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THIS IS A PORTFOLIO ASSIGNMENT. Your Portfolio is maintained in the School of Business Leadership Forum . Each Portfolio Assignment throughout the MBA is intended to demonstrate your best work in one or more areas of professional business competency, such as presentation, proposal writing, analysis, problem-solving, teamwork, or communication. When you complete your MBA, your portfolio will contain a range of artifacts that could be used to demonstrate your skills to potential employers, or used as tools and templates for future work-related assignments. You are therefore encouraged to give your best efforts on Portfolio assignments so that the quality and completeness of your work will continue to benefit you after earning your degree.Refer to the following page when creating and updating your portfolio: Create your Portfolio Using Google Sites.Appendix 1 provides an introduction to case briefing and legal study tips. Review the introduction and become familiar with the principles discussed therein. A sample case brief is also provided. Follow this example while preparing a case brief for Burwell v. Hobby Lobby. Your brief should be created using the supplied Case Brief System in Appendix I. Each of the following sections must appear in the order shown:I. Case BriefPlaintiff and DefendantFactsLower CourtIssue AppealedWho Wins?What does this mean?Reasoning(Slip Opinion)
OCTOBER TERM, 2013
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Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BURWELL, SECRETARY OF HEALTH AND HUMAN
SERVICES, ET AL. v. HOBBY LOBBY STORES, INC.,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 13–354.
Argued March 25, 2014—Decided June 30, 2014*
The Religious Freedom Restoration Act of 1993 (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). As amended by the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A).
At issue here are regulations promulgated by the Department of
Health and Human Services (HHS) under the Patient Protection and
Affordable Care Act of 2010 (ACA), which, as relevant here, requires
specified employers’ group health plans to furnish “preventive care
and screenings” for women without “any cost sharing requirements,”
42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of
preventive care must be covered; it authorized the Health Resources
and Services Administration, a component of HHS, to decide. Ibid.
Nonexempt employers are generally required to provide coverage for
the 20 contraceptive methods approved by the Food and Drug Admin——————
* Together with No. 13–356, Conestoga Wood Specialties Corp. et al.
v. Burwell, Secretary of Health and Human Services, et al., on certiorari
to the United States Court of Appeals for the Third Circuit.
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istration, including the 4 that may have the effect of preventing an
already fertilized egg from developing any further by inhibiting its
attachment to the uterus. Religious employers, such as churches, are
exempt from this contraceptive mandate. HHS has also effectively
exempted religious nonprofit organizations with religious objections
to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage
from the employer’s plan and provide plan participants with separate
payments for contraceptive services without imposing any costsharing requirements on the employer, its insurance plan, or its employee beneficiaries.
In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs 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. In separate actions,
they sued HHS and other federal officials and agencies (collectively
HHS) under RFRA and the Free Exercise Clause, seeking to enjoin
application of the contraceptive mandate insofar as it requires them
to provide health coverage for the four objectionable contraceptives.
In No. 13–356, the District Court denied the Hahns and their company—Conestoga Wood Specialties—a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and
that the mandate imposed no requirements on the Hahns in their
personal capacity. In No. 13–354, the Greens, their children, and
their companies—Hobby Lobby Stores and Mardel—were also denied
a preliminary injunction, but the Tenth Circuit reversed. It held that
the Greens’ businesses are “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim
because the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the
court held that HHS had not proved that the mandate was the “least
restrictive means” of furthering a compelling governmental interest.
Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA. Pp. 16–49.
(a) RFRA applies to regulations that govern the activities of closely
held for-profit corporations like Conestoga, Hobby Lobby, and Mardel. Pp. 16–31.
(1) HHS argues that the companies cannot sue because they are
for-profit corporations, and that the owners cannot sue because the
regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as cor-
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porations. RFRA’s text shows that Congress designed the statute to
provide very broad protection for religious liberty and did not intend
to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,”
but the purpose of extending rights to corporations is to protect the
rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of
closely held corporations thus protects the religious liberty of the
humans who own and control them. Pp. 16–19.
