Priests for Life v. United States Department of Health & Human Services

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed: May 20, 2015

No. 13-5368

PRIESTS FOR LIFE, ET AL.,
APPELLANTS

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL.,
APPELLEES

Consolidated with 13-5371, 14-5021

Appeals from the United States District Court
for the District of Columbia
(No. 1:13-cv-01261)
(No. 1:13-cv-01441)

On Petition for Rehearing En Banc

BEFORE: GARLAND, Chief Judge; HENDERSON, ROGERS,
TATEL, BROWN**,GRIFFITH, KAVANAUGH**, SRINIVASAN*,
MILLETT*, PILLARD, AND WILKINS, Circuit Judges.
 2

ORDER

Appellants/cross-appellees’ joint petition for rehearing en
banc and the response thereto were circulated to the full court,
and a vote was requested. Thereafter, a majority of the judges
eligible to participate did not vote in favor of the petition.
Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY: /s/

Deputy Clerk

* Circuit Judges Srinivasan and Millett did not participate in
this matter.

** Circuit Judges Brown and Kavanaugh would grant the
petition.

A statement by Circuit Judge Pillard, joined by Circuit
Judges Rogers and Wilkins, concurring in the denial of
rehearing en banc, is attached.

A statement by Circuit Judge Brown, joined by Circuit
Judge Henderson, dissenting from the denial of rehearing en
banc, is attached.

A statement by Circuit Judge Kavanaugh, dissenting from
the denial of rehearing en banc, is attached.
 PILLARD, Circuit Judge, joined by ROGERS and WILKINS,
Circuit Judges, concurring in the denial of rehearing en banc:
A majority of the court has voted to deny the petition for
rehearing en banc in this case. In two thoughtful opinions,
Judge Kavanaugh, and Judge Brown joined by Judge
Henderson, dissent from that denial. The panel’s opinion
speaks at length to the issues they take up. The panel
members write further only to underscore why our court’s
approach accords with the Supreme Court’s decision in
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

The dissenters and we agree that the Religious Freedom
Restoration Act provides robust protection for religious
liberty—without regard to whether others might view an
adherent’s beliefs or practices as irrational, trivial, or wrong.
Nothing in our opinion should be seen to detract from that
vital guarantee. Where we part ways is that the dissenters
perceive in Hobby Lobby a potentially sweeping, new RFRA
prerogative for religious adherents to make substantial-burden
claims based on sincere but erroneous assertions about how
federal law works. They believe we ignored that prerogative
here. The dissenters read more into the Supreme Court’s
decision than it supports. Hobby Lobby embraced adherents’
claim about the religious meaning of the undisputed operation
of a federal regulation; this case involves a claim that courts
must credit religious adherents’ incorrect assertions about
how a different federal regulation operates. Because Hobby
Lobby did not address that distinct issue, we see no conflict.

The Court in Hobby Lobby invalidated the requirement
that closely-held, for-profit businesses with religious
objections to contraception nonetheless must buy health-
insurance coverage for their employees that pays for
contraception, or else face taxes or penalties. 134 S. Ct. at
2759. No opt out was available to those businesses. The
parties in Hobby Lobby did not dispute what the law required,
nor its practical effects: All agreed that the Affordable Care
 2
Act regulations mandated that employer-sponsored health
plans include contraception, and that as a result plaintiffs’
employees got access to contraception paid for, in part, by
their employers. See id. at 2762. What the parties in Hobby
Lobby contested were the moral and religious implications of
the businesses’ conceded role. The plaintiff business owners
believed that “providing the coverage demanded . . . is
connected to the destruction of an embryo in a way that is
sufficient to make it immoral for them to provide the
coverage.” Id. at 2778. The government disagreed,
contending that employees’ intervening choices whether to
use contraception broke the chain of moral culpability, and
hence the law did not substantially burden the businesses’
religious exercise. Id. at 2777-78.

In rejecting the government’s position in Hobby Lobby,
the Supreme Court emphasized that courts may not second-
guess religious beliefs about the wrongfulness of facilitating
another person’s immoral act. Id. at 2778. RFRA forbids
courts from “provid[ing] a binding national answer to . . .
religious and philosophical question[s]” or “tell[ing] the
plaintiffs that their beliefs are flawed.” Id.; see also id. at
2779 (“[I]t is not for us to say that [plaintiffs’] religious
beliefs are mistaken or insubstantial. Instead, our ‘narrow
function in this context is to determine’ whether the line
drawn reflects ‘an honest conviction.’” (alteration marks
omitted) (quoting Thomas v. Review Bd., 450 U.S. 707, 716
(1981))). The context makes clear that the Court’s discussion
of facilitation simply restates the basic tenet of the religious
freedom cases that judges may not question the correctness of
a plaintiff’s religious beliefs.

That reasoning is inapplicable here. The dispute between
the government and the Plaintiffs in this case, unlike in Hobby
Lobby, is not about religious implications of acknowledged—
 3
but perhaps attenuated—support for contraceptive use; the
parties disagree here about how the law functions, and
therefore whether there is any causal connection at all
between employers’ opt-out notice and employees’ access to
contraception. Plaintiffs challenge the accommodation, not
available in Hobby Lobby, based on their assertion that what
causes their employees to receive contraceptive coverage is
their compliance with the accommodation’s precondition that
they give notice of their sincere religious objections to such
coverage. As Plaintiffs characterize it, their act of excusing
themselves from legal liability for not providing contraceptive
coverage is what made such coverage available to employees,
and hence violated their Catholic faith.

We held that Plaintiffs miscast the accommodation. The
regulation allows Plaintiffs to continue to do just what they
did before the ACA: notify their insurers of their sincere
religious objection to contraception, and arrange for
contraception to be excluded from the health insurance
coverage they provide.1 As before, insurers may sell plans

1
Judge Kavanaugh is perplexed as to why, if not for an
impermissible reason, the government requires any form at all.
Kavanaugh Dissent at 12-13 & n.5. The form is far from
“meaningless,” id., because it acts as “the written equivalent of
raising a hand in response to the government’s query as to which
religious organizations want to opt out,” and extricates those
objectors in a manner consistent with the contraceptive coverage
requirement. Priests for Life v. U.S. Dep’t of Health & Human
Servs., 772 F.3d 229, 250 (D.C. Cir. 2014). Only once an insurer
becomes aware of the employer’s religious objection can it take the
steps needed to effectuate the opt out, such as: exclude
contraceptive coverage from the employer’s group health plan,
prevent the employer’s payment from funding contraception, notify
the beneficiaries that the employer plays no role in administering or
 4
that exclude contraception to their religious-nonprofit
customers. The difference is that now the ACA and its
regulations require that contraceptive coverage be provided to
all insured women. In the case of women who get their
insurance coverage through an accommodated employer, the
law requires insurers to offer the women contraception under
a separate plan—completely segregated from the objecting
employer’s plan and its payments.

The judges who urge us to rehear the case say that Hobby
Lobby leaves no room for us to question Plaintiffs’
characterization of how the challenged regulations operate,
including their assertions that the regulations force Plaintiffs
to facilitate the provision of contraception. As they read it,
Hobby Lobby forbids a court deciding a claim under RFRA to
assess whether a plaintiff’s belief about what a law requires
him to do is correct. See, e.g., Kavanaugh Dissent at 8-11;
Brown Dissent at 10-12. Both dissents argue that Hobby
Lobby’s discussion of facilitation requires us simply to accept

funding contraceptive coverage, and arrange for separate mailings
and accounting. Id. (citing regulatory provisions). Judge
Kavanaugh would hold that including the insurer’s identity in the
form is unnecessarily restrictive of religious exercise because,
extending our metaphor, he says it requires the objecting employer
“both to raise its hand and to point to its insurer.” Kavanaugh
Dissent at 24 n.11. But it is more apt to say that, if the employer
opts to raise its hand where the insurer cannot see it (i.e. via the
alternative notice delivered to the government rather than the
insurer, see 45 C.F.R. § 147.131(c)(1); 29 C.F.R. § 2590.715-
2713A(b)(1)(ii)), the government must be in a position promptly to
communicate the religious objection to the insurer, or else the
employer’s insurance plan will continue to include contraceptive
coverage. An insurer that is kept in the dark about an employer’s
religious objections cannot do what it must to honor the opt out.
 5
whatever beliefs a RFRA plaintiff avows—even erroneous
beliefs about what a challenged regulation actually requires.

Neither the holding nor the reasoning of Hobby Lobby
made that leap. RFRA understandably accorded Hobby
Lobby Stores a victory in a contest over what religious
meaning to ascribe to the Stores’ payment for contraceptive
coverage. That holding does not require us to credit Priests
for Life’s legally inaccurate assertions about the operation of
the regulation they challenge. See Univ. of Notre Dame v.
Burwell, No. 13-3853, slip op. at 11, 15 (7th Cir. May 19,
2015); see also id. at 34 (Hamilton, J., concurring). But see
id. at 44-46 (Flaum, J., dissenting). Our panel opinion
explains that it is the mandate on insurers that causes
Plaintiffs’ employees to receive contraceptive coverage, and
not anything Plaintiffs are required to do in claiming their
accommodation. The panel thus held that Plaintiffs suffered
no substantial burden triggering RFRA strict scrutiny.

The dispute we resolved is legal, not religious. Under the
ACA regulations, a woman who obtains health insurance
coverage through her employer is no more entitled to
contraceptive coverage if her employer submits the disputed
notice than if it does not. The ACA obligation to provide
contraceptive coverage to all insured women does not depend
on that notice. Nothing in RFRA requires that we accept
Plaintiffs’ assertions to the contrary.

