BURWELL v. HOBBY LOBBY STORES, INC.

law.cornell.edu/supremecourt/text/13-354

Syllabus

BURWELL v. HOBBY LOBBY STORES, INC. ( )

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

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in

connection with this case, at the time the opinion is issued.The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321.

SUPREME COURT OF THE UNITED STATES

Syllabus

BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. v. HOBBY LOBBY

STORES, INC., et al.

certiorari to the united states court of appeals for the tenth circuit

No. 13–354. Argued March 25, 2014—Decided June 30, 20141

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from]
substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of
general applicability” unless the Government “demonstrates that application of the burden to
the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–
1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a
system of religious belief.” §2000cc–5(7)(A).

At issue here are regulations promulgated by the Department of Health and Human Services
(HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant
here, requires specified employers’ group health plans to furnish “preventive care and
screenings” for women without “any cost sharing requirements,” 42 U. S. C. §300gg–13(a)(4).
Congress did not specify what types of preventive care must be covered; it authorized the
Health Resources and Services Administration, a component of HHS, to decide. Ibid.
Nonexempt employers are generally required to provide coverage for the 20 contraceptive
methods approved by the Food and Drug Administration, including the 4 that may have the
effect of preventing an already fertilized egg from developing any further by inhibiting its
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attachment to the uterus. Religious employers, such as churches, are exempt from this
contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations
with religious objections to providing coverage for contraceptive services. Under this
accommodation, the insurance issuer must exclude contraceptive coverage from the
employer’s plan and provide plan participants with separate payments for contraceptive
services without imposing any cost-sharing requirements on the employer, its insurance plan,
or its employee beneficiaries.

In these cases, the owners of three closely held for-profit corporations have sincere Christian
beliefs that life begins at conception and that it would violate their religion to facilitate access to
contraceptive drugs or devices that operate after that point. In separate actions, they sued
HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free
Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it
requires them to provide health coverage for the four objectionable contraceptives. In No. 13–
356, the District Court denied the Hahns and their company—Conestoga Wood Specialties—a
preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not
“engage in religious exercise” under RFRA or the First Amendment, and that the mandate
imposed no requirements on the Hahns in their personal capacity. In No. 13–354, the Greens,
their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a
preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses are
“persons” under RFRA, and that the corporations had established a likelihood of success on
their RFRA claim because the contraceptive mandate substantially burdened their exercise of
religion and HHS had not demonstrated a compelling interest in enforcing the mandate against
them; in the alternative, the court held that HHS had not proved that the mandate was the
“least restrictive means” of furthering a compelling governmental interest.

Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive
mandate violate RFRA. Pp. 16–49.

(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations
like Conestoga, Hobby Lobby, and Mardel. Pp. 16–31.

(1) HHS argues that the companies cannot sue because they are for-profit corporations, and
that the owners cannot sue because the regulations apply only to the companies, but that
would leave merchants with a difficult choice: give up the right to seek judicial protection of
their religious liberty or forgo the benefits of operating as corporations. RFRA’s text shows that
Congress designed the statute to provide very broad protection for religious liberty and did not
intend to put merchants to such a choice. It employed the familiar legal fiction of including
corporations within RFRA’s definition of “persons,” but the purpose of extending rights to
corporations is to protect the rights of people associated with the corporation, including
shareholders, officers, and employees. Protecting the free-exercise rights of closely held
corporations thus protects the religious liberty of the humans who own and control them.
Pp. 16–19.

(2) HHS and the dissent make several unpersuasive arguments. Pp. 19–31.
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(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition
of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U. S. C. §1. The Court
has entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g.,
Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418. And HHS’s
concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches
any argument that the term does not reach for-profit corporations; no conceivable definition of
“person” includes natural persons and nonprofit corporations, but not for-profit corporations.
Pp. 19–20.

(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby
Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive
explanation for this conclusion. The corporate form alone cannot explain it because RFRA
indisputably protects nonprofit corporations. And the profit-making objective of the corporations
cannot explain it because the Court has entertained the free-exercise claims of individuals
who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599.
Business practices compelled or limited by the tenets of a religious doctrine fall comfortably
within the understanding of the “exercise of religion” that this Court set out in Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872. Any suggestion that for-profit
corporations are incapable of exercising religion because their purpose is simply to make
money flies in the face of modern corporate law. States, including those in which the plaintiff
corporations were incorporated, authorize corporations to pursue any lawful purpose or
business, including the pursuit of profit in conformity with the owners’ religious principles.
Pp. 20–25.

(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith
Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for
for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition
of “exercise of religion” was meant to be tied to pre-Smith interpretations of the First
Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment
surely dispels any doubt that Congress intended to separate the definition of the phrase from
that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher
Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations
can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide
very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in
ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs
whose claims the Court had recognized before Smith. Pp. 25–28.

(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit
corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded
corporations, but HHS has not pointed to any example of a publicly traded corporation
asserting RFRA rights, and numerous practical restraints would likely prevent that from
occurring. HHS has also provided no evidence that the purported problem of determining the
sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from
RFRA’s protection. That disputes among the owners of corporations might arise is not a
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problem unique to this context. State corporate law provides a ready means for resolving any
conflicts by, for example, dictating how a corporation can establish its governing structure.
Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 29–31.