(2) HHS and the dissent make several unpersuasive arguments.
Pp. 19–31.
(i) Nothing in RFRA suggests a congressional intent to depart
from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U. S. C. §1. The Court has
entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União
do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit
corporation can be a “person” under RFRA effectively dispatches any
argument that the term does not reach for-profit corporations; no
conceivable definition of “person” includes natural persons and nonprofit corporations, but not for-profit corporations. Pp. 19–20.
(ii) HHS and the dissent nonetheless argue that RFRA does
not cover Conestoga, Hobby Lobby, and Mardel because they cannot
“exercise . . . religion.” They offer no persuasive explanation for this
conclusion. The corporate form alone cannot explain it because
RFRA indisputably protects nonprofit corporations. And the profitmaking objective of the corporations cannot explain it because the
Court has entertained the free-exercise claims of individuals who
were attempting to make a profit as retail merchants. Braunfeld v.
Brown, 366 U. S. 599. Business practices compelled or limited by the
tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877.
Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in
the face of modern corporate law. States, including those in which
the plaintiff corporations were incorporated, authorize corporations
to pursue any lawful purpose or business, including the pursuit of
profit in conformity with the owners’ religious principles. Pp. 20–25.
(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents,
none of which squarely recognized free-exercise rights for for-profit
corporations. First, nothing in RFRA as originally enacted suggested
that its definition of “exercise of religion” was meant to be tied to pre-
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Smith interpretations of the First Amendment. Second, if RFRA’s
original text were not clear enough, the RLUIPA amendment surely
dispels any doubt that Congress intended to separate the definition of
the phrase from that in First Amendment case law. Third, the preSmith case of Gallagher v. Crown Kosher Super Market of Mass., Inc.,
366 U. S. 617, suggests, if anything, that for-profit corporations can
exercise religion. Finally, the results would be absurd if RFRA, a law
enacted to provide very broad protection for religious liberty, merely
restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.
(3) Finally, HHS contends that Congress could not have wanted
RFRA to apply to for-profit corporations because of the difficulty of
ascertaining the “beliefs” of large, publicly traded corporations, but
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. 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. That disputes among the owners of corporations might arise is not a problem unique to this context. State corporate law provides a ready means for resolving any conflicts by, for
example, dictating how a corporation can establish its governing
structure. Courts will turn to that structure and the underlying state
law in resolving disputes. Pp. 29–31.
(b) HHS’s contraceptive mandate substantially burdens the exercise of religion. Pp. 31–38.
(1) It requires the Hahns and Greens to engage in conduct that
seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive
coverage, they face severe economic consequences: about $475 million
per year for Hobby Lobby, $33 million per year for Conestoga, and
$15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby,
$1.8 million for Conestoga, and $800,000 for Mardel. P. 32.
(2) Amici supporting HHS argue that the $2,000 per-employee
penalty is less than the average cost of providing insurance, and
therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate. HHS has never argued this and
the Court does not know its position with respect to the argument.
But even if the Court reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious reasons
for providing health-insurance coverage for their employees, and it is
far from clear that the net cost to the companies of providing insur-
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ance is more than the cost of dropping their insurance plans and paying the ACA penalty. Pp. 32–35.
(3) HHS argues that the connection between what the objecting
parties must do and the end that they find to be morally wrong is too
attenuated because it is the employee who will choose the coverage
and contraceptive method she uses. But RFRA’s question is whether
the mandate imposes a substantial burden on the objecting parties’
ability to conduct business in accordance with their religious beliefs.
The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral 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. It is not for the
Court to say that the religious beliefs of the plaintiffs are mistaken or
unreasonable. In fact, this Court considered and rejected a nearly
identical argument in Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to
determine” whether the plaintiffs’ asserted religious belief reflects
“an honest conviction,” id., at 716, and there is no dispute here that it
does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of
Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished. Pp. 35–38.
