NOTICE: This opinion is subject to
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SUPREME COURT OF THE UNITED STATES
_________________
Nos. 13–354 and 13–356
_________________
SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al., PETITIONERS
13–354 v.
HOBBY LOBBY STORES, INC.,
et al.
on writ of certiorari to the united states
courtof appeals for the tenth circuit
and
CONESTOGA WOOD SPECIALTIES
CORPORATIONet al., PETITIONERS
13–356 v.
SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al.
on writ of certiorari to the united states
courtof 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),
107Stat. 1488, 42 U. S. C. §2000bb et seq., permits
the United States Department of Health and Human Services (HHS) to
demand that three closely held corporations provide
health-insurance coverage for methods of contraception that violate
the sincerely held religious beliefs of the companies’
owners. We hold that the regulations that impose this obligation
violate RFRA, which prohibits the Federal Government from taking
any action that substantially burdens the exercise of religion
unless that action constitutes the least restrictive means of
serving a compelling government interest.
In holding that the HHS
mandate is unlawful, we reject HHS’s argument that the owners
of the companies for-feited all RFRA protection when they decided
to organize their businesses as corporations rather than sole
proprietorships or general partnerships. The plain terms of RFRA
make it perfectly clear that Congress did not discriminate in this
way against men and women who wish to run their businesses as
for-profit corporations in the manner required by their religious
beliefs.
Since RFRA applies in
these cases, we must decide whether the challenged HHS regulations
substantially burden the exercise of religion, and we hold that
they do. The owners of the businesses have religious objections to
abortion, and according to their religious beliefs the four
contraceptive methods at issue are abortifacients. If the owners
comply with the HHS mandate, they believe they will be facilitating
abortions, and if they do not comply, they will pay a very heavy
price—as much as $1.3 million per day, or about $475 million
per year, in the case of one of the companies. If these
consequences do not amount to a substantial burden, it is hard to
see what would.
Under RFRA, a
Government action that imposes a substantial burden on religious
exercise must serve a compelling government interest, and we assume
that the HHS regulations satisfy this requirement. But in order for
the HHS mandate to be sustained, it must also constitute the least
restrictive means of serving that interest, and the mandate plainly
fails that test. There are other ways in which Congress or HHS
could equally ensure that every woman has cost-free access to the
particular contraceptives at issue here and, indeed, to all
FDA-approved contraceptives.
In fact, HHS has
already devised and implemented a system that seeks to respect the
religious liberty of religious nonprofit corporations while
ensuring that the employees of these entities have precisely the
same access to all FDA-approved contraceptives as employees of
companies whose owners have no religious objections to providing
such coverage. The employees of these religious nonprofit
corporations still have access to insurance coverage without cost
sharing for all FDA-approved contracep-tives; and according to HHS,
this system imposes no net economic burden on the insurance
companies that are required to provide or secure the coverage.
Although HHS has made
this system available to religious nonprofits that have religious
objections to the contraceptive mandate, HHS has provided no reason
why the same system cannot be made available when the owners of
for-profit corporations have similar religious objections. We
therefore conclude that this system constitutes an alternative that
achieves all of the Government’s aims while providing greater
respect for religious liberty. And under RFRA, that conclusion
means that enforcement of the HHS contraceptive mandate against the
objecting parties in these cases is unlawful.
As this description of
our reasoning shows, our holding is very specific. We do not hold,
as the principal dissent alleges, that for-profit corporations and
other commercial enterprises can “opt out of any law (saving
only tax laws) they judge incompatible with their sincerely held
religious beliefs.” Post, at 1 (opinion of Ginsburg, J.). Nor
do we hold, as the dissent implies, that such corporations have
free rein to take steps that impose “disadvantages
. . . on others” or that require “the general
public [to] pick up the tab.” Post, at 1–2. And we
certainly do not hold or suggest that “RFRA demands
accommodation of a for-profit corporation’s religious beliefs
no matter the impact that accommodation may have on . . .
thousands of women employed by Hobby Lobby.” Post, at
2.[
1] The effect of the
HHS-created accommodation on the women employed by Hobby Lobby and
the other companies involved in these cases would be precisely
zero. Under that accommodation, these women would still be entitled
to all FDA-approved contraceptives without cost sharing.
I
A
Congress enacted RFRA
in 1993 in order to provide very broad protection for religious
liberty. RFRA’s enactment came three years after this
Court’s decision in Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494 U. S. 872 (1990) , which largely
repudiated the method of analyzing free-exercise claims that had
been used in cases like Sherbert v. Verner, 374 U. S. 398
(1963), and Wisconsin v. Yoder, 406 U. S. 205 (1972) . In
determining whether challenged government actions violated the Free
Exercise Clause of the First Amendment, those decisions used a
balancing test that took into account whether the challenged action
imposed a substantial burden on the practice of religion, and if it
did, whether it was needed to serve a compelling government
interest. Applying this test, the Court held in Sherbert that an
employee who was fired for refusing to work on her Sabbath could
not be denied unemployment benefits. 374 U. S., at
408–409. And in Yoder, the Court held that Amish children
could not be required to comply with a state law demanding that
they remain in school until the age of 16 even though their
religion required them to focus on uniquely Amish values and
beliefs during their formative adolescent years. 406 U. S., at
210–211, 234–236.
In Smith, however, the
Court rejected “the balancing test set forth in
Sherbert.” 494 U. S., at 883. Smith concerned two
members of the Native American Church who were fired for ingesting
peyote for sacramental purposes. When they sought unemployment
benefits, the State of Oregon rejected their claims on the ground
that consumption of peyote was a crime, but the Oregon Supreme
Court, applying the Sherbert test, held that the denial of benefits
violated the Free Exercise Clause. 494 U. S., at 875.
This Court then
reversed, observing that use of the Sherbert test whenever a person
objected on religious grounds to the enforcement of a generally
applicable law “would open the prospect of constitutionally
required religious exemptions from civic obligations of almost
every conceivable kind.” 494 U. S., at 888. The Court
therefore held that, under the First Amendment, “neutral,
generally applicable laws may be applied to religious practices
even when not supported by a compelling governmental
interest.” City of Boerne v. Flores, 521 U. S. 507,
514 (1997).
Congress responded to
Smith by enacting RFRA. “[L]aws [that are]
‘neutral’ toward religion,” Congress found,
“may burden religious exercise as surely as laws intended to
interfere with religious exercise.”
42 U. S. C. §2000bb(a)(2); see also
§2000bb(a)(4). In order to ensure broad protection for
religious liberty, RFRA provides that “Government shall not
substantially burden a person’s exercise of religion even if
the burden results from a rule of general applicability.”
§2000bb–1(a).[
2] If
the Government substantially burdens a person’s exercise of
religion, under the Act that person is entitled to an exemption
from the rule unless the Government “demonstrates that
application of the burden to the person—(1) is in furtherance
of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest.” §2000bb–1(b).[
3]
As enacted in 1993,
RFRA applied to both the Federal Government and the States, but the
constitutional authority invoked for regulating federal and state
agencies differed. As applied to a federal agency, RFRA is based on
the enumerated power that supports the particular agency’s
work,[
4] but in attempting to
regulate the States and their subdivisions, Congress relied on its
power under Section 5 of the Fourteenth Amendment to enforce the
First Amendment. 521 U. S., at 516–517. In City of
Boerne, however, we held that Congress had overstepped its Section
5 authority because “[t]he stringent test RFRA demands”
“far exceed[ed] any pattern or practice of unconstitutional
conduct under the Free Exercise Clause as interpreted in
Smith.” Id., at 533–534. See also id., at 532.