(b) HHS’s contraceptive mandate substantially burdens the exercise of religion. Pp. 31–38.

(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere
religious belief that life begins at conception. If they and their companies refuse to provide
contraceptive coverage, they face severe economic consequences: about $475 million per
year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel.
And if they drop coverage altogether, they could face penalties of roughly $26 million for
Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. P. 32.

(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average
cost of providing insurance, and therefore that dropping insurance coverage eliminates any
substantial burden imposed by the mandate. HHS has never argued this and the Court does
not know its position with respect to the argument. But even if the Court reached the
argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious
reasons for providing health-insurance coverage for their employees, and it is far from clear
that the net cost to the companies of providing insurance is more than the cost of dropping
their insurance plans and paying the ACA penalty. Pp. 32–35.

(3) HHS argues that the connection between what the objecting parties must do and the end
that they find to be morally wrong is too attenuated because it is the employee who will choose
the coverage and contraceptive method she uses. But RFRA’s question is whether the
mandate imposes a substantial burden on the objecting parties’ ability to conduct business in
accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult
and important question of religion and moral philosophy, namely, the circumstances under
which it is immoral for a person to perform an act that is innocent in itself but that has the effect
of enabling or facilitating the commission of an immoral act by another. It is not for the Court to
say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court
considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine”
whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and
there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672; and Board of Ed. of
Central School Dist. No. 1 v. Allen, 392 U. S. 236–249, distinguished. Pp. 35–38.

(c) The Court assumes that the interest in guaranteeing cost-free access to the four
challenged contraceptive methods is a compelling governmental interest, but the Government
has failed to show that the contraceptive mandate is the least restrictive means of furthering
that interest. Pp. 38–49.

(1) The Court assumes that the interest in guaranteeing cost-free access to the four
challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.

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(2) The Government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has
not shown that it lacks other means of achieving its desired goal without imposing a substantial
burden on the exercise of religion. The Government could, e.g., assume the cost of providing
the four contraceptives to women unable to obtain coverage due to their employers’ religious
objections. Or it could extend the accommodation that HHS has already established for
religious nonprofit organizations to non-profit employers with religious objections to the
contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious
beliefs that providing insurance coverage for the contraceptives at issue here violates their
religion and it still serves HHS’s stated interests. Pp. 40–45.

(3) This decision concerns only the contraceptive mandate and should not be understood to
hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must
necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield
for employers who might cloak illegal discrimination as a religious practice. United States v.
Lee, 455 U. S. 252, which upheld the payment of Social Security taxes despite an employer’s
religious objection, is not analogous. It turned primarily on the special problems associated
with a national system of taxation; and if Lee were a RFRA case, the fundamental point would
still be that there is no less restrictive alternative to the categorical requirement to pay taxes.
Here, there is an alternative to the contraceptive mandate. Pp. 45–49.

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

Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and
Thomas, JJ., joined. Kennedy, J., filed a concurring opinion. Ginsburg, J., filed a dissenting
opinion, in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to all but
Part III–C–1. Breyer and Kagan, JJ., filed a dissenting opinion.

Notes

TOP
Opinion

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of
the United States Reports. Readers are requested to notify the Reporter of Decisions,
Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other
formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 13–354 and 13–356

_________________

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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

6/46
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.

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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
8/46
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

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).

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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
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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

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,
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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.

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
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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

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
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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.

1
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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”).

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 Saintsv.
Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle

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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
21 Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.

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
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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.

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.

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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.

Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit
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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-
30 19/46
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.

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.

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
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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.

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

21/46
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
22/46
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.

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).

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

23/46
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).

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.
24/46
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
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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.

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

26/46
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
27/46
decision on that statutory question makes it unnecessary to reach the First Amendment claim
raised by Conestoga and the Hahns.

The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit
in No. 13–356 is reversed, and that case is remanded for further proceedings consistent with
this opinion.

It is so ordered.

Notes

TOP
Concurrence

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 Kennedy, concurring.

It seems to me appropriate, in joining the Court’s opinion, to add these few remarks. At the

28/46
outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed
to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper
interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on
the purpose of that statute. 42 U. S. C. §2000bb et seq. It is to ensure that interests in religious
freedom are protected. Ante, at 5–6; post, at 8–9 (Ginsburg, J., dissenting).

In our constitutional tradition, freedom means that all persons have the right to believe or strive
to believe in a divine creator and a divine law. For those who choose this course, free exercise
is essential in preserving their own dignity and in striving for a self-definition shaped by their
religious precepts. Free exercise in this sense implicates more than just freedom of belief. See
Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) . It means, too, the rightto express those
beliefs and to establish one’s religious(or nonreligious) self-definition in the political, civic, and
economic life of our larger community. But in a complex society and an era of pervasive
governmental regulation, defining the proper realm for free exercise can be difficult. In these
cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of
their own closely held, for-profit corporations. They claim protection under RFRA, the federal
statute discussed with care and in detail in the Court’s opinion.

As the Court notes, under our precedents, RFRA imposes a “ ‘stringent test.’ ” Ante, at 6
(quoting City of Boerne v. Flores, 521 U. S. 507, 533 (1997) ). The Government must
demonstrate that the application of a substantial burden to a person’s exercise of religion “(1)
is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” §2000bb–1(b).

