the remaining factors of the preliminary injunction test. Id., at 1147.17
We granted certiorari. 571 U. S. ___ (2013).
III
A
RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “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(a), (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga,and Mardel.
HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal mat- ter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences.
Consider this Court’s decision in Braunfeld v. Brown,
—————— 17Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F. 3d,at 1156 (Gorsuch, J., concurring); id., at 1184 (Matheson, J., concurringin part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch, J., concurring).
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366 U. S. 599 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see 42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—with- out in any way changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.
As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn
—————— 18As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was required by our pre-Smith decisions. Although the author of the principal dissent joined the Court’s opinion in City of Boerne, she now claims that the statement was incorrect. Post, at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. See infra, at 25–28.
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in the next part of this opinion, reveals that Congress didn o such thing.
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corpora19
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tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.
B 1
As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.
Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as wellas individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.
We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.
S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17;
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Reply Brief in No. 13–354, at 7–8.19
This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons.But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20 Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).
2 The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.”According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.Is it because of the corporate form? The corporate form
alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can ——————
19Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04– 1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor,
O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”).
20Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities,namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40.
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be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious “autonomy . . . often furthers individual religious freedom as well.” Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle applie sequally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.21
If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates soas to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise
—————— 21Although the principal dissent seems to think that Justice Brennan’s statement in Amos provides a ground for holding that for-profit corporations may not assert free-exercise claims, that was not Justice Brennan’s view. See Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, 642 (1961) (dissenting opinion); infra, at 26–
27.
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rights”).
If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim,22 why can’t Hobby Lobby, Conestoga, and Mardel do the same?
Some lower court judges have suggested that RFRAdoes not protect for-profit corporations because the purpose of such corporations is simply to make money.23 This ——————
22It is revealing that the principal dissent cannot even bring itself to acknowledge that Braunfeld was correct in entertaining the merchants’ claims. See post, at 19 (dismissing the relevance of Braunfeld in partbecause “[t]he free exercise claim asserted there was promptly rejected on the merits”).
23See, e.g., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); Grote v. Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam Corp. v. Sebelius, 730 F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting)(“[T]he specific purpose for which [a corporation] is created mattersgreatly to how it will be categorized and treated under the law” and “itis undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”).
The principal dissent makes a similar point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post, at 18–19 (internal quotation marks omitted). The first half of this statement is a tautology; forprofit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 13–356,
p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims thatthe company “is committed to . . . Honoring the Lord in all we do by
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argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1,
p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher,Cyclopedia of the Law of Corporations §102 (rev. ed. 2010).While it is certainly true that a central objective of forprofit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval,support a wide variety of charitable causes, and it is not atall uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities inother countries may exceed the requirements of local law regarding working conditions and benefits. If for-profitcorporations may pursue such worthy objectives, there isno apparent reason why they may not further religiousobjectives as well.
HHS would draw a sharp line between nonprofit corpo—————— operating . . . in a manner consistent with Biblical principles.” App. inNo. 13–354, p. 135. The dissent also believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharpdivide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed “lay” corporations mightserve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–459 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of theStates in which these three companies are incorporated) allows forprofit corporations to “perpetuat[e] religious values.”
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rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so inorder to maximize profit. For example, organizations withreligious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate inlobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.24 In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both abenefit for the public and a profit for its owners.25
In any event, the objectives that may properly be pur——————
24See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which “advance[s] itscharitable goals” while operating as a for-profit corporation to be able to“invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3). 25See Benefit Corp Information Center, online at http://www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefitsthat it is the purpose of the benefit corporation to create. . . . Thispurpose is in addition to [the purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means a benefit that serves one ormore public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest ofthe shareholders of the benefit corporation . . . .”); S. C. Code Ann.§§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012Cum. Supp.) (similar).
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sued by the companies in these cases are governed by the laws of the States in which they were incorporated—Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawfulpurpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”);Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]verycorporation, whether profit or not for profit” may “beincorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354.
3 HHS and the principal dissent make one additionalargument in an effort to show that a for-profit corporationcannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no morethan codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRAdoes not confer such protection. This argument has many flaws. First, nothing in the text of RFRA as originally enactedsuggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the FirstAmendment”—not the exercise of religion as recognizedonly by then-existing Supreme Court precedents. 42
U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants tolink the meaning of a statutory provision to a body of thisCourt’s case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28
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U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the UnitedStates”).
Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the FirstAmendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principaldissent can explain why Congress did this if it wanted totie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protectionof religious exercise, to the maximum extent permitted bythe terms of this chapter and the Constitution.” §2000cc–3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.
Third, the one pre-Smith case involving the free-exerciserights of a for-profit corporation suggests, if anything, thatfor-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a forprofit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporationlacked “standing” to assert a free-exercise claim,26 but not one member of the Court expressed agreement with that
—————— 26See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28– 31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”).
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argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in Braunfeld, and reserved decision on the question whether the corporation had “standing” to raisethe claim. See 366 U. S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See id., at 642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U. S. 420, 578–579 (1961) (Douglas, J.,dissenting as to related cases including Gallagher). Finally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on themerits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan, 366 U. S., at 521–
522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty,left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim.
Finally, the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Courtentertained in the years before Smith. For example, weare not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed theirrights before Smith?
Presumably in recognition of the weakness of this ar28
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gument, both HHS and the principal dissent fall back onthe broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like TitleVII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profitcorporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to ourattention the fact that some federal statutes do exempt categories of entities that include for-profit corporationsfrom laws that would otherwise require these entities toengage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27 If Title VII and similar laws show anything, it isthat Congress speaks with specificity when it intends areligious accommodation not to extend to for-profit corporations.