Following our decision
in City of Boerne, Congress passed the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 114Stat. 803, 42
U. S. C. §2000cc et seq. That statute, enacted under
Congress’s Commerce and Spending Clause powers, imposes the
same general test as RFRA but on a more limited category of
governmental actions. See Cutter v. Wilkinson, 544 U. S. 709
–716 (2005). And, what is most relevant for present purposes,
RLUIPA amended RFRA’s definition of the “exercise of
religion.” See §2000bb–2(4) (importing RLUIPA
definition). Before RLUIPA, RFRA’s definition made reference
to the First Amendment. See §2000bb–2(4) (1994 ed.)
(defining “exercise of religion” as “the exercise
of religion under the First Amendment”). In RLUIPA, in an
obvious effort to effect a complete separation from First Amendment
case law, Congress deleted the reference to the First Amendment and
defined the “exercise of religion” to include
“any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.”
§2000cc–5(7)(A). And Congress mandated that this concept
“be construed in favor of a broad protection of religious
exercise, to the maximum extent permitted by the terms of this
chapter and the Constitution.”
§2000cc–3(g).[
5]
B
At issue in these
cases are HHS regulations promul-gated under the Patient Protection
and Affordable Care Act of 2010 (ACA), 124Stat. 119. ACA generally
requires employers with 50 or more full-time employees to
offer“a group health plan or group health insurance
coverage” that provides “minimum essential
coverage.” 26 U. S. C. §5000A(f)(2);
§§4980H(a), (c)(2). Any covered employer that does not
provide such coverage must pay a substantial price. Specifically,
if a covered employer provides group health insurance but its plan
fails to comply with ACA’s group-health-plan requirements,
the employer may be required to pay $100 per day for each affected
“individual.” §§4980D(a)–(b). And if
the employer decides to stop providing health insurance altogether
and at least one full-time employee enrolls in a health plan and
qualifies for a subsidy on one of the government-run ACA exchanges,
the employer must pay $2,000 per year for each of its full-time
employees. §§4980H(a), (c)(1).
Unless an exception
applies, ACA requires an employer’s group health plan or
group-health-insurance coverage to furnish “preventive care
and screenings” for women without “any cost sharing
requirements.” 42 U. S. C.
§300gg–13(a)(4). Congress itself, however, did not
specify what types of preventive care must be covered. Instead,
Congress authorized the Health Resources and Services
Administration (HRSA), a component of HHS, to make that important
and sensitive decision. Ibid. The HRSA in turn consulted the
Institute of Medicine, a nonprofit group of volunteer advisers, in
determining which preventive services to require. See 77 Fed. Reg.
8725–8726 (2012).
In August 2011, based
on the Institute’s recommendations, the HRSA promulgated the
Women’s Preventive Services Guidelines. See id., at
8725–8726, and n. 1; online at
http://hrsa.gov/womensguidelines (all Internet materials as visited
June 26, 2014, and available in Clerk of Court’s case file).
The Guidelines provide that nonexempt employers are generally
required to provide “coverage, without cost sharing”
for “[a]ll Food and Drug Ad-ministration [(FDA)] approved
contraceptive methods, sterilization procedures, and patient
education and counseling.” 77 Fed. Reg. 8725 (internal
quotation marks omitted). Although many of the required,
FDA-approved methods of contraception work by preventing the
fertilization of an egg, four of those methods (those specifically
at issue in these cases) may have the effect of preventing an
already fertilized egg from developing any further by inhibiting
its attachment to the uterus. See Brief for HHS in No.
13–354, pp. 9–10, n. 4;[
6] FDA, Birth Control: Medicines to Help You.[
7]
HHS also authorized the
HRSA to establish exemptions from the contraceptive mandate for
“religious employers.” 45 CFR §147.131(a). That
category encompasses “churches, their integrated auxiliaries,
and conventions or associ-ations of churches,” as well as
“the exclusively religious activities of any religious
order.” See ibid (citing 26 U. S. C.
§§6033(a)(3)(A)(i), (iii)). In its Guidelines,HRSA
exempted these organizations from the requirement to cover
contraceptive services. See http://hrsa.gov/womensguidelines.
In addition, HHS has
effectively exempted certain religious nonprofit organizations,
described under HHS regulations as “eligible
organizations,” from the contraceptive mandate. See 45 CFR
§147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible
organization” means a nonprofit organization that
“holds itself out as a religious organi-zation” and
“opposes providing coverage for some or all of any
contraceptive services required to be covered . . . on
account of religious objections.” 45 CFR §147.131(b). To
qualify for this accommodation, an employer must certify that it is
such an organization. §147.131(b)(4). When a
group-health-insurance issuer receives notice that one of its
clients has invoked this provision, the issuer must then exclude
contraceptive coverage from the employer’s plan and provide
separate payments for contraceptive services for plan participants
without imposing any cost-sharing requirements on the eligible
organization, its insurance plan, or its employee beneficiaries.
§147.131(c).[
8] Al-though
this procedure requires the issuer to bear the cost of these
services, HHS has determined that this obligation will not impose
any net expense on issuers because its cost will be less than or
equal to the cost savings resulting from the services. 78 Fed. Reg.
39877.[
9]
In addition to these
exemptions for religious organizations, ACA exempts a great many
employers from most of its coverage requirements. Employers
providing “grandfathered health plans”—those that
existed prior to March 23, 2010, and that have not made specified
changes after that date—need not comply with many of the
Act’s requirements, including the contraceptive mandate. 42
U. S. C. §§18011(a), (e). And employers with
fewer than 50 employees are not required to provide health
insurance at all. 26 U. S. C. §4980H(c)(2).
All told, the
contraceptive mandate “presently does not apply to tens of
millions of people.” 723 F. 3d 1114, 1143 (CA10 2013).
This is attributable, in large part, to grandfathered health plans:
Over one-third of the 149 million nonelderly people in America with
employer-sponsored health plans were enrolled in grandfathered
plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser
Family Foundation & Health Research & Educational Trust,
Employer Health Benefits, 2013 Annual Survey 43, 221.[
10] The count for employees working
for firms that do not have to provide insurance at all because they
employ fewer than 50 employees is 34 million workers. See The
Whitehouse, Health Reform for Small Businesses: The Affordable Care
Act Increases Choice and Saving Money for Small Businesses
1.[
11]
II
A
Norman and Elizabeth
Hahn and their three sons are devout members of the Mennonite
Church, a Christian denomination. The Mennonite Church opposes
abortion and believes that “[t]he fetus in its earliest
stages . . . shares humanity with those who conceived
it.”[
12]
Fifty years ago, Norman
Hahn started a wood-working business in his garage, and since then,
this company, Conestoga Wood Specialties, has grown and now has 950
employees. Conestoga is organized under Pennsylvania law as a
for-profit corporation. The Hahns exercise sole ownership of the
closely held business; they control its board of directors and hold
all of its voting shares. One of the Hahn sons serves as the
president and CEO.
The Hahns believe that
they are required to run their business “in accordance with
their religious beliefs and moral principles.” 917
F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the
company’s mission, as they see it, is to “operate in a
professional environment founded upon the highest ethical, moral,
and Christian principles.” Ibid. (internal quotation marks
omitted). The company’s “Vision and Values
Statements” affirms that Conestoga endeavors to
“ensur[e] a reasonable profit in [a] manner that reflects
[the Hahns’] Christian heritage.” App. in No.
13–356, p. 94 (complaint).
As explained in
Conestoga’s board-adopted “Statement on the Sanctity of
Human Life,” the Hahns believe that “human life begins
at conception.” 724 F. 3d 377, 382, and n. 5 (CA3
2013) (internal quotation marks omitted). It is therefore
“against [their] moral conviction to be involved in the
termination of human life” after conception, which they
believe is a “sin against God to which they are held
accountable.” Ibid. (internal quotation marks omitted). The
Hahns have accordingly excluded from the group-health-insurance
plan they offer to their employees certain contraceptive methods
that they consider to be abortifacients. Id., at 382.