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes
the case that the mandate serves the Government’s compelling interest in providing insurance
coverage that is necessary to protect the health of female employees, coverage that is
significantly more costly than for a male employee. Ante, at 39; see, e.g., Brief for HHS in No.
13–354, pp. 14–15. There are many medical conditions for which pregnancy is
contraindicated. See, e.g., id., at 47. It is important to confirm that a premise of the Court’s
opinion is its assumption that the HHS regulation here at issue furthers a legitimate and
compelling interest in the health of female employees. Ante, at 40.

But the Government has not made the second showing required by RFRA, that the means it
uses to regulate is the least restrictive way to further its interest. As the Court’s opinion
explains, the record in these casesshows that there is an existing, recognized, workable, and
already-implemented framework to provide coverage. That framework is one that HHS has
itself devised, that the plaintiffs have not criticized with a specific objection that has been
considered in detail by the courts in this litigation, and that is less restrictive than the means
challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 9, 43–44.

The means the Government chose is the imposition of a direct mandate on the employers in
these cases. Ante, at 8–9. But in other instances the Government has allowed the same
contraception coverage in issue here to be provided to employees of nonprofit religious
organizations, as an accommodation to the religious objections of those entities. See ante, at
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9–10, and n. 9, 43–44. The accommodation works by requiring insurance companies to cover,
without cost sharing, contraception coverage for female employees who wish it. That
accommodation equally furthers the Government’s interest but does not impinge on the
plaintiffs’ religious beliefs. See ante, at 44.

On this record and as explained by the Court, the Government has not met its burden of
showing that it cannot accommodate the plaintiffs’ similar religious objections under this
established framework. RFRA is inconsis-tent with the insistence of an agency such as HHS
on distinguishing between different religious believers—bur-dening one while accommodating
the other—when itmay treat both equally by offering both of them the same accommodation.

The parties who were the plaintiffs in the District Courts argue that the Government could pay
for the methods that are found objectionable. Brief for Respondents in No. 13–354, p. 58. In
discussing this alternative, the Court does not address whether the proper response to a
legitimate claim for freedom in the health care arena is for the Government to create an
additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom
should be protected by creating incentives for additional government constraints. In these
cases, it is the Court’s understanding that an accommodation may be made to the employers
without imposition of a whole new program or burden on the Government. As the Court makes
clear, this is not a case where it can be established that it is difficult to accommodate the
government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–
44.

“[T]he American community is today, as it long has been, a rich mosaic of religious faiths.”
Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (Kagan, J., dissenting) (slip op., at
15). Among the reasons the United States is so open, so tolerant, and so free is that no person
may be restricted or demeaned by government in exercising his or her religion. Yet neither
may that same exercise unduly restrict other persons, such as employees, in protecting their
own interests, interests the law deems compelling. In these cases the means to reconcile
those two priorities are at hand in the existing accommodation the Government has designed,
identified, and used for circumstances closely parallel to those presented here. RFRA requires
the Government to use this less restrictive means. As the Court explains, this existing model,
designed precisely for this problem, might well suffice to distinguish the instant cases from
many others in which it is more difficult and expensive to accommodate a governmental
program to countless religious claims based on an alleged statutory right of free exercise.
Ante, at 45–46.

For these reasons and others put forth by the Court, I join its opinion.

TOP
Dissent

SUPREME COURT OF THE UNITED STATES

_________________
30/46
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 Ginsburg, with whom Justice Sotomayor joins, and with whom Justice Breyer and
Justice Kagan join as to all but Part III–C–1, dissenting.

In a decision of startling breadth, the Court holds that commercial enterprises, including
corporations, along with partnerships and sole proprietorships, can opt out of any law (saving
only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at
16–49. Compelling governmental interests in uniform compliance with the law, and
disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides,
at least when there is a “less restrictive alternative.” And such an alternative, the Court
suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-
based exemption, the government, i.e., the general public, can pick up the tab. See ante, at
41–43. 1

The Court does not pretend that the First Amendment’s Free Exercise Clause demands
religion-based accommodations so extreme, for our decisions leave no doubt on that score.
See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom
Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary
religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands
accommodation of a for-profit corporation’s religious beliefs no matter the impact that
accommodation may have on third parties who do not share the corporation owners’ religious
faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or

31/46
dependents of persons those corporations employ. Persuaded that Congress enacted RFRA
to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can
introduce, I dissent.

“The ability of women to participate equally in the economic and social life of the Nation has
been facilitated by their ability to control their reproductive lives.” Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992) . Congress acted on that understanding
when, as part of a nationwide insurance program intended to be comprehensive, it called for
coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction,
the Department of Health and Human Services (HHS), in consultation with public health
experts, promulgated regulations requiring group health plans to cover all forms of
contraception approved by the Food and Drug Administration (FDA). The genesis of this
coverage should enlighten the Court’s resolution of these cases.

The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care
that health plans must cover at no added cost to the plan participant or beneficiary. 2 Particular
services were to be recommended by the U. S. Preventive Services Task Force, an
independent panel of experts. The scheme had a large gap, how-ever; it left out preventive
services that “many women’s health advocates and medical professionals believe are critically
important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight,
Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the
ACA’s minimum coverage requirements a new category of preventive services specific to
women’s health.