RFRA protects religious exercise. In no respect do we,
nor could we, question Plaintiffs’ sincere beliefs about what
their faith permits and forbids of them. But we can and must
decide which party is right about how the law works. We
concluded that the regulation challenged in this case does not,
as a matter of law or fact, give Plaintiffs’ conduct the
contraception-facilitating effect of which they complain.
 6
Indeed, it bears emphasis that the whole point of the
challenged regulation is to scrupulously shield objecting
religious nonprofits from any role in making contraception
available to women. The accommodation is itself evidence of
the fundamental commitment of this Nation to religious
freedom that RFRA embodies. The regulation is, of course,
properly subject to judicial scrutiny to verify that it comports
with governing law, including Hobby Lobby. Because we
conclude that it does, we believe that en banc review is not
warranted in this case.
 BROWN, Circuit Judge, with whom HENDERSON, Circuit
Judge, joins, dissenting from the denial of rehearing en banc:
The French say: plus ça change et plus c'est la même chose.
The more things change; the more they remain the same.
There was once a time when the church was the state and the
church as the state embodied all hope of human well-being.
R.W. SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE
MIDDLE AGES 23 (1970). To challenge the church was to
undermine civilization. Thus, the imposition of orthodoxy
was deemed necessary, and dissent, which amounted to
heresy, was met with coercion and violence. See ST. THOMAS
AQUINAS, SUMMA THEOLOGIÆ pt. II-II, q. 11, art. 3.

This history prompted John Locke to urge toleration and
stress the necessity of distinguishing “the business of civil
government from that of religion” and establishing clear
boundaries between them. John Locke, A Letter Concerning
Toleration, reprinted in 5 THE WORKS OF JOHN LOCKE 5, 9
(12th ed. 1824). The Framers went further, establishing not
only a limited government, but recognizing the primacy of
individual conscience and seeking the line between freedom
and justice. Thus, the Bill of Rights “grew in soil which also
produced a philosophy that . . . liberty was attainable through
mere absence of governmental restraints, and that government
should be entrusted with few controls and only the mildest
supervision over men’s affairs.” W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 639–40 (1943). The federal
government was given no authority over men’s souls. For the
Founders, the not-so-distant history of persecution
engendered a fierce commitment to each individual’s natural
and inalienable right to believe according to his “conviction
and conscience” and to exercise his religion “as these may
dictate.” James Madison, Memorial and Remonstrance
Against Religious Assessments, reprinted in 2 WRITINGS OF
JAMES MADISON 183, 184 (G. Hunt ed. 1901). “If there is any
fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in
 2
politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein.”
Barnette, 319 U.S. at 642.

Of course, the right to freely exercise one’s religion is
not—and was not intended to be—absolute. The Founders
recognized state coercion would at times be necessary, with
Madison himself stating “full and free exercise . . . according
to the dictates of conscience” could be limited where “the
preservation of equal liberty . . . and the existence of the
[government] may be manifestly endangered.” G. Hunt,
Madison and Religious Liberty, 1 ANNUAL REPORT OF THE
AMERICAN HISTORICAL ASSOCIATION, H.R. Doc. No. 702,
57th Cong., 1st Sess., 163, 166–67 (1901). However, “[t]he
essence of all that has been said and written on the subject is
that only those interests of the highest order . . . can
overbalance legitimate claims to the free exercise of religion.”
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

The soil of the eighteenth century has eroded and that
fixed star grown surprisingly dim. We live in a time where
progress is sought “through expanded and strengthened
governmental controls.” Barnette, 319 U.S. at 640. In a
sense the government now fills the role formerly occupied by
the church, embodying the hope of human well-being. For
the government to pursue the good and to solve society’s
problems, it must first identify that which is good and that
which is problematic through subjective and value-laden
judgments. Cf. Laurence H. Tribe, Disentangling
Symmetries: Speech, Association, Parenthood, 28 PEPP. L.
REV. 641, 651–53 (2001) (stating that when the government
takes a side in a “direct clash of competing images of ‘the
good life,’” it “is making an intrinsically contestable
statement about the rightness or wrongness” of ideals).
Consequently, orthodoxy has been rehabilitated, and dissent
 3
from the government’s determinations may be quelled
through coercion—onerous fines or banishment from
commerce and the public square.

Despite the parallels, we do not find ourselves full circle
quite yet. Religious adherents may still seek refuge from
unnecessary governmental coercion through the Religious
Freedom Restoration Act (“RFRA”). When the federal
government substantially burdens free exercise, it may do so
only in pursuit of a compelling interest and even then must
use the least restrictive means. 42 U.S.C. § 2000bb-1.
Further, the conscience of the individual remains protected in
that he must “answer to no man for the verity of his religious
views.” United States v. Ballard, 322 U.S. 78, 87 (1944).
But, in our respectful view, the panel in this case failed to
apply these protections. The panel conceded Plaintiffs
sincerely “believe that the regulatory framework makes them
complicit in the provision of contraception,” Slip Op. at 27
(quoting Mich. Catholic Conf. v. Burwell, 755 F.3d 372, 385
(6th Cir. 2014), vacated and remanded, No. 14-701, 2015 WL
1879768, at *1 (U.S. Apr. 27, 2015)). That acknowledgement
should end our inquiry into the substance of their beliefs.
Viewed objectively, Plaintiffs’ belief that the acts the
regulations compel them to perform would facilitate access to
contraception in a manner that violates the teachings of their
Church may “seem incredible, if not preposterous,” to some
people. Ballard, 322 U.S. at 87. However, this Court is
neither qualified nor authorized to so scrutinize any religious
belief. The panel trespassed into an area of inquiry Supreme
Court precedent forecloses. It then proceeded to accept
evidence that is insufficient under the rulings of the Supreme
Court to find the purported compelling interest. For these
reasons we believe this exceptionally important case is worthy
of en banc review.
 4
I

We begin by addressing the panel’s opening observations
and by making some of our own with the hopes of
distinguishing between fact and fancy. First, this case is not
about denying any woman access to contraception. A
woman’s right to obtain and use contraception was recognized
long ago, and nothing about this case calls for the issue to be
revisited. See Griswold v. Connecticut, 381 U.S. 479 (1965).

Second, this case is about the religious freedom of these
religiously-affiliated organizations and not about the free
exercise concerns of the plaintiffs in Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014). In that case, the
Supreme Court found the Department of Health and Human
Services’ (“HHS”) approach to religious nonprofits
demonstrated there were less restrictive means available to
deal with conscientious objectors among for-profit
corporations. Id. at 2781–82. The Court expressly reserved
judgment on whether HHS’s approach “complies with RFRA
for purposes of all religious claims.” Id. at 2782. While the
government’s approach to religious non-profits may—or may
not—fully put to rest the Hobby Lobby plaintiffs’ religious
objections, that is irrelevant to our consideration of the
religious objections put forth by Plaintiffs in this case. The
present Plaintiffs are entitled to their own personal beliefs.

Third, this case is not “paradoxical” because Plaintiffs
object to regulatory requirements the government intended as
a religious accommodation. Slip Op. at 24 (quoting Univ. of
Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014),
vacated and remanded, 135 S. Ct. 1528 (2015)). That the
government’s expressed intent in enacting the regulations at
issue was to allay religious adherents’ concerns about the
contraception mandate is not determinative of the ultimate
 5
question of whether Plaintiffs were in fact accommodated.
Where the government imposes a substantial burden on
religious exercise and labels it an “accommodation,” that
burden is surely as distressing to adherents as it would be if
imposed without such a designation. Therefore, heightened
skepticism is not appropriate. We should look at Plaintiffs’
claims as we would any RFRA claim. After all, in the
substantial burden analysis, the government’s motivations—
no matter how benevolent—are irrelevant; we ask only
whether the government’s action operates to place
“substantial pressure on an adherent to modify his behavior
and to violate his beliefs.” Thomas v. Review Bd., 450 U.S.
707, 718 (1981).

Fourth, this case is not one in which Plaintiffs’ “only
harm . . . is that they sincerely feel aggrieved by their inability
to prevent what other people would do to fulfill regulatory
objectives after they opt out.” Slip Op. at 24. The regulations
compel Plaintiffs to take actions they believe would amount
to “impermissibly facilitating access to abortion-inducing
products, contraceptives, and sterilization” in violation of
their religious tenets. Pet. for Reh’g En Banc at 1. Make no
mistake: the harm Plaintiffs complain of—and the harm this
Court therefore is called to assess—is from their inability to
conform their own actions and inactions to their religious
beliefs without facing massive penalties from the government.

II

The panel’s substantial burden analysis is inconsistent
with the precedent of the Supreme Court and this Court,
which identifies both permissible and impermissible lines of
inquiry in the substantial burden analysis of a RFRA claim.
 6
A

As we have recognized, whether a burden is “substantial”
for purposes of RFRA is a question of law for the court to
answer, not a “question[] of fact, proven by the credibility of
the claimant.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C.
Cir. 2011). Relying on longstanding precedent, the Supreme
Court recently described permissible lines of inquiry for a
court to pursue in determining whether an adherent’s religious
exercise has been substantially burdened, both in Hobby
Lobby and in Holt v. Hobbs, 135 S. Ct. 853 (2015), a case
involving the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. §2000cc et seq, (RLUIPA).1
The plaintiff bears ‘the initial burden of proving [the law or
regulation at issue] implicates his religious exercise.” Holt,
135 S. Ct. at 862. While RFRA forecloses asking whether the
exercise is “compelled by, or central to, a system of religious
belief,” 42 U.S.C. § 2000cc-5(7)(A), the court does ask
whether the plaintiff’s beliefs are sincere. The answer is no if
his claims are not “sincerely based on a religious belief” but
instead on “some other motivation.” Holt, 135 S. Ct. at 862;
see also Hobby Lobby, 134 S. Ct. at 2774 n.28 (“To qualify
for RFRA’s protection, an asserted belief must be ‘sincere.’”).