—————— 27The principal dissent points out that “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.” Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by forprofit corporations” because if it had “there would be no need for astatute-specific, post-RFRA exemption of this sort.” Ibid. This argument fails to recognize that the protection provided by §238n(a) differs significantly from the protection provided by RFRA. Section 238n(a) flatly prohibits discrimination against a coveredhealthcare facility for refusing to engage in certain activities related toabortion. If a covered healthcare facility challenged such discrimination under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest. In addition, the dissent’s argument proves too much. Section 238n(a) applies evenly to “any health care entity”—whether it is areligious nonprofit entity or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §238n(a) wereredundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits.
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Finally, HHS contends that Congress could not havewanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30.
These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRAclaims. HHS has not pointed to any example of a publiclytraded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set ofstakeholders—would agree to run a corporation under thesame religious beliefs seems improbable. In any event, wehave no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the casesbefore us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.28
HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scopeof RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category
—————— 28To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., e.g., United States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010).
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that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners toassert claims of dubious sincerity was well documented.29 Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners toraise religious liberty claims. If Congress thought that thefederal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seem- ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wantedRFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits?
HHS and the principal dissent express concern aboutthe possibility of disputes among the owners of corporations, but that is not a problem that arises because ofRFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want acompany’s stores to remain open on the Sabbath in order to make more money, and others might want the stores toclose for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example,dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation
—————— 29See, e.g., Ochs v. Thalacker, 90 F. 3d 293, 296 (CA8 1996); Green v. White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996 WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N. W. 2d 819– 820 (Iowa 1996).
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may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes.
For all these reasons, we hold that a federal regulation’srestriction on the activities of a for-profit closely heldcorporation must comply with RFRA.30
IV Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U. S. C. §2000bb– 1(a). We have little trouble concluding that it does.
—————— 30The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which wouldhave enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post, at 6. The dissent would evidently glean from that vote an intent by theSenate to prohibit for-profit corporate employers from refusing to offercontraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amendment—or even the most likely. For one thing, the text of the amendment was “written so broadly that it would allow any employer to denyany health service to any American for virtually any reason—not just for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable tobelieve that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other contexts, it surely cannot be relevant here, because any “Federal statutorylaw adopted after November 16, 1993 is subject to [RFRA] unless suchlaw explicitly excludes such application by reference to [RFRA].” 42
U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find suchan explicit reference in the meager legislative history on which thedissent relies.
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A As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4,may result in the destruction of an embryo. By requiringthe Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that theyengage in conduct that seriously violates their religiousbeliefs. If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, theywill be taxed $100 per day for each affected individual. 26
U. S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; forConestoga, the assessment could be $90,000 per day or$33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.
It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thusforcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employeeeach year. §4980H. These penalties would amount toroughly $26 million for Hobby Lobby, $1.8 million forConestoga, and $800,000 for Mardel.
B Although these totals are high, amici supporting HHS
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have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees toobtain insurance in the government exchanges. We do not generally entertain arguments that were not raised belowand are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60,
n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 532, n. 13 (1979); Knetsch v. United States, 364 U. S. 361, 370 (1960),and there are strong reasons to adhere to that practice inthese cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument—not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated aroundthe country. As things now stand, we do not even knowwhat the Government’s position might be with respect to these amici’s intensely empirical argument.31 For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers—they would be better off discarding their employer insurance plans altogether.
Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies havereligious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they werenot legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business
—————— 31Indeed, one of HHS’s stated reasons for establishing the religiousaccommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added).
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reasons, but also in part because their religious beliefsgovern their relations with their employees. See App. toPet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354,at 139.
Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and payingthe ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would facea competitive disadvantage in retaining and attractingskilled workers. See App. in No. 13–354, at 153.
The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so theamount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U. S. C. §106(a). Likewise, employers candeduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount of the penalty that they must pay if insurance is not pro- vided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.32
—————— 32Attempting to compensate for dropped insurance by raising wageswould also present administrative difficulties. In order to provide full
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In sum, we refuse to sustain the challenged regulationson the ground—never maintained by the Government—that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter,ACA—would have believed it a tolerable result to putfamily-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.
C In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) isbasically that the connection between what the objecting parties must do (provide health-insurance coverage forfour methods of contraception that may operate after the fertilization of an egg) and the end that they find to bemorally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of anembryo; that would occur only if an employee chose to takeadvantage of the coverage and to use one of the four methods at issue.33 Ibid.
—————— compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employerprovided coverage and thus being spared the task of attempting to findand sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on anexchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees. 33This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required
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This argument dodges the question that RFRA presents(whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct businessin accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of anembryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.34 Arrogatingthe authority to provide a binding national answer to this religious and philosophical question, HHS and the princi——————
to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of certainreligious employers, and later expanded the exemption to includecertain nonprofit organizations with religious objections to contraceptive coverage. 78 Fed. Reg. 39871. When this was done, the Government made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Ibid. Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial. 34See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins,Man as Man: The Science and Art of Ethics 353, 355 (1949) (“Thegeneral principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act ofanother who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act byan act that is not sinful, and without approving of what B does”).
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pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused totake such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warnedthat courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969).
Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas,a Jehovah’s Witness was initially employed making sheetsteel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religious grounds to participatingin the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the employee, the state court had difficulty with the line thatthe employee drew between work that he found to be con- sistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that hefound morally objectionable (helping to make the weaponsthemselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.” Id., at 715.35
Similarly, in these cases, the Hahns and Greens andtheir companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lieson the forbidden side of the line, and it is not for us to saythat their religious beliefs are mistaken or insubstantial.Instead, our “narrow function . . . in this context is to
—————— 35The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas.
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determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.
