oh & mi attorneys general amicus brief
DESCRIPTION
Autocam Amicus Brief from Attorneys General of Ohio and MichiganTRANSCRIPT
No. 12-2673
In the
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AUTOCAM CORPORATION, et al.,
Plaintiffs-Appellants,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of
Health and Human Services, et al.,
Defendants-Appellees.
Appeal from the United States District Court
Western District of Michigan, Southern Division
Honorable Robert J. Jonker, District Court Case No, 1:12-cv-1096
BRIEF OF STATES OF MICHIGAN AND OHIO AS AMICI
CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS ASKING
THIS COURT TO REVERSE THE DISTRICT COURT
MICHAEL DEWINE
Attorney General of Ohio
Frederick D. Nelson
Senior Advisor to Attorney General
Co-Counsel of Record
30 East Broad Street
17th Floor
Columbus, Ohio 43215
614-728-4947
frederick.nelson
@ohioattorneygeneral.gov
BILL SCHUETTE
Attorney General of Michigan
John J. Bursch
Solicitor General
Co-Counsel of Record
B. Eric Restuccia (P49550)
Deputy Solicitor General
Co-Counsel of Record
Department of Attorney General
P.O. Box 30212
Lansing, Michigan 48909
517-373-1124
i
TABLE OF CONTENTS
Page
Table of Contents ....................................................................................... i
Table of Authorities ................................................................................... ii
Interests of Amici Michigan and Ohio ...................................................... 1
Argument ................................................................................................... 7
I. The federal Mandate requiring Autocam to cover
contraception, sterilization, abortifacients, and related
products and services violates religious liberties protected
under RFRA. ..................................................................................... 7
A. The federal Mandate as applied to Autocam imposes a
substantial burden on the free exercise of religion. ............... 9
B. The United States does not have a compelling interest
in applying this mandate to Autocam, and this coercion
is not the least restrictive means. ......................................... 26
C. RFRA applies to protect the operations of Autocam’s
for-profit business as run according to religious
principles. .............................................................................. 30
Conclusion ............................................................................................... 36
Certificate of Compliance ........................................................................ 37
Certificate of Service ............................................................................... 38
ii
TABLE OF AUTHORITIES
Cases
American Pulverizer Co. v. U.S. Dep’t of HHS,
2012 WL 6951316 (W.D. Mo. Dec. 20) ................................................. 28
Annex Medical, Inc. v. Sebelius,
No. 13 1118, 2013 U.S. App. Lexis 2497 (8th Cir., Feb. 1, 2013) ........ 21
Citizens United v. Fed. Election Comm’n,
558 U.S. 310; 130 S. Ct. 876 (2010) ..................................................... 32
Conestoga v. Sebelius,
No. 13-1144 (3d Cir. Jan. 29, 2013) ..................................................... 21
Employment Division v. Smith,
494 U.S. 872 (1990) ................................................................................ 7
First National Bank of Boston v. Bellotti,
435 U.S. 765 (1978) .............................................................................. 33
Gonzales v. O Centro Espitita Beneficente Uniao Do Vegetal,
546 U.S. 418 (2006) ...................................................................... passim
Grote v. Sebelius,
No. 13 1077, 2013 WL 6725905 (7th Cir. Jan. 30, 2013) ... 15, 21, 29, 31
Hayes v. Tennessee,
424 Fed. Appx. 546 (6th Cir. 2011) ...................................................... 24
Hobby Lobby Stores v. Sebelius,
870 F. Supp. 2d 1278 (2012) ................................................................ 31
Hosanna-Tabor Evangelical Lutheran Church and School v.
EEOC,
132 S. Ct. 649 (2012) ............................................................................ 33
Humphrey v. Lane,
728 N.E.2d 1039 (Ohio S. Ct. 2000) ....................................................... 2
iii
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in
North America,
344 U.S. 94 (1952) ................................................................................ 19
Korte v. Sebelius,
No. 10-14944, 2012 WL 6757353 (7th Cir., Dec. 28, 2012) ......... passim
Legatus v. Sebelius,
No. 12 12061, 2012 WL 5359630 (E.D. MI., Oct. 31, 2012) ........... 20, 27
Monaghan & Domino’s Farm Corp. v. Sebelius,
No. 12 15488, 2012 WL 6738476 (E.D. MI., Dec. 30, 2012) .......... 20, 31
Newland v. Sebelius,
2012 WL 3069154 (D. Col., July 27, 2012) ........................ 13, 27, 28, 29
O’Brien v. U.S. Dep’t HHS,
No. 12 3357, 2012 U.S. App. Lexis 26633 (8th Cir., Nov. 28 ,
2012) ..................................................................................................... 21
Sharpe Holdings, Inc. v. U.S. Dep’t of HHS,
No. 2:12-cv-92, 2012 WL 6738489 (E.D. Mo., Dec. 31, 2012) .............. 14
Sherbert v. Verner,
374 U.S. 398 (1963) .............................................................................. 12
State of Nebraska, et al. v. U.S. Dep’t of HHS, et al.