Next, the plaintiff bears the “burden of proving that the
[law or regulation] substantially burden[s] that exercise of
religion.” Holt, 135 S. Ct. at 862. The court asks whether he
has been “put[] to th[e] choice” of either “‘engag[ing] in
conduct that seriously violates [his] religious beliefs” or

1
RLUIPA “targets two areas of state and local action: land use
regulation, 42 U.S.C. § 2000cc (RLUIPA § 2), and restrictions on
the religious exercise of institutionalized persons, § 2000cc–1
(RLUIPA § 3).” Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011).
It “borrows important elements from RFRA . . . but is less
sweeping in scope.” Id.
 7
facing “serious” consequences. Id. (quoting Hobby Lobby,
134 S. Ct. at 2775); see also Thomas, 450 U.S. at 718 (stating
a substantial burden exists when the government places
“substantial pressure on an adherent to modify his behavior
and to violate his beliefs”). The answer is no if the plaintiff
can identify “no [compelled] action or forbearance on his
part.” Kaemmerling, 553 F.3d at 679 (plaintiff objecting to
the government’s extraction of DNA information from fluid
or tissue samples but not to providing DNA samples); see also
Bowen v. Roy, 476 U.S. 693, 699–700 (1986) (plaintiff
objecting to the government’s independent utilization of his
daughter’s social security number, which he himself was not
required to provide or use). The answer is also no where the
pressure being placed upon a person to act contrary to his
beliefs or the consequences he faces for not doing so are not
substantial. See Thomas, 450 U.S. at 717 (assessing the
“coercive impact” of being “put to a choice between fidelity
to religious belief or cessation of work”). Finally, this Court
has “inquir[ed] into the importance of a religious practice” to
the individual. Henderson v. Kennedy, 265 F.3d 1072, 1074
(D.C. Cir. 2001) (denying rehearing en banc). In doing so, we
have found no substantial burden exists where a regulation is
“at most a restriction on one of a multitude of means” for an
individual to engage in his desired religious exercise.
Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (the
plaintiffs could spread the gospel any number of ways, just
not the prohibited means of selling t-shirts on the National
Mall); see also Mahoney, 642 F.3d at 1120–21 (the plaintiff
had ample alternative means of spreading his religious
message besides chalking the sidewalk in front of the White
House).2

2
While the propriety of this sort of inquiry in pure free exercise
cases is arguably called into question by recent Supreme Court
 8
Here, Plaintiffs’ faith compels them to provide their
employees and students with health insurance plans. Oral
Arg. Tr. at 19:5–15. Their religious beliefs forbid them not
only from providing or paying for contraception, but also
from facilitating its provision. Pls. Br. at 15. Plaintiffs
therefore believe they exercise their religion by providing
health insurance plans that do not facilitate access to
contraception. Id. at 11-12, 15, 24–25. In determining
whether an act constitutes impermissible facilitation Plaintiffs
are informed by “the Catholic doctrines of material
cooperation and scandal.” Id. at 36. The sincerity of
Plaintiffs’ beliefs has not been questioned. Slip Op. at 26.

Plaintiffs identify at least two acts that the regulations
compel them to perform that they believe would violate their
religious obligations: (1) “hiring or maintaining a contractual
relationship with any company required, authorized, or
incentivized to provide contraceptive coverage to
beneficiaries enrolled in Plaintiffs’ health plans,” Pet. for
Reh’g En Banc at 3; and (2) “filing the self-certification or
notification,” id. at 4. Plaintiffs have therefore shown both
that they are being compelled to modify their behavior and
that, if undertaken, the modification would be a violation of
their religious beliefs. They are unlike the plaintiffs in
Kaemmerling and Bowen, as they have shown they are
themselves being compelled to modify their behavior.

If Plaintiffs do not act in violation of their beliefs,
however, they face two alternatives. First, they may offer
coverage that does not include contraceptives and face
onerous fines. 26 U.S.C. § 4980D(b)(1). Alternatively, they

precedent, see Holt, 135 S. Ct. at 862, it is not relevant to this case.
That the practice Plaintiffs defend here is of sufficient importance
to them to form the basis of a substantial burden under RFRA has
not been questioned.
 9
may stop providing health insurance altogether, which would
also be a violation of their religious beliefs. Oral Arg. Tr. at
19:5–15. Imposing such harsh consequences certainly
substantially pressures Plaintiffs to alter their behavior in a
way inconsistent with their religious beliefs. See Hobby
Lobby, 134 S. Ct. at 2759 (stating if “heavy” financial
penalties “do not amount to a substantial burden, it is hard to
see what would”). Plaintiffs have therefore demonstrated
their free exercise is substantially burdened: they are being
“put[] to [the] choice” of either “‘engag[ing] in conduct that
seriously violates [their sincere] religious beliefs’” or facing
“serious” consequences. Holt, 135 S. Ct. at 862 (quoting
Hobby Lobby, 134 S. Ct. at 2775).

B

The panel’s opinion parts ways with precedent by wading
into impermissible lines of inquiry. The panel did not dispute
that federal law operates to compel Plaintiffs to maintain a
relationship with an issuer or TPA that will provide the
contraceptive coverage and to execute the self-certification or
alternative notice. Their disagreement with Plaintiffs is about
the significance of those compelled acts; in other words, the
panel rejected the “adherents’ claim about the religious
meaning of the undisputed operation of [] federal
regulation[s].” Concurring Op. at 1; see also Eternal Word
Television Network, Inc. v. Sec’y, Dep’t of Health & Human
Servs., 756 F.3d 1339, 1340 (11th Cir. 2014) (Pryor, J.
specially concurring) (disposing of the argument that the
plaintiff’s complaint should “fail[] because [the plaintiff]
holds an erroneous legal opinion about how the contraception
mandate works” because the plaintiff “offer[ed] no evidence
that its complaint turns on the advice of counsel” but instead
offered “undisputed declarations . . . about the ancient
teachings of the Catholic Church”). With a thorough analysis
 10
of the regulations, the panel determined they “do not compel”
Plaintiffs to “provide, pay for, and/or facilitate access to
contraception, sterilization, abortion, or related counseling in
a manner that violates the teachings of the Catholic Church.”
Slip Op. at 26 (quoting Pls.’ Br. at 15). The panel explained
the regulations allow Plaintiffs to “wash[] their hands of any
involvement in providing insurance coverage for
contraceptive services.” Id. Therefore, the panel concluded,
Plaintiffs have been subjected to only to a de minimis burden
of completing a form, and their RFRA claim fails. Id. at 31.

In declaring that—contrary to Catholic Plaintiffs’
contentions—it would be consistent with the teaching of the
Catholic Church for Plaintiffs to comply with the regulations
the panel exceeded both the “judicial function and [the]
judicial competence.” Thomas, 450 U.S. at 716. What
amounts to “facilitating immoral conduct,” Pet. for Reh’g En
Banc at 1, “scandal,” id. at 7, and “material” or
“impermissible cooperation with evil,” id.; Slip Op. at 14, are
inherently theological questions which objective legal
analysis cannot resolve and which “federal courts have no
business addressing.” Hobby Lobby, 134 S. Ct. at 2778; see
also id. (stating “the circumstances under which it is wrong
for a person to perform an act that is innocent in itself but has
the effect of enabling or facilitating the commission of an
immoral act by another” is “a difficult and important question
of religion and moral philosophy”). The causal connection
sufficient to create impermissible “facilitation” in the eyes of
a religious group may be very different from what constitutes
proximate cause in the common law tradition. See Univ. of
Notre Dame, 743 F.3d at 566 (Flaum, J., dissenting) (“[W]e
are judges, not moral philosophers or theologians; this is not a
question of legal causation but of religious faith.”). Likewise,
where civil authorities may conclude an individual has
“wash[ed his] hands of any involvement,” Slip Op. at 26,
 11
adherents of a faith may examine the same situation and, in
their religious judgment, reach the opposite conclusion.
Pontius Pilate, too, washed his hands, but perhaps he
perceived the stain of complicity remained. See Matthew
27:24.

Under the panel’s analysis, it seems no claim of
substantial burden may prevail where the religious
significance of conduct under scripture as interpreted by a
faith tradition differs from the legal significance of that
conduct under the laws of the United States as interpreted by
federal judges. But RFRA would be an exceedingly
shallow—perhaps nonexistent—protection of religious
exercise if adherents were only permitted to give the same
meaning to their actions or inactions as does the secular law.