HHS nevertheless compares these cases to decisions inwhich we rejected the argument that the use of general tax revenue to subsidize the secular activities of religiousinstitutions violated the Free Exercise Clause. See Tilton
v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable toidentify any coercion directed at the practice or exercise oftheir religious beliefs.” 403 U. S., at 689 (plurality opinion); see Allen, supra, at 249 (“[A]ppellants have not contended that the New York law in any way coerces them asindividuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specificcontraceptive methods at issue violates their religiousbeliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay anenormous sum of money—as much as $475 million peryear in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burdenon those beliefs.
V Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(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.
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§2000bb–1(b).
A HHS asserts that the contraceptive mandate serves avariety of important interests, but many of these are couched in very broad terms, such as promoting “publichealth” and “gender equality.” Brief for HHS in No. 13– 354, at 46, 49. RFRA, however, contemplates a “morefocused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion isbeing substantially burdened.” O’Centro, 546 U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptionsto particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431. In addition to asserting these very broadly framedinterests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without costsharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right toobtain contraceptives, see Griswold v. Connecticut, 381
U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments forpreventive services can deter patients from receiving thoseservices.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted).
The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—
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those covered by grandfathered plans and those who workfor employers with fewer than 50 employees—may have nocontraceptive coverage without cost sharing at all.
HHS responds that many legal requirements haveexceptions and the existence of exceptions does not initself indicate that the principal interest served by a law isnot compelling. Even a compelling interest may be outweighed in some circumstances by another even weightierconsideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” thatprovide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid.
We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free accessto the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the leastrestrictive means of furthering that compelling governmental interest.” §2000bb–1(b)(2).
B The least-restrictive-means standard is exceptionallydemanding, see City of Boerne, 521 U. S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing asubstantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b)(requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least
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restrictive means of furthering [a] compelling governmental interest” (emphasis added)).
The most straightforward way of doing this would be for the Government to assume the cost of providing the fourcontraceptives at issue to any women who are unable toobtain them under their health-insurance policies due totheir employers’ religious objections. This would certainlybe less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not aviable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA,are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who mightbe affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely,however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approvedcontraceptives) would be minor when compared with theoverall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurancecoverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p.
2.36 If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is aGovernment interest of the highest order, it is hard tounderstand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this
—————— 36Online at http://cbo.gov/publication/45231.
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important goal.
HHS contends that RFRA does not permit us to takethis option into account because “RFRA cannot be used torequire creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But we see nothing in RFRA thatsupports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may
—————— 37In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legalobligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving theGovernment an entirely free hand to impose burdens on religiousexercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequateaccount of the burdens a requested accommodation may impose onnonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) (applying RLUIPA). That consideration will often inform the analysisof the Government’s compelling interest and the availability of a lessrestrictive means of advancing that interest. But it could not reasonably be maintained that any burden on religious exercise, no matter howonerous and no matter how readily the government interest could beachieved through alternative means, is permissible under RFRA so longas the relevant legal obligation requires the religious adherent to confera benefit on third parties. Otherwise, for example, the Governmentcould decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objectionsfrom owning supermarkets), or it could decide that all restaurants mustremain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owningrestaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need notresult in any detrimental effect on any third party. As we explain, see infra, at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to theiremployers’ religious objections.
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be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter mayrequire a government to incur expenses in its own operations to avoid imposing a substantial burden on religiousexercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.
In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiringemployers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can selfcertify that it opposes providing coverage for particularcontraceptive services. See 45 CFR §§147.131(b)(4), (c)(1);26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insuranceissuer or third-party administrator must “[e]xpresslyexclude contraceptive coverage from the group healthinsurance coverage provided in connection with the grouphealth plan” and “[p]rovide separate payments for anycontraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).38
—————— 38HHS has concluded that insurers that insure eligible employers
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We do not decide today whether an approach of this typecomplies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40
The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptivecoverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal —————— opting out of the contraceptive mandate and that are required to payfor contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptivecoverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877.With respect to self-insured plans, the regulations establish a mechanism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in thefederally facilitated exchanges. HHS believes that this system will nothave a material effect on the funding of the exchanges because the“payments for contraceptive services will represent only a small portionof total [federally facilitated exchange] user fees.” Id., at 39882; see 26 CFR §54.9815–2713A(b)(3).
39See n. 9, supra.
40The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less re- strictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permittedto address.
41In the principal dissent’s view, the Government has not had a fairopportunity to address this accommodation, post, at 30. n. 27, but the Government itself apparently believes that when it “provides an exception to a general rule for secular reasons (or for only certain religiousreasons), [it] must explain why extending a comparable exception to aspecific plaintiff for religious reasons would undermine its compellinginterests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs, No. 13–6827, p. 10, now pending before the Court.
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logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’sapproach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and tosign up for, a new government funded and administeredhealth benefit,’” post, at 28, because the dissent would effectively compel religious employers to drop healthinsurance coverage altogether, leaving their employees tofind individual plans on government-run exchanges orelsewhere. This is indeed “scarcely what Congress contemplated.” Ibid.
C HHS and the principal dissent argue that a ruling infavor of the objecting parties in these cases will lead to aflood of religious objections regarding a wide variety ofmedical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate. It is HHS’s apparent belief that no insurance-coveragemandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all
—————— 42Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediatric vaccines” for some uninsured and underinsured children).
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employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurancecoverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat thespread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest inproviding an equal opportunity to participate in the workforce without regard to race, and prohibitions on racialdiscrimination are precisely tailored to achieve that critical goal.
HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to forprofit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection ofan employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems
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associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to payincome taxes.” 455 U. S., at 260. Based on that premise,we explained that it was untenable to allow individuals toseek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, areligious adherent believes war is a sin, and if a certainpercentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations wereallowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.
Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework,the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing tax- payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchaseinsurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” Post, at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligibleorganization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii).