(pending in the 8th Circuit in Case No. 12-3238) .................................. 3
Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) .............................................................. 35
Thomas v. Review Bd. of Indiana Emp’t Sec. Div.,
450 U.S. 707 (1981) .................................................................. 19, 22, 24
Tyndale House Publishers v. Sebelius,
No. 12 1635, 2012 WL 5817323 (D. D.C., Nov. 16, 2012) ........ 25, 28, 35
United States v. Lee,
455 U.S. 252 (1982) .............................................................................. 21
iv
Wisconsin v. Yoder,
406 U.S. 205 (1972) ....................................................................... 12, 24
Statutes
26 U.S.C. § 4980 H .................................................................................. 23
42 U.S.C. § 18021; § 18031(d)(2)(B)(i) ..................................................... 29
42 U.S.C. § 2000bb(a)(2) .......................................................................... 12
42 U.S.C. § 2000bb(a)(5) .......................................................................... 18
42 U.S.C. § 2000bb(b) ................................................................................ 8
42 U.S.C. § 2000bb-1(a) ....................................................................... 7, 18
42 U.S.C. § 2000bb-2 ............................................................................... 20
42 U.S.C. § 2000bb-3 ............................................................................... 13
42 U.S.C. § 2000cc-5 ................................................................................ 20
MICH. COMP. LAW § 14.28 ........................................................................... 3
OHIO REV. CODE § 109.02 ........................................................................... 3
Other Authorities
“Latest Birth-Control Offer ‘Falls Short,’”
Wall Street Journal February 8, 2013 ................................................. 10
“March 14 Statement on Religious Freedom and HHS Mandate,”
A Statement of the Administrative Committee of the United
States Conference of Catholic Bishops. ............................................... 16
“Married Love and the Gift of Life,” approved November 2006 by
the United States Conference of Catholic Bishops .............................. 11
78 F.R. 8456 (2013-02-06) ................................................................... 9, 10
v
Humanae Vitae, encyclical of Pope Paul VI, released on July 25,
1968 ...................................................................................................... 11
State Constitutional Law,
R. Holland S. McAllister, J. Shaman, & J. Sutton (West pub.
2010) ....................................................................................................... 3
Constitutional Provisions
MICH. CONST. art I, § 4 ............................................................................... 2
OHIO CONST. art. I, sec. 7 ........................................................................... 2
U.S. CONST. amend. I .................................................................. 31, 32, 33
1
INTERESTS OF AMICI MICHIGAN AND OHIO
Sixth Circuit amici Michigan and Ohio, through their Attorneys
General Bill Schuette and Mike DeWine, respectfully ask this Court to
vindicate the rights established by Congress in the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., by reversing the
denial below of the Plaintiffs/Appellants’ (“Plaintiffs’” or “Autocam”)
Motion for Preliminary Injunction. Michigan and Ohio are committed
to upholding fundamental principles of religious freedom, tolerance, and
pluralism, and the religious liberty issues implicated by this case are of
vital importance to individuals and businesses across our two States.
Both Michigan and Ohio seek to foster robust business climates in
which diverse employers can succeed to the benefit of all their fellow
State citizens and to expand the number of good, well-paying jobs with
substantial employee benefits. To the extent that the federal mandate
is read to pressure employers who are guided by religious principles
into taking the “option” of discontinuing employee group health
insurance plans, the mandate adds to the financial challenges of the
Sixth Circuit amici States and wrongly burdens businesses and
employees.
2
Even more fundamentally, Michigan and Ohio are committed to
preserving for their citizens the traditions of religious liberty and
pluralism that have served our nation so well and that have informed
the enactment and application of RFRA. The Michigan Constitution
protects religious worship and also provides for the religious liberty of
Michigan citizens by guaranteeing that “[t]he civil and political rights,
privileges and capacities of no person shall be diminished or enlarged
on account of his religious belief.” MICH. CONST. art I, § 4. The prin-
ciple of religious freedom is one of the central values in Michigan law.
Ohio, for its part, is guided by its own Constitution that provides
even more expansive protections of religious liberties than does the
federal charter. See OHIO CONST. art. I, sec. 7 (prohibiting “any
interference with the rights of conscience”); see also, e.g., Humphrey v.
Lane, 728 N.E.2d 1039, 1045 (Ohio S. Ct. 2000) (“[T]he Ohio Consti-
tution’s free exercise protection is broader …. We adhere to the
standard long held in Ohio regarding free exercise claims – that the
state enactment must serve a compelling state interest and must be the
least restrictive means of furthering that interest. That protection
applies to direct and indirect encroachments upon religious freedoms.”);
3
State Constitutional Law, R. Holland S. McAllister, J. Shaman, & J.
Sutton (West pub. 2010) at 523-24 (noting breadth and specifics of Ohio
protections). Ohio’s Constitution thus in this context provides at the
state level roughly the same measure of protection of religious liberties
that RFRA adopts as a matter of federal statutory law. Indeed, Ohio
and the people of Michigan both are parties in litigation in which
various claimants have challenged the federal mandate on RFRA
grounds. State of Nebraska, et al. v. U.S. Dep’t of HHS, et al. (pending
in the 8th Circuit in Case No. 12-3238).
The Michigan and Ohio Attorneys General, Bill Schuette and
Mike Dewine, are the chief legal officers for their respective States,
authorized by law to work to safeguard for the citizens of their States
the important interests at stake here. MICH. COMP. LAW § 14.28; OHIO
REV. CODE § 109.02. Both understand that the federal Mandate
operates as a substantial burden as applied against the religious
practice of Plaintiffs and others like them under RFRA, and that the
mandated burden on Autocam is not narrowly tailored as the least
restrictive means of advancing a compelling federal interest. Michigan
and Ohio submit this amicus brief to defend religious liberty.
4
INTRODUCTION
Autocam and the Kennedy family assert profound religious
objections to the new federal mandate that they must provide insurance
covering contraceptive, abortifacient, and sterilization products and
services for their employees. Despite allowing myriad exceptions for
“grandfathered” and smaller businesses, the federal government will
not permit John Kennedy and the Kennedy family to operate their
businesses in a way consistent with their religious principles. This
federal insistence on subjugating religious values to bureaucratic
mandate also has extended to other employers within our States,
directly contrary to the protections that RFRA was meant to afford.
The mandate imposes a substantial burden on Plaintiffs by forcing
them to provide the specified insurance products in violation of their
guiding religious principles, or incur ruinous multi-million dollar
penalties. The coercion into supplying coverage – forcing Plaintiffs to
act contrary to sincerely held religious beliefs – itself violates religious
freedom. Courts should not become enmeshed in evaluating the
interpretive merits or proper doctrinal weight of religious principles.
And it is no answer to suggest – as the district court does here – that
5
Plaintiffs could elect to drop employee group coverage altogether: the
coercion that forces that decision, a loss for all, would itself inflict
significant penalties and have other adverse consequences on Autocam
and Autocam employees, confound Autocam’s guiding religious
principles, and again violate RFRA.