(c) The Court assumes that the interest in guaranteeing cost-free
access to the four challenged contraceptive methods is a compelling
governmental interest, but the Government has failed to show that
the contraceptive mandate is the least restrictive means of furthering
that interest. Pp. 38–49.
(1) The Court assumes that the interest in guaranteeing cost-free
access to the four challenged contraceptive methods is compelling
within the meaning of RFRA. Pp. 39–40.
(2) The Government has failed to satisfy RFRA’s leastrestrictive-means standard. HHS has not shown that it lacks other
means of achieving its desired goal without imposing a substantial
burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable
to obtain coverage due to their employers’ religious objections. Or it
could extend the accommodation that HHS has already established
for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation
does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their
religion and it still serves HHS’s stated interests. Pp. 40–45.
(3) This decision concerns only the contraceptive mandate and
should not be understood to hold that all insurance-coverage man-
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dates, e.g., for vaccinations or blood transfusions, must necessarily
fall if they conflict with an employer’s religious beliefs. Nor does it
provide a shield for employers who might cloak illegal discrimination
as a religious practice. United States v. Lee, 455 U. S. 252, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special
problems associated with a national system of taxation; and if Lee
were a RFRA case, the fundamental point would still be that there is
no less restrictive alternative to the categorical requirement to pay
taxes. Here, there is an alternative to the contraceptive mandate.
Pp. 45–49.
No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a
concurring opinion. GINSBURG, J., filed a dissenting opinion, in which
SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as
to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opinion.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 13–354 and 13–356
_________________
SYLVIA BURWELL, SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL., PETITIONERS
13–354
v.
HOBBY LOBBY STORES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
AND
CONESTOGA WOOD SPECIALTIES CORPORATION
ET AL., PETITIONERS
13–356
v.
SYLVIA BURWELL, SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]
JUSTICE ALITO delivered the opinion of the Court.
We must decide in these cases whether the Religious
Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,
42 U. S. C. §2000bb et seq., permits the United 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
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BURWELL v. HOBBY LOBBY STORES, INC.
Opinion of the Court
Federal Government from taking any action that substantially burdens the exercise of religion unless that action
constitutes the least restrictive means of serving a compelling government interest.
In holding that the HHS mandate is unlawful, we reject
HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to 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.
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In fact, HHS has already devised and implemented a
system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to
all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage
without cost sharing for all FDA-approved contraceptives; 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 em-
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ployed by Hobby Lobby.” Post, at 2.1 The effect of the
HHS-created accommodation on the women employed by
Hobby Lobby and the other companies involved in these
cases would be precisely zero. Under that accommodation,
these women would still be entitled to all FDA-approved
contraceptives without cost sharing.
I
A
Congress enacted RFRA in 1993 in order to provide very
broad protection for religious liberty. RFRA’s enactment
came three years after this Court’s decision in Employ­
ment 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 Wiscon­
sin 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
——————
1 See also post, at 8 (“The exemption sought by Hobby Lobby and
Conestoga . . . would deny [their employees] access to contraceptive
coverage that the ACA would otherwise secure”)
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test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who
were fired for ingesting peyote for sacramental purposes.
When they sought unemployment benefits, the State 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 govern——————
2 The Act defines “government” to include any “department” or
“agency” of the United States. §2000bb–2(1).
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mental interest.” §2000bb–1(b).3
As enacted in 1993, RFRA applied to both the Federal
Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on
the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and
their subdivisions, Congress relied on its power under
Section 5 of the Fourteenth Amendment to enforce the
First Amendment. 521 U. S., at 516–517. In City of
Boerne, however, we held that Congress had overstepped
its Section 5 authority because “[t]he stringent test RFRA
demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as
interpreted in Smith.” Id., at 533–534. See also id., at
532.
Following our decision in City of Boerne, Congress
passed the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C.