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Recognizing a religious accommodation under RFRA forparticular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme inthe way that recognizing religious objections to particularexpenditures from general tax revenues would.43
In its final pages, the principal dissent reveals that itsfundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claimsmade by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888– 889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally requiredreligious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test forstriking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this
—————— 43HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHSnotes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept ontheir 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. Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, issquarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercialactivity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met.
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matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.
* * * The contraceptive mandate, as applied to closely heldcorporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns. The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 13–354 and 13–356
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 13–354 v. HOBBY LOBBY STORES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
AND
CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]
JUSTICE KENNEDY, concurring.
It seems to me appropriate, in joining the Court’s opinion, to add these few remarks. At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on the purpose of that statute. 42 U. S. C. §2000bb et seq. It is to ensure that interests in religious freedom are protected. Ante, at 5–6; post, at 8–9 (GINSBURG, J., dissenting).
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this
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course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicatesmore than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). It means, too, the rightto express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community. But in a complex society and an era of pervasive governmental regulation,defining the proper realm for free exercise can be difficult.In these cases the plaintiffs deem it necessary to exercisetheir religious beliefs within the context of their ownclosely held, for-profit corporations. They claim protectionunder RFRA, the federal statute discussed with care and in detail in the Court’s opinion.
As the Court notes, under our precedents, RFRA imposesa “‘stringent test.’” Ante, at 6 (quoting City of Boerne v. Flores, 521 U. S. 507, 533 (1997)). The Government must demonstrate that the application of a substantial burdento a person’s exercise of religion “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).
As to RFRA’s first requirement, the Department ofHealth and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. Ante, at 39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15.There are many medical conditions for which pregnancy is contraindicated. See, e.g., id., at 47. It is important toconfirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers alegitimate and compelling interest in the health of femaleemployees. Ante, at 40.
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KENNEDY, J., concurring
But the Government has not made the second showingrequired by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection thathas been considered in detail by the courts in this litigation, and that is less restrictive than the means challengedby the plaintiffs in these cases. Ante, at 9–10, and n. 9, 43–44.
The means the Government chose is the imposition of adirect mandate on the employers in these cases. Ante, at 8–9. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, asan accommodation to the religious objections of those entities. See ante, at 9–10, and n. 9, 43–44. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage forfemale employees who wish it. That accommodation equally furthers the Government’s interest but does notimpinge on the plaintiffs’ religious beliefs. See ante, at 44.
On this record and as explained by the Court, the Government has not met its burden of showing that it cannotaccommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsis- tent with the insistence of an agency such as HHS ondistinguishing between different religious believers—bur- dening one while accommodating the other—when itmay treat both equally by offering both of them the same accommodation.
The parties who were the plaintiffs in the DistrictCourts argue that the Government could pay for the methods that are found objectionable. Brief for Respond4
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ents in No. 13–354, p. 58. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44.
“[T]he American community is today, as it long hasbeen, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may berestricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstancesclosely parallel to those presented here. RFRA requiresthe Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program tocountless religious claims based on an alleged statutory right of free exercise. Ante, at 45–46.
For these reasons and others put forth by the Court, I join its opinion.
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SUPREME COURT OF THE UNITED STATES
Nos. 13–354 and 13–356
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 13–354 v. HOBBY LOBBY STORES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
AND
CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to all but Part III–C–1, dissenting.
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along withpartnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible withtheir sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based optouts impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always willbe whenever, in lieu of tolling an enterprise claiming a
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religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1
The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on thirdparties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congressenacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
I “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 856 (1992). Congress acted on that understand——————
1The Court insists it has held none of these things, for another lessrestrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, itultimately declines to decide whether the highlighted accommodation iseven lawful. See ante, at 44 (“We do not decide today whether anapproach of this type complies with RFRA . . . .”).
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ing when, as part of a nationwide insurance programintended to be comprehensive, it called for coverage ofpreventive care responsive to women’s needs. Carryingout Congress’ direction, the Department of Health andHuman Services (HHS), in consultation with public healthexperts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of thiscoverage should enlighten the Court’s resolution of these cases.
A The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.2 Particular services were to be recommended by the U. S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, however; it left out preventive services that “many women’shealth advocates and medical professionals believe arecritically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coveragerequirements a new category of preventive services specificto women’s health. Women paid significantly more than men for preventivecare, the amendment’s proponents noted; in fact, cost
—————— 2See 42 U. S. C. §300gg–13(a)(1)–(3) (group health plans must provide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services TaskForce; (2) immunizations recommended by an advisory committee of theCenters for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive careand screenings provided for in the comprehensive guidelines supportedby the Health Resources and Services Administration”).
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barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement ofSen. Feinstein) (“Women of childbearing age spend 68percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“copayments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the sponsors comprehended, would yield important public healthgains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive agein the United States who are uninsured] . . . . This expanded access will reduce unintended pregnancies.”).
As altered by the Women’s Health Amendment’s passage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources andServices Administration [(HRSA)],” a unit of HHS. 42
U. S. C. §300gg–13(a)(4). Thus charged, the HRSA developed recommendations in consultation with the Instituteof Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).3 The IOM convened a group of independent experts, including “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven——————
3The IOM is an arm of the National Academy of Sciences, an organization Congress established “for the explicit purpose of furnishing advice to the Government.” Public Citizen v. Department of Justice, 491 U. S. 440, 460, n. 11 (1989) (internal quotation marks omitted).
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tive coverage should include the “full range” of FDAapproved contraceptive methods. Id., at 10. See also id., at 102–110.
In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congres- sional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse healthconsequences of excluding contraception from preventivecare available to employees without cost sharing. See, e.g., id., at 19 (“[W]omen are consistently more likely thanmen to report a wide range of cost-related barriers toreceiving . . . medical tests and treatments and to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may be contraindicated for women with certain medical conditions, for example, somecongenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used toreduce risk of endometrial cancer, among other seriousmedical conditions); id., at 103 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of pretermbirth and low birth weight”).