The federal government has offered no compelling interest to
justify the mandate as applied to those for-profit businesses that have
challenged the mandate when so many others are already excluded
from the mandate’s reach. And the government could accomplish its
ends by less restrictive and less coercive means. The mandate fails
RFRA’s strict scrutiny.
A majority of courts confronting these issues, including sister
circuits, have provided injunctive relief to prevent the mandate from
violating free exercise rights in the context of for-profit businesses. The
text of RFRA gives no support for distinguishing among businesses on
the basis of the products or services they offer, or as between profit and
non-profit corporations, and courts should not become entangled in
second-guessing the adherent’s understanding of religious doctrine.
6
RFRA was designed to protect religious exercise of the exact sort that
the mandate substantially burdens in this case.
Notably, no fewer than three times, the district court suggests
that the mandate does not violate the RFRA in part because an
employer seeking to act consistent with religious principles may avoid
the penalties that attach to that decision by dropping employee group
health coverage altogether and paying less expensive fines. See R. 42
(Opinion) at 16, Pg ID #754 (“[Plaintiffs] do have a third option: namely,
drop all group coverage. This would subject them to some financial risk
… [and] have obvious labor relations impact, and potential adverse
impact for the Autocam employees, but it is still an available
pathway.”); see also id. at 5, 20-21, Pg ID #743, 758-59. This is a
profound misunderstanding of how our country operates. The charges
themselves effectively punish religious exercise, and compelling
employers to stop insuring their employees would be a loss for everyone
– for Autocam in pursuing its principles and duties to its employees,
and for the employees who lose insurance. The district court’s analysis
puts into sharp relief some of the important State interests that
Michigan and Ohio have in this case.
7
ARGUMENT
I. The federal Mandate requiring Autocam to cover
contraception, sterilization, abortifacients, and related
products and services violates religious liberties protected
under RFRA.
In RFRA, Congress codified constitutional doctrine as understood
before Employment Division v. Smith, 494 U.S. 872 (1990), that federal
laws even of general application may not substantially burden the free
exercise of religion absent a “compelling governmental interest,” and
only then through “the least restrictive means of furthering that
interest.” Except in those narrowly drawn circumstances:
Government shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of
general applicability[.]
42 U.S.C. § 2000bb-1(a); Gonzales v. O Centro Espitita Beneficente
Uniao Do Vegetal, 546 U.S. 418, 424 (2006) (“Under RFRA, the Federal
Government may not … substantially burden a person’s exercise of
religion, ‘even if the burden results from a rule of general
applicability’.”). “It is an exacting standard, and the government bears
the burden of satisfying it.” Korte v. Sebelius, No. 10-14944, 2012 WL
6757353 (7th Cir., Dec. 28, 2012), at *5 (staying mandate application
pending appeal).
8
Thus, as Congress specified in the text of RFRA itself, the
Religious Freedom Restoration Act is designed:
(1) to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398 (1963)[,] and Wisconsin v.
Yoder, 406 U.S. 205 (1972)[,] and to guarantee its application
in all cases where free exercise of religion is substantially
burdened; and
(2) to provide a claim or defense to persons whose religious
exercise is substantially burdened by government.
42 U.S.C. § 2000bb(b).
This is such a case. Here, where the federal mandate clashes with
religious liberty, the analysis dictated by RFRA seems plain: the courts
must examine whether the government’s interest in subordinating the
religious principles that guide Autocam is “compelling,” and if so,
whether the mandate is “the least restrictive means” of furthering that
compelling interest.
Michigan and Ohio believe an injunction against the mandate is
warranted for three reasons: (1) the HHS Mandate as applied to
Autocam imposes a substantial burden on free exercise (2) there are no
compelling reasons to apply the mandate to Autocam and similarly
situated persons, particularly where there are less restrictive means by
which the United States could accomplish the objective of guaranteeing
9
access to reproductive services; and (3) the federal government’s
argument that RFRA does not apply to secular businesses – only
religious ones – violates RFRA’s plain terms.
A. The federal Mandate as applied to Autocam imposes a
substantial burden on the free exercise of religion.
The district court acknowledges that the federal regulatory
Mandate at issue requires non-exempt employers to provide their
employees with insurance coverage that includes “without limitation,
diaphragms, oral contraceptives, intra-uterine devices, and … the
‘morning after pill’ … and … the ‘week after pill’,” in addition to
sterilization procedures and to related counseling. R. 42 at 3, Pg ID
#741 (citing 45 C.F.R. § 147.130), 4, Pg ID #742 (“governing regulations
therefore require the Autocam Plaintiffs to provide their employees a
health care plan that includes contraceptive services coverage”). And
although federal authorities now have announced new proposed
amendments to their previously published “final rules,” those
amendments explicitly would not address or accommodate the religious
convictions of for-profit employers such as Autocam. See 78 F.R. 8456
(2013-02-06). Indeed, the federal regulators have published that they
10
“believe that this proposal would not expand the universe of employer
plans that would qualify for the exemption beyond that which was
intended in the 2012 final rules,” and that they intentionally mean to
“limit any [purported] accommodation [only] to nonprofit organizations
that hold themselves out as religious…. The Departments do not
propose that the definition of eligible organization extend to for-profit
secular employers.” Id.
As the district court opinion recites, the Kennedy Plaintiffs here
who “own and control the Autocam Plaintiffs” are Catholics subscribing
to the teachings of the Catholic Church that “‘prohibit the Plaintiffs
from participating in, paying for, training others to engage in, or
otherwise cooperating in the practice of contraception, including
abortifacient contraception, and sterilization …. [and who] seek to do
business in a manner fully consistent with their religious convictions’.”
R. 42 at 2; see also, e.g., “Latest Birth-Control Offer ‘Falls Short,’” Wall
Street Journal February 8, 2013 (quoting President of the U.S.
