SYLVIA BURWELL,
SECRETARY OF HEALTHAND HUMAN SERVICES, et al., PETITIONERS v. HOBBY LOBBY
STORES, INC., et al.*
on writ of certiorari to the united states court of appeals for the tenth circuit
573 U.S. 682 (2014)
*Together with CONESTOGA WOOD SPECIALTIES CORPORATION et
al., PETITIONERS v. SYLVIA BURWELL, SECRETARY OF HEALTHAND HUMAN SERVICES, et
al., on writ of certiorari to the united states court of appeals for the
third circuit
Justice Alito delivered the opinion of the Court. (Separate
opinions omitted.)
We must decide in
these cases whether the Religious Freedom Restoration Act of 1993 (RFRA),
107Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States
Department of Health and Human Services (HHS) to demand that three closely held
corporations provide health-insurance coverage for methods of contraception
that violate the sincerely held religious beliefs of the companies’ owners. We
hold that the regulations that impose this obligation violate RFRA, which
prohibits the 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 for-feited all RFRA protection when they
decided to organize their 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 to run 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 to abortion, and according
to their religious beliefs the four contraceptive methods at issue are
abortifacients. If the owners comply with the HHS mandate, they believe they
will 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 to a
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-approved contraceptives.
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 coverage without 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 the
same system cannot be made available when the owners of for-profit corporations
have similar religious objections. We therefore conclude that this system
constitutes an alternative 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 objecting parties in these cases is unlawful.
As this
description of our reasoning shows, our holding is very specific. We do not
hold, as the principal dissent alleges, 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 have free rein to take steps that impose “disadvantages . . . on
others” or that require “the general public [to] pick up the tab.” Post, at
1–2. And we certainly do not hold or suggest that “RFRA demands accommodation
of a for-profit corporation’s religious beliefs no matter the impact that accommodation
may have on . . . thousands of women employed 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 very broad 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 of analyzing 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 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 of
Oregon 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 governmental 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), 114Stat. 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
category of governmental actions. See Cutter v. Wilkinson, 544 U. S. 709
–716 (2005). And, what is most relevant for present purposes, RLUIPA amended
RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing
RLUIPA definition). Before RLUIPA, RFRA’s definition 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
from First Amendment case law, Congress deleted the reference to 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 the terms of this chapter and the Constitution.” §2000cc–3(g).[5]
B
At issue in these
cases are HHS regulations promulgated under the Patient Protection and
Affordable Care Act of 2010 (ACA), 124Stat. 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 “individual.” §§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 full-time 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 group of 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 Ad-ministration
[(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 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 associ-ations
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 organi-zation” 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 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] Al-though
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 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 nonelderly 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 50
employees is 34 million workers. See The Whitehouse,
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 law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business;
they control its board 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 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 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 because Hobby Lobby elected not to retain
grandfathered status 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 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 cannotbe 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, 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 in the next part of this
opinion, reveals that Congress did no 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.
Corporations, “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 well as 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; 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
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 applies equally 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 so as 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 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 RFRA does not protect for-profit corporations
because the purpose of such corporations is simply to make money.[23] This
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
for-profit 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 at all 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 in other countries may exceed the requirements of local law
regarding working conditions and benefits. If for-profit corporations may
pursue such worthy objectives, there is no apparent reason why they may not
further religious objectives as well.
HHS would draw a
sharp line between nonprofit corporations (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 in order to maximize profit. For example,
organizations with religious and charitable aims might organize as for-profit
corporations because of the potential advantages of that corporate form, such
as the freedom to participate in lobbying 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 a benefit for the public and a profit for its owners.[25]
In any event, the
objectives that may properly be pursued 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 lawful purpose” 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]very
corporation, whether profit or not for profit” may “be incorporated 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 additional argument in an effort to show that a
for-profit corporation cannot engage in the “exercise of religion” within the
meaning of RFRA: HHS argues that RFRA did no more than 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, RFRA does not confer
such protection. This argument has many flaws.
First, nothing in
the text of RFRA as originally enacted suggested 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 First Amendment”—not the exercise of
religion as recognized only by then-existing Supreme Court precedents. 42 U. S.
C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a
statutory provision to a body of this Court’s case law, it knows how to do so.
See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28 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 United States”).
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 First Amendment, see 42 U. S. C.