In line with the IOM’s suggestions, the HRSA adoptedguidelines recommending coverage of “[a]ll [FDA-]approved contraceptive methods, sterilization procedures, and patient education and counseling for all women withreproductive capacity.”4 Thereafter, HHS, the Department of Labor, and the Department of Treasury promulgated regulations requiring group health plans to include coverage of the contraceptive services recommended in the ——————
4HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012).
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HRSA guidelines, subject to certain exceptions, described infra, at 25–27.5 This opinion refers to these regulationsas the contraceptive coverage requirement.
B While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moralconvictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left healthcare decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.
II Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga7 might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). In Smith, two members of the Native American Church were dis——————
545 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715–2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013)(Treasury).
6Separating moral convictions from religious beliefs would be of questionable legitimacy. See Welsh v. United States, 398 U. S. 333, 357–358 (1970) (Harlan, J., concurring in result).
7As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business(Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls thatbusiness (the Hahns). Unless otherwise specified, this opinion refers tothe respective groups of plaintiffs as Hobby Lobby and Conestoga.
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missed from their jobs and denied unemployment benefitsbecause they ingested peyote at, and as an essential element of, a religious ceremony. Oregon law forbade theconsumption of peyote, and this Court, relying on thatprohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exerciserights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion . . . is not theobject of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individ-ual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise isincidental.
Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.8
—————— 8See Wisconsin v. Yoder, 406 U. S. 205, 230 (1972) (“This case, of course, is not one in which any harm to the physical or mental health ofthe child or to the public safety, peace, order, or welfare has beendemonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985) (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommodation would impose on the employer or other employees). Notably, inconstruing the Religious Land Use and Institutionalized Persons Act of2000 (RLUIPA), 42 U. S. C. §2000cc et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005); see id., at 722 (“an accommodation must bemeasured so that it does not override other significant interests”). A
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The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legionsof women who do not hold their employers’ beliefs accessto contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the
U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable lawdespite the recognition that the requested exemptionwould detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “‘[y]our right to swing your arms ends justwhere the other man’s nose begins.’” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).
III
A
Lacking a tenable claim under the Free Exercise Clause,Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantiallyburden a person’s exercise of religion even if the burden results from a rule of general applicability” unless thegovernment shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006).
RFRA’s purpose is specific and written into the statuteitself. The Act was crafted to “restore the compelling —————— balanced approach is all the more in order when the Free Exercise
Clause itself is at stake, not a statute designed to promote accommodation to religious beliefs and practices.
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interest test as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) and to guarantee its application in all cases wherefree exercise of religion is substantially burdened.” §2000bb(b)(1).9 See also §2000bb(a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings isa workable test for striking sensible balances betweenreligious liberty and competing prior governmental in- terests.”); ante, at 48 (agreeing that the pre-Smith compelling interest test is “workable” and “strike[s] sensible balances”).
The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only tooverturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178(1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to“look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103–88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139 Cong. Rec. 26178(statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in1993 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators
—————— 9Under Sherbert and Yoder, the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 894 (1990) (O’Connor, J., concurring in judgment).
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Brief) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives).
B Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious LandUse and Institutionalized Persons Act of 2000 (RLUIPA),42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originallyenacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.”§2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, asystem of religious belief.” §2000bb–2(4) (2012 ed.) (crossreferencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect acomplete separation from First Amendment case law.” Ante, at 7. The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centralityof a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the classof entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdensa religious exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is nodoubt that RLUIPA’s drafters, in changing the definitionof ‘exercise of religion,’ wanted to broaden the scope of thekinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep.
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No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us withno helpful definition of ‘exercise of religion.’”); Henderson
v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The[RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’”).10
Next, the Court highlights RFRA’s requirement that thegovernment, if its action substantially burdens a person’sreligious observance, must demonstrate that it chose theleast restrictive means for furthering a compelling interest. “[B]y imposing a least-restrictive-means test,” theCourt suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of Boerne v. Flores, 521 U. S. 507 (1997)). See also ante, at 6,
n. 3. But as RFRA’s statements of purpose and legislativehistory make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court hadapplied it pre-Smith. See supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more lenientlythan it was prior to Smith.”); House Report 7 (same).
The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “compelling interest test” a “least restrictive means” requirement. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, theCourt ruled [in Sherbert], the Government must demon——————
10RLUIPA, the Court notes, includes a provision directing that “[t]hischapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of[the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of constructiongoverning the statute in its entirety.
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strate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Senate Judiciary Committee by experts on religious freedom.See, e.g., Hearing on S. 2969 before the Senate Committeeon the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas Laycock).
Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, at 6, n. 3, 17, n. 18. As just indicated, however, thatstatement does not accurately convey the Court’s pre-Smith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendmentrights.”); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it isthe least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Religious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘wasnot used in the pre-Smith jurisprudence.’”).11
C With RFRA’s restorative purpose in mind, I turn to the
—————— 11The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictivemeans . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerningthat observation, I remind my colleagues of Justice Jackson’s sagecomment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion).
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Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive ofHobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “person[s]” who “exercise . . . religion”? Assuming that they do, does the contraceptivecoverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance ofa compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?
Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis.
1 RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that “substantially burden a person’s exercise of religion.” 42 U. S. C. §2000bb– 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1.Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether
—————— 12As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute toRLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at
26. That law applies to land-use regulation. §2000cc(a)(1). To permitcommercial enterprises to challenge zoning and other land-use regula14
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a corporation qualifies as a “person” capable of exercis- ing religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain tofor-profit corporations.
Until this litigation, no decision of this Court recognizeda for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether underthe Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise ofreligion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearlytwo centuries ago, a corporation is “an artificial being,invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevensmore recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part).