Conference of Catholic Bishops, Cardinal Timothy Dolan, in noting
teachings that instruct Catholics to “live their lives during the week to
reflect the same beliefs that they proclaim on the Sabbath,” and adding,
11
“We cannot now abandon them to be forced to violate their morally well-
informed consciences”). The teachings of the Catholic Church against
contraception and abortion are set forth, for example, in “Married Love
and the Gift of Life,” approved November 2006 by the United States
Conference of Catholic Bishops.1 See also Humanae Vitae, encyclical of
Pope Paul VI, released on July 25, 1968.2 Consequently, the self-
insured health insurance plan that Autocam provides (with no
premium) to full-time employees “is designed ‘to exclude contraception,
including abortifacient contraception, sterilization, and counseling
relating to the same.’” R. 42 at 2, Pg ID #740.
The Mandate and Autocam’s guiding religious principles thus
stand in direct conflict: the federal Goliath here brooks no deviation
from (non-”grandfathered”) businesses operated based on religious
conviction. This is precisely the sort of situation that RFRA was
designed to address.
1 This document may be found online on the website of the USCCB at
http://usccb.org/beliefs-and-teachings/what-we-believe/love-and-
sexuality/married-love-and-the-gift-of-life.cfm (last visited on February
15, 2013).
2 The encyclical is available on the Vatican’s website at
http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-
vi_enc_25071968_humanae-vitae_en.html (last visited February 15,
2013).
12
That the federal mandate at issue is a rule of general applicability
does not shield it from RFRA’s strict scrutiny. That is why Congress
passed RFRA in the first place. “[L]aws ‘neutral’ toward religion may
burden religious exercise as surely as laws intended to interfere with
religious exercise.” 42 U.S.C. § 2000bb(a)(2).
The two cases that RFRA cites in its text, Sherbert, 374 U.S. 398
(1963), and Yoder, 406 U.S. 205 (1972), each examined state laws of
general applicability. In Sherbert, the Supreme Court determined that
a South Carolina law that disqualified a Seventh Day Adventist, who
refused to work on Saturdays, from unemployment benefits had to yield
to her free exercise of her religion. Sherbert, 374 U.S. at 410. Even
though this was an ‘incidental burden,’ through an unintended effect,
the State was required to come forward with a compelling interest to
justify it. Id. at 403. So, too, in Yoder, where the obligation of
Wisconsin law was for children to have compulsory education through
age 16. Yoder, 406 U.S. at 207. This statute was an unconstitutional
burden on Amish children and therefore “beyond the power of the State
to control, even under regulations of general applicability.” Id. at 220.
13
“Of course government is not bound by every religious fine line.
But RFRA requires that the government interest be strong before
forcing people to cross the line.” Autocam Corp. v. Sebelius, No.
12-2673, 2012 U.S. App. Lexis 26736, at *6 (6th Cir., Dec. 28, 2012),
(Rogers, J., dissenting from denial of injunction pending appeal).3
Congress itself made that balance in RFRA, and specified that RFRA
applies to all subsequent enactments, unless a RFRA exemption is
made explicit. 42 U.S.C. § 2000bb-3. Put another way, Congress
decided as a matter of “uniform” policy that “there is a strong public
interest in the free exercise of religion even where that interest may
conflict with [another statutory scheme],” Newland v. Sebelius, 2012
WL 3069154 (D. Col., July 27, 2012) at *15 (quoting 10th Circuit in
O Centro, 389 F.3d 973, 1010 (2004)).
The district court engages in a rather tangled ecclesiastical
exegesis in assessing the “question whether the sincerely held belief
amounts, in fact, to a substantial burden on the exercise of religion
within the meaning of RFRA,” and then concludes that such burden
here is “unlikely.” R. 42 at 13-14, Pg ID #751-52. The court probably
3 The amici have relied on the Lexis cites where the Westlaw cites were
unavailable.
14
does not consciously intend to equate the “belief” with the “burden,” but
its conclusion that the Mandate is unlikely to impose a substantial
burden on free exercise is unfounded. It begins with the ruling that
complying would be cheap: “[t]here is certainly no significant financial
burden on the Autocam Plaintiffs, as even the Plaintiffs agree the cost
of compliance is only about $100,000.” R. 42 at 10, Pg ID #748. But
this misses the point. Of course it is not the financial cost of
participating in and carrying out a Mandate in violation of sincere
religious principles that substantially burdens Autocam, but rather the
conduct that the government directs in contravention of those principles
and the penalties that the government exacts for non-compliance. See,
e.g., Sharpe Holdings, Inc. v. U.S. Dep’t of HHS, No. 2:12-cv-92, 2012
WL 6738489, at *5 (E.D. Mo., Dec. 31, 2012) (“plaintiffs have shown
that the enforcement of the … mandate, and its substantial financial
penalties, on their health plan would substantially burden their
religious beliefs”). Indeed, in Yoder, the Supreme Court held that a
$5.00 fine for violating a school-attendance law imposed a substantial
burden on “the free exercise of respondent’s religious beliefs. 406 U.S.
at 208, 219.
15
The teachings that guide the operation of Autocam likely reflect
that there are more things in heaven and earth than are dreamt of in
the philosophy of the Federal Register. Again, the district court does
not question Autocam’s claim that Catholic “‘teachings prohibit the
Plaintiffs from participating in’” the conduct required of them by the
Mandate. R. 42 at 2, Pg ID #740. To suggest that the financial cost of
compliance with the federal strictures is so minimal as to obviate any
higher obligations is fundamentally to misunderstand the protections
that RFRA seeks to ensure. Here, just as the Seventh Circuit found in
January, “the government’s minimalist characterization of the burden
continues to obscure the substance of the religious-liberty violation
asserted ….” Grote v. Sebelius, No. 13 1077, 2013 WL 6725905 at *3
(7th Cir. Jan. 30, 2013).