§2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the
principal dissent can explain why Congress did this if it wanted to tie 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 protection of
religious exercise, to the maximum extent permitted by the 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-exercise rights of a for-profit corporation
suggests, if anything, that for-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
for-profit corporation, by customers of the market, and by a rabbi. The
Commonwealth argued that the corporation lacked “standing” to assert a
free-exercise claim,[26] but not one member of the Court expressed agreement
with that 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 raise the
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
–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 the merits 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 Court entertained in the years before
Smith. For example, we are 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 their rights before Smith?
Presumably in
recognition of the weakness of this argument, both HHS and the principal
dissent fall back on the broader contention that the Nation lacks a tradition
of exempting for-profit corporations from generally applicable laws. By
contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A),
expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No.
13–356, p. 26. In making this argument, however, HHS did not call to our
attention the fact that some federal statutes do exempt categories of entities
that include for-profit corporations from laws that would otherwise require
these entities to engage 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 is that Congress speaks with specificity when it
intends a religious accommodation not to extend to for-profit corporations.
4
Finally, HHS
contends that Congress could not have wanted 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 RFRA
claims. HHS has not pointed to any example of a publicly traded 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 of
stakeholders—would agree to run a corporation under the same religious beliefs
seems improbable. In any event, we have no occasion in these cases to consider
RFRA’s applicability to such companies. The companies in the cases before 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 scope of 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
that consists primarily of prisoners, and by the time of RLUIPA’s enactment,
the propensity of some prisoners to assert 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 to raise religious liberty
claims. If Congress thought that the federal 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 wanted RFRA 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 about the possibility of disputes among the
owners of corporations, but that is not a problem that arises because of RFRA
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 a
company’s stores to remain open on the Sabbath in order to make more money, and
others might want the stores to close 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 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’s restriction on the activities of a
for-profit closely held corporation 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.
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 requiring the Hahns and
Greens and their companies to arrange for such coverage, the HHS mandate
demands that they engage in conduct that seriously violates their religious
beliefs.
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, they
will 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; for Conestoga, 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 thus forcing 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 employee each year. §4980H. These penalties
would amount to roughly $26 million for Hobby Lobby, $1.8 million for
Conestoga, and $800,000 for Mardel.
B
Although these
totals are high, amici supporting HHS 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 to obtain insurance in the government exchanges. We do not generally
entertain arguments that were not raised below and are not advanced in this
Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U.
S. 56 , n. 2 (1981); Bell v. Wolfish, 441 U. S. 520 , n. 13 (1979); Knetsch v. United States, 364 U. S. 361, 370
(1960) , and there are strong reasons to adhere to that practice in these
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 around the country. As things now stand,
we do not even know what 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 have religious reasons for providing health-insurance
coverage for their employees. Before the advent of ACA, they were not legally
compelled to provide insurance, but they nevertheless did so—in part, no doubt,
for conventional business reasons, but also in part because their religious
beliefs govern their relations with their employees. See App. to Pet. 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 paying the 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 face a competitive disadvantage in
retaining and attracting skilled 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 the amount 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
can deduct 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]
In sum, we refuse
to sustain the challenged regulations on 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 put
family-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) is
basically that the connection between what the objecting parties must do
(provide health-insurance coverage for four methods of contraception that may
operate after the fertilization of an egg) and the end that they find to be
morally 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 an embryo;
that would occur only if an employee chose to take advantage of the coverage
and to use one of the four methods at issue.[33] Ibid.
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 business
in 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 an embryo 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] Arrogating the authority to provide a binding national answer to
this religious and philosophical question, HHS and the principal dissent in
effect tell the plaintiffs that their beliefs are flawed. For good reason, we
have repeatedly refused to take such a step. See, e.g., Smith, 494 U.
S., at 887 (“Repeatedly and in many different contexts, we have warned that
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 sheet steel 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 participating
in the manufacture of weapons, he lost his job and sought unemployment
compensation. Ruling against the employee, the state court had difficulty with
the line that the employee drew between work that he found to be consistent
with his religious beliefs (helping to manufacture steel that was used in
making weapons) and work that he found morally objectionable (helping to make
the weapons themselves). 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 and their companies
sincerely believe that providing the insurance coverage demanded by the HHS
regulations lies on the forbidden side of the line, and it is not for us to say
that their religious beliefs are mistaken or insubstantial. Instead, our
“narrow function . . . in this context is to 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 in which we rejected the argument that the
use of general tax revenue to subsidize the secular activities of religious
institutions 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 –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 to identify any coercion directed at the practice or exercise of their
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 as individuals in the practice of their
religion”). Here, in contrast, the plaintiffs do assert that funding the
specific contraceptive methods at issue violates their religious beliefs, and
HHS does not question their sincerity. Because the contraceptive mandate forces
them to pay an enormous sum of money—as much as $475 million per year 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 burden on 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. §2000bb–1(b).