The Hahns and Conestoga
sued HHS and other federal officials and agencies under RFRA and
the Free Exercise Clause of the First Amendment, seeking to enjoin
application of ACA’s contraceptive mandate insofar as it
requires them to provide health-insurance coverage for four
FDA-approved contraceptives that may operate after the
fertilization of an egg.[
13]
These include two forms of emergency contraception commonly called
“morning after” pills and two types of intrauterine
devices.[
14]
In opposing the
requirement to provide coverage for the contraceptives to which
they object, the Hahns argued that “it is immoral and sinful
for [them] to intentionally participate in, pay for, facilitate, or
otherwise support these drugs.” Ibid. The District Court
denied a preliminary injunction, see 917 F. Supp. 2d, at
419, and the Third Circuit affirmed in a divided opinion, holding
that “for-profit, secular corporations cannot engage in
religious exercise” within the meaning of RFRA or the First
Amendment. 724 F. 3d, at 381. The Third Circuit also rejected
the claims brought by the Hahns themselves because it concluded
that the HHS “[m]andate does not impose any requirements on
the Hahns” in their personal capacity. Id., at 389.
B
David and Barbara
Green and their three children are Christians who own and operate
two family businesses. Forty-five years ago, David Green started an
arts-and-crafts store that has grown into a nationwide chain called
Hobby Lobby. There are now 500 Hobby Lobby stores, and the company
has more than 13,000 employees. 723 F. 3d, at 1122. Hobby
Lobby is organized as a for-profit corporation under Oklahoma
law.
One of David’s
sons started an affiliated business, Mardel, which operates 35
Christian bookstores and employs close to 400 people. Ibid. Mardel
is also organized as a for-profit corporation under Oklahoma
law.
Though these two
businesses have expanded over the years, they remain closely held,
and David, Barbara, and their children retain exclusive control of
both companies. Ibid. David serves as the CEO of Hobby Lobby, and
his three children serve as the president, vice president, and vice
CEO. See Brief for Respondents in No. 13–354,
p. 8.[
15]
Hobby Lobby’s
statement of purpose commits the Greens to “[h]onoring the
Lord in all [they] do by operating the company in a manner
consistent with Biblical principles.” App. in No.
13–354, pp. 134–135 (complaint). Each family member has
signed a pledge to run the businesses in accordance with the
family’s religious beliefs and to use the family assets to
support Christian ministries. 723 F. 3d, at 1122. In
accordance with those commitments, Hobby Lobby and Mardel stores
close on Sundays, even though the Greens calculate that they lose
millions in sales annually by doing so. Id., at 1122; App. in No.
13–354, at 136–137. The businesses refuse to engage in
profitable transactions that facilitate or promote alcohol use;
they contribute profits to Christian missionaries and ministries;
and they buy hundreds of full-page newspaper ads inviting people to
“know Jesus as Lord and Savior.” Ibid. (internal
quotation marks omitted).
Like the Hahns, the
Greens believe that life begins at conception and that it would
violate their religion to facilitate access to contraceptive drugs
or devices that operate after that point. 723 F. 3d, at 1122.
They specifically object to the same four contraceptive methods as
the Hahns and, like the Hahns, they have no objection to the other
16 FDA-approved methods of birth control. Id., at 1125. Although
their group-health-insurance plan predates the enactment of ACA, it
is not a grandfathered plan because Hobby Lobby elected not to
retain grandfathered status before the contraceptive mandate was
proposed. Id., at 1124.
The Greens, Hobby
Lobby, and Mardel sued HHS and other federal agencies and officials
to challenge the contraceptive mandate under RFRA and the Free
Exercise Clause.[
16] The
District Court denied a preliminary injunction, see 870 F. Supp. 2d
1278 (WD Okla. 2012), and the plaintiffs appealed, moving for
initial en banc consideration. The Tenth Circuit granted that
motion and reversed in a divided opinion. Contrary to the
conclusion of the Third Circuit, the Tenth Circuit held that the
Greens’ two for-profit businesses are “persons”
within the meaning of RFRA and therefore may bring suit under that
law.
The court then held
that the corporations had established a likelihood of success on
their RFRA claim. 723 F. 3d, at 1140–1147. The court
concluded that the contraceptive mandate substantially burdened the
exercise of religion by requiring the companies to choose between
“compromis[ing] their religious beliefs” and paying a
heavy fee—either “close to $475 million more in taxes
every year” if they simply refused to provide coverage for
the contraceptives at issue, or “roughly $26 million”
annually if they “drop[ped] health-insurance benefits for all
employees.” Id., at 1141.
The court next held
that HHS had failed to demonstrate a compelling interest in
enforcing the mandate against the Greens’ businesses and, in
the alternative, that HHS had failed to prove that enforcement of
the mandate was the “least restrictive means” of
furthering the Government’s asserted interests. Id., at
1143–1144 (emphasis deleted; internal quotation marks
omitted). After concluding that the companies had
“demonstrated irreparable harm,” the court reversed and
remanded for the District Court to consider the remaining factors
of the preliminary-injunction test. Id., at 1147.[
17]
We granted certiorari.
571 U. S. ___ (2013).
III
A
RFRA prohibits the
“Government [from] substantially burden[ing] a person’s
exercise of religion even if the burden results from a rule of
general applicability” unless the Government
“demonstrates that application of the burden to the
person—(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42
U. S. C. §§2000bb–1(a), (b)
(emphasis added). The first question that we must address is
whether this provision applies to regulations that govern the
activities of for-profit corporations like Hobby Lobby, Conestoga,
and Mardel.
HHS contends that
neither these companies nor their owners can even be heard under
RFRA. According to HHS, the companies cannot sue because they seek
to make a profit for their owners, and the owners cannotbe heard
because the regulations, at least as a formal mat-ter, apply only
to the companies and not to the ownersas individuals. HHS’s
argument would have dramatic consequences.
Consider this
Court’s decision in Braunfeld v. Brown, 366 U. S. 599
(1961) (plurality opinion). In that case, five Orthodox Jewish
merchants who ran small retail businesses in Philadelphia
challenged a Pennsylvania Sunday closing law as a violation of the
Free Exercise Clause. Because of their faith, these merchants
closed their shops on Saturday, and they argued that requiring them
to remain shut on Sunday threatened them with financial ruin. The
Court entertained their claim (although it ruled against them on
the merits), and if a similar claim were raised today under RFRA
against a jurisdiction still subject to the Act (for example, the
District of Columbia, see 42 U. S. C.
§2000bb–2(2)), the merchants would be entitled to be
heard. According to HHS, however, if these merchants chose to
incorporate their businesses—with-out in any way changing the
size or nature of their businesses—they would forfeit all
RFRA (and free-exercise) rights. HHS would put these merchants to a
difficult choice: either give up the right to seek judicial
protection of their religious liberty or forgo the benefits,
available to their competitors, of operating as corporations.
As we have seen, RFRA
was designed to provide very broad protection for religious
liberty. By enacting RFRA, Congress went far beyond what this Court
has held is constitutionally required.[
18] Is there any reason to think that the Congress
that enacted such sweeping protection put small-business owners to
the choice that HHS suggests? An examination of RFRA’s text,
to which we turn in the next part of this opinion, reveals that
Congress did no such thing.