Women paid significantly more than men for preventive care, the amendment’s proponents
noted; in fact, cost barriers operated to block many women from obtaining needed care at all.
See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68
percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen.
Mikulski) (“copayments are [often] so high that [women] avoid getting [preventive and
screening services] in the first place”). And increased access to contraceptive services, the
sponsors comprehended, would yield important public health gains. See, e.g., id., at 29768
(statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast
majority of [the 17 million women of reproductive age in the United States who are uninsured]
. . . . This expanded access will reduce unintended pregnancies.”).

As altered by the Women’s Health Amendment’s passage, the ACA requires new insurance
plans to include coverage without cost sharing of “such additional preventive care and
screenings . . . as provided for in comprehensive guidelines supported by the Health
Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U. S. C. §300gg–13(a)
(4). Thus charged, the HRSA developed recommendations in consultation with the Institute of
Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012). 3 The IOM convened a group of

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independent experts, including “specialists in disease prevention [and] women’s health”; those
experts prepared a report evaluating the efficacy of a number of preventive services. IOM,
Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report).
Consistent with the findings of “[n]umerous health professional associations” and other
organizations, the IOM experts determined that preventive coverage should include the “full
range” of FDA-approved contraceptive methods. Id., at 10. See also id., at 102–110.

In making that recommendation, the IOM’s report expressed concerns similar to those voiced
by congres-sional proponents of the Women’s Health Amendment. The report noted the
disproportionate burden women carried for comprehensive health services and the adverse
health consequences of excluding contraception from preventive care available to employees
without cost sharing. See, e.g., id., at 19 (“[W]omen are consistently more likely than men to
report a wide range of cost-related barriers to receiving . . . medical tests and treatments and
to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may
be contraindicated forwomen with certain medical conditions, for example, some congenital
heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be
used to reduce risk of endometrial cancer, among other serious medical conditions); id., at 103
(women with unintended pregnancies are more likely to experience depression and anxiety,
and their children face “increased odds of preterm birth and low birth weight”).

In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of
“[a]ll [FDA-]approved contraceptive methods, sterilization procedures, and patient education
and counseling for all women with reproductive capacity.” 4 Thereafter, HHS, the Department
of Labor, and the Department of Treasury promulgated regulations requiring group health plans
to include coverage of the contraceptive services recommended in the HRSA guidelines,
subject to certain exceptions, described infra, at 25–27. 5 This opinion refers to these
regulations as the contraceptive coverage requirement.

While the Women’s Health Amendment succeeded, a countermove proved unavailing. The
Senate voted down the so-called “conscience amendment,” which would have enabled any
employer or insurance provider to deny coverage based on its asserted “religious beliefs or
moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1,
2012) (debate and vote). 6 That amendment, Senator Mikulski observed, would have “pu[t] the
personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb.
29, 2012). Rejecting the “conscience amendment,” Congress left health care decisions—
including the choice among contraceptive methods—in the hands of women, with the aid of
their health care providers.

II

Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga 7 might assert is
foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990) . In Smith, two members of the Native American Church were

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dismissed from their jobs and denied unemployment benefits because they ingested peyote at,
and as an essential element of, a religious ceremony. Oregon law forbade the consumption of
peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial
of unemployment benefits violated their free exercise rights. The First Amendment is not
offended, Smith held, when “prohibiting the exercise of religion . . . is not the object of
[governmental regulation] but merely the incidental effect of a generally applicable and
otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individ-ual’s religious beliefs [do
not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State
is free to regulate”). The ACA’s contraceptive coverage requirement applies generally, it is
“otherwise valid,” it trains on women’s well being, not on the exerciseof religion, and any effect
it has on such exercise isincidental.

Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby
Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court
has clarified, must not significantly impinge on the interests of third parties. 8

The exemption sought by Hobby Lobby and Conestoga would override significant interests of
the corporations’ employees and covered dependents. It would deny legions of women who do
not hold their employers’ beliefs access to contraceptive coverage that the ACA would
otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th
527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the U. S.
Supreme Court] has exempted a religious objector from the operation of a neutral, generally
applicable law despite the recognition that the requested exemption would detrimentally affect
the rights of third parties.”). In sum, with respect to free exercise claims no less than free
speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose
begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).

III

Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on
RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of general applicability” unless the
government shows that application of the burden is “the least restrictive means” to further a
“compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress
“adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v.
O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006) .

RFRA’s purpose is specific and written into the statute itself. The Act was crafted 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.” §2000bb(b)(1). 9 See also §2000bb(a)(5)
(“[T]he compelling interest test as set forth in prior Federal court rulings isa workable test for

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striking sensible balances between religious liberty and competing prior governmental in-
terests.”); ante, at 48 (agreeing that the pre-Smith compelling interest test is “workable” and
“strike[s] sensible balances”).

The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No.
103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the
Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”);139 Cong. Rec.
26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling
interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress
expected courts considering RFRA claims to “look to free exercise cases decided prior to
Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103–88, pp. 6–7 (1993)
(hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith,
without“creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139
Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly
surprising that RFRA’s enactment in 1993 provoked little controversy. See Brief for Senator
Murray et al. as Amici Curiae 8 (hereinafter Senators Brief ) (RFRA was approved by a 97-to-3
vote in the Senate and a voice vote in the House of Representatives).