Plaintiffs, including an Archbishop and two Catholic
institutions of higher learning, say compliance with the
regulations would facilitate access to contraception in
violation of the teachings of the Catholic Church. What law
or precedent grants this Court authority to conduct an
independent inquiry into the correctness of this belief?
Instead, where one sincerely believes performing certain acts
would cause him to cross the line between permissible
behavior and sin, the Supreme Court has instructed, “it is not
for us to say that the line he drew was an unreasonable one.”
Hobby Lobby, 134 S. Ct. at 2778 (quoting Thomas, 450 U.S.
at 715). Plaintiffs’ sincere determination about the
obligations their religion imposes is between them and their
God and need not be “acceptable, logical, consistent, or
comprehensible to others in order to merit . . . protection.”
Thomas, 450 U.S. at 714. This is so even when, in the
government’s opinion, Plaintiffs’ determination is based on a
misunderstanding of the nature of their legal obligations, their
religious obligations, or both—as the two could certainly
 12
overlap.3 RFRA’s concern is with the sincerity of religious
beliefs and not their accuracy. For example in United States
v. Lee, Mr. Lee claimed he could not pay social security taxes
without violating an obligation under his Amish faith to care
for fellow church members. 455 U.S. 252, 257 (1982). The
Supreme Court refused to consider the government’s
argument that paying social security taxes did not actually
interfere with exercise of this belief, as the Amish would

3
Confusion remains as to the legal obligations the regulations
impose on third party administrators (“TPAs”). In Wheaton
College v. Burwell, Justice Sotomayor explained a TPA does not
have an independent obligation but instead “bears the legal
obligation to provide contraceptive coverage only upon receipt of a
valid self-certification.” 134 S. Ct. 2806, 2814 n.6 (2014)
(Sotomayor, J., dissenting) (citing 26 C.F.R. § 54.9815–
2713A(b)(2) (2013); 29 C.F.R. § 2510.3–16(b) (2013)). Even
evaluating the new regulations as supplemented in light of the
Supreme Court’s ruling in Wheaton College, the panel did not
identify any scenario under which a TPA is obligated to provide
contraceptive coverage until the TPA is designated a “plan
administrator” for purposes of ERISA. Slip Op. 41–43. As the
regulations currently stand, this designation occurs only after a
religious nonprofit has either completed the self-certification form
or the alternative notice and after the TPA agrees to enter into or
remain in a contractual relationship with the nonprofit organization.
See 26 C.F.R. § 54.9815-2713AT(b)(2) (2014) (“If a third party
administrator receives a copy of the self-certification from an
eligible organization or a notification from the Department of Labor
[sent after the religious nonprofit provides notice of its objection to
the Department] . . . and agrees to enter into or remain in a
contractual relationship with the eligible organization . . . the third
party administrator shall provide or arrange for payments of
contraceptive services . . . .”) (emphasis added). If the panel relied
on a mistaken assumption about the regulations imposing an
independent obligation on TPAs to provide contraceptive coverage,
rehearing en banc is all the more warranted.
 13
remain free to care for their own community if they paid
social security taxes but did not collect benefits. Id. Instead
the Court simply accepted Mr. Lee’s “contention that both
payment and receipt of social security benefits is forbidden by
the Amish faith,” explaining “[c]ourts are not arbiters of
scriptural interpretation.” Id. (quoting Thomas, 450 U.S. at
716).

The panel’s analysis further parts ways with precedent by
recasting Plaintiffs’ objection to the facilitation of access as
an objection to the conduct of third parties. Slip Op. at 34.
The panel relied on Bowen and Kaemmerling to find Plaintiffs
may not object “to the role of [their] action in the broader
regulatory scheme.” Slip Op. at 35. There are two problems
with this analysis. First, in this case the government is
requiring Plaintiffs to perform objectionable acts. In contrast,
the Bowen and Kaemmerling plaintiffs’ objections were to the
government’s actions. See Bowen, 476 U.S. at 699–700;
Kaemmerling, 553 F.3d at 678. The claims in Bowen and
Kaemmerling are different in kind from a claim that the
government is compelling the individual himself to undertake
actions he believes are sinful.

Second, the actions to which Plaintiffs object—which
may seem innocent if examined devoid of context—must be
understood in light of the broader regulatory scheme. When
the Supreme Court has considered claims involving beliefs
about facilitation of immoral conduct, it has not employed the
panel’s approach of requiring the adherent to view their own
actions in isolation. Instead the Court found a substantial
burden where the plaintiffs were compelled to take actions
they believed to be impermissible based on the actions’ place
in a chain of events. See, e.g., Hobby Lobby, 134 S. Ct. at
2759 (the plaintiffs objected to providing access to
abortifacients because others’ use of the drugs may result in
 14
the destruction of a human embryo); Thomas, 450 U.S. at 710
(plaintiff objected to fabricating turrets because those turrets
would then be affixed by others to military tanks and used by
others in warfare). This makes good sense, as the concept of
facilitation inherently involves a view of one’s conduct in
relation to that of others’. Logic and precedent therefore
compel us to permit persons to object to performing an act
that would be itself innocent but for its illicit consequences.
Plaintiffs object to maintaining a relationship with an issuer or
third-party administrator (“TPA”) that will use Plaintiffs’
health insurance plans as vehicles to provide contraceptive
coverage. They object to completing, as the panel describes
it, an “opt-out mechanism that shifts to third parties the
obligation to provide contraceptive coverage.” Slip Op. at 36.
Such claims do not fall outside the purview of RFRA.

III

As Plaintiffs have demonstrated a substantial burden on
their free exercise, the government may only prevail by
demonstrating the regulations further a compelling interest
and employ the least restrictive means of doing so. 42 U.S.C.
§ 2000bb–1. A compelling interest is an interest “of the
highest order.” Yoder, 406 U.S. at 215. To satisfy strict
scrutiny, the government must “specifically identify an actual
problem in need of solving” and the burden on free exercise
“must be actually necessary to the solution.” Brown v. Entm’t
Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (internal
citations and quotations omitted). The panel found the
government demonstrated a compelling interest in “seamless
provision of contraceptive services.” Slip Op. at 49. The
panel then rejected any less restrictive means of providing
contraceptive coverage without cost sharing that would
require women to complete additional steps to obtain the
coverage, explaining such means “make the coverage no
 15
longer seamless from the beneficiaries’ perspective.” Id. at
24.

Even assuming for the sake of argument that the
government possesses a compelling interest in the provision
of contraceptive coverage without cost sharing, it has not
succeeded in demonstrating a compelling interest in the
“seamless” provision of coverage. The government has
pointed to no evidence in the record demonstrating its
purported interest in providing contraceptive coverage
without cost-sharing is harmed when women must undergo
additional administrative steps to receive the coverage. The
government cites only to one page in the Federal Register to
support the proposition that coverage must be provided
seamlessly.4 Gov’t Supp. Br. at 20 (citing 78 Fed. Reg.
39,870, 39,888 (Jul. 2, 2013)). This page provides no
evidence that a procedure under which individuals must take
additional steps to receive contraceptive coverage poses a
“problem in need of solving,” but instead offers only
conclusory and unsubstantiated statements that surely cannot
be sufficient for the government to meet its burden in strict
scrutiny analysis. That “additional steps” would be so
burdensome as to hinder women’s access to contraception is
pure speculation. For example, if all that was required was
that the employee or student fills out a “simple, one-step
form,” that would be a “de minimis requirement” to which we
assume the panel would have no objection. Slip Op. at 26,
31; see also Roman Catholic Archdiocese of New York v.

4
The government also references pages of a 2011 Institute of
Medicine Report entitled, “Clinical Preventative Services for
Women: Closing the Gaps.” Gov’t Supp. Br. at 20 (citing pages
103–07). These pages of the report discuss benefits of
contraceptive services and do not reference, much less weigh, the
comparative advantage or disadvantage of procedures for accessing
those services.
 16
Sebelius, 987 F. Supp. 2d 232, 256 (E.D.N.Y. 2013) (“If these
steps only entail filling out a form, it seems that the burden of
filling out that form should fall on those who have no
religious objection to doing so.”).

Further, the government cannot meet its burden of
demonstrating a compelling interest where it leaves
“appreciable damage to [the] supposedly vital interest
unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 547 (1993) (quoting Fla. Star v.
B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring)); see
also Republican Party of Minn. v. White, 536 U.S. 765, 780
(2002) (stating a law’s purpose is undermined when it is “so
woefully underinclusive as to render belief in [its] purpose a
challenge to the credulous”). As the panel notes, the
Affordable Care Act permits employers to “ceas[e] to offer
health insurance as an employment benefit, and instead pay[]
the shared responsibility assessment and leav[e] the
employees to obtain subsidized health care coverage on an
insurance exchange.” Slip Op. at 23. While Plaintiffs state
they cannot exercise this option without violating their
religious obligations, Oral Arg. Tr. at 19:5–15, the panel
nevertheless reminds them it would be acceptable under the
law. Slip Op. at 23. The untold many whose employers
provide no health insurance and instead pay the assessment
must face “logistical, informational, and administrative
burdens,” id. at 63, in arranging for subsidized coverage on a
health insurance exchange. They must “take steps to learn
about, and to sign up for,” 78 Fed. Reg. at 39,888, health
insurance on their own. The government simply cannot argue
with a straight face that women who gain access to
contraceptive coverage by identifying and signing up for a
subsidized health insurance plan on a government exchange
receive that coverage “seamlessly.” Cf. Hobby Lobby, 134 S.
Ct. at 2783. Therefore, in leaving “appreciable damage” to its
 17
“supposedly vital interest” in seamless provision of
contraceptive coverage, the government’s regulations cannot
survive strict scrutiny. Church of the Lukumi Babalu Aye,
508 U.S. at 547 (quoting Fla. Star, 491 U.S. at 542 (Scalia, J.,
concurring)).