As we will show,
Congress provided protection for people like the Hahns and Greens
by employing a familiar legal fiction: It included corporations
within RFRA’s definition of “persons.” But it is
important to keep in mind that the purpose of this fiction is to
provide protection for human beings. A corporation is simply a form
of organization used by human beings to achieve desired ends. An
established body of law specifies the rights and obligations of the
people (including shareholders, officers, and employees) who are
associated with a corporation in one way or another. When rights,
whether constitutional or statu-tory, are extended to corporations,
the purpose is to protect the rights of these people. For example,
extending Fourth Amendment protection to corporations protects the
privacy interests of employees and others associated with the
company. Protecting corporations from government seizure of their
property without just compensation protects all those who have a
stake in the corporations’ financial well-being. And
protecting the free-exercise rights of corporations like Hobby
Lobby, Conestoga, and Mardel protects the religious liberty of the
humans who own and control those companies.
In holding that
Conestoga, as a “secular, for-profit corporation,”
lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do
not, separate and apart from the actions or belief systems of their
individual owners or employees, exercise religion. They do not
pray, worship, observe sacraments or take other
religiously-motivated actions separate and apart from the intention
and direction of their individual actors.” 724 F. 3d, at
385 (emphasis added).
All of this is true—but quite beside the
point. Corporations, “separate and apart from” the
human beings who own, run, and are employed by them, cannot do
anything at all.
B
1
As we noted above,
RFRA applies to “a person’s” exercise of
religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA
itself does not define the term “person.” We therefore
look to the Dictionary Act, which we must consult “[i]n
determining the meaning of any Act of Congress, unless the context
indicates otherwise.” 1 U. S. C. §1.
Under the Dictionary
Act, “the wor[d] ‘person’ . . .
include[s] corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S.
___, ___ (2011) (slip op., at 6) (“We have no doubt that
‘person,’ in a legal setting, often refers to
artificial entities. The Dictionary Act makes that clear”).
Thus, unless there is something about the RFRA context that
“indicates otherwise,” the Dictionary Act provides a
quick, clear, and affirmative answer to the question whether the
companies involved in these cases may be heard.
We see nothing in RFRA
that suggests a congressional intent to depart from the Dictionary
Act definition, and HHS makes little effort to argue otherwise. We
have entertained RFRA and free-exercise claims brought by nonprofit
corporations, see Gonzales v. O Centro Espírita Beneficiente
União do Vegetal, 546 U. S. 418 (2006) (RFRA);
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565
U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS
concedes that a nonprofit corporation can be a “person”
within the meaning of RFRA. See Brief for HHS in No. 13–354,
at 17; Reply Brief in No. 13–354, at 7–8.[
19]
This concession
effectively dispatches any argument that the term
“person” as used in RFRA does not reach the closely
held corporations involved in these cases. No known understanding
of the term “person” includes some but not all
corporations. The term “person” sometimes encompasses
artificial persons (as the Dictionary Act instructs), and it
sometimes is limited to natural persons. But no conceivable
definition of the term includes natural persons and nonprofit
corporations, but not for-profit corporations.[
20] Cf. Clark v. Martinez, 543 U. S. 371, 378
(2005) (“To give th[e] same words a different meaning for
each category would be to invent a statute rather than interpret
one”).
2
The principal
argument advanced by HHS and the principal dissent regarding RFRA
protection for Hobby Lobby, Conestoga, and Mardel focuses not on
the statutory term “person,” but on the phrase
“exercise of religion.” According to HHS and the
dissent, these corporations are not protected by RFRA because they
cannot exercise religion. Neither HHS nor the dissent, however,
provides any persuasive explanation for this conclusion.
Is it because of the
corporate form? The corporate form alone cannot provide the
explanation because, as we have pointed out, HHS concedes that
nonprofit corporations can be protected by RFRA. The dissent
suggests that nonprofit corporations are special because furthering
their reli-gious “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 appliesequally to for-profit
corporations: Furthering their re-ligious freedom also
“furthers individual religious freedom.” In these
cases, for example, allowing Hobby Lobby, Con-estoga, and Mardel to
assert RFRA claims protects the religious liberty of the Greens and
the Hahns.[
21]
If the corporate form
is not enough, what about the profit-making objective? In
Braunfeld, 366 U. S. 599 , we entertained the free-exercise
claims of individuals who were attempting to make a profit as
retail merchants, and the Court never even hinted that this
objective precluded their claims. As the Court explained in a later
case, the “exercise of religion” involves “not
only belief and profession but the performance of (or abstention
from) physical acts” that are “engaged in for religious
reasons.” Smith, 494 U. S., at 877. Business
practices that are compelled or limited by the tenets of a
religious doctrine fall comfortably within that definition. Thus, a
law that “operates so as to make the practice of
. . . religious beliefs more expensive” in the
context of business activities imposes a burden on the exercise of
religion. Braunfeld, supra, at 605; see United States v. Lee, 455
U. S. 252, 257 (1982) (recognizing that “compulsory
participation in the social security system interferes with [Amish
employers’] free exercise rights”).
If, as Braunfeld
recognized, a sole proprietorship that seeks to make a profit may
assert a free-exercise claim,[
22] why can’t Hobby Lobby, Conestoga, and Mardel do
the same?
Some lower court judges
have suggested that RFRA does not protect for-profit corporations
because the purpose of such corporations is simply to make
money.[
23] This argument
flies in the face of modern corporate law. “Each American
jurisdiction today either expressly or by implication authorizes
corporations to be formed under its general corporation act for any
lawful purpose or business.” 1 J. Cox & T. Hazen,
Treatise of the Law of Corporations §4:1, p. 224 (3d ed.
2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law
of Corporations §102 (rev. ed. 2010). While it is certainly
true that a central objective of for-profit corporations is to make
money, modern corporate law does not require for-profit
corporations to pursue profit at the expense of everything else,
and many do not do so. For-profit corporations, with ownership
approval, support a wide variety of charitable causes, and it is
not at all uncommon for such corporations to further humanitarian
and other altruistic objectives. Many examples come readily to
mind. So long as its owners agree, a for-profit corporation may
take costly pollution-control and energy-conservation measures that
go beyond what the law requires. A for-profit corporation that
operates facilities in other countries may exceed the requirements
of local law regarding working conditions and benefits. If
for-profit corporations may pursue such worthy objectives, there is
no apparent reason why they may not further religious objectives as
well.
HHS would draw a sharp
line between nonprofit corporations (which, HHS concedes, are
protected by RFRA) and for-profit corporations (which HHS would
leave unprotected), but the actual picture is less clear-cut. Not
all corporations that decline to organize as nonprofits do so in
order to maximize profit. For example, organizations with religious
and charitable aims might organize as for-profit corporations
because of the potential advantages of that corporate form, such as
the freedom to participate in lobbying for legislation or
campaigning for political candidates who promote their religious or
charitable goals.[
24] In
fact, recognizing the inherent compatibility between establishing a
for-profit corporation and pursuing nonprofit goals, States have
increasingly adopted laws formally recognizing hybrid corporate
forms. Over half of the States, for instance, now recognize the
“benefit corporation,” a dual-purpose entity that seeks
to achieve both a benefit for the public and a profit for its
owners.[
25]
In any event, the
objectives that may properly be pursued by the companies in these
cases are governed by the laws of the States in which they were
incorporated—Pennsylvania and Oklahoma—and the laws of
those States permit for-profit corporations to pursue “any
lawful purpose” or “act,” including the pursuit
of profit in conformity with the owners’ religious
principles. 15 Pa. Cons. Stat. §1301 (2001)
(“Corporations may be incorporated under this subpart for any
lawful purpose or purposes”); Okla. Stat., Tit. 18,
§§1002, 1005 (West 2012) (“[E]very corporation,
whether profit or not for profit” may “be incorporated
or organized . . . to conduct or promote any lawful
business or purposes”); see also §1006(A)(3); Brief for
State of Oklahoma as Amicus Curiae in No. 13–354.