Despite these authoritative indications, the Court sees RFRA as a bold initiative departing
from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To
support its conception of RFRA as a measure detached from this Court’s decisions, one that
sets a new course, the Court points first to the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., which altered RFRA’s definition of
the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the
exercise of religion under the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.).
See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief.” §2000bb–2(4)
(2012 ed.) (cross-referencing §2000cc–5). That definitional change, according to the Court,
reflects “an obvious effort to effect a complete separation from First Amendment case law.”
Ante, at 7.

The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not
question the centrality of a particular religious exercise. But the amendment in no way
suggests that Congress meant to expand the class of entities qualified to mount religious
accommodation claims, nor does it relieve courts of the obligation to inquire whether a
government action substantially burdens a religious exercise. See Rasul v. Myers, 563 F. 3d
527, 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in
changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of
practices protected by RFRA, not increase the universe of individuals protected by RFRA.”);
H. R. Rep. No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and
Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no
helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, 265 F. 3d 1072, 1073
(CADC 2001) (“The [RLUIPA] amendments did not alter RFRA’s basic prohibition that the
10 35/46
‘[g]overnment shall not substantially burden a person’s exercise of religion.’ ”). 10

Next, the Court highlights RFRA’s requirement that the government, if its action substantially
burdens a person’s religious observance, must demonstrate that it chose the least restrictive
means for furthering a compelling interest. “[B]y imposing a least-restrictive-means test,” the
Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at
17, n. 18 (citing City of Boerne v. Flores, 521 U. S. 507 (1997) ). See also ante, at 6, n. 3. But
as RFRA’s statements of purpose and legislative history make clear, Congress intended only
to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See
supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should
not be construed more stringently or more leniently than it was prior to Smith.”); House
Report 7 (same).

The Congress that passed RFRA correctly read this Court’s pre-Smith case law asincluding
within the “compelling interest test” a “least restrictive means” requirement. See, e.g., Senate
Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court
ruled [in Sherbert], the Government must demonstrate that it is the least restrictive means to
achieve a compelling governmental interest.”). And the view that the pre-Smith test included a
“least restrictive means” requirement had been aired in testimony before the Senate Judiciary
Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate
Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas
Laycock).

Our decision in City of Boerne, it is true, states that the least restrictive means requirement
“was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, at 6, n. 3,
17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s
pre-Smith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t would plainly be incumbent upon
the [government] to demonstrate that no alternative forms of regulation would combat [the
problem] without infringing First Amendment rights.”); Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U. S. 707, 718 (1981) (“The state may justify an inroad on
religious liberty by showing that it is the least restrictive means of achieving some compelling
state interest.”). See also Berg, The New Attacks on Religious Freedom Legislation and Why
They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said
that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”). 11

With RFRA’s restorative purpose in mind, I turn to the Act’s application to the instant lawsuits.
That task, in view of the positions taken by the Court, requires consideration of several
questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit
corporations rank among “person[s]” who “exercise . . . religion”? Assuming that they do, does
the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is
the requirement “in furtherance of a compelling government interest”? And last, does the
requirement represent the least restrictive means for furthering that interest?

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Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court
falters at each step of its analysis.

RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that
“substantially burden a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis
added). This reference, the Court submits, incorporates the definition of “person” found in the
Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20.
The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e]
otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of
religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)
(a). 12 Whether a corporation qualifies as a “person” capable of exercis-ing religion is an inquiry
one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.”
Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free
exercise rights pertain to for-profit corporations.

Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification
for a religious exemption from a generally applicable law, whether under the Free Exercise
Clause or RFRA. 13 The absence of such precedent is just what one would expect, for the
exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief
Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being,
invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College
v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently
reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens
United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and
dissenting in part).

The First Amendment’s free exercise protections, the Court has indeed recognized, shelter
churches and other nonprofit religion-based organizations. 14 “For many individuals, religious
activity derives meaning in large measure from participation in a larger religious community,”
and “furtherance of the autonomy of religious organizations often furthers individual religious
freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s
“special solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), how-ever, is
just that. No such solicitude is traditional for com-mercial organizations. 15 Indeed, until today,
religious exemptions had never been extended to any entity operating in “the commercial,
profit-making world.” Amos, 483 U. S., at 337. 16

The reason why is hardly obscure. Religious organizations exist to foster the interests of
persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who
sustain the operations of those corporations commonly are not drawn from one religious
community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit
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corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Airlines,
Inc. v. Hardison, 432 U. S. 63–81 (1977) (Title VII requires reasonable accommodation of an
employee’s religious exercise, but such accommodation must not come “at the expense of
other[ employees]”). The distinction between a community made up of believers in the same
religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the
Court’s attention. 17 One can only wonder why the Court shuts this key difference from sight.

Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-
profit corporations surely is not grounded in the pre-Smith precedent Congress sought to
preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to
that effect likely would have been made in the legislation. See Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”).
The text of RFRA makes no such statement and the legislative history does not so much as
mention for-profit corporations. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114,
1169 (CA10 2013) (Briscoe, C. J., concurring in part and dissenting in part) (legislative record
lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-
profit corporations”). See also Senators Brief 10–13 (none of thecases cited in House or
Senate Judiciary Committeereports accompanying RFRA, or mentioned during floor speeches,
recognized the free exercise rights of for-profit corporations).