A
HHS asserts that
the contraceptive mandate serves a variety of important interests, but many of
these are couched in very broad terms, such as promoting “public health” and
“gender equality.” Brief for HHS in No. 13–354, at 46, 49. RFRA, however, contemplates
a “more focused” 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 is
being 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 exemptions to 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 framed interests, HHS maintains that the mandate
serves a compelling interest in ensuring that all women have access to all
FDA-approved contraceptives without cost sharing. 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 to obtain contraceptives,
see Griswold v. Connecticut, 381 U. S. 479 –486 (1965), and HHS tells us
that “[s]tudies have demonstrated that even moderate
copayments for preventive services can deter patients from receiving those
services.” 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—those covered by
grandfathered plans and those who work for employers with fewer than 50
employees—may have no contraceptive coverage without cost sharing at all.
HHS responds that
many legal requirements have exceptions and the existence of exceptions does
not in itself indicate that the principal interest served by a law is not
compelling. Even a compelling interest may be outweighed in some circumstances
by another even weightier consideration. 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” that provide 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 access to 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 least restrictive means of furthering that
compelling governmental interest.” §2000bb–1(b)(2).
B
The
least-restrictive-means standard is exceptionally demanding, 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 a
substantial 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 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 four contraceptives at issue to any women who are unable
to obtain them under their health-insurance policies due to their employers’
religious objections. This would certainly be less restrictive of the
plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that
this is not a viable alternative. HHS has not provided any estimate of the
average cost per employee of providing access tothese
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 might
be 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-approved
contraceptives) would be minor when compared with the overall cost of ACA.
According to one of the Congressional Budget Office’s most recent forecasts,
ACA’s insurance-coverage 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 a Government interest of the
highest order, it is hard to understand HHS’s argument that it cannot be
required under RFRA to pay anything in order to achieve this important goal.
HHS contends that
RFRA does not permit us to take this option into account because “RFRA cannot
be used to require creation of entirely new programs.” Brief for HHS in 13–354,
at 15.[37] But we see nothing in RFRA that supports 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 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 may require a government to incur expenses in its own operations to
avoid imposing a substantial burden on religious exercise.”). 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 requiring employers 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 self-certify that it opposes providing
coverage for particular contraceptive 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 insurance issuer or
third-party administrator must “[e]xpressly exclude
contraceptive coverage from the group health insurance coverage provided in
connection with the group health plan” and “[p]rovide
separate payments for any contraceptive 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]
We do not decide
today whether an approach of this type complies 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 contraceptive
coverage without cost sharing for all FDA-approved contraceptives, and they
would continue to “face minimal 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. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the
dissent’s approach that would “[i]mped[e]
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,’ ”
post, at 28, because the dissent would effectively compel religious
employers to drop health-insurance coverage altogether, leaving their employees
to find individual plans on government-run exchanges or elsewhere. This is
indeed “scarcely what Congress contemplated.” Ibid.
C
HHS and the
principal dissent argue that a ruling in favor of the objecting parties in
these cases will lead to a flood of religious objections regarding a wide
variety of medical 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-coverage mandate 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 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 insurance-coverage 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 the spread 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 in providing
an equal opportunity to participate in the workforce without regard to race,
and prohibitions on racial discrimination 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 for-profit 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 of an employer, but
these cases are quite different. Our holding in Lee turned primarily on
the special problems 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 pay income taxes.” 455 U. S., at
260. Based on that premise, we explained that it was untenable to allow
individuals to seek exemptions from taxes based on religious objections to
particular Government expenditures: “If, for example, a religious adherent
believes war is a sin, and if a certain percentage 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 were allowed 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
purchase insurance 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 eligible organization from the monies used
to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii).
Recognizing a religious accommodation under RFRA for particular
coverage requirements, therefore, does not threaten the viability of
ACA’s comprehensive scheme in the way that recognizing religious objections to
particular expenditures from general tax revenues would.[43]
In its final pages,
the principal dissent reveals that its fundamental 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 claims made 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
required religious 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 for striking 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 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 held corporations, 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.
Notes
1
See also , at 8 (“The exemption sought by Hobby Lobby and
Conestoga . . . would deny [their employees] access to contraceptive coverage
that the ACA would otherwise secure”)
2
The Act defines “government” to include any “department” or“agency” of the United States. §2000bb–2(1).