§2000cc et seq. That statute, enacted under Congress’s
Commerce and Spending Clause powers, imposes the
same general test as RFRA but on a more limited category
of governmental actions. See Cutter v. Wilkinson, 544
U. S. 709, 715–716 (2005). And, what is most relevant for
present purposes, RLUIPA amended RFRA’s definition of
the “exercise of religion.” See §2000bb–2(4) (importing
RLUIPA definition). Before RLUIPA, RFRA’s definition
——————
3 In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that
RFRA’s “least restrictive means requirement was not used in the preSmith jurisprudence RFRA purported to codify.” Id., at 509. On this
understanding of our pre-Smith cases, RFRA did more than merely
restore the balancing test used in the Sherbert line of cases; it provided
even broader protection for religious liberty than was available under
those decisions.
4 See, e.g., Hankins v. Lyght, 441 F. 3d 96, 108 (CA2 2006); Guam v.
Guerrero, 290 F. 3d 1210, 1220 (CA9 2002).
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made reference to the First Amendment. See §2000bb–
2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA,
in an obvious effort to effect a complete separation 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), 124 Stat. 119. ACA generally requires
employers with 50 or more full-time employees to offer
“a group health plan or group health insurance coverage”
that provides “minimum essential coverage.” 26 U. S. C.
§5000A(f)(2); §§4980H(a), (c)(2). Any covered employer
that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides
group health insurance but its plan fails to comply with
ACA’s group-health-plan requirements, the employer may
be required to pay $100 per day for each affected “individ——————
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 post, at 11, n. 10. That
argument is plainly wrong. Under this rule of construction, the phrase
“exercise of religion,” as it appears in RLUIPA, must be interpreted
broadly, and RFRA states that the same phrase, as used in RFRA,
means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C.
§2000bb–2(4). It necessarily follows that the “exercise of religion”
under RFRA must be given the same broad meaning that applies under
RLUIPA.
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ual.” §§4980D(a)–(b). And if the employer decides to stop
providing health insurance altogether and at least one
full-time employee enrolls in a health plan and qualifies
for a subsidy on one of the government-run ACA exchanges,
the employer must pay $2,000 per year for each of its fulltime employees. §§4980H(a), (c)(1).
Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage
to furnish “preventive care and screenings” for women
without “any cost sharing requirements.” 42 U. S. C.
§300gg–13(a)(4). Congress itself, however, did not specify
what types of preventive care must be covered. Instead,
Congress authorized the Health Resources and Services
Administration (HRSA), a component of HHS, to make
that important and sensitive decision. Ibid. The HRSA in
turn consulted the Institute of Medicine, a nonprofit 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 Administration [(FDA)] approved contraceptive methods,
sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks
omitted). Although many of the required, FDA-approved
methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at
issue in these cases) may have the effect of preventing an
already fertilized egg from developing any further by
inhibiting its attachment to the uterus. See Brief for HHS
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in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.7
HHS also authorized the HRSA to establish exemptions
from the contraceptive mandate for “religious employers.”
45 CFR §147.131(a). That category encompasses “churches,
their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious
activities of any religious order.” See ibid (citing 26
U. S. C. §§6033(a)(3)(A)(i), (iii)).
In its Guidelines,
HRSA exempted these organizations from the requirement
to cover contraceptive services.
See http://hrsa.gov/
womensguidelines.
In addition, HHS has effectively exempted certain
religious nonprofit organizations, described under HHS
regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg.
39874 (2013). An “eligible organization” means a nonprofit
organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of
any contraceptive services required to be covered . . . on
account of religious objections.” 45 CFR §147.131(b). To
qualify for this accommodation, an employer must certify
that it is such an organization. §147.131(b)(4). When a
group-health-insurance issuer receives notice that one of
its clients has invoked this provision, the issuer must then
exclude contraceptive coverage from the employer’s plan
——————
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, e.g., 62
Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify
them.