The Court notes that for-profit corporations may support charitable causes and use their funds
for religious ends, and therefore questions the distinction between such corporations and
religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (Kennedy, J.,
concurring) (criticizing the Government for “distinguishing between different religious believers
—burdening one while accommodating the other—when it may treat both equally by offering
both of them the same accommodation”). 18 Again, the Court forgets that religious
organizations exist to serve a community of believers. For-profit corporations do not fit that bill.
Moreover, history is not on the Court’s side. Recognition of the discrete characters of
“ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone,
Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries
before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49
(1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645
(discussing “eleemosynary” corporations, including those “created for the promotion of
religion”). To reiterate, “for-profit corporations are different from religious non-profits in that they
use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a
community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and
dissenting in part) (emphasis deleted).

Citing Braunfeld v. Brown, 366 U. S. 599 (1961) , the Court questions why, if “a sole
proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and
Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17.
But even accepting, arguendo, the premise that unincorporated business enterprises may gain
religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound.
In a sole proprietorship, the business and its owner are one and the same. By incorporating a

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business, however, an individual separates herself from the entity and escapes personal
responsibility for the entity’s obligations. One might ask why the separation should hold only
when it serves the interest of those who control the corporation. In any event, Braunfeld is
hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free
exercise claim asserted there was promptly rejected on the merits.

The Court’s determination that RFRA extends to for-profit corporations is bound to have
untoward effects. Although the Court attempts to cabin its language to closely held
corporations, its logic extends to corporations of any size, public or private. 19 Little doubt that
RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—
combined with its other errorsin construing RFRA—invites for-profit entities to seek religion-
based exemptions from regulations they deem offensive to their faith.

Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption,
they must demonstrate that the contraceptive coverage requirement “substan-tially burden[s]
[their] exercise of religion.” 42 U. S. C. §2000bb–1(a). Congress no doubt meant the modifier
“substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared
unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered
by Senators Kennedy and Hatch. See 139 Cong. Rec. 26180. In proposing the amendment,
Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not
require the Government to justify every action that has some effect on religious exercise.” Ibid.

The Court barely pauses to inquire whether any burden imposed by the contraceptive
coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that
providing the coverage demanded by the HHS regulations is connected to the destruction of
an embryo in a way that is sufficient to make it immoral for them to provide the coverage.”
Ante, at 36. 20 I agree with the Court that the Green and Hahn families’ religious convictions
regarding contraception are sincerely held. See Thomas, 450 U. S., at 715 (courts are not to
question where an individual “dr[aws] the line” in defining which practices run afoul of her
religious beliefs). See also 42 U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A). 21 But
those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly
understood, distinguishes between “factual allegations that [plaintiffs’] beliefs are sincere and
of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that
[plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake.
Kaemmerling v. Lappin, 553 F. 3d 669, 679 (CADC 2008).

That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy,
476 U. S. 693 (1986) , is instructive. There, the Court rejected a free exercise challenge to the
Government’s use of a Native American child’s Social Security number for purposes of
administering benefit programs. Without questioning the sincerity of the father’s religious belief
that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded
that the Government’s internaluses of that number “place[d] [no] restriction on what [the father]
may believe or what he may do.” Id., at 699. Recognizing that the father’s “religious views may
39/46
not accept” the position that the challenged uses concerned only the Government’s internal
affairs, the Court explained that “for the adjudication of a constitutional claim, the Constitution,
rather than an individual’s religion, must supply the frame of reference.” Id., at 700–701, n. 6.
See also Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) (distinguishing between, on
the one hand, “question[s] [of] the centrality of particular beliefs or practices to a faith, or the
validity of particular litigants’ interpretations of those creeds,” and, on the other, “whether the
alleged burden imposed [by the challenged government action] is a substantial one”).
Inattentive to this guidance, today’s decision elides entirely the distinction between the
sincerity of a challenger’s religious belief and the substantiality of the burden placed on the
challenger.

Undertaking the inquiry that the Court forgoes, I would conclude that the connection between
the families’ religious objections and the contraceptive coverage requirement is too attenuated
to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga
purchase or provide the contraceptives they find objectionable. Instead, it calls on the
companies covered by the requirement to direct money into undifferentiated funds that finance
a wide variety of benefits under comprehensive health plans. Those plans, in order to comply
with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just
as they must cover an array of other preventive services.

Importantly, the decisions whether to claim benefits under the plans are made not by Hobby
Lobby or Cones-toga, but by the covered employees and dependents, in consultation with their
health care providers. Should an employee of Hobby Lobby or Conestoga share the religious
beliefs of the Greens and Hahns, she is of course under no compulsion to use the
contraceptives in question. But “[n]o individual decision by an employee and her physician—be
it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense
[her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013)
(Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be
“substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the
woman and her health counselor) standing between the challenged government action and the
religious exercise claimed to be infringed. Any decision to use contraceptives made by a
woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the
Government, it will be the wo-man’s autonomous choice, informed by the physician she
consults.

Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden
requirement, the Government has shown that the contraceptive coverage for which the ACA
provides furthers compelling interests in public health and women’s well being. Those interests
are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate,
the mandated contraception coverage enables women to avoid the health problems
unintended pregnancies may visit on them and their children. See IOM Report 102–107. The
coverage helps safeguard the health of women for whom pregnancy may be hazardous, even
life threatening. See Brief for American College of Obstetricians and Gynecologists et al. as
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Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy,
preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer
National Alliance et al. as Amici Curiae 4, 6–7, 15–16; 78 Fed. Reg. 39872 (2013); IOM Report
107.

That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved
contraceptives does not lessen these compelling interests. Notably, the corporations exclude
intrauterine devices (IUDs), devices significantly more effective, and significantly more
expensive than other contraceptive methods. See id., at 105. 22 Moreover, the Court’s
reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to
exclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38–39
(counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the
employer said ‘no contraceptives’ ” (internal quotation marks added)).

Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its
RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at 40. 23 It
bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay
for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae
16; that almost one-third of women would change their contraceptive method if costs were not
a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent
Method Use, United States, 2004, 40 Perspectives on Sexual & Reproductive Health 94, 98
(2008); and that only one-fourth of women who request an IUD actually have one inserted after
finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact
of Out-of-Pocket Expense on IUD Utilization Among Women With Private Insurance, 84
Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found that
women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain
an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis,
Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and Post-Benefit
Change, 76 Contraception 360, 361–362 (2007) (when one health system eliminated patient
cost sharing for IUDs, use of this form of contraception more than doubled).

Stepping back from its assumption that compelling interests support the contraceptive
coverage requirement, the Court notes that small employers and grandfathered plans are not
subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court
suggests, Congress would not have created these exclusions. See ante, at 39–40.

Federal statutes often include exemptions for small employers, and such provisions have
never been held to undermine the interests served by these statutes. See, e.g., Family and
Medical Leave Act of 1993, 29 U. S. C. §2611(4)(A)(i) (applicable to employers with 50 or
more employees); Age Discrimination in Employment Act of 1967, 29 U. S. C. §630(b)
(originally exempting employers with fewer than 50 employees, 81Stat. 605, the statute now
governs employers with 20 or more employees); Americans With Disabilities Act, 42 U. S. C.
§12111(5)(A) (applicable to employers with 15 or more employees); Title VII, 42 U. S. C.
§2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v.
Y & H Corp., 546 U. S. 500, n. 2 (2006), the statute now governs employers with 15 or more
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employees).

The ACA’s grandfathering provision, 42 U. S. C. §18011, allows a phasing-in period for

compliance with a number of the Act’s requirements (not just the contraceptive coverage or
other preventive services provisions). Once specified changes are made, grandfathered status
ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this
litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the
District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean
that you can’t make a whole menu of changes to your plan that involve things like the amount
of co-pays, the amount of co-insurance, deductibles, that sort of thing.” App. in No. 13–354,
pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to
shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” Id., at 40. 24 The
percentage of employees in grandfathered plans is steadily declining, having dropped from
56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research &
Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far from ranking as a
categorical exemption, the grandfathering provision is “temporary, intended to be a means for
gradually transitioning employers into mandatory coverage.” Gilardi, 733 F. 3d, at 1241
(Edwards, J., concurring in part and dissenting in part).

The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate
account of the burdens a requested accommodation may impose on nonbeneficiaries.” Ante, at
42, n. 37 (quoting Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) ; emphasis added). No
tradition, and no prior decision under RFRA, allows a religion-based exemption when the
accommodation would be harmful to others—here, the very persons the contraceptive
coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts,
321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound
religious freedom . . . begin to operate whenever activities begin to affect or collide with
liberties of others or of the public.”).

After assuming the existence of compelling government interests, the Court holds that the
contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the
Government has shown that there is no less restrictive, equally effective means that would
both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain
contraceptives (which they believe cause abortions); and (2) carry out the objective of the
ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no
cost to them, the preventive care needed to safeguard their health and well being. A “least
restrictive means” cannot require employees to relinquish benefits accorded them by federal
law in order to ensure that their commercial employers can adhere unreservedly to their
religious tenets. See supra, at 7–8, 27. 25

Then let the government pay (rather than the employees who do not share their employer’s
faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would
be for the Government to assume the cost of providing . . . contraceptives . . . to any women
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who are unable to obtain them under their health-insurance policies due to their employers’
religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services
through the existing employer-based system of health insurance “so that [employees] face
minimal logistical and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s
receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new
[government funded and administered] health benefit” was scarcely what Congress
contemplated. Ibid. More-over, Title X of the Public Health Service Act, 42 U. S. C. §300 et
seq., “is the nation’s only dedicated source of federal funding for safety net family planning
services.” Brieffor National Health Law Program et al. as Amici Curiae 23. “Safety net
programs like Title X are not designed to absorb the unmet needs of . . . insured individuals.”
Id., at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby
Lobby and Conestoga describe as a less restrictive alternative. See supra, at 6.

And where is the stopping point to the “let the government pay” alternative? Suppose an
employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying
the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S.
290, 303 (1985) , or according women equal pay for substantially similar work, seeDole v.
Shenandoah Baptist Church, 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as a less
restrictive alternative to require the government to provide the money or benefit to which the
employer hasa religion-based objection? 26 Because the Court cannot easily answer that
question, it proposes something else: Extension to commercial enterprises of the
accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4,
9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on
[Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the
“special solicitude” generally accorded nonprofit religion-based organizations that exist to
serve a community of believers, solicitude never before accorded to commercial enterprises
comprising employees of diverse faiths. See supra, at 14–17.