The question of least restrictive means then becomes the
other side of the same coin. The government could treat
employees whose employers do not provide complete
coverage for religious reasons the same as it does employees
whose employers provide no coverage. This would entail
providing for subsidized—or in this case free—contraceptive
coverage to be made available on health care exchanges. An
employee of a religious objector then would face the same
administrative burdens as those who find complete
coverage—including contraceptive services coverage—on the
exchanges. However, just like others who use the exchanges,
after overcoming these administrative hurdles, employees of
religious objectors would have contraceptive coverage
without cost sharing. Such a mechanism would therefore be
effective and would minimize the burden on religious
adherents, demonstrating its viability as a less restrictive
means than the current regulations.

IV

The Supreme Court has interpreted the First Amendment
to deprive individuals of constitutional protection against
neutral laws—meaning almost any law where the government
does not announce its intention “to infringe upon or restrict
practices because of their religious motivation.” Church of
the Lukumi Babalu Aye, 508 U.S. at 533. Genuine neutrality,
however, would “allow[] many different and contending
voices to be represented in public discourse.” Michael W.
McConnell, Why is Religious Liberty the “First Freedom”?,
 18
21 CARDOZO L. REV. 1243, 1262 (2000). When the state
quells disparate voices, declaring a winner on one side of the
culture wars, neutrality becomes a proxy for majoritarianism
and secularism. Id.

Priests for Life is an organization that exists solely for the
purpose of countering the benign narrative that contraception
and abortion are beneficial to women. The other Plaintiffs
exist, at least in part, to engender a counter-cultural narrative
that “life begins at the moment of conception . . . and that
certain ‘preventative’ services that interfere with conception
or terminate a pregnancy are immoral.” Pls. Br. at 15. Those
who accept employment with these organizations and students
who enroll at these schools do so with full awareness of their
mediating stance. Nevertheless, though the government
acknowledges that a primary goal of such organizations is to
oppose the government’s mission of increasing access to and
use of contraception, it places them outside its grudging
religious exemption and offers only one real choice—they can
renounce their religious scruples overtly or in practical effect.
If the government coopts their contractors and administrative
structures to dispense advice, drugs, and services that
contravene their religious views, in effect, it has written
contraceptive care, including access to abortifacients, into
Plaintiffs’ employment contracts and student health care
agreements. Commandeering is not accommodation, and, in
this context, “seamlessness” is just shorthand for surrender.

The French have another saying, mocking the Bourbon
restoration: ils n'ont rien appris, ni rien oublié. Learning
nothing and forgetting nothing. The modern maxim does the
Bourbon monarchs one better: learning nothing and forgetting
everything. Alas, preserving the fragile ark of our
constitutionalism requires us to remember that the first
 19
principle of liberty is freedom from gratuitous coercion. We
respectfully dissent.
 KAVANAUGH, Circuit Judge, dissenting from the denial
of rehearing en banc: In my respectful view, the panel
opinion misapplies the Religious Freedom Restoration Act
and contradicts the Supreme Court’s recent decisions in
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014),
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), and
Little Sisters of the Poor Home for the Aged v. Sebelius, 134
S. Ct. 1022 (2014). I would grant rehearing en banc and rule
for the plaintiff religious organizations.

At the outset, it is important to recognize that two of the
key Supreme Court precedents here – Hobby Lobby and
Wheaton College – were divided decisions with vigorous
dissents. Some believe that those two decisions tilted too far
in the direction of religious freedom. Others, by contrast,
think that those decisions did not go far enough in the
direction of religious freedom. We are a lower court in a
hierarchical judicial system headed by “one supreme Court.”
U.S. Const. art. III, § 1. It is not our job to re-litigate or trim
or expand Supreme Court decisions. Our job is to follow
them as closely and carefully and dispassionately as we can.
Doing so here, in my respectful view, leads to the conclusion
that the plaintiff religious organizations should ultimately
prevail on their RFRA claim, but not to the full extent that
they seek.

Some background: The Affordable Care Act requires
most employers, including non-profit organizations, to
provide health insurance coverage for their employees or else
pay a significant monetary penalty to the Government. By
regulation, that insurance must cover all FDA-approved
contraceptives, including certain methods of birth control that,
some believe, operate as abortifacients and result in the
destruction of embryos.

As a religious accommodation, the regulations exempt
religious non-profit organizations from the contraceptive
 2
mandate. To be exempt from the monetary penalty, however,
the religious organizations must either submit a form with
certain required information to their insurer or submit a letter
with certain required information to the Secretary of Health
and Human Services. 1 (For ease of reference, I will use the
term “form” to cover both documents.) The insurer must
continue to provide contraceptive coverage to the religious
organizations’ employees, albeit with separate funds provided
either by the insurer itself or by the United States.

Many prominent religious organizations around the
country – including the plaintiffs in this case – have bitterly

1
The form submitted to a religious organization’s insurer must
certify that the organization (1) opposes providing coverage for
some or all of the contraceptive services required by the
contraceptive mandate on account of religious objections; (2) is
organized and operates as a non-profit entity; and (3) holds itself
out as a religious organization. See 29 C.F.R. § 2590.715-
2713A(a), (b)(1)(ii), (c)(1); 45 C.F.R. § 147.131(b), (c)(1). In
certain circumstances, the form must also “include notice” of the
insurer’s obligations to provide contraceptive coverage to the
religious organization’s employees. 29 C.F.R. § 2590.715-
2713A(b)(1)(ii)(A).
The letter to the Secretary of Health and Human Services must
include the following information: (1) the name of the religious
non-profit organization; (2) the basis on which it qualifies for an
accommodation; (3) its objection based on sincerely held religious
beliefs to providing coverage for some or all contraceptive services,
including notice of the subset of contraceptive services to which it
objects; (4) its insurance plan’s name and type; and (5) the name
and contact information for any of the insurance plan’s third party
administrators and health insurance issuers. See 29 C.F.R.
§ 2590.715-2713A(b)(1)(ii)(B), (c)(1)(ii); 45 C.F.R.
§ 147.131(c)(1)(ii); Coverage of Certain Preventative Services
Under the Affordable Care Act, 79 Fed. Reg. 51,092, 51,094-95
(Aug. 27, 2014).
 3
objected to this scheme. They complain that submitting the
required form contravenes their religious beliefs because
doing so, in their view, makes them complicit in providing
coverage for contraceptives, including some that they believe
operate as abortifacients. They say that the significant
monetary penalty for failure to submit the form constitutes a
substantial burden on their exercise of religion. They
contend, moreover, that the Government has less restrictive
ways of ensuring that the employees of the religious
organizations have access to contraception without making
the organizations complicit in the scheme in this way.

The plaintiffs in this case have sued under the Religious
Freedom Restoration Act, known as RFRA. RFRA grants
individuals and organizations an exemption from generally
applicable federal laws that “substantially burden” their
“exercise of religion,” unless the Government demonstrates
that the law furthers a “compelling governmental interest” and
is the “least restrictive means” of furthering that interest. 42
U.S.C. § 2000bb-1. 2 As the Supreme Court has explained,
“RFRA was designed to provide very broad protection for
religious liberty.” Hobby Lobby, 134 S. Ct. at 2767, slip op.
at 17. RFRA statutorily incorporated the compelling interest
test that the Supreme Court had applied in cases such as
Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v.
Yoder, 406 U.S. 205 (1972). 42 U.S.C. § 2000bb(b)(1).

Under RFRA and the relevant Supreme Court case law,
we must consider three questions here. First, do the
2
The relevant section of RFRA provides in full: “Government
may substantially burden a person’s exercise of religion only if it
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(b).
 4
regulations – which compel religious organizations to submit
the required form or else pay significant monetary penalties –
“substantially burden” the religious organizations’ “exercise
of religion”? Second, if so, does the Government have a
“compelling” interest in facilitating access to contraception
for the employees of these religious organizations? Third, if
the Government does have such a compelling interest, do the
regulations represent the “least restrictive” means of
furthering that interest?

I conclude as follows:

First, under Hobby Lobby, the regulations substantially
burden the religious organizations’ exercise of religion
because the regulations require the organizations to take an
action contrary to their sincere religious beliefs (submitting
the form) or else pay significant monetary penalties.

Second, that said, Hobby Lobby strongly suggests that the
Government has a compelling interest in facilitating access to
contraception for the employees of these religious
organizations.

Third, this case therefore comes down to the least
restrictive means question. Under Hobby Lobby, Wheaton
College, and Little Sisters of the Poor, requiring the religious
organizations to submit this form is not the Government’s
least restrictive means of furthering its interest in facilitating
access to contraception for the organizations’ employees.
Rather, the Government can achieve its interest even if it
accepts the less restrictive notice that the Supreme Court has
already relied on in the Wheaton College and Little Sisters of
the Poor cases. Unlike the form required by current federal
regulations, the Wheaton College/Little Sisters of the Poor
notice does not require a religious organization to identify or
 5
notify its insurer, and thus lessens the religious organization’s
complicity in what it considers to be wrongful. And even
with just the Wheaton College/Little Sisters of the Poor
notice, the Government can independently determine the
identity of the organization’s insurer and thereby ensure that
the same insurer continues to provide the same contraceptive
coverage to the organization’s employees. Hence, the
Wheaton College/Little Sisters of the Poor notice is a less
restrictive way for the Government to achieve its compelling
interest.