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and provide separate payments for contraceptive services
for plan participants without imposing any cost-sharing
requirements on the eligible organization, its insurance
plan, or its employee beneficiaries. §147.131(c).8 Although this procedure requires the issuer to bear the cost of
these services, HHS has determined that this obligation
will not impose any net expense on issuers because its cost
will be less than or equal to the cost savings resulting
from the services. 78 Fed. Reg. 39877.9
In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of
its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March
23, 2010, and that have not made specified changes after
that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42
U. S. C. §§18011(a), (e). And employers with fewer than
50 employees are not required to provide health insurance
——————
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 thirdparty administrators to be compensated for their expenses by obtaining
a reduction in the fee paid by insurers to participate in the federally
facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR
§54.9815–2713A (b)(3)). HHS believes that these fee reductions will not
materially affect funding of the exchanges because “payments for
contraceptive services will represent only a small portion of total
[exchange] user fees.” 78 Fed. Reg. 39882.
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 Little Sisters of the Poor v. Sebelius, 571 U. S. ___
(2014).
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at all. 26 U. S. C. §4980H(c)(2).
All told, the contraceptive mandate “presently does not
apply to tens of millions of people.” 723 F. 3d 1114, 1143
(CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million
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
——————
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 at
http://www.mennoniteusa.org /resource-center/resources/statements-andresolutions/statement-on-abortion/.
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law as a for-profit corporation. The Hahns exercise sole
ownership of the closely held business; they control 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 grouphealth-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 FDAapproved contraceptives that may operate after the fertilization of an egg.13 These include two forms of emergency
——————
13 The
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contraception commonly called “morning after” pills and
two types of intrauterine devices.14
In opposing the requirement to provide coverage for the
contraceptives to which they object, the Hahns argued
that “it is immoral and sinful for [them] to intentionally
participate in, pay for, facilitate, or otherwise support
these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third
Circuit affirmed in a divided opinion, holding that “forprofit, 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-andcrafts store that has grown into a nationwide chain called
Hobby Lobby. There are now 500 Hobby Lobby stores, and
the company has more than 13,000 employees. 723 F. 3d,
at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law.
One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs
close to 400 people. Ibid. Mardel is also organized as a
for-profit corporation under Oklahoma law.
Though these two businesses have expanded over the
——————
mandate violates the Fifth Amendment and the Administrative Procedure Act, 5 U. S. C. §553, but those claims are not before us.
14 See, e.g., 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.
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years, they remain closely held, and David, Barbara, and
their children retain exclusive control of both companies.
Ibid. David serves as the CEO of Hobby Lobby, and his
three children serve as the president, vice president, and
vice CEO. See Brief for Respondents in No. 13–354, p. 8.15
Hobby Lobby’s statement of purpose commits the
Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical
principles.” App. in No. 13–354, pp. 134–135 (complaint).
Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and
to use the family assets to support Christian ministries.
723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays,
even though the Greens calculate that they lose millions
in sales annually by doing so. Id., at 1122; App. in No. 13–
354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use;
they contribute profits to Christian missionaries and
ministries; and they buy hundreds of full-page newspaper
ads inviting people to “know Jesus as Lord and Savior.”
Ibid. (internal quotation marks omitted).
Like the Hahns, the Greens believe that life begins at
conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate
after that point. 723 F. 3d, at 1122. They specifically
object to the same four contraceptive methods as the
Hahns and, like the Hahns, they have no objection to the
other 16 FDA-approved methods of birth control. Id., at
1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan
——————
15 The Greens operate Hobby Lobby and Mardel through a manage-
ment trust, of which each member of the family serves as trustee. 723
F. 3d 1114, 1122 (CA10 2013). The family provided that the trust
would also be governed according to their religious principles. Ibid.
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because Hobby Lobby elected not to retain 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
——————
16 They also raised a claim under the Administrative Procedure Act, 5
U. S. C. §553.
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court reversed and remanded for the District Court to
consider the remaining factors of the preliminaryinjunction test. Id., at 1147.17
We granted certiorari. 571 U. S. ___ (2013).
III
A
RFRA prohibits the “Government [from] substantially
burden[ing] a person’s exercise of religion even if the
burden results from a rule of general applicability” unless
the Government “demonstrates that application of the
burden to the person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added).