The First Amendment’s free exercise protections, the
—————— tions under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26. 13The Court regards Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), as “suggest[ing] . . . that for-profitcorporations possess [free-exercise] rights.” Ante, at 26–27. See also ante, at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers werehuman individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation. Accordingly, the plurality stated it could pretermit the question“whether appellees ha[d] standing” because Braunfeld v. Brown, 366
U. S. 599 (1961), which upheld a similar closing law, was fatal to theirclaim on the merits. 366 U. S., at 631.
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Court has indeed recognized, shelter churches and othernonprofit religion-based organizations.14 “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,”and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.”
Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “special solicitude to the rights of religious organizations,”
Hosanna-Tabor Evangelical Lutheran Church and School
v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), how- ever, is just that. No such solicitude is traditional for commercial organizations.15 Indeed, until today, religious
—————— 14See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School
v.
EEOC, 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418 (2006); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Jimmy Swaggart Ministries
v.
Board of Equalization of Cal., 493 U. S. 378 (1990).
15Typically, Congress has accorded to organizations religious in character religion-based exemptions from statutes of general application. E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibitionagainst employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respectto the employment of individuals of a particular religion to performwork connected with the carrying on . . . of its activities”); 42 U. S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of1990). It can scarcely be maintained that RFRA enlarges these exemptions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28.
The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U. S. C. §§300a–7(b)(2) and 238n(a), andinfers from them that “Congress speaks with specificity when it intendsa religious accommodation not to extend to for-profit corporations,” ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing orassisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided by §238n(a) differs significantly from the protection provided by
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exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483
U. S., at 337.16
The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing tothe same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporationscommonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the
—————— RFRA”). Notably, the Court does not assert that these exemptions havein fact been afforded to for-profit corporations. See §238n(c) (“health care entity” covered by exemption is a term defined to include “anindividual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, . . . may be able to invoke [§238n(a)]. . . .”); cf. S. 137, 113th Cong., 1st Sess. (2013) (as introduced) (Abortion Non-Discrimination Act of 2013, which would amend the definition of “health care entity” in §238n to include “hospital[s],” “health insuranceplan[s],” and other health care facilities). These provisions are revealing in a way that detracts from one of the Court’s main arguments. They show that Congress is not content to rest on the Dictionary Actwhen it wishes to ensure that particular entities are among thoseeligible for a religious accommodation. Moreover, the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, §515, 110 Stat. 1321–245. If, as the Court believes, RFRA opened all statutory schemes to religionbased challenges by for-profit corporations, there would be no need for astatute-specific, post-RFRA exemption of this sort. 16That is not to say that a category of plaintiffs, such as residentaliens, may bring RFRA claims only if this Court expressly “addressedtheir [free-exercise] rights before Smith.” Ante, at 27. Continuing withthe Court’s example, resident aliens, unlike corporations, are flesh-andblood individuals who plainly count as persons sheltered by the First Amendment, see United States v. Verdugo-Urquidez, 494 U. S. 259, 271 (1990) (citing Bridges v. Wixon, 326 U. S. 135, 148 (1945)), and a fortiori, RFRA.
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work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’sreligious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clearas it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight.
Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA toinitiate a change so huge, a clarion statement to thateffect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and the legislative history does not so much as mention forprofit corporations. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J.,concurring in part and dissenting in part) (legislativerecord lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations”). See also Senators Brief 10–13 (none of the
——————
17I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court)(similarly concentrating on religious faith of employers without reference to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious beliefs.
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cases cited in House or Senate Judiciary Committeereports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profitcorporations).
The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (KENNEDY, J., concurring) (criticizing the Government for “distinguishing between different religious believers—burdening one whileaccommodating the other—when it may treat both equallyby offering both of them the same accommodation”).18 Again, the Court forgets that religious organizations existto serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1
W. Blackstone, Commentaries on the Laws of England 458(1765), and was reiterated by this Court centuries beforethe enactment of the Internal Revenue Code. See Terrett
v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non——————
18According to the Court, the Government “concedes” that “nonprofitcorporation[s]” are protected by RFRA. Ante, at 19. See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “religious institutions,” and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRAincorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accommodations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”).
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profits in that they use labor to make a profit, rather thanto perpetuate [the] religious value[s] [shared by a community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted).
Citing Braunfeld v. Brown, 366 U. S. 599 (1961), theCourt questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [HobbyLobby and Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporatedbusiness enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business,however, an individual separates herself from the entityand escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold onlywhen it serves the interest of those who control the corporation. In any event, Braunfeld is hardly impressiveauthority for the entitlement Hobby Lobby and Conestogaseek. The free exercise claim asserted there was promptly rejected on the merits.
The Court’s determination that RFRA extends to forprofit corporations is bound to have untoward effects.Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA
—————— 19The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “itseems unlikely” that large corporations “will often assert RFRA claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is
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claims will proliferate, for the Court’s expansive notion ofcorporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
2 Even if Hobby Lobby and Conestoga were deemed RFRA“person[s],” to gain an exemption, they must demonstratethat the contraceptive coverage requirement “substantially burden[s] [their] exercise of religion.” 42 U. S. C. §2000bb–1(a). Congress no doubt meant the modifier“substantially” to carry weight. In the original draft ofRFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifyingamendment offered by Senators Kennedy and Hatch. See
—————— hardly the only enterprise of sizable scale that is family owned orclosely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons. See Forbes, America’s Largest Private Companies 2013, available at http://www.forbes.com/largest-private-companies/. Nor does the Court offer any instruction on how to resolve the disputes that may crop up among corporate owners over religious values and accommodations. The Court is satisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante, at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, §351 (2011) (certificates of incorporation mayspecify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations §3:2 (3d ed. 2010) (section entitled “Selectingthe state of incorporation”); id., §14:11 (observing that “[d]espite thefrequency of dissension and deadlock in close corporations, in somestates neither legislatures nor courts have provided satisfactory solutions”). And even if a dispute settlement mechanism is in place, how isthe arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substantial,” ante, at 36?