I

First, under Hobby Lobby, this regulatory scheme
imposes a substantial burden on plaintiffs’ exercise of
religion.

Under RFRA, a substantial burden on the exercise of
religion occurs when, for example, the Government imposes
sanctions or punishment on someone, or denies a benefit to
someone, for exercising his or her religion. Thus, if the
Government requires someone (under threat of incurring
monetary sanctions or punishment, or of having a benefit
denied) to act or to refrain from acting in violation of his or
her sincere religious beliefs, that constitutes a substantial
burden on the exercise of religion. See Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751, 2775-79, slip op. at 31-38
(2014); Thomas v. Review Board of Indiana Employment
Security Division, 450 U.S. 707, 717-18 (1981); Sherbert v.
Verner, 374 U.S. 398, 403-04 (1963).

That is precisely what has happened here.

The “substantial burden” in this case comes from the
large monetary penalty imposed on religious organizations
 6
that choose not to submit the required form. Cf. Hobby
Lobby, 134 S. Ct. at 2775-76, 2779, slip op. at 31-32, 38. It is
settled that a direct monetary penalty on the exercise of
religion constitutes a “substantial burden.” See id. (penalty
for not providing contraceptive coverage); Wisconsin v.
Yoder, 406 U.S. 205, 208, 218-19 (1972) (fine for not sending
children to high school); Sherbert, 374 U.S. at 404 (describing
hypothetical fine for Saturday worship). 3

Therefore, the remaining question with respect to the first
prong of the RFRA analysis is whether submitting the form
actually contravenes plaintiffs’ sincere religious beliefs. In
analyzing that question, we must first understand the context
in which the question arises. In most religious liberty cases,
the Government has said in essence: “Do X or suffer a
penalty.” The religious objector responds that X violates his

3
The Supreme Court has determined that denying benefits to
(and not just imposing penalties on) someone engaged in conduct
mandated by religious belief imposes a substantial burden on the
exercise of religion. In denial-of-benefits cases, “[w]hile the
compulsion may be indirect, the infringement upon free exercise is
nonetheless substantial.” Thomas, 450 U.S. at 718. Congress
incorporated that broad understanding of substantial burden into
RFRA. Of course, the question of indirect burdens from the denial
of government benefits is not at issue in this case. Here, we have
the classic direct monetary penalty compelling conduct that
contravenes religious belief. There has never been a question that
such a direct penalty imposes a substantial burden on the exercise
of religion. See Hobby Lobby, 134 S. Ct. at 2775-76, 2779, slip op.
at 31-32, 38; Yoder, 406 U.S. at 208, 218; Sherbert, 374 U.S. at
404. Put simply, it is black-letter law that a “substantial burden” on
the exercise of religion occurs when, as here, the government
“compel[s] someone to do something that violates his religious
beliefs, or prohibit[s] someone from doing something that is
mandated by his religious beliefs.” Eugene Volokh, The First
Amendment and Related Statutes 1060 (5th ed. 2014).
 7
or her religious beliefs. For example, in the recent Holt v.
Hobbs case, it was “shave your beard or suffer a penalty.”
See Holt v. Hobbs, 135 S. Ct. 853, 860-61, slip op. at 4
(2015). Or in the classic Wisconsin v. Yoder case, it was
“send your children to high school or pay a $5 fine.” See 406
U.S. at 208. Or in United States v. Lee, it was “pay the Social
Security tax or suffer a penalty.” See 455 U.S. 252, 254-55
(1982). Simple enough.

Here, the situation is only slightly more complicated.
The Government has said in essence: “Do X or Y or suffer a
penalty.” X is provide contraceptive coverage. Y is submit
the form. All agree that X – providing contraceptive coverage
– implicates plaintiffs’ “exercise of religion.” But religious
organizations can avoid that option by choosing Y –
submitting the form. In other words, the Government is
exempting religious organizations from providing
contraceptive coverage but is still saying: “Submit the form
or suffer a penalty.”

As a result, the key inquiry under the first prong of
RFRA is whether submitting the form violates plaintiffs’
sincere religious beliefs. The form is part of the process by
which the Government ensures that the religious
organizations’ insurers provide contraceptive coverage to the
organizations’ employees. To plaintiffs, the act of
“submitting” this form would, “in their religious judgment,
impermissibly facilitate[] delivery” of contraceptive and
abortifacient coverage. Plaintiffs’ Supplemental Br. 1.

As the Supreme Court stated in Hobby Lobby, such a
question of complicity – that is, when “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” – is “a difficult and important
 8
question of religion and moral philosophy.” Hobby Lobby,
134 S. Ct. at 2778, slip op. at 36. Judge Gorsuch has
explained well the complicity issue that arises in these
circumstances: “All of us face the problem of complicity. All
of us must answer for ourselves whether and to what degree
we are willing to be involved in the wrongdoing of others.
For some, religion provides an essential source of guidance
both about what constitutes wrongful conduct and the degree
to which those who assist others in committing wrongful
conduct themselves bear moral culpability. [Plaintiffs] are
among those who seek guidance from their faith on these
questions. Understanding that is the key to understanding this
case.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,
1152 (10th Cir. 2013) (Gorsuch, J., concurring).

But what if the religious organizations are misguided in
thinking that this scheme – in which the form is part of the
process by which the Government ensures contraceptive
coverage – makes them complicit in facilitating contraception
or abortion? That is not our call to make under the first prong
of RFRA. The Supreme Court has emphasized that judges in
RFRA cases may question only the sincerity of a plaintiff’s
religious belief, not the correctness or reasonableness of that
religious belief. See Hobby Lobby, 134 S. Ct. at 2774 n.28,
2777-79, slip op. at 29 n.28, 35-38; see also Thomas, 450 U.S.
at 714-16. 4 The Supreme Court has long stated, moreover,

4
In that regard, it is important to note at least three limits on a
claimant’s ability to prevail under RFRA.
First, RFRA does not provide protection to philosophical,
policy, political, or personal beliefs, for example. It protects only
religious beliefs. 42 U.S.C. § 2000bb-1(a) (“Government shall not
substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability, except as
provided in subsection (b) of this section.”) (emphasis added).
 9
that religious beliefs need not be “acceptable, logical,
consistent, or comprehensible to others” in order to merit
protection. Thomas, 450 U.S. at 714. As Justice Brennan, the
primary architect of the body of religious freedom law now
incorporated into RFRA, once put it: “[R]eligious freedom –
the freedom to believe and to practice strange and, it may be,
foreign creeds – has classically been one of the highest values

Second, RFRA does not cover insincere religious beliefs – that
is, beliefs that are not truly held – such as when someone asserts a
personal objection dressed up as a religious objection. Under
RFRA, the courts must police sincerity. As the Supreme Court has
explained, RFRA reflects Congress’s confidence in “the ability of
the federal courts to weed out insincere claims.” Hobby Lobby, 134
S. Ct. at 2774, slip op. at 29. And the Hobby Lobby Court
approvingly cited a number of cases where courts have inquired
into the sincerity of religious claims. Id. at 2774 nn.28-29, slip op.
at 29-30 nn.28-29 (citing United States v. Quaintance, 608 F.3d
717, 718-19 (10th Cir. 2010); Abate v. Walton, 77 F.3d 488, 1996
WL 5320, at *5 (9th Cir. Jan. 5, 1996); Ochs v. Thalacker, 90 F.3d
293, 296 (8th Cir. 1996); Green v. White, 525 F. Supp. 81, 83-84
(E.D. Mo. 1981); Winters v. State, 549 N.W.2d 819, 819-20 (Iowa
1996)). As the Supreme Court has previously stated: “[W]hile the
truth of a belief is not open to question, there remains the
significant question whether it is truly held. This is the threshold
question of sincerity which must be resolved in every case.” United
States v. Seeger, 380 U.S. 163, 185 (1965) (internal quotation
marks omitted). In short, in these religious freedom cases, the
courts appropriately “inquir[e] into the sincerity” of a claimant’s
“professed religiosity.” Cutter v. Wilkinson, 544 U.S. 709, 725
n.13 (2005) (applying the related Religious Land Use and
Institutionalized Persons Act).
Third, as explained more fully below, RFRA’s compelling
interest standard allows the Government to compel or proscribe
action in certain circumstances even though, by doing so, the
Government may be substantially burdening someone’s religion.
 10
of our society.” Braunfeld v. Brown, 366 U.S. 599, 612
(1961) (Brennan, J., concurring in part and dissenting in part).

That bedrock principle means that we may not question
the wisdom or reasonableness (as opposed to the sincerity) of
plaintiffs’ religious beliefs – including about complicity in
wrongdoing. In Hobby Lobby, the Supreme Court
emphatically confirmed that point. There, as here, the
Government argued that the employers’ alleged complicity in
providing contraception did not infringe on the employers’
religious beliefs. In particular, the Government claimed that
“the connection between what the objecting parties must do”
(pay for insurance) and “the end that they find to be morally
wrong (destruction of an embryo)” was “simply too
attenuated” because the end would occur only as a result of
intervening decisions by individual covered employees.
Hobby Lobby, 134 S. Ct. at 2777, slip op. at 35.