The first question that we must address is whether this
provision applies to regulations that govern the activities
of for-profit corporations like Hobby Lobby, Conestoga,
and Mardel.
HHS contends that neither these companies nor their
owners can even be heard under RFRA. According to
HHS, the companies cannot sue because they seek to
make a profit for their owners, and the owners cannot
be heard because the regulations, at least as a formal matter, 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,
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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); id., at 1184 (Matheson, J., concurring
in part and dissenting in part), and three of those judges would have
granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch,
J., concurring).
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366 U. S. 599 (1961) (plurality opinion). In that case, five
Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday
closing law as a violation of the Free Exercise Clause.
Because of their faith, these merchants closed their shops
on Saturday, and they argued that requiring them to
remain shut on Sunday threatened them with financial
ruin. The Court entertained their claim (although it ruled
against them on the merits), and if a similar claim were
raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see
42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these
merchants chose to incorporate their businesses—without 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
——————
18 As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by
imposing a least-restrictive-means test, went beyond what was required by our pre-Smith decisions. Although the author of the principal
dissent joined the Court’s opinion in City of Boerne, she now claims that
the statement was incorrect. Post, at 12. For present purposes, it is
unnecessary to adjudicate this dispute. Even if RFRA simply restored
the status quo ante, there is no reason to believe, as HHS and the
dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. See
infra, at 25–28.
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in the next part of this opinion, reveals that Congress 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 indi­
vidual 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. Corpora-
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tions, “separate and apart from” the human beings who
own, run, and are employed by them, cannot do anything
at all.
B
1
As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA
itself does not define the term “person.” We therefore look
to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the
context indicates otherwise.” 1 U. S. C. §1.
Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as 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;
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Reply Brief in No. 13–354, at 7–8.19
This concession effectively dispatches any argument
that the term “person” as used in RFRA does not reach the
closely held corporations involved in these cases. No
known understanding of the term “person” includes some
but not all corporations. The term “person” sometimes
encompasses artificial persons (as the Dictionary Act
instructs), and it sometimes is limited to natural persons.
But no conceivable definition of the term includes natural
persons and nonprofit corporations, but not for-profit
corporations.20 Cf. Clark v. Martinez, 543 U. S. 371, 378
(2005) (“To give th[e] same words a different meaning for
each category would be to invent a statute rather than
interpret one”).
2
The principal argument advanced by HHS and the
principal dissent regarding RFRA protection for Hobby
Lobby, Conestoga, and Mardel focuses not on the statutory
term “person,” but on the phrase “exercise of religion.”
According to HHS and the dissent, these corporations are
not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any
persuasive explanation for this conclusion.
Is it because of the corporate form? The corporate form
alone cannot provide the explanation because, as we have
pointed out, HHS concedes that nonprofit corporations can
——————
19 Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04–
1084, p. II (stating that the organizational respondent was “a New
Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor,
O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”).
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.
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be protected by RFRA. The dissent suggests that nonprofit
corporations are special because furthering their religious “autonomy . . . often furthers individual religious
freedom as well.” Post, at 15 (quoting Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J.,
concurring in judgment)). But this principle 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
——————
21 Although the principal dissent seems to think that Justice Brennan’s statement in Amos provides a ground for holding that for-profit
corporations may not assert free-exercise claims, that was not Justice
Brennan’s view. See Gallagher v. Crown Kosher Super Market of
Mass., Inc., 366 U. S. 617, 642 (1961) (dissenting opinion); infra, at 26–
27.
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rights”).
If, as Braunfeld recognized, a sole proprietorship that
seeks to make a profit may assert a free-exercise claim,22
why can’t Hobby Lobby, Conestoga, and Mardel do the
same?
Some lower court judges have suggested that RFRA
does not protect for-profit corporations because the purpose of such corporations is simply to make money.23 This
——————
22 It is revealing that the principal dissent cannot even bring itself to
acknowledge that Braunfeld was correct in entertaining the merchants’
claims. See post, at 19 (dismissing the relevance of Braunfeld in part
because “[t]he free exercise claim asserted there was promptly rejected
on the merits”).