Ultimately, the Court hedges on its proposal to align for-profit enterprises with nonprofit
religion-based organizations. “We do not decide today whether [the] approach [the opinion
advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for
Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed
alternative was acceptable, 27 counsel responded: “We haven’t been offered that
accommodation, so we haven’t had to decide what kind of objection, if any, we would make to
that.” Tr. of Oral Arg. 86–87.

Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to
which the corporation objects) on their own, a tax credit would qualify as a less restrictive
alternative. See Brief for Petitioners in No. 13–356, p. 64. A tax credit, of course, is one variety
of “let the government pay.” In addition to departing from the existing employer-based system
of health insurance, Conestoga’s alternative would require a woman to reach into her own
pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax
credit.

In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care
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for women furnished through employer-based health plans, none of the proffered alternatives
would satisfactorily serve the compelling interests to which Congress responded.

IV

Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455
U. S. 252 (1982) . Lee, a sole proprietor engaged in farming and carpentry, was a member of
the Old Order Amish. He sincerely believed that withholding Social Security taxes from his
employees or paying the employer’s share of such taxes would violate the Amish faith. This
Court held that, although the obligations imposed by the Social Security system conflicted with
Lee’s religious beliefs, the burden was not unconstitutional. Id., at 260–261. See also id., at
258 (recognizing the important governmental interest in providing a “nationwide . . .
comprehensive insurance system with a variety of benefits available to all participants, with
costs shared by employers and employees”). 28 The Government urges that Lee should control
the challenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–
356, p. 18. In contrast, today’s Court dismisses Lee as a tax case. See ante, at 46–47. Indeed,
it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to
accommodate religious beliefs in the area of taxation.” 455 U. S., at 259.

But the Lee Court made two key points one cannot confine to tax cases. “When followers of a
particular sect enter into commercial activity as a matter of choice,” the Court observed, “the
limits they accept on their own conduct as a matter of conscience and faith are not to be
superimposed on statutory schemes which are binding on others in that activity.” Id., at 261.
The statutory scheme of employer-based comprehensive health coverage involved in these
cases is surely binding on others engaged in the same trade or business as the corporate
challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that
allowing a religion-based exemption to a commercial employer would “operat[e] to impose the
employer’s religious faith on the employees.” Ibid. 29 No doubt the Greens and Hahns and all
who share their beliefs may decline to acquire for themselves the contraceptives in question.
But that choice may not be imposed on employees who hold other beliefs. Working for Hobby
Lobby or Conestoga, in other words, should not deprive employees of the preventive care
available to workers at the shop next door, 30 at least in the absence of directions from the
Legislature or Administration to do so.

Why should decisions of this order be made by Congress or the regulatory authority, and not
this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises
seeking exemptions from generally applicable laws on the basis of their religious beliefs. See,
e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945 (SC 1966) (owner of
restaurant chain refused to serve black patrons based on his religious beliefs opposing racial
integration), aff’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967),
aff’d and modified on other grounds, 390 U. S. 400 (1968) ; In re Minnesota ex rel. McClure,
370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, for-profit
health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but
not married to a person of the opposite sex,” “a young, single woman working without her
father’s consent or a married woman working without her husband’s consent,” and any person
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“antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks
omitted)), appeal dismissed, 478 U. S. 1015 (1986) ; Elane Photography, LLC v. Willock,
2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a
husband and wife refused to photograph a lesbian couple’s commitment ceremony based on
the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would
RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which
religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed
from making such a judgment given its recognition that “courts must not presume to determine
. . . the plausibility of a religious claim”? Ante, at 37.

Would the exemption the Court holds RFRA demands for employers with religiously grounded
objections to the use of certain contraceptives extend to employers with religiously grounded
objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists);
medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with
gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among
others)? 31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to
be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.”
Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision.

The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are
“concerned solely with the contraceptive mandate. Our decision should not be understood to
hold that an insurance-coverage 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.” Ante, at 46.
But the Court has assumed, for RFRA purposes, that the interest in women’s health and well
being is compelling and has come up with no means adequate to serve that interest, the one
motivating Congress to adopt the Women’s Health Amendment.

There is an overriding interest, I believe, in keeping the courts “out of the business of
evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2
(Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is
held. Indeed, approving some religious claims while deeming others unworthy of
accommodation could be “perceived as favoring one religion over another,” the very “risk the
Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has ventured into a
minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J.,
concurring), by its immoderate reading of RFRA. I would confine religious exemptions under
that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out
that religious purpose,” and not “engaged . . . substantially in the exchange of goods or
services for money beyond nominal amounts.” See id., at 748 (Kleinfeld, J., concurring).

*  *  *

For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth
Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.
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Notes

TOP
Dissent

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 Breyer and Justice Kagan, dissenting.

We agree with Justice Ginsburg that the plaintiffs’ challenge to the contraceptive coverage
requirement fails on the merits. We need not and do not decide whether either for-profit
corporations or their owners may bring claims under the Religious Freedom Restoration Act of
1993. Accordingly, we join all but Part III–C–1 of Justice Ginsburg’s dissenting opinion.

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