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139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with theCourt’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.” Ibid.
The Court barely pauses to inquire whether any burdenimposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f] that providing the coverage demanded by the HHS regulations is connected to the destruction of anembryo in a way that is sufficient to make it immoral forthem to provide the coverage.” Ante, at 36.20 I agree with the Court that the Green and Hahn families’ religiousconvictions regarding contraception are sincerely held. See Thomas, 450 U. S., at 715 (courts are not to questionwhere an individual “dr[aws] the line” in defining whichpractices run afoul of her religious beliefs). See also 42
U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’]
—————— 20The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statisticsthat could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to provethat an asserted burden is insubstantial. Instead, it is incumbent uponplaintiffs to demonstrate, in support of a RFRA claim, the substantiality of the alleged burden.21The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member ofthis Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at 37 (internal quotation marks omitted), but whether accommodatingthat claim risks depriving others of rights accorded them by the laws of the United States. See supra, at 7–8; infra, at 27.
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beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that[plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, 553 F. 3d 669, 679 (CADC 2008).
That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy, 476 U. S. 693 (1986), is instructive. There, the Court rejected a freeexercise challenge to the Government’s use of a NativeAmerican child’s Social Security number for purposes of administering benefit programs. Without questioning thesincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,”the Court concluded that the Government’s internal uses of that number “place[d] [no] restriction on what [thefather] may believe or what he may do.” Id., at 699. Recognizing that the father’s “religious views may not accept” the position that the challenged uses concernedonly the Government’s internal affairs, the Court explained that “for the adjudication of a constitutional claim,the Constitution, rather than an individual’s religion,must supply the frame of reference.” Id., at 700–701, n. 6. See also Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) (distinguishing between, on the one hand, “question[s] [of] the centrality of particular beliefs or practicesto a faith, or the validity of particular litigants’ interpretations of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged governmentaction] is a substantial one”). Inattentive to this guidance,today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substantiality of the burden placed on the challenger.
Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The re23
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quirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they findobjectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptivecoverage without cost sharing, just as they must cover anarray of other preventive services.
Importantly, the decisions whether to claim benefitsunder the plans are made not by Hobby Lobby or Cones- toga, but by the covered employees and dependents, inconsultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religiousbeliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or havea hip replaced—is in any meaningful sense [her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted byindependent decisionmakers (the woman and her healthcounselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a womancovered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo- man’s autonomous choice, informed by the physician sheconsults.
3 Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage
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for which the ACA provides furthers compelling interestsin public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helpssafeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; 78 Fed. Reg. 39872 (2013); IOM Report 107.
That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. See id., at 105.22 Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga toexclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the employer said ‘no contraceptives’” (internal quotation marks added)).
Perhaps the gravity of the interests at stake has led the
—————— 22IUDs, which are among the most reliable forms of contraception,generally cost women more than $1,000 when the expenses of the officevisit and insertion procedure are taken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59,S60 (2013). See also Winner et al., Effectiveness of Long-Acting Reversible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012).
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Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at 40.23 It bears note in this regard that the cost ofan IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for GuttmacherInstitute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costswere not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use,United States, 2004, 40 Perspectives on Sexual & Reproductive Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy,Simon, Patel, Creinin, & Schwarz, The Impact of Out-of-Pocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found thatwomen who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and Post-Benefit Change, 76 Contraception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled).
Stepping back from its assumption that compellinginterests support the contraceptive coverage requirement,the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court
—————— 23Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves theGovernment’s compelling interest in providing insurance coverage thatis necessary to protect the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.).
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suggests, Congress would not have created these exclusions. See ante, at 39–40.
Federal statutes often include exemptions for smallemployers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 1993, 29 U. S. C.§2611(4)(A)(i) (applicable to employers with 50 or moreemployees); Age Discrimination in Employment Act of 1967, 29 U. S. C. §630(b) (originally exempting employerswith fewer than 50 employees, 81 Stat. 605, the statute now governs employers with 20 or more employees); Americans With Disabilities Act, 42 U. S. C. §12111(5)(A) (applicable to employers with 15 or more employees); TitleVII, 42 U. S. C. §2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y & H Corp., 546 U. S. 500, 505, n. 2 (2006), the statute now governs employers with 15 or more employees).
The ACA’s grandfathering provision, 42 U. S. C. §18011,allows a phasing-in period for compliance with a numberof the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why bythe District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just becauseof economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” Id., at 40.24 The percentage of employees in grand——————
24Hobby Lobby’s amicus National Religious Broadcasters similarly
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fathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research & Educ. Trust, EmployerBenefits 2013 Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.” Gilardi, 733 F. 3d, at 1241 (Edwards, J., concurring inpart and dissenting in part).
The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wilkinson, 544 U. S. 709, 720 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows areligion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts, 321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operatewhenever activities begin to affect or collide with libertiesof others or of the public.”).
4 After assuming the existence of compelling governmentinterests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less
restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing ——————
states that, “[g]iven the nature of employers’ needs to meet changingeconomic and staffing circumstances, and to adjust insurance coverageaccordingly, the actual benefit of the ‘grandfather’ exclusion is de minimis and transitory at best.” Brief for National Religious Broadcasters as Amicus Curiae in No. 13–354, p. 28.
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insurance coverage for certain contraceptives (which theybelieve cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensurethat women employees receive, at no cost to them, the preventive care needed to safeguard their health and wellbeing. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law inorder to ensure that their commercial employers canadhere unreservedly to their religious tenets. See supra, at 7–8, 27.25
Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Ante, at
41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Ibid. Moreover, Title X of the Public Health Service Act, 42 U. S. C. §300 et seq., “is the nation’s only dedicated source of federal
——————
25As the Court made clear in Cutter, the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause. 544 U. S., at 720–722. “[W]eare a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U. S., at 606, a “rich mosaic of religious faiths,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’sright to free exercise must be kept in harmony with the rights of herfellow citizens, and “some religious practices [must] yield to the common good.” United States v. Lee, 455 U. S. 252, 259 (1982).