3
HHS and the principal
dissent make one additional argument in an effort to show that a
for-profit corporation cannot engage in the “exercise of
religion” within the meaning of RFRA: HHS argues that RFRA
did no more than codify this Court’s pre-Smith Free Exercise
Clause precedents, and because none of those cases squarely held
that a for-profit corporation has free-exercise rights, RFRA does
not confer such protection. This argument has many flaws.
First, nothing in the
text of RFRA as originally enacted suggested that the statutory
phrase “exercise of religion under the First Amendment”
was meant to be tied to this Court’s pre-Smith interpretation
of that Amendment. When first enacted, RFRA defined the
“exercise of religion” to mean “the exercise of
religion under the First Amendment”—not the exercise of
religion as recognized only by then-existing Supreme Court
precedents. 42 U. S. C. §2000bb–2(4) (1994
ed.). When Congress wants to link the meaning of a statutory
provision to a body of this Court’s case law, it knows how to
do so. See, e.g., Antiterrorism and Effective Death Penalty Act of
1996, 28 U. S. C. §2254(d)(1) (authorizing habeas
relief from a state-court decision that “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States”).
Second, if the original
text of RFRA was not clear enough on this point—and we think
it was—the amendment of RFRA through RLUIPA surely dispels
any doubt. That amendment deleted the prior reference to the First
Amendment, see 42 U. S. C. §2000bb–2(4) (2000
ed.) (incorporating §2000cc–5), and neither HHS nor the
principal dissent can explain why Congress did this if it wanted to
tie RFRA coverage tightly to the specific holdings of our pre-Smith
free-exercise cases. Moreover, as discussed, the amendment went
further, providing that the exercise of religion “shall be
construed in favor of a broad protection of religious exercise, to
the maximum extent permitted by the terms of this chapter and the
Constitution.” §2000cc–3(g). It is simply not
possible to read these provisions as restricting the concept of the
“exercise of religion” to those practices specifically
addressed in our pre-Smith decisions.
Third, the one
pre-Smith case involving the free-exercise rights of a for-profit
corporation suggests, if anything, that for-profit corporations
possess such rights. In Gallagher v. Crown Kosher Super Market of
Mass., Inc., 366 U. S. 617 (1961) , the Massachusetts Sunday
closing law was challenged by a kosher market that was organized as
a for-profit corporation, by customers of the market, and by a
rabbi. The Commonwealth argued that the corporation lacked
“standing” to assert a free-exercise claim,[
26] but not one member of the Court
expressed agreement with that argument. The plurality opinion for
four Justices rejected the First Amendment claim on the merits
based on the reasoning in Braunfeld, and reserved decision on the
question whether the corporation had “standing” to
raise the claim. See 366 U. S., at 631. The three dissenters,
Justices Douglas, Brennan, and Stewart, found the law
unconstitutional as applied to the corporation and the other
challengers and thus implicitly recognized their right to assert a
free-exercise claim. See id., at 642 (Brennan, J., joined by
Stewart, J., dissenting); McGowan v. Maryland, 366 U. S. 420
–579 (1961) (Douglas, J., dissenting as to related cases
including Gallagher). Fi-nally, Justice Frankfurter’s
opinion, which was joined by Justice Harlan, upheld the
Massachusetts law on the merits but did not question or reserve
decision on the issue of the right of the corporation or any of the
other challengers to be heard. See McGowan, 366 U. S., at
521–522. It is quite a stretch to argue that RFRA, a law
enacted to provide very broad protection for religious liberty,left
for-profit corporations unprotected simply because in
Gallagher—the only pre-Smith case in which the issue was
raised—a majority of the Justices did not find it necessary
to decide whether the kosher market’s corporate status barred
it from raising a free-exercise claim.
Finally, the
results would be absurd if RFRA merely restored this Court’s
pre-Smith decisions in ossified form and did not allow a plaintiff
to raise a RFRA claim unless that plaintiff fell within a category
of plaintiffs one of whom had brought a free-exercise claim that
this Court entertained in the years before Smith. For example, we
are not aware of any pre-Smith case in which this Court entertained
a free-exercise claim brought by a resident noncitizen. Are such
persons also beyond RFRA’s protective reach simply because
the Court never addressed their rights before Smith?
Presumably in
recognition of the weakness of this argument, both HHS and the
principal dissent fall back on the broader contention that the
Nation lacks a tradition of exempting for-profit corporations from
generally applicable laws. By contrast, HHS contends, statutes like
Title VII, 42 U. S. C. §2000e–19(A), expressly
exempt churches and other nonprofit religious institutions but not
for-profit corporations. See Brief for HHS in No. 13–356,
p. 26. In making this argument, however, HHS did not call to
our attention the fact that some federal statutes do exempt
categories of entities that include for-profit corporations from
laws that would otherwise require these entities to engage in
activities to which they object on grounds of conscience. See,
e.g., 42 U. S. C. §300a–7(b)(2);
§238n(a).[
27] If Title
VII and similar laws show anything, it isthat Congress speaks with
specificity when it intends a religious accommodation not to extend
to for-profitcorporations.
4
Finally, HHS contends
that Congress could not have wanted RFRA to apply to for-profit
corporations because it is difficult as a practical matter to
ascertain the sincere “beliefs” of a corporation. HHS
goes so far as to raise the specter of “divisive, polarizing
proxy battles over the religious identity of large, publicly traded
corporations such as IBM or General Electric.” Brief for HHS
in No. 13–356, at 30.
These cases, however,
do not involve publicly traded corporations, and it seems unlikely
that the sort of corporate giants to which HHS refers will often
assert RFRA claims. HHS has not pointed to any example of a
publicly traded corporation asserting RFRA rights, and numerous
practical restraints would likely prevent that from occurring. For
example, the idea that unrelated shareholders—including
institutional investors with their own set of
stakeholders—would agree to run a corporation under the same
religious beliefs seems improbable. In any event, we have no
occasion in these cases to consider RFRA’s applicability to
such companies. The companies in the cases before us are closely
held corporations, each owned and controlled by members of a single
family, and no one has disputed the sincerity of their religious
beliefs.[
28]
HHS has also provided
no evidence that the purported problem of determining the sincerity
of an asserted religious belief moved Congress to exclude
for-profit corporations from RFRA’s protection. On the
contrary, the scope of RLUIPA shows that Congress was confident of
the ability of the federal courts to weed out insincere claims.
RLUIPA applies to “institutionalized persons,” a
category that consists primarily of prisoners, and by the time of
RLUIPA’s enactment, the propensity of some prisoners to
assert claims of dubious sincerity was well documented.[
29] Nevertheless, after our decision
in City of Boerne, Congress enacted RLUIPA to preserve the right of
prisoners to raise religious liberty claims. If Congress thought
that the federal courts were up to the job of dealing with
insincere prisoner claims, there is no reason to believe that
Congress limited RFRA’s reach out of concern for the
seem-ingly less difficult task of doing the same in corporate
cases. And if, as HHS seems to concede, Congress wanted RFRA to
apply to nonprofit corporations, see, Reply Brief in No.
13–354, at 7–8, what reason is there to think that
Congress believed that spotting insincere claims wouldbe tougher in
cases involving for-profits?
HHS and the principal
dissent express concern about the possibility of disputes among the
owners of corporations, but that is not a problem that arises
because of RFRA or that is unique to this context. The owners of
closely held corporations may—and sometimes do—disagree
about the conduct of business. 1 Treatise of the Law of
Corporations §14:11. And even if RFRA did not exist, the
owners of a company might well have a dispute relating to religion.
For example, some might want a company’s stores to remain
open on the Sabbath in order to make more money, and others might
want the stores to close for religious reasons. State corporate law
provides a ready means for resolving any conflicts by, for example,
dictating how a corporation can establish its governing structure.
See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351
(2011) (providing that certificate of incorporation may provide how
“the business of the corporation shall be managed”).