The district court then reasons that because the business pays its
employees’ salaries and chooses to give them money for health savings
accounts, the leap to compelling the employer to purchase insurance for
abortifacient and contraceptive products and services is of no significant
theological moment. “Plaintiffs … want to draw a line between the
moral culpability of paying directly for contraceptive services their
16
employees choose, and of paying indirectly for the same services
through wages or health savings accounts,” the decision says, but there
is “virtually no functional difference” between paying salaries and
paying for contraceptive insurance and hence no “substantial burden.”
R. 42 at 10-11, Pg ID #748-49. In effect, the district court concludes
that no one’s religious beliefs should be seriously offended by what it
calls the “incremental difference” between paying for salaries or savings
accounts and paying for the mandated insurance. Id. Not all
theologians would agree.
The National Conference of Catholic Bishops, for example, has
stated that the regulation affronts Catholic conscience in mandating
“sponsoring of, and payment for, insurance as employers ... without
even the semblance of an exemption.” “March 14 Statement on
Religious Freedom and HHS Mandate,” A Statement of the
Administrative Committee of the United States Conference of Catholic
Bishops.4 Certainly in other contexts, secular laws recognize a clear
distinction between payment of a salary by one party and the
4 This document may be found at the following website:
http://www.usccb.org/issues-and-action/religious-liberty/march-14-
statement-on-religious-freedom-and-hhs-mandate.cfm (last visited on
February 19, 2013).
17
subsequent use of that money by another. An employer whose
employee uses his paycheck for his own devices is not thereby
considered complicit in the later conduct.
For example, consider a Quaker-owned business’s commitment to
pacifism and its owner’s objections to handguns. A hypothetical
mandate requiring a business either to provide handguns to its
employees for self-defense or to contract with a weapons supplier to
provide the guns could well be seen as qualitatively different from
paying wages that would permit such purchases. The Seventh Circuit
has addressed this point precisely: the ‘incremental difference’
argument “misunderstands the substance of the claim. The religious-
liberty violation at issue here inheres in the coerced coverage of
contraception, abortifacients, sterilization, and related services, not—or
perhaps more precisely, not only—in the later purchase or use of
contraception or related services.” Korte, 2012 WL 6757353, *3
(emphasis in original).
The district court’s decision is also not bolstered by its seeming
attack on the policy judgments that informed RFRA itself. The district
court says that it does not read RFRA to “subject virtually every
18
government action to a potential private veto based on a person’s ability
to articulate a sincerely held objection tied in some rational way to a
particular religious belief,” because “[s]uch a rule would paralyze the
normal process of governing, and threaten to replace a generally
uniform pattern of economic and social regulation with a patchwork
array of theocratic fiefdoms.” R. 42 at 13, Pg ID #751. But RFRA in
fact explicitly applies “even if the burden results from a rule of general
applicability,” precisely so as to prevent the ‘uniform’ imposition of
undifferentiated law in a way that substantially burdens religious free
exercise unless strict scrutiny is satisfied. 42 U.S.C. § 2000bb-1(a).
That is the whole point of RFRA.
Indeed, a unanimous Supreme Court addressed the district court’s
concern just seven years ago in no uncertain terms:
The Government’s argument echoes the classic rejoinder of
bureaucrats throughout history: If I make an exception for
you, I’ll have to make one for everybody, so no exceptions.
But RFRA operates by mandating consideration, under the
compelling interest test, of exceptions to ‘rules of general
applicability …. Congress determined that the legislated
test ‘is a workable test for striking sensible balances between
religious liberty and competing prior governmental
interests.’ [42 U.S.C.] § 2000bb(a)(5).
O Centro, 546 U.S. at 436.
19
Moreover, to enmesh the courts in making religious distinctions as
to what matters of doctrine adherents are justified in regarding as
significant and what matters the believers see as important but really
should not is to embark on a dangerous course that RFRA is designed to
deter. Judge Rogers makes this point eloquently. See Autocam, 2012
U.S. App. Lexis 26736 (Rogers, J., dissenting from denial of injunction
pending appeal: “If walking this fine line is sincerely accepted as a
condition for salvation, it is not up to the government to say that the
line is too fine. …. RFRA requires that the government interest be
strong before forcing people to cross the line”).
The Supreme Court has underscored this fundamental point:
“Courts are not arbiters of scriptural interpretation.” Thomas v. Review
Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 716 (1981); see also
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North
America, 344 U.S. 94, 113 (1952) (“whenever the questions of discipline,
or of faith, or ecclesiastical rule, custom, or law have been decided by
the highest of these church judicatories to which the matter has been
carried, the legal tribunals must accept such decisions as final, and as
binding on them”) (internal quotes omitted). And of course, in RFRA,
20
Congress defined the “exercise of religion” as “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.”
42 U.S.C. § 2000bb-2 (referencing 42 U.S.C. § 2000cc-5) (emphasis
added).
Yet in determining the religious significance of what it weighs and
deems “incremental differences” (and in offering suggestions as to other
courses that it thinks might make Autocam “more comfortable
religiously and morally,” see R. 42 at 11, n. 1, Pg ID #749), the district
court engages in just the sort of entangling determination that RFRA
and Supreme Court precedent forbid. The better reasoned approach is
to accept the sincere statements of the party regarding its religious
principles. See, e.g., Legatus v. Sebelius, No. 12 12061, 2012 WL
5359630, at *6 (E.D. MI., Oct. 31, 2012) (following lead of “courts [that]
often simply assume that a law substantially burdens a person’s
exercise of religion when that person so claims,” citing extensive
authority); Monaghan & Domino’s Farm Corp. v. Sebelius, No. 12
15488, 2012 WL 6738476, at *3 (E.D. MI., Dec. 30, 2012) (“[T]he Court
is in no position to decide whether and to what extent Monaghan would
violate his religious beliefs by complying with the mandate.… Other
21
courts have assumed that a law substantially burdens a person’s free
exercise of religion based on that person’s assertions…. [Therefore], the
Court will assume that abiding by the mandate would substantially
burden … adherence to Catholic teachings.”).