23 See, e.g., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); Grote v. Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J.
dissenting) (“So far as it appears, the mission of Grote Industries, like
that of any other for-profit, secular business, is to make money in the
commercial sphere”); Autocam Corp. v. Sebelius, 730 F. 3d 618, 626
(CA7 2013) (“Congress did not intend to include corporations primarily
organized for secular, profit-seeking purposes as ‘persons’ under
RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting)
(“[T]he specific purpose for which [a corporation] is created 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”).
The principal dissent makes a similar point, stating that “[f]or-profit
corporations are different from religious nonprofits in that they use
labor to make a profit, rather than to perpetuate the religious values
shared by a community of believers.” Post, at 18–19 (internal quotation
marks omitted). The first half of this statement is a tautology; forprofit corporations do indeed differ from nonprofits insofar as they seek
to make a profit for their owners, but the second part is factually
untrue. As the activities of the for-profit corporations involved in these
cases show, some for-profit corporations do seek “to perpetuate the
religious values shared,” in these cases, by their owners. Conestoga’s
Vision and Values Statement declares that the company is dedicated to
operating “in [a] manner that reflects our Christian heritage and the
highest ethical and moral principles of business.” App. in No. 13–356,
p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that
the company “is committed to . . . Honoring the Lord in all we do by
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argument flies in the face of modern corporate law. “Each
American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general
corporation act for any lawful purpose or business.” 1 J.
Cox & T. Hazen, Treatise of the Law of Corporations §4:1,
p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher,
Cyclopedia of the Law of Corporations §102 (rev. ed. 2010).
While it is certainly true that a central objective of forprofit corporations is to make money, modern corporate
law does not require for-profit corporations to pursue
profit at the expense of everything else, and many do not
do so. For-profit corporations, with ownership approval,
support a wide variety of charitable causes, and it is not 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 energyconservation 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 corpo——————
operating . . . in a manner consistent with Biblical principles.” App. in
No. 13–354, p. 135. The dissent also believes that history is not on our
side because even Blackstone recognized the distinction between
“ecclesiastical and lay” corporations. Post, at 18. What Blackstone
illustrates, however, is that dating back to 1765, there was no sharp
divide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed “lay” corporations might
serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the
Law of England 458–459 (1765). And whatever may have been the case
at the time of Blackstone, modern corporate law (and the law of the
States in which these three companies are incorporated) allows forprofit corporations to “perpetuat[e] religious values.”
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rations (which, HHS concedes, are protected by RFRA)
and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all
corporations that decline to organize as nonprofits do so 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 pur——————
24 See, e.g., 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; e.g., Va. Code
Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general
public benefit,” and “may identify one or more specific public 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).
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sued by the companies in these cases are governed by the
laws of the States in which they were incorporated—
Pennsylvania and Oklahoma—and the laws of those
States permit for-profit corporations to pursue “any 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
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U. S. C. §2254(d)(1) (authorizing habeas relief from a
state-court decision that “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the 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 forprofit 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
——————
26 See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28–
31 (arguing that corporation “has no ‘religious belief’ or ‘religious
liberty,’ and had no standing in court to assert that its free exercise of
religion was impaired”).
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argument. The plurality opinion for four Justices rejected
the First Amendment claim on the merits based on the
reasoning in Braunfeld, and reserved decision on the
question whether the corporation had “standing” to 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, 578–579 (1961) (Douglas, J.,
dissenting as to related cases including Gallagher). Finally, Justice Frankfurter’s opinion, which was joined by
Justice Harlan, upheld the Massachusetts law on 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 ar-
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gument, 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.
——————
27 The principal dissent points out that “the exemption codified in
§238n(a) was not enacted until three years after RFRA’s passage.”
Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in
fact, “ope[n] all statutory schemes to religion-based challenges by forprofit corporations” because if it had “there would be no need for a
statute-specific, post-RFRA exemption of this sort.” Ibid.
This argument fails to recognize that the protection provided by
§238n(a) differs significantly from the protection provided by RFRA.
Section 238n(a) flatly prohibits discrimination against a covered
healthcare facility for refusing to engage in certain activities related to
abortion. If a covered healthcare facility challenged such discrimination under RFRA, by contrast, the discrimination would be unlawful
only if a court concluded, among other things, that there was a less
restrictive means of achieving any compelling government interest.
In addition, the dissent’s argument proves too much. Section
238n(a) applies evenly to “any health care entity”—whether it is a
religious nonprofit entity or a for-profit entity. There is no dispute that
RFRA protects religious nonprofit corporations, so if §238n(a) were
redundant as applied to for-profit corporations, it would be equally
redundant as applied to nonprofits.
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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
——————
28 To qualify for RFRA’s protection, an asserted belief must be “sin-
cere”; a corporation’s pretextual assertion of a religious belief in order
to obtain an exemption for financial reasons would fail. Cf., e.g., United
States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010).
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that consists primarily of prisoners, and by the time of
RLUIPA’s enactment, the propensity of some prisoners 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 seemingly 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
——————
29 See, e.g., Ochs v. Thalacker, 90 F. 3d 293, 296 (CA8 1996); Green v.
White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996
WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N. W. 2d 819–
820 (Iowa 1996).
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may provide how “the business of the corporation shall be
managed”). Courts will turn to that structure and the
underlying state law in resolving disputes.
For all these reasons, we hold that a federal regulation’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.
——————
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.” Post, 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—not just
for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis
added). Moreover, the amendment would have authorized a blanket
exemption for religious or moral objectors; it would not have subjected
religious-based objections to the judicial scrutiny called for by RFRA, in
which a court must consider not only the burden of a requirement on
religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable 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 explicitly excludes such application by reference to [RFRA].” 42
U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such
an explicit reference in the meager legislative history on which the
dissent relies.
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A
As we have noted, the Hahns and Greens have a sincere
religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS
acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4,
may result in the destruction of an embryo. By 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
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have suggested that the $2,000 per-employee penalty is
actually less than the average cost of providing health
insurance, see Brief for Religious Organizations 22, and
therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees 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, 60,
n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 532, n. 13
(1979); Knetsch v. United States, 364 U. S. 361, 370 (1960),
and there are strong reasons to adhere to that practice 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
——————
31 Indeed, one of HHS’s stated reasons for establishing the religious
accommodation was to “encourag[e] eligible organizations to continue to
offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added).
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reasons, but also in part because their religious 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 provided; 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
——————
32 Attempting to compensate for dropped insurance by raising wages
would also present administrative difficulties. In order to provide full
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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.
——————
compensation for employees, the companies would have to calculate the
value to employees of the convenience of retaining their employerprovided coverage and thus being spared the task of attempting to 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
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This argument dodges the question that RFRA presents
(whether the HHS mandate imposes a substantial burden
on the ability of the objecting parties to conduct 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 princi——————
to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed,
HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of 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.” Ibid. Those exemptions would be hard to understand if the
plaintiffs’ objections here were not substantial.
34 See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in
Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins,
Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The
general principles governing cooperation” in wrongdoing—i.e., “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”).
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pal 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 Employ­
ment 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
——————
35 The principal dissent makes no effort to reconcile its view about the
substantial-burden requirement with our decision in Thomas.
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determine” whether the line drawn reflects “an honest
conviction,” id., at 716, and there is no dispute that it
does.
HHS nevertheless compares these cases to decisions 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,
248–249 (1968). But in those cases, while the subsidies
were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable 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.
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Cite as: 573 U. S. ____ (2014)
39
Opinion of the Court
§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, 485–486 (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—
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40
BURWELL v. HOBBY LOBBY STORES, INC.
Opinion of the Court
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 Boe…
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