3
In v. , 521 U. S., 507 (1997), we wrote that RFRA’s “least
restrictive means requirement was not used in the pre-jurisprudence RFRA
purported to codify.” , at 509. On this understanding of our pre- cases, RFRA
did more than merely restore the balancing test used in the line of cases; it
provided even broader protection for religious liberty than was available under
those decisions.
4
See, , v., 441 F. 3d 96, 108 (CA2 2006); v., 290 F. 3d 1210, 1220
(CA9 2002).
5
The 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 , 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 interpreted broadly,
and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” –2(4). It necessarily
follows that the “exercise of religion” under RFRA must be given the same broad
meaning that applies under RLUIPA.
6
We 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.
7
Online 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, ., 62
Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them.
8 In 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 on the 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
third-party 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.
9 In 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-party administrators. See v. , 571 U.
S. ___ (2014).
10 While the
Government predicts that this number will decline over time, 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.
11
Online at http : / / www . whitehouse . gov / files / documents / health
_reform_for_small_businesses.pdf.
12
Mennonite Church USA, Statement on Abortion, online
athttp://www.mennoniteusa.org /resource-center/resources /statements
-and-resolutions/statement-on-abortion/.
13
The Hahns and Conestoga also claimed
that the contraceptive mandate violates the and the Administrative Procedure
Act, , but those claims are not before us.
14
See, , WebMD Health News, New Morning-After Pill Ella Wins FDA
Approval, online at http://www.webmd.com/sex/birth-control/news/20100813/new-morning-after-pill-ella-wins-fda-approval.
15
The 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.
16
They also raised a claim under the Administrative Procedure Act,
.
17
Given 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); , at 1184 (Matheson, J., concurring in part and
dissenting in part), and three of those judges would have granted plaintiffs a
preliminary injunction, see , at 1156 (Gorsuch, J., concurring).
18
As discussed, n. 3, , in we stated that RFRA, by imposing a
least-restrictive-means test, went beyond what was required by our
pre-decisions. Although the author of the principal dissent joined the Court’s
opinion in , she now claims that the statement was
incorrect. , 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- cases. See , at 25–28.
19 Cf. Brief for
Federal Petitioners in , O. T. 2004, No. 04–1084, p. II (stating that the
organizational respondent was “a New Mexico Corporation”); Brief for Federal
Respondent in , O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was
an “ecclesiastical corporation”).
20
Not 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.
21
Although the principal dissent seems to think that Justice
Brennan’s statement in provides a ground for holding that for-profit
corporations may not assert free-exercise claims, that was not Justice
Brennan’s view. See v., (dissenting opinion); , at
26–27.
22
It is revealing that the principal dissent cannot even bring
itself to acknowledge that was correct in entertaining the merchants’ claims.
See at 19 (dismissing the relevance of in part because “[t]he free exercise
claim asserted there was promptly rejected on the merits”).
23 See, ., 724 F. 3d,
at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was
created to make money” could exercise religion); v., 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”); v., 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 matters greatly to how it will be
categorized and treated under the law” and “it is undisputed that Hobby Lobby
and Mardel are for-profit corporations focused on
selling merchandise to consumers”).
24 See, , M. Sanders,
Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013)
(describing Google.org, which “advance[s] its charitable 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).
25 See Benefit Corp
Information Center, online at
http://www.benefitcorp.net/state-by-state-legislative-status; , 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 benefits that it is the purpose of
the benefit corporation to create. . . . This purpose is in addition to [the
purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means
a benefit that serves one or more public welfare, religious, charitable,
scientific, literary, or educational purposes, or other purpose or benefit
beyond the strict interest of the shareholders of the benefit corporation . . .
.”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130
(2012 Cum. Supp.) (similar).
26 See Brief for
Appellants in , 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”).
27
The principal dissent points out that “the exemption codified in
§238n(a) was not enacted until three years after RFRA’s passage.” , 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 for-profit corporations” because if it had “there would be no need for a
statute-specific, post-RFRA exemption of this sort.” .
28
To 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.,
., v. , 608 F. 3d 717, 718–719 (CA10 2010).
29 See, , v. , 90 F.
3d 293, 296 (CA8 1996); v., 525 F. Supp. 81, 83–84 (ED Mo. 1981);v. , 1996 WL
5320, *5 (CA9, Jan. 5, 1996);v., 549 N. W. 2d 819–820 (Iowa 1996).