Both the Seventh Circuit and the Eighth Circuit very recently
have found a likelihood of “substantial burden” in this context sufficient
to support appeals court issuance of injunctions pending appeal. Annex
Medical, Inc. v. Sebelius, No. 13 1118, 2013 U.S. App. Lexis 2497 (8th
Cir., Feb. 1, 2013); O’Brien v. U.S. Dep’t HHS, No. 12 3357, 2012 U.S.
App. Lexis 26633 (8th Cir., Nov. 28 , 2012); Grote v. Sebelius, No. 13
1077, 2013 WL 362725 (7th Cir. Jan. 30, 2013); Korte, 2012 WL
6757353, *3 (7th Cir. Dec. 28, 2012). But see Conestoga v. Sebelius, No.
13-1144 (3d Cir. Jan. 29, 2013), slip. op., p. 3 (no substantial burden
based on court’s view that claim was not advanced by RFRA “person”).
The court below cites United States v. Lee, 455 U.S. 252, 257 (1982), for
the proposition that it is not “‘within the judicial function and judicial
competence’ to determine whether Plaintiffs have a proper
interpretation of the Catholic faith,” R. 42 at 13, Pg ID #751. It should
not then disregard that prohibition in dismissing the substantial
22
burden concerns. See also Thomas, 450 U.S. at 716 (“it is not within the
judicial function and judicial competence to inquire” into accuracy of
religious conceptions).
The district court elsewhere in its opinion also suggests that
Autocam does “have a third option: namely, drop all group coverage”
and pay a lesser penalty than would be incurred by providing broad
group coverage absent the mandated contraception provisions. R. 42 at
16, Pg ID #754. The opinion elaborates:
The Court does note an irony: namely, one very real
possibility … is that Plaintiffs will choose to terminate their
existing coverage and run the risk of a shared responsibility
payment obligation under Section 4980H, rather than the
more draconian financial consequences under Section 4980D
for non-compliant group plans. This would, of course, leave
Autocam’s employees without group coverage of any kind ….
The net result of this scenario would seem to be a loss for
everyone – for the Autocam Plaintiffs, for the Autocam
employees, and for the Defendants …. But such a result is
traceable directly to the policy decisions of Congress and the
Executive Branch in selecting the substance, the timing, and
enforcement incentives of the rules at issue.
Id. at 20-21, Pg ID #758-59. Well established precedent, however,
makes clear that the relevant penalty structures do indeed create a
substantial burden under RFRA.
23
Autocam with its hundreds of employees would be liable for
penalties of $100 per employee per day for failing to include the
mandated coverage in its insurance plan, amounting to some
$19,000,000 in fines yearly; the district court does not question the
verified statement that such penalties would be “ruinous.” Id. at 5, Pg
ID #743. The court further says, however – more than once – that
should Autocam “alternatively choose not to offer any group plan at all,”
it could face penalties for such a choice under 26 U.S.C. § 4980 H (of
$2,000 per employee per year), but that “Plaintiffs have not claimed
that any such payment obligation would be ruinous.” Id. at 5, 16, Pg ID
#743, 754. There should be no mistake that this is a Hobson’s choice of
the sort RFRA was designed to prevent. And the RFRA test, of course,
is not limited to whether a monetary penalty would be “ruinous.”
As this Court has outlined the framework in the related context of
RLUIPA, governmental imposition will be classified as a substantial
burden when that action forces a choice between “‘following the precepts
of … religion and forfeiting benefits’ or when the action in question
placed ‘substantial pressure on an adherent to modify his behavior and
to violate his beliefs.’” Hayes v. Tennessee, 424 Fed. Appx. 546, 554-55
24
(6th Cir. 2011) (citations omitted). Indeed, the Supreme Court itself
has made clear this same point:
Where the state conditions receipt of an important benefit
upon conduct proscribed by a religious faith, or where it
denies such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a
burden upon religion exists. While the compulsion may be
indirect, the infringement upon free exercise is nonetheless
substantial.
Thomas, 450 U.S. at 718-19.
Here, the penalties imposed for taking the course outlined by the
district court and ending all group insurance (so as to escape other
penalties for failing to comply with the mandate) could approach a
million dollars or more. And this action would undermine Autocam’s
commitment to its employees, and cause what the district court
concedes would be an “obvious labor relations impact.” R. 42 at 16, Pg
ID #754. Under these circumstances, the prohibited “pressure” is
beyond question. Indeed, in the Yoder case cited by RFRA, the Supreme
Court found a substantial burden in a $5.00 fine for violation of the
compulsory school attendance law at issue there. 406 U.S. at 208, 219.
The coercion here far surpasses what the Supreme Court found in Yoder
to be an unconstitutional burden.
25
Moreover, this “alternative” would itself cause Autocam to
contradict guiding religious beliefs. The verified complaint alleges, and
the district court does not gainsay, the significant religious
commitments involved:
Plaintiffs have earnestly endeavored over the years to
provide their employees with high quality employee health
coverage. … [T]his is a practical need insofar as they must
be able to attract skilled employees in order … to remain in
business…. But precisely because Plaintiffs seek to live their
Christian vocation as individuals who do not check their
religious beliefs at the door of the workplace, they have gone
above and beyond the minimal requirements of the market
in their treatment of their employees…. [Including through
the good benefits of the health plan as detailed,] Autocam
seeks to recognize and support the dignity of their
employees.”
R. 1 at ¶¶ 35-36, Pg ID #7-8.
Just like the “ruinous” fines for direct violation of the mandate,
the district court’s suggested option of Autocam abandoning employee
group insurance, and thereby incurring significant fines while
curtailing other aspects of the Kennedy’s family sincerely professed
“Christian vocation,” also constitutes a substantial burden under RFRA.
See, e.g., Tyndale House Publishers v. Sebelius, No. 12 1635, 2012 WL
5817323, at *11 (D. D.C., Nov. 16, 2012) (“Government action can
substantially burden a plaintiff’s religious exercise even if the law only
26
results in the plaintiff being forced to forgo a government benefit [citing
Sherbert]. … As in Yoder, the contraceptive coverage mandate
affirmatively compels the plaintiffs to violate their religious beliefs in
order to comply with the law and avoid the sanctions that would be
imposed for their noncompliance. Indeed, the pressure on the plaintiffs
to violate their religious beliefs is ‘unmistakable.’”).