Courts will turn to that structure and the underlying state law in
resolving disputes.
For all these reasons,
we hold that a federal regulation’s restriction on the
activities of a for-profit closely held corporation must comply
with RFRA.[
30]
IV
Because RFRA applies
in these cases, we must next ask whether the HHS contraceptive
mandate “substantially burden[s]” the exercise of
religion. 42 U. S. C. §2000bb–1(a). We have
little trouble concluding that it does.
A
As we have noted, the
Hahns and Greens have a sincere religious belief that life begins
at conception. They therefore object on religious grounds to
providing health insurance that covers methods of birth control
that, as HHS acknowledges, see Brief for HHS in No. 13–354,
at 9, n. 4, may result in the destruction of an embryo. By
requiring the Hahns and Greens and their companies to arrange for
such coverage, the HHS mandate demands that they engage in conduct
that seriously violates their religious beliefs.
If the Hahns and Greens
and their companies do not yield to this demand, the economic
consequences will be severe. If the companies continue to offer
group health plans that do not cover the contraceptives at issue,
they will be taxed $100 per day for each affected individual. 26
U. S. C. §4980D. For Hobby Lobby, the bill could
amount to $1.3 million per day or about $475 million per year; for
Conestoga, the assessment could be $90,000 per day or $33 million
per year; and for Mardel, it could be $40,000 per day or about $15
million per year. These sums are surely substantial.
It is true that the
plaintiffs could avoid these assessments by dropping insurance
coverage altogether and thus forcing their employees to obtain
health insurance on one of the exchanges established under ACA. But
if at least one of their full-time employees were to qualify for a
subsidy on one of the government-run exchanges, this course would
also entail substantial economic consequences. The companies could
face penalties of $2,000 per employee each year. §4980H. These
penalties would amount to roughly $26 million for Hobby Lobby, $1.8
million for Conestoga, and $800,000 for Mardel.
B
Although these totals
are high, amici supporting HHS have suggested that the $2,000
per-employee penalty is actually less than the average cost of
providing health insurance, see Brief for Religious Organizations
22, and therefore, they claim, the companies could readily
eliminate any substantial burden by forcing their employees to
obtain insurance in the government exchanges. We do not generally
entertain arguments that were not raised below and are not advanced
in this Court by any party, see United Parcel Service, Inc. v.
Mitchell, 451 U. S. 56 , n. 2 (1981); Bell v. Wolfish,
441 U. S. 520 , n. 13 (1979); Knetsch v. United States,
364 U. S. 361, 370 (1960) , and there are strong reasons to
adhere to that practice in these cases. HHS, which presumably could
have compiled the relevant statistics, has never made this
argument—not in its voluminous briefing or at oral argument
in this Court nor, to our knowledge, in any of the numerous cases
in which the issue now before us has been litigated around the
country. As things now stand, we do not even know what the
Government’s position might be with respect to these
amici’s intensely empirical argument.[
31] For this same reason, the plaintiffs have
never had an opportunity to respond to this novel claim
that—contrary to their longstanding practice and that of most
large employers—they would be better off discarding their
employer insurance plans altogether.
Even if we were to
reach this argument, we would find it unpersuasive. As an initial
matter, it entirely ignores the fact that the Hahns and Greens and
their companies have religious reasons for providing
health-insurance coverage for their employees. Before the advent of
ACA, they were not legally compelled to provide insurance, but they
nevertheless did so—in part, no doubt, for conventional
business reasons, but also in part because their religious beliefs
govern their relations with their employees. See App. to Pet. for
Cert. in No. 13–356, p. 11g; App. in No. 13–354,
at 139.
Putting aside the
religious dimension of the decision to provide insurance, moreover,
it is far from clear that the net cost to the companies of
providing insurance is more than the cost of dropping their
insurance plans and paying the ACA penalty. Health insurance is a
benefit that employees value. If the companies simply eliminated
that benefit and forced employees to purchase their own insurance
on the exchanges, without offering additional compensation, it is
predictable that the companies would face a competitive
disadvantage in retaining and attracting skilled workers. See App.
in No. 13–354, at 153.
The companies could
attempt to make up for the elimination of a group health plan by
increasing wages, but this would be costly. Group health insurance
is generally less expensive than comparable individual coverage, so
the amount of the salary increase needed to fully compensate for
the termination of insurance coverage may well exceed the cost to
the companies of providing the insurance. In addition, any salary
increase would have to take into account the fact that employees
must pay income taxes on wages but not on the value of
employer-provided health insurance. 26 U. S. C.
§106(a). Likewise, employers can deduct the cost of providing
health insurance, see §162(a)(1), but apparently cannot deduct
the amount of the penalty that they must pay if insurance is not
pro-vided; that difference also must be taken into account. Given
these economic incentives, it is far from clear that it would be
financially advantageous for an employer to drop coverage and pay
the penalty.[
32]
In sum, we refuse to
sustain the challenged regulations on the ground—never
maintained by the Government—that dropping insurance coverage
eliminates the substantial burden that the HHS mandate imposes. We
doubt that the Congress that enacted RFRA—or, for that
matter, ACA—would have believed it a tolerable result to put
family-run businesses to the choice of violating their sincerely
held religious beliefs or making all of their employees lose their
existing healthcare plans.
C
In taking the
position that the HHS mandate does not impose a substantial burden
on the exercise of religion, HHS’s main argument (echoed by
the principal dissent) is basically that the connection between
what the objecting parties must do (provide health-insurance
coverage for four methods of contraception that may operate after
the fertilization of an egg) and the end that they find to be
morally wrong (destruction of an embryo) is simply too attenuated.
Brief for HHS in 13–354, pp. 31–34; post, at
22–23. HHS and the dissent note that providing the coverage
would not itself result in the destruction of an embryo; that would
occur only if an employee chose to take advantage of the coverage
and to use one of the four methods at issue.[
33] Ibid.
This argument dodges
the question that RFRA presents (whether the HHS mandate imposes a
substantial burden on the ability of the objecting parties to
conduct business in accordance with their religious beliefs) and
instead addresses a very different question that the federal courts
have no business addressing (whether the religious belief asserted
in a RFRA case is reasonable). The Hahns and Greens believe that
providing the coverage demanded by the HHS regulations is connected
to the destruction of an embryo in a way that is sufficient to make
it immoral for them to provide the coverage. This belief implicates
a difficult and important question of religion and moral
philosophy, namely, the circumstances under which it is wrong for a
person to perform an act that is innocent in itself but that has
the effect of enabling or facilitating the commission of an immoral
act by another.[
34]
Arrogating the authority to provide a binding national answer to
this religious and philosophical question, HHS and the principal
dissent in effect tell the plaintiffs that their beliefs are
flawed. For good reason, we have repeatedly refused to take such a
step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly
and in many different contexts, we have warned that courts must not
presume to determine . . . the plausibility of a
religious claim”); Hernandez v. Commissioner, 490 U. S.
680, 699 (1989) ; Presbyterian Church in U. S. v. Mary
Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S.
440, 450 (1969) .
Moreover, in Thomas v.
Review Bd. of Indiana Employment Security Div., 450 U. S. 707
(1981) , we considered and rejected an argument that is nearly
identical to the one now urged by HHS and the dissent. In Thomas, a
Jehovah’s Witness was initially employed making sheet steel
for a variety of industrial uses, but he was later transferred to a
job making turrets for tanks. Id., at 710. Because he objected on
religious grounds to participating in the manufacture of weapons,
he lost his job and sought unemployment compensation. Ruling
against the em-ployee, the state court had difficulty with the line
thatthe employee drew between work that he found to be con-sistent
with his religious beliefs (helping to manufacture steel that was
used in making weapons) and work that he found morally
objectionable (helping to make the weapons themselves). This Court,
however, held that “it is not for us to say that the line he
drew was an unreasonable one.” Id., at 715.[
35]
Similarly, in these
cases, the Hahns and Greens and their companies sincerely believe
that providing the insurance coverage demanded by the HHS
regulations lies on the forbidden side of the line, and it is not
for us to say that their religious beliefs are mistaken or
insubstantial. Instead, our “narrow function . . .
in this context is to determine” whether the line drawn
reflects “an honest conviction,” id., at 716, and there
is no dispute that it does.