30 The principal
dissent attaches significance to the fact that the “Senate voted down [a]
so-called ‘conscience amendment,’ which would have enabled any employer or
insurance provider to deny coverage based on its asserted religious beliefs or
moral convictions.” , at 6. The dissent would evidently glean from that vote an
intent by the Senate to prohibit for-profit corporate employers from refusing
to offer contraceptive 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 deny any health service to any American for
virtually any reason—.” 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 to believe 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 statutory law
adopted after November 16, 1993 is subject to [RFRA] unless such law such
application by reference to [RFRA].” –3(b) (emphasis added). It is not
plausible to find such an explicit reference in the meager legislative history
on which the dissent relies.
31
Indeed, one of HHS’s stated reasons for establishing the
religious accommodation was to “encourag[e] eligible
organizations to to offer health coverage.” 78 Fed.
Reg. 39882 (2013) (emphasis added).
32
Attempting to compensate for dropped insurance by raising wages would
also present administrative difficulties. In order to provide full compensation
for employees, the companies would have to calculate the value to employees of
the convenience of retaining their employer-provided coverage and thus being
spared the task of attempting to find and sign up for a comparable plan on an
exchange. And because some but not all of the
companies’ employees may qualify for subsidies on an exchange, it would be
nearly impossible to calculate a salary increase that would accurately restore
the status quo ante for all employees.
33
This 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 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 certain religious employers, and later
expanded the exemption to include certain 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.” .
Those exemptions would be hard to understand if the plaintiffs’ objections here
were not substantial.
34 See, ., 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) (“The
general principles governing cooperation” in wrongdoing—., “physical activity
(or its omission) by which a person assists in the evil act of another 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 by an act that is not sinful, and without
approving of what B does”).
35
The principal dissent makes no effort to reconcile its view about
the substantial-burden requirement with our decision in .
36
Online at http://cbo.gov/publication/45231.
37
In a related argument, HHS appears to maintain that a plaintiff
cannot prevail on a RFRA claim that seeks an exemption from a legal obligation
requiring the plaintiff to confer benefits on third parties. Nothing in the
text of RFRA or its basic purposes supports giving the Government an entirely
free hand to impose burdens on religious exercise so long as those burdens
confer a benefit on other individuals. It is certainly true that in applying
RFRA “courts must take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries.” v., (applying RLUIPA). That
consideration will often inform the analysis of the Government’s compelling
interest and the availability of a less restrictive means of advancing that
interest. But it could not reasonably be maintained that any burden on
religious exercise, no matter how onerous and no matter how readily the
government interest could be achieved through alternative means, is permissible
under RFRA so long as the relevant legal obligation requires the religious
adherent to confer a benefit on third parties. Otherwise, for example, the
Government could decide that all supermarkets must sell alcohol for the
convenience of customers (and thereby exclude Muslims with religious objections
from owning supermarkets), or it could decide that all restaurants must remain
open on Saturdays to give employees an opportunity to earn tips (and thereby
exclude Jews with religious objections from owning restaurants). 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 not result in any detrimental effect on any third party. As we explain, see , 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 their
employers’ religious objections.
38 HHS has concluded
that insurers that insure eligible employers opting out of the contraceptive
mandate and that are required to pay for contraceptive coverage under the
accommodation will not experience an increase in costs because the “costs of
providing contraceptive coverage 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 the
federally facilitated exchanges. HHS believes that this system will not have a
material effect on the funding of the exchanges because the “payments for
contraceptive services will represent only a small portion of total [federally
facilitated exchange] user fees.” at 39882; see 26 CFR §54.9815–2713A(b)(3).
39 See n. 9, .
40 The principal
dissent faults us for being “noncommital” in refusing
to decide a case that is not before us here. , at 30.The less re-strictive
approach we describe accommodates the religious beliefs as-serted
in these cases, and that is the only question we are permittedto
address.
41
In the principal dissent’s view, the Government has not had a
fair opportunity to address this accommodation, , 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 religious reasons), [it]
must explain why extending a comparable exception to a specific plaintiff for
religious reasons would undermine its compelling interests.” Brief for the
United States as in v., No. 13–6827, p. 10, now pending before the Court.
42
Cf. 42 U. S. C. §1396s (Federal “program for distribution of
pediatric vaccines” for some uninsured and underinsured children).
43 HHS highlights certain statements in the opinion in that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U. S., at 261. was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, 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.