B. The United States does not have a compelling interest
in applying this mandate to Autocam, and this
coercion is not the least restrictive means.
The federal government is required under RFRA’s strict scrutiny
to demonstrate that the mandate’s burden as applied to Autocam
furthers a compelling governmental interest through the least
restrictive means. The Supreme Court has held both that “the burden
is placed squarely on the Government by RFRA,” and that “the burdens
at the preliminary injunction stage track the burdens at trial.”
O Centro, 546 U.S. at 429. The federal government has not met its
strict scrutiny burdens.
In O Centro, the Supreme Court explained that “RFRA requires
the Government to demonstrate that the compelling interest test is
satisfied through application of the challenged law ‘to the person’ – the
27
particular claimant whose sincere exercise of religion is being
substantially burdened.” 546 U.S. at 430-31. This is a “more focused
inquiry” under which the statute commands that courts look “beyond
broadly formulated interests justifying the general applicability of
government mandates and scrutinize[ ] the asserted harm of granting
specific exemptions to particular religious claimants.” Id. at 432, 431.
This sharpened inquiry undercuts the federal government’s
compelling interest position that no exception can be made for Autocam.
There is no dispute that the HHS Mandate already contains multiple
categories of employers to which the mandate does not currently apply:
(1) religious organizations, as quite narrowly defined; (2) all employers
with fewer than 50 employees; and (3) employers with “grandfathered”
plans covering what one court says are more than 190 million plan
participants. See Newland, No. 12-cv-1123, 2012 WL 3069154, *7
(“[T]his massive exemption [for grandfathered plans] completely
undermines any compelling interest in applying the preventive care
coverage mandate to Plaintiffs.”); Legatus, No. 12-12061, 2012 WL
5359630, *9 (“About 193 million health plans were in existence on
March 23, 2010, and presumably qualified as grandfathered.”); Tyndale
28
House, 2012 WL 5817323, *18 (“The existence of these exemptions
significantly undermines the defendants’ interest in applying the
contraceptive coverage mandate to the plaintiffs. Thus, [given the lack
of proof regarding a harm for exemption of the particular claimants],
and considering the myriad of exemptions to the contraceptive coverage
mandate already granted by the government, the defendants have not
shown a compelling interest in requiring the plaintiffs to provide the
specific contraceptives to which they object.”); American Pulverizer Co.
v. U.S. Dep’t of HHS, 2012 WL 6951316 (W.D. Mo. Dec. 20), *4
(“[S]ignificant exemptions … exist. Accordingly, these exemptions
undermine any compelling interest in applying the preventative
coverage mandate to Plaintiffs.”).
At least equally important for strict-scrutiny analysis, the federal
government has other less restrictive means available by which to
accomplish its desired ends. Those alternatives range from direct
purchase and distribution to tax incentives. The district court in
Newland delineated arguments of various ways in which the
Government could directly provide contraception products and services,
including: “creation of a [government-provided] contraception
29
insurance plan with free enrollment, direct compensation of contra-
ception and sterilization providers, [and] creation of a tax credit or
deduction for contraceptive purchases ….” 2012 WL 3069154, *7 (D.
Co.). Indeed, tax credits are the mechanism by which the Act attempts
to enable employers with fewer than 50 employees to obtain health
care, as the United States noted below. See 42 U.S.C. § 18021;
§ 18031(d)(2)(B)(i).
Here, as the Newland court also recognized, the federal govern-
ment has failed to carry its burden:
Defendants have failed to adduce facts establishing that
government provision of contraception services will
necessarily entail logistical and administrative obstacles
defeating the ultimate purpose of providing no-cost
preventive health care coverage to women. Once again, the
current existence of analogous programs heavily weighs
against such an argument.
2012 WL 3069154, *8.
Just as the Seventh Circuit twice has held in similar cases, “the
government has not … demonstrated that requiring religious objectors
to provide cost-free contraception coverage is the least restrictive means
of increasing access to contraception.” Grote, 2013 WL 362725, *3;
Korte, 2012 WL 6757353, *4. The federal government has not proven
30
that its mandate as applied to Autocam is the least restrictive
alternative for achieving any compelling end. RFRA does not permit
such heavy-handed, undifferentiated impositions.
C. RFRA applies to protect the operations of Autocam’s
for-profit business as run according to religious
principles.
In RFRA, “Congress has applied the protection of the act to
‘person[s],’ not simply to individuals.” R. 42 at 7, Pg ID #745. As the
district court observed: “This suggests a Congressional intention to
apply RFRA’s protection to entities as well as to individuals.” Id.
Because of its determination on the question of whether the mandate
“substantially burdens” free exercise, however, the decision below does
not reach whether RFRA protections extend to Autocam Corporation
and Autocam Medical. The majority view of the courts that have
examined the issue in this context is correct: Plaintiffs such as those
here have standing to invoke the protections that RFRA was meant to
provide. See, e.g., Korte, No. 12-3841, 2012 WL 6757353, *3 (7th Circuit
rejects “the government’s primary argument … that because K&L
Contractors is a secular, for-profit enterprise, no rights under RFRA are
implicated at all…. That the Kortes operate their business in the
31
corporate form is not dispositive of their claim. … The contraception
mandate applies to K&L Contractors as an employer of more than 50
employees, and the Kortes would have to violate their religious beliefs
to operate their company in compliance with it.”); Grote, No. 13-1077,
2013 WL 362725, *2 (Korte “considered the likelihood of success of a
claim brought by a secular, for-profit corporation owned and operated
by a Catholic family in accordance with the teachings of the Catholic
faith…. If anything, the Grote family and Grote Industries have a more
compelling case …. [because] the Grote Industries health plan is self-
insured and has never provided contraception coverage.”); Monaghan,
No. 12-15488, 2012 WL 6738476, *3 (“For purposes of the instant
Motion, it is sufficient for the Court to find that Monaghan may bring a
claim under the RFRA based on his argument that the mandate
requires him to perform an act that is at odds with his religious
beliefs.”). Even for the courts that have determined that for-profit
secular businesses are not covered by the First Amendment and RFRA,
see, e.g., Hobby Lobby Stores v. Sebelius, 870 F. Supp. 2d 1278, 1291
(2012), the point that a corporation – in contrast to a natural person –
does not “pray, worship, observe sacraments” would seem to apply
32
equally to non-profit corporations. But there is no dispute that various
non-profit corporations are covered, as the United States acknowledged
below in its analysis of religious organizations. See R. 17, Response to
Preliminary Injunction, pp. 10-11, Pg ID #186-187. This distinction
between a secular as against a religious organization is untenable.