HHS nevertheless
compares these cases to decisions in which we rejected the argument
that the use of general tax revenue to subsidize the secular
activities of religious institutions violated the Free Exercise
Clause. See Tilton v. Richardson, 403 U. S. 672, 689 (1971)
(plurality); Board of Ed. of Central School Dist. No. 1 v. Allen,
392 U. S. 236 –249 (1968). But in those cases, while the
subsidies were clearly contrary to the challengers’ views on
a secular issue, namely, proper church-state relations, the
challengers never articulated a religious objection to the
subsidies. As we put it in Tilton, they were “unable to
identify any coercion directed at the practice or exercise of their
religious beliefs.” 403 U. S., at 689 (plurality
opinion); see Allen, supra, at 249 (“[A]ppellants have not
contended that the New York law in any way coerces them as
individuals in the practice of their religion”). Here, in
contrast, the plaintiffs do assert that funding the specific
contraceptive methods at issue violates their religious beliefs,
and HHS does not question their sincerity. Because the
contraceptive mandate forces them to pay an enormous sum of
money—as much as $475 million per year in the case of Hobby
Lobby—if they insist on providing insurance coverage in
accordance with their religious beliefs, the mandate clearly
imposes a substantial burden on those beliefs.
V
Since the HHS
contraceptive mandate imposes a substantial burden on the exercise
of religion, we must move on and decide whether HHS has shown that
the mandate both “(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42
U. S. C. §2000bb–1(b).
A
HHS asserts that the
contraceptive mandate serves a variety of important interests, but
many of these are couched in very broad terms, such as promoting
“public health” and “gender equality.”
Brief for HHS in No. 13–354, at 46, 49. RFRA, however,
contemplates a “more focused” inquiry: It
“requires the Government to demonstrate that the compelling
interest test is satisfied through application of the challenged
law ‘to the person’—the particular claimant whose
sincere exercise of religion is being substantially
burdened.” O’Centro, 546 U. S., at 430–431
(quoting §2000bb–1(b)). This requires us to
“loo[k] beyond broadly formulated interests” and to
“scrutiniz[e] the asserted harm of granting specific
exemptions to particular religious claimants”—in other
words, to look to the marginal interest in enforcing the
contraceptive mandate in these cases. O Centro, supra, at 431.
In addition to
asserting these very broadly framed interests, HHS maintains that
the mandate serves a compelling interest in ensuring that all women
have access to all FDA-approved contraceptives without cost
sharing. See Brief for HHS in No. 13–354, at 14–15, 49;
see Brief for HHS in No. 13–356, at 10, 48. Under our cases,
women (and men) have a constitutional right to obtain
contraceptives, see Griswold v. Connecticut, 381 U. S. 479
–486 (1965), and HHS tells us that “[s]tudies have
demonstrated that even moderate copayments for preventive services
can deter patients from receiving those services.” Brief for
HHS in No. 13–354, at 50 (internal quotation marks
omitted).
The objecting parties
contend that HHS has not shown that the mandate serves a compelling
government interest, and it is arguable that there are features of
ACA that support that view. As we have noted, many
employees—those covered by grandfathered plans and those who
work for employers with fewer than 50 employees—may have no
contraceptive coverage without cost sharing at all.
HHS responds that many
legal requirements have exceptions and the existence of exceptions
does not in itself indicate that the principal interest served by a
law is not compelling. Even a compelling interest may be outweighed
in some circumstances by another even weightier consideration. In
these cases, however, the interest served by one of the biggest
exceptions, the exception for grandfathered plans, is simply the
interest of employers in avoiding the inconvenience of amending an
existing plan. Grandfathered plans are required “to comply
with a subset of the Affordable Care Act’s health reform
provisions” that provide what HHS has described as
“particularly significant protections.” 75 Fed. Reg.
34540 (2010). But the contraceptive mandate is expressly excluded
from this subset. Ibid.
We find it unnecessary
to adjudicate this issue. We will assume that the interest in
guaranteeing cost-free access to the four challenged contraceptive
methods is compelling within the meaning of RFRA, and we will
proceed to consider the final prong of the RFRA test, i.e., whether
HHS has shown that the contraceptive mandate is “the least
restrictive means of furthering that compelling governmental
interest.” §2000bb–1(b)(2).
B
The
least-restrictive-means standard is exceptionally demanding, see
City of Boerne, 521 U. S., at 532, and it is not satisfied
here. HHS has not shown that it lacks other means of achieving its
desired goal without imposing a substantial burden on the exercise
of religion by the objecting parties in these cases. See
§§2000bb–1(a), (b) (requiring the Government to
“demonstrat[e] that application of [a substantial] burden to
the person . . . is the least restrictive means of
furthering [a] compelling governmental interest” (emphasis
added)).
The most
straightforward way of doing this would be for the Government to
assume the cost of providing the four contraceptives at issue to
any women who are unable to obtain them under their
health-insurance policies due to their employers’ religious
objections. This would certainly be less restrictive of the
plaintiffs’ religious liberty, and HHS has not shown, see
§2000bb–1(b)(2), that this is not a viable alternative.
HHS has not provided any estimate of the average cost per employee
of providing access tothese contraceptives, two of which, according
to the FDA, are designed primarily for emergency use. See Birth
Control: Medicines to Help You, online at
http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm.
Nor has HHS provided any statistics regarding the number of
employees who might be affected because they work for corporations
like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that
it is unable to provide such statistics. It seems likely, however,
that the cost of providing the forms of contraceptives at issue in
these cases (if not all FDA-approved contraceptives) would be minor
when compared with the overall cost of ACA. According to one of the
Congressional Budget Office’s most recent forecasts,
ACA’s insurance-coverage provisions will cost the Federal
Government more than $1.3 trillion through the next decade. See
CBO, Updated Estimates of the Effects of the Insurance Coverage
Provisions of the Affordable Care Act, April 2014, p. 2.[
36] If, as HHS tells us, providing
all women with cost-free access to all FDA-approved methods of
contraception is a Government interest of the highest order, it is
hard to understand HHS’s argument that it cannot be required
under RFRA to pay anything in order to achieve this important
goal.
HHS contends that RFRA
does not permit us to take this option into account because
“RFRA cannot be used to require creation of entirely new
programs.” Brief for HHS in 13–354, at 15.[
37] But we see nothing in RFRA that
supports this argument, and drawing the line between the
“creation of an entirely new program” and the
modification of an existing program (which RFRA surely allows)
would be fraught with problems. We do not doubt that cost may be an
important factor in the least-restrictive-means analysis, but both
RFRA and its sister statute, RLUIPA, may in some circumstances
require the Government to expend additional funds to accommodate
citizens’ religious beliefs. Cf. §2000cc–3(c)
(RLUIPA: “[T]his chapter may require a government to incur
expenses in its own operations to avoid imposing a substantial
burden on religious exercise.”). HHS’s view that RFRA
can never require the Government to spend even a small amount
reflects a judgment about the importance of religious liberty that
was not shared by the Congress that enacted that law.