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funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae
23.
“Safety net programs like Title X are not designed toabsorb the unmet needs of . . . insured individuals.” Id., at
24.
Note, too, that Congress declined to write into law thepreferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative. See supra, at 6.
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303 (1985), or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist Church, 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as a less restrictive alternative to require the government toprovide the money or benefit to which the employer has a religion-based objection?26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations.See ante, at 3–4, 9–10, 43–45. “At a minimum,” accordingto the Court, such an approach would not “impinge on[Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at
44. I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude neverbefore accorded to commercial enterprises comprisingemployees of diverse faiths. See supra, at 14–17.
Ultimately, the Court hedges on its proposal to align forprofit enterprises with nonprofit religion-based organiza——————
26Cf. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 (2004) (in context of First Amendment Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available, effective alternatives” (emphasis added)).
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tions. “We do not decide today whether [the] approach[the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable,27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.
Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporationobjects) on their own, a tax credit would qualify as a lessrestrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let thegovernment pay.” In addition to departing from the existing employer-based system of health insurance, Conestoga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothingfor the woman too poor to be aided by a tax credit.
In sum, in view of what Congress sought to accomplish,
—————— 27On brief, Hobby Lobby and Conestoga barely addressed the extension solution, which would bracket commercial enterprises with nonprofit religion-based organizations for religious accommodations purposes. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the Aged v. Sebelius, ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27,2013), injunction pending appeal granted, 571 U. S. ___ (2014). At another point in today’s decision, the Court refuses to consider anargument neither “raised below [nor] advanced in this Court by anyparty,” giving Hobby Lobby and Conestoga “[no] opportunity to respondto [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make anaccommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to . . . refute each and every conceivable alternative regulation,” United States v. Wilgus, 638 F. 3d 1274, 1289 (CA10 2011), especially where the alternative onwhich the Court seizes was not pressed by any challenger.
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i.e., comprehensive preventive care for women furnishedthrough employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.
IV Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455 U. S. 252 (1982).Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Securitysystem conflicted with Lee’s religious beliefs, the burdenwas not unconstitutional. Id., at 260–261. See also id., at 258 (recognizing the important governmental interest inproviding a “nationwide . . . comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees”).28 The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses Lee as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to accommodate religiousbeliefs in the area of taxation.” 455 U. S., at 259. But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sectenter into commercial activity as a matter of choice,” theCourt observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be —————— 28As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religionbased exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability.
32 BURWELL v. HOBBY LOBBY STORES, INC.
GINSBURG, J., dissenting
superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory schemeof employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not depriveemployees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so.
Why should decisions of this order be made by Congressor the regulatory authority, and not this Court? HobbyLobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp.
—————— 29Congress amended the Social Security Act in response to Lee. The amended statute permits Amish sole proprietors and partnerships (butnot Amish-owned corporations) to obtain an exemption from the obligation to pay Social Security taxes only for employees who are coreligionists and who likewise seek an exemption and agree to give uptheir Social Security benefits. See 26 U. S. C. §3127(a)(2), (b)(1). Thus, employers with sincere religious beliefs have no right to a religionbased exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous tothe one Hobby Lobby and Conestoga seek here. 30Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471
U. S. 290, 299 (1985) (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”).
Cite as: 573 U. S. ____ (2014) 33
GINSBURG, J., dissenting
941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn.1985) (born-again Christians who owned closely held, forprofit health clubs believed that the Bible proscribedhiring or retaining an “individua[l] living with but notmarried to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicatorsand homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by ahusband and wife refused to photograph a lesbian couple’scommitment ceremony based on the religious beliefs of thecompany’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment givenits recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37.
Would the exemption the Court holds RFRA demandsfor employers with religiously grounded objections to theuse of certain contraceptives extend to employers withreligiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian
34 BURWELL v. HOBBY LOBBY STORES, INC.
GINSBURG, J., dissenting
Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg.
6. Not much help there for the lower courts bound bytoday’s decision.
The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandatemust necessarily fall if it conflicts with an employer’sreligious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectiousdiseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.
There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity withwhich an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring onereligion over another,” the very “risk the EstablishmentClause was designed to preclude.” Ibid. The Court, I fear,
—————— 31Religious objections to immunization programs are not hypothetical. See Phillips v. New York, ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccinations Threaten Religious Freedom (2007), available at http://www.lc.org/media/9980/attachments/memo_vaccination.pdf.
Cite as: 573 U. S. ____ (2014) 35
GINSBURG, J., dissenting
has ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J., concurring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged. . . substantially in the exchange of goods or services for money beyond nominal amounts.” See id., at 748 (Kleinfeld, J., concurring).
* * * For the reasons stated, I would reverse the judgment ofthe Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.
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Cite as: 573 U. S. ____ (2014) 1
BREYER and KAGAN, JJ., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 13–354 and 13–356
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 13–354 v. HOBBY LOBBY STORES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
AND
CONESTOGA WOOD SPECIALTIES CORPORATION ET AL., PETITIONERS 13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]
JUSTICE BREYER and JUSTICE KAGAN, dissenting. We agree with JUSTICE GINSBURG that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bringclaims under the Religious Freedom Restoration Act of1993. Accordingly, we join all but Part III–C–1 of JUSTICE GINSBURG’s dissenting opinion.

Outcome: No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, reversed and remanded.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: This is a bad decision in my opinion and will not stand the test of time.



 
 
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