The Supreme Court adamantly rejected the basic premise
of the Government’s argument. The Court emphasized that
federal courts have “no business” trying to answer whether
the religious beliefs asserted in a RFRA case – including the
complicity belief at issue in Hobby Lobby – are correct or
reasonable. Id. at 2778, slip op. at 36. A federal court may
not tell the objectors that “their beliefs are flawed,” and thus
may not arrogate to itself “the authority to provide a binding
national answer to this religious and philosophical question”
of complicity. Id. at 2778, slip op. at 36-37. Instead, the
“narrow function” of federal courts is to determine whether
the belief is sincere and “reflects an honest conviction.” Id. at
2779, slip op. at 37-38 (internal quotation marks omitted). In
doing so, moreover, courts must keep in mind that RFRA
protects “any exercise of religion, whether or not compelled
by, or central to, a system of religious belief.” 42 U.S.C.
§ 2000cc-5(7)(A) (defining “religious exercise” for purposes
 11
of the related Religious Land Use and Institutionalized
Persons Act); see id. § 2000bb-2 (incorporating that Act’s
definition set forth in § 2000cc-5 into RFRA).

As a matter of religious belief, plaintiffs in this case say
that the act of submitting the required form makes them
complicit in moral wrongdoing. Importantly, no one here
disputes that plaintiffs’ religious belief is sincere and reflects
an honest conviction. Cf. Wheaton College v. Burwell, 134 S.
Ct. 2806, 2808, slip op. at 4 (2014) (Sotomayor, J.,
dissenting) (“The sincerity of Wheaton’s deeply held religious
beliefs is beyond refute.”); id. at 2812, slip op. at 11.
Therefore, plaintiffs’ decision to decline to submit the
required letter or form is an “exercise of religion” under
RFRA. No one disputes, moreover, that plaintiffs will be
required to pay huge monetary penalties if they do not submit
the required form. Those large monetary penalties plainly
represent a “substantial burden” on plaintiffs’ exercise of
religion. See Hobby Lobby, 134 S. Ct. at 2759, slip op. at 2.

Judge Flaum persuasively summarized the point in a
similar case that involved Notre Dame: “Yet we are judges,
not moral philosophers or theologians; this is not a question of
legal causation but of religious faith. Notre Dame tells us that
Catholic doctrine prohibits the action that the government
requires it to take. So long as that belief is sincerely held, I
believe we should defer to Notre Dame’s understanding.”
University of Notre Dame v. Sebelius, 743 F.3d 547, 566 (7th
Cir. 2014) (Flaum, J., dissenting), vacated and remanded, 135
S. Ct. 1528 (2015). Judge Pryor has likewise cogently
explained: “So long as the [religious organization’s] belief is
sincerely held and undisputed – as it is here – we have no
choice but to decide that compelling the participation of the
[religious organization] is a substantial burden on its religious
exercise.” Eternal Word Television Network, Inc. v.
 12
Secretary, Department of Health & Human Services, 756 F.3d
1339, 1348 (11th Cir. 2014) (Pryor, J., specially concurring).

In short, under Hobby Lobby, the regulations
substantially burden plaintiffs’ exercise of religion.

The panel opinion concludes, however, that there is no
substantial burden on plaintiffs’ exercise of religion. In
particular, the panel opinion says that plaintiffs are wrong to
think that they would be complicit in moral wrongdoing if
they submit this form, as required by the Government. But to
reiterate: Judicially second-guessing the correctness or
reasonableness (as opposed to the sincerity) of plaintiffs’
religious beliefs is exactly what the Supreme Court in Hobby
Lobby told us not to do. See Hobby Lobby, 134 S. Ct. at
2778, slip op. at 36. And Hobby Lobby was not the first
Supreme Court case to say as much. See Thomas, 450 U.S. at
714-16.

The panel opinion responds that plaintiffs are simply
misunderstanding the law and that the law, properly
understood, does not actually make plaintiffs complicit in
providing contraceptive coverage. But there is no dispute that
the Government is requiring plaintiffs to submit a form (to the
Government or to the insurer) or else pay a penalty. And
there is no dispute that the form is part of the process by
which the Government ensures that the religious
organizations’ insurers provide contraceptive coverage to the
organizations’ employees. In other words, the form matters
and plays a role in this scheme. After all, if the form were
meaningless, why would the Government require it? The
Government is requiring plaintiffs to submit the form
precisely because the form is part of the process by which the
Government ensures that the religious organizations’ insurers
provide contraceptive coverage to the organizations’
 13
employees. 5 Plaintiffs in turn sincerely believe that
submitting the form under those circumstances makes them
complicit in wrongdoing in contravention of their religious
beliefs. See Plaintiffs’ Supplemental Br. 1. Compelling
submission of the form therefore imposes a substantial burden
under RFRA. 6

The panel opinion separately notes that the Government
intended the form to accommodate religious organizations so
that the organizations themselves would not have to provide

5
If the form were meaningless, the Government presumably
would not require it and perpetuate this rancorous dispute with
religious organizations around the country.
6
The panel’s concurrence in the denial of rehearing en banc
largely echoes Justice Sotomayor’s dissent in Wheaton College.
Compare Panel Concurrence at 5 (“In no respect do we, nor could
we, question Plaintiffs’ sincere beliefs about what their faith
permits and forbids of them. But we can and must decide which
party is right about how the law works.”), with Wheaton College,
134 S. Ct. at 2812, slip op. at 10 (Sotomayor, J., dissenting)
(“Wheaton is mistaken – not as a matter of religious faith, in which
it is undoubtedly sincere, but as a matter of law . . . . Any provision
of contraceptive coverage by Wheaton’s third-party administrator
would not result from any action by Wheaton; rather, in every
meaningful sense, it would result from the relevant law and
regulations.”). But the Supreme Court, by a 6-3 margin, did not
agree with Justice Sotomayor’s dissent in Wheaton College, at least
for purposes of the injunction. The Court instead granted an
injunction under the All Writs Act to Wheaton College, which the
Court could do only if it concluded that the required form
“indisputably” would impose a substantial burden on Wheaton
College’s exercise of religion. See Turner Broadcasting System,
Inc. v. Federal Communications Commission, 507 U.S. 1301, 1303
(1993) (Rehnquist, C.J., in chambers) (internal quotation marks
omitted); Wheaton College, 134 S. Ct. at 2808, slip op. at 4
(Sotomayor, J., dissenting) (internal quotation marks omitted).
 14
contraceptive coverage. But the panel opinion has been faked
out by the Government’s accommodation. The
accommodation provides an alternative, but the alternative
itself imposes a substantial burden on the religious
organizations’ exercise of religion. Again, this case arises in
a “Do X or Y or pay a penalty” posture. All agree that X –
providing contraceptive coverage – infringes plaintiffs’
exercise of religion. But so does Y – submitting the form.
What the panel opinion misses is that submitting this form is
itself an act that contravenes the organizations’ sincere
religious beliefs. It is no different from the recent Holt case,
in which the act that contravened the Muslim prisoner’s
sincere religious beliefs was shaving his beard. Submitting
the form = shaving your beard. Or the Yoder case, in which
the act that contravened the Amish parents’ beliefs was
sending their children to high school. Submitting the form =
sending your children to high school. Or the Lee case, in
which the act that contravened the Amish employer’s
religious beliefs was paying Social Security taxes.
Submitting the form = paying the Social Security tax. Or the
Sherbert case, in which the act that contravened the Seventh-
day Adventist’s belief was working on Saturday, the Sabbath
day of the faith. Submitting the form = working on the
Sabbath.

In all of those cases, the Supreme Court recognized that
the act in question represented a sincere religious belief that
the Government could not override except by employing the
least restrictive means to further a compelling governmental
interest. The same is true here. The panel opinion does not
fully come to grips with that critical point, in my view.

The panel opinion therefore also does not appreciate that
the substantial burden on plaintiffs’ exercise of religion comes
from the monetary penalty (which in this case happens to be
 15
huge) that the organizations will have to pay if they adhere to
their religious beliefs and do not submit the required form. In
Holt, the substantial burden came from the discipline the
prisoner would receive if he refused to shave his beard. In
Yoder, it was the $5 monetary fine for the parents whose
children did not attend high school. In Lee, it was the
monetary penalty for failure to pay taxes. In Sherbert, it was
the denial of unemployment benefits for not working on the
Sabbath.

The essential principle is crystal clear: When the
Government forces someone to take an action contrary to his
or her sincere religious belief (here, submitting the form) or
else suffer a financial penalty (which here is huge), the
Government has substantially burdened the individual’s
exercise of religion. So it is in this case.

To be clear, that conclusion does not mean that plaintiffs
prevail on their RFRA claim. Rather, it means only that they
prevail on the first prong of the three-part RFRA inquiry and
that we now must move on to the second and third prongs.
The Government may still be able to compel plaintiffs to
submit the required form if the Government prevails on those
second and third prongs. Cf. Lee, 455 U.S. at 257, 261
(Government may force Amish employer to pay Social
Security taxes notwithstanding substantial burden on Amish
employer’s religion).

II

Second, does the Government have a compelling interest
in facilitating women’s access to contraception – in particular,
in facilitating access to contraception for the employees of
these religious organizations? See 42 U.S.C. § 2000bb-1(b)
(“Government may substantially burden a person’s exercise
 16
of religion only if it demonstrates that application of the
burden to the person . . . is in furtherance of a compelling
governmental interest.”) (emphasis added); Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
430-31 (2006) (compelling interest test focuses on interest as
applied to particular plaintiffs).

The plaintiff religious organizations strenuously argue
that there is no such compelling governmental interest. As I
see it, however, plaintiffs’ argument cannot be squared with
the views expressed by a majority of the Justices in Hobby
Lobby.