In the end, however, we
need not rely on the option of a new, government-funded program in
order to conclude that the HHS regulations fail the
least-restrictive-means test. HHS itself has demonstrated that it
has at its disposal an approach that is less restrictive than
requiring employers to fund contraceptive methods that violate
their religious beliefs. As we explained above, HHS has already
established an accommodation for nonprofit organizations with
religious objections. See supra, at 9–10, and
nn. 8–9. Under that accommodation, the organization can
self-certify that it opposes providing coverage for particular
contraceptive services. See 45 CFR §§147.131(b)(4),
(c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the
organization makes such a certification, the organization’s
insurance issuer or third-party administrator must
“[e]xpressly exclude contraceptive coverage from the group
health insurance coverage provided in connection with the group
health plan” and “[p]rovide separate payments for any
contraceptive services required to be covered” without
imposing “any cost-sharing requirements . . . on
the eligible organization, the group health plan, or plan
participants or beneficiaries.” 45 CFR §147.131(c)(2);
26 CFR §54.9815–2713A(c)(2).[
38]
We do not decide today
whether an approach of this type complies with RFRA for purposes of
all religious claims.[
39] At
a minimum, however, it does not impinge on the plaintiffs’
religious belief that providing insurance coverage for the
contraceptives at issue here violates their religion, and it serves
HHS’s stated interests equally well.[
40]
The principal dissent
identifies no reason why this accommodation would fail to protect
the asserted needs of women as effectively as the contraceptive
mandate, and there is none.[
41] Under the accommodation, the plaintiffs’
female employees would continue to receive contraceptive coverage
without cost sharing for all FDA-approved contraceptives, and they
would continue to “face minimal logistical and administrative
obstacles,” post, at 28 (internal quotation marks omitted),
because their employers’ insurers would be responsible for
providing information and coverage, see, e.g., 45 CFR
§§147.131(c)–(d); cf. 26 CFR
§§54.9815–2713A(b), (d). Ironically, it is the
dissent’s approach that would “[i]mped[e] women’s
receipt of benefits by ‘requiring them to take steps to learn
about, and to sign up for, a new government funded and administered
health benefit,’ ” post, at 28, because the
dissent would effectively compel religious employers to drop
health-insurance coverage altogether, leaving their employees to
find individual plans on government-run exchanges or elsewhere.
This is indeed “scarcely what Congress contemplated.”
Ibid.
C
HHS and the principal
dissent argue that a ruling in favor of the objecting parties in
these cases will lead to a flood of religious objections regarding
a wide variety of medical procedures and drugs, such as
vaccinations and blood transfusions, but HHS has made no effort to
substantiate this prediction.[
42] HHS points to no evidence that insurance plans in
existence prior to the enactment of ACA excluded coverage for such
items. Nor has HHS provided evidence that any significant number of
employers sought exemption, on religious grounds, from any of
ACA’s coverage requirements other than the contraceptive
mandate.
It is HHS’s
apparent belief that no insurance-coverage mandate would violate
RFRA—no matter how significantly it impinges on the religious
liberties of employers—that would lead to intolerable
consequences. Under HHS’s view, RFRA would permit the
Government to require all employers to provide coverage for any
medical procedure allowed by law in the jurisdiction in
question—for instance, third-trimester abortions or assisted
suicide. The owners of many closely held corporations could not in
good conscience provide such coverage, and thus HHS would
effectively exclude these people from full participation in the
economic life of the Nation. RFRA was enacted to prevent such an
outcome.
In any event, our
decision in these cases is concerned solely with the contraceptive
mandate. Our decision should not be understood to hold that an
insurance-coverage mandate must necessarily fall if it conflicts
with an employer’s religious beliefs. Other coverage
requirements, such as immunizations, may be supported by different
interests (for example, the need to combat the spread of infectious
diseases) and may involve different arguments about the least
restrictive means of providing them.
The principal dissent
raises the possibility that discrimination in hiring, for example
on the basis of race, might be cloaked as religious practice to
escape legal sanction. See post, at 32–33. Our decision today
provides no such shield. The Government has a compelling interest
in providing an equal opportunity to participate in the workforce
without regard to race, and prohibitions on racial discrimination
are precisely tailored to achieve that critical goal.
HHS also raises for the
first time in this Court the argument that applying the
contraceptive mandate to for-profit employers with sincere
religious objections is essential to the comprehensive
health-insurance scheme that ACA establishes. HHS analogizes the
contraceptive mandate to the requirement to pay Social Security
taxes, which we upheld in Lee despite the religious objection of an
employer, but these cases are quite different. Our holding in Lee
turned primarily on the special problems associated with a national
system of taxation. We noted that “[t]he obligation to pay
the social security tax initially is not fundamentally different
from the obligation to pay income taxes.” 455 U. S., at
260. Based on that premise, we explained that it was untenable to
allow individuals to seek exemptions from taxes based on religious
objections to particular Government expenditures: “If, for
example, a religious adherent believes war is a sin, and if a
certain percentage of the federal budget can be identified as
devoted to war-related activities, such individuals would have a
similarly valid claim to be exempt from paying that percentage of
the income tax.” Ibid. We observed that “[t]he tax
system could not function if denominations were allowed to
challenge the tax system because tax payments were spent in a
manner that violates their religious belief.” Ibid.; see O
Centro, 546 U. S., at 435.
Lee was a
free-exercise, not a RFRA, case, but if the issue in Lee were
analyzed under the RFRA framework, the fundamental point would be
that there simply is no less restrictive alternative to the
categorical requirement to pay taxes. Because of the enormous
variety of government expenditures funded by tax dollars, allowing
tax-payers to withhold a portion of their tax obligations on
religious grounds would lead to chaos. Recognizingexemptions from
the contraceptive mandate is very different. ACA does not create a
large national pool of tax revenue for use in purchasing healthcare
coverage. Rather, individual employers like the plaintiffs purchase
insurance for their own employees. And contrary to the principal
dissent’s characterization, the employers’
contributions do not necessarily funnel into
“undifferentiated funds.” Post, at 23. The
accommodation established by HHS requires issuers to have a
mechanism by which to “segregate premium revenue collected
from the eligible organization from the monies used to provide
payments for contraceptive services.” 45 CFR
§147.131(c)(2)(ii). Recognizing a religious accommodation
under RFRA for particular coverage requirements, therefore, does
not threaten the viability of ACA’s comprehensive scheme in
the way that recognizing religious objections to particular
expenditures from general tax revenues would.[
43]
In its final pages, the
principal dissent reveals that its fundamental objection to the
claims of the plaintiffs is an objection to RFRA itself. The
dissent worries about forcing the federal courts to apply RFRA to a
host of claims made by litigants seeking a religious exemption from
generally applicable laws, and the dissent expresses a desire to
keep the courts out of this business. See post, at 32–35. In
making this plea, the dissent reiterates a point made forcefully by
the Court in Smith. 494 U. S., at 888–889 (applying the
Sherbert test to all free-exercise claims “would open the
prospect of constitutionally required religious exemptions from
civic obligations of almost every conceivable kind”). But
Congress, in enacting RFRA, took the position that “the
compelling interest test as set forth in prior Federal court
rulings is a workable test forstriking sensible balances between
religious liberty and competing prior governmental
interests.” 42 U. S. C. §2000bb(a)(5). The
wisdom of Congress’s judgment on this matter is not our
concern. Our responsibility is to enforce RFRA as written, and
under the standard that RFRA prescribes, the HHS contraceptive
mandate is unlawful.
* * *
The contraceptive
mandate, as applied to closely held corporations, violates RFRA.
Our decision on that statutory question makes it unnecessary to
reach the First Amendment claim raised by Conestoga and the
Hahns.
The judgment of the
Tenth Circuit in No. 13–354 is affirmed; the judgment of the
Third Circuit in No. 13–356 is reversed, and that case is
remanded for further proceedings consistent with this opinion.
It is so ordered.