There is no dispute that First Amendment protection for speech
and association applies both to religious and secular organizations.
Citizens United v. Fed. Election Comm’n, 558 U.S. 310; 130 S. Ct. 876,
900 (2010) (“The Court has thus rejected the argument that political
speech of corporations or other associations should be treated
differently under the First Amendment simply because such
associations are not ‘natural persons.’”). Indeed, the analysis on which
the Supreme Court based its decision in Citizens United appears to
exclude the Government’s claim that secular businesses fall outside the
purview of the First Amendment’s religious protections:
Freedom of speech and the other freedoms encompassed by
the First Amendment always have been viewed as
fundamental components of the liberty safeguarded by the
Due Process Clause, and the Court has not identified a
separate source for the right when it has been asserted by
corporations.
33
First National Bank of Boston v. Bellotti, 435 U.S. 765, 780 (1978)
(citations omitted; emphasis added); see also Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 649
(2012) (vindicating free exercise rights of religious organizations).
Consider the frequently posited example of a Jewish deli privately
owned by a Jewish family that decides on religious principle that it will
not sell pork. The suggestion that RFRA affords this decision no
protection because the deli is a commercial business would reflect an
impoverished understanding of both the First Amendment and of
RFRA. It rests on an assumption that many religions reject – that a
person’s life can be divided into component parts, some of which are
governed by religious conviction, and some of which are not. A federal
mandate to sell pork would offend the religious practice of such a
business and its family owners. The claim otherwise would limit the
religious practice to only those entities that are owned by religious
institutions or sell exclusively religious goods. But the First
Amendment and RFRA are for everyone, not just for government-
certified religious organizations.
34
This conclusion that a secular business, particularly one that is
family-owned or closely held, is protected under RFRA comports with
common sense. On a basic level, a corporation is a group formed to
achieve a particular mission and is made up of natural persons. The
owners may elect to operate their businesses on religious principles
even if their mission is secular in nature.
A misguided effort to circumscribe religious liberty so as to protect
only organizations that provide explicitly religious products or services
would be similar to confining religious practice to houses of worship, as
if religious principles may not animate a corporation – or a person – in
public and commercial life. It would be akin to an error that suggests
that only the clergy should be at liberty freely to express religious
views. But that would misunderstand religion, religious freedom, and
the protections that RFRA extends to all persons. And such a
distinction is nowhere justified in RFRA’s text.
Here, “[t]he Kennedy Plaintiffs own and control the Autocam
Plaintiffs,” R. 42 at 2, Pg ID #740. Because they “seek to live their
Christian vocation” and not “check their religious beliefs at the door …,
they have gone above and beyond the minimal requirements of the
35
market,” R. 1 Complaint at ¶¶35-36, Pg ID #7. Autocam’s health plan
has been structured to accord with the religious principles they recite.
Id. In similar circumstances, where the businesses do not “present any
free exercise rights … different from or greater than” the rights of the
owners, courts have held that they “have standing to assert the free
exercise rights of [their] owners.” Stormans, Inc. v. Selecky, 586 F.3d
1109, 1120 (9th Cir. 2009) (state mandate of pharmacy sale of
contraceptive drugs); Tyndale House, No. 12-1635, 2012 WL 5817323,
*6-8. Further, where there is injury and a “congruence of interests”
between company and owner, and where the challenged regulation
applies to the company and not directly against the owners, the
company has standing to assert any free exercise rights that the
government may assert cannot be advanced by the individuals. See,
Tyndale House, at **27-33 (noting that federal defendants there had
urged that no Tyndale entity would have standing to challenge the
mandate). After all, RFRA was not written by Joseph Heller and was
not meant to be a Catch 22. It is supposed to be a real protection for all
Americans.
36
CONCLUSION
Amici respectfully request that this Court reverse the ruling below
and grant the preliminary injunction sought by Autocam.
Respectfully submitted,
Bill Schuette
Attorney General
John J. Bursch
Solicitor General
Co-Counsel of Record
/s/ B. Eric Restuccia (P49550)
B. Eric Restuccia
Deputy Solicitor General
Department of Attorney General
P.O. Box 30212
Lansing, MI 48909
517-373-1124
Michael Dewine
Attorney General of Ohio
/s/Frederick D. Nelson
Senior Advisor to the Attorney
General
30 East Broad Street, 17th Floor
Columbus, OH 43215
614-728-4947
frederick.nelson@ohioattorneyge
neral.gov
Counsel for Amici Curiae
States of Michigan and Ohio
Dated: February 19, 2013
37
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/s/ B. Eric Restuccia (P49550)
B. Eric Restuccia
Deputy Solicitor General
Department of Attorney General
P.O. Box 30212
Lansing, MI 48909
517-373-1124
/s/Frederick D. Nelson
Senior Advisor to the Attorney
General
30 East Broad Street, 17th Floor
Columbus, OH 43215
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/s/ B. Eric Restuccia (P49550)
B. Eric Restuccia
Deputy Solicitor General
Department of Attorney General
P.O. Box 30212
Lansing, MI 48909
517-373-1124
/s/Frederick D. Nelson
Senior Advisor to the Attorney
General
30 East Broad Street, 17th Floor
Columbus, OH 43215
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