To begin with, how do we determine whether the
Government has a “compelling interest” in overriding a
fundamental constitutional or statutory right such as RFRA’s
right to religious freedom? Good question. No code or
history book lists the Government’s compelling interests.
Rather, courts have developed those interests over time, in
common-law-like fashion. 7 What we do know, to put it in
colloquial and somewhat question-begging terms, is that the
asserted governmental interest must be so critically important
that it justifies overriding certain fundamental individual
rights in certain circumstances. To quote the Supreme Court,

7
The compelling interest nomenclature took root somewhat
ignominiously in free speech cases as a way to justify the
Government’s suppression of Communist speech. See, e.g.,
Konigsberg v. State Bar of California, 366 U.S. 36, 49-52 (1961);
Barenblatt v. United States, 360 U.S. 109, 126-27 (1959); Sweezy v.
New Hampshire, 354 U.S. 234, 265-67 (1957) (Frankfurter, J.,
concurring in result). In any event, the compelling interest override
is now an established part of various constitutional doctrines,
including the First and Fourteenth Amendments. And Congress
expressly incorporated it into the Religious Freedom Restoration
Act.
 17
the interest must be “of the highest order.” Wisconsin v.
Yoder, 406 U.S. 205, 215 (1972); see Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751, 2781, slip op. at 41 (2014).
Examples of compelling interests from past Supreme Court
cases include conducting the military draft, maintaining the
tax system, running the Social Security program, and
preventing discrimination against third parties. See Gillette v.
United States, 401 U.S. 437, 461-63 (1971); Hernandez v.
Commissioner of Internal Revenue, 490 U.S. 680, 699-700
(1989); United States v. Lee, 455 U.S. 252, 257-59 (1982);
Bob Jones University v. United States, 461 U.S. 574, 603-04
(1983). 8

In this case, we do not have to tackle the compelling
interest question without guidance from above. Justice
Kennedy strongly suggested in his Hobby Lobby concurring
opinion – which appears to be controlling de facto if not also
de jure on this particular issue – that the Government
generally has a compelling interest in facilitating access to
contraception for women employees. Hobby Lobby, 134 S.
Ct. at 2785-86, slip op. at 2 (Kennedy, J., concurring); see
also id. at 2779-80, slip op. at 39-40 (majority opinion); id. at
2799-2801, slip op. at 23-27 (Ginsburg, J., dissenting); cf.
Marks v. United States, 430 U.S. 188, 193 (1977). In
particular, Justice Kennedy referred to the “premise” of the
Court’s decision: namely, its “assumption” that the

8
As noted above, at least three aspects of RFRA limit the
statute’s reach and thus help answer the parade of horribles
sometimes raised in opposition to religious freedom claims. First,
RFRA covers only religious objections. Second, insincere
religious claims are excluded from RFRA’s protection. Third,
RFRA’s compelling interest standard allows the Government to
compel or proscribe action in certain circumstances even though, by
doing so, the Government may be substantially burdening
someone’s religion.
 18
Government has a “legitimate and compelling interest” in
facilitating access to contraception. Hobby Lobby, 134 S. Ct.
at 2786, slip op. at 2 (Kennedy, J., concurring). Justice
Kennedy’s use of the term “compelling” in this context was
no doubt carefully considered. And the four dissenting
Justices likewise stated that the Government had a compelling
interest in facilitating women’s access to contraception. Id. at
2799-2801, slip op. at 23-27 (Ginsburg, J., dissenting).

It is not difficult to comprehend why a majority of the
Justices in Hobby Lobby (Justice Kennedy plus the four
dissenters) would suggest that the Government has a
compelling interest in facilitating women’s access to
contraception. About 50% of all pregnancies in the United
States are unintended. The large number of unintended
pregnancies causes significant social and economic costs. To
alleviate those costs, the Federal Government has long sought
to reduce the number of unintended pregnancies, including
through the Affordable Care Act by making contraceptives
more cheaply and widely available. It is commonly accepted
that reducing the number of unintended pregnancies would
further women’s health, advance women’s personal and
professional opportunities, reduce the number of abortions,9
and help break a cycle of poverty that persists when women
who cannot afford or obtain contraception become pregnant
unintentionally at a young age. In light of the numerous
benefits that would follow from reducing the number of
unintended pregnancies, it comes as no surprise that Justice
Kennedy’s opinion expressly referred to a “compelling”
governmental interest in facilitating women’s access to
contraception.

9
As the panel opinion in this case accurately pointed out, as of
now about 40% of all unintended pregnancies end in abortion.
 19
In short, even if the Court did not formally hold as much,
Hobby Lobby at least strongly suggests that the Government
has a compelling interest in facilitating access to
contraception for the employees of these religious
organizations. 10

III

Third, in light of those two conclusions, we must
consider the least restrictive means issue. When, as here, a
law substantially burdens the exercise of religion, but the law
furthers a compelling governmental interest, RFRA requires
the Government to use the “least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C.
§ 2000bb-1(b). The Supreme Court has emphasized that the
“least-restrictive-means standard is exceptionally
demanding.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751, 2780, slip op. at 40 (2014).

Congress adopted the least restrictive means requirement
to help thread the needle between two conflicting principles.
The least restrictive means requirement, properly applied,
allows religious beliefs to be accommodated and the
Government’s compelling interests to be achieved – a win-
win resolution of these often contentious disputes. See
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 436 (2006) (quoting 42 U.S.C. § 2000bb(a)(5))
(RFRA “‘is a workable test for striking sensible balances
between religious liberty and competing prior governmental
interests.’”). As a leading First Amendment scholar has put
10
Justice Kennedy’s Hobby Lobby opinion did not expressly
discuss whether a compelling governmental interest in ensuring
general coverage for contraceptives encompasses ensuring coverage
for those specific drugs and services that, some believe, operate as
abortifacients and result in the destruction of embryos.
 20
it: “If there’s some way of granting an exemption and yet
accomplishing the government’s goal, then there’s no real
need to interfere with the religious practice, so the exemption
must be granted.” Eugene Volokh, The First Amendment and
Related Statutes 986 (5th ed. 2014).

Requiring religious organizations to submit the form
mandated by current federal regulations is not the
Government’s least restrictive means of furthering its interest
in facilitating access to contraception for the organizations’
employees. That is because the Government can still achieve
its interest by allowing the religious organizations to submit
the less restrictive notice that the Supreme Court has already
twice indicated should be good enough to satisfy the
Government’s interest.

In the Wheaton College and Little Sisters of the Poor
cases, the Supreme Court carefully specified that the religious
organizations would satisfy their current legal obligations by
submitting a simple notice to the Secretary of Health and
Human Services “in writing that it is a nonprofit organization
that holds itself out as religious and has religious objections to
providing coverage for contraceptive services.” Wheaton
College v. Burwell, 134 S. Ct. 2806, 2807, slip op. at 1
(2014); see also Little Sisters of the Poor Home for the Aged
v. Sebelius, 134 S. Ct. 1022, 1022, slip op. at 1 (2014) (notice
should be “in writing that they are non-profit organizations
that hold themselves out as religious and have religious
objections to providing coverage for contraceptive services”);
cf. Eternal Word Television Network, Inc. v. Secretary,
Department of Health & Human Services, 756 F.3d 1339,
1349 (11th Cir. 2014) (Pryor, J., specially concurring) (“The
United States, for example, could require the [religious
organization] to provide a written notification of its religious
objection to the Department of Health and Human Services.”).
 21

By contrast to the form required by current federal
regulations, the Wheaton College/Little Sisters of the Poor
notice does not require the religious organizations to identify
or notify their insurers, and thus (according to plaintiffs)
lessens the religious organizations’ degree of complicity in
what they consider to be wrongful as a matter of religious
belief. See Plaintiffs’ Supplemental Br. 10. And even with
the less detailed Wheaton College/Little Sisters of the Poor
notice, the Government can independently determine the
identity of the organizations’ insurers and thereby ensure that
the insurers provide contraceptive coverage to the
organizations’ employees. The Wheaton College/Little
Sisters of the Poor notice may create some administrative
inconvenience for the Government, because the Government
itself will have to identify the religious organizations’
insurers. But administrative inconvenience alone does not
negate the feasibility of an otherwise less restrictive means –
unless the administrative problem would be “of such
magnitude” that it would render “the entire statutory scheme
unworkable.” Sherbert v. Verner, 374 U.S. 398, 408-09
(1963); see also Bowen v. Roy, 476 U.S. 693, 731 (1986)
(O’Connor, J., concurring in part and dissenting in part)
(“[A]dministrative inconvenience is not alone sufficient to
justify a burden on free exercise unless it creates problems of
substantial magnitude.”).

If a religious organization does not use the currently
required form but instead uses the Wheaton College/Little
Sisters of the Poor notice, how would that affect third parties,
namely the religious organizations’ employees? That
question matters because the Supreme Court has stated that
“courts must take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries.” Cutter v.
Wilkinson, 544 U.S. 709, 720 (2005) (applying the related
 22
Religious Land Use and Institutionalized Persons Act). In
Hobby Lobby, the Court reiterated that this consideration
“will often inform the analysis of the Government’s
compelling interest and the availability of a less restrictive
means of advancing that interest.” Hobby Lobby, 134 S. Ct.
at 2781 n.37, slip op. at 42 n.37. As Justice Kennedy put it in
his concurrence, the accommodation must not “unduly restrict
other persons, such as employees, in protecting their own
interests.” Id. at 2787, slip op. at 4 (Kennedy, J., concurring).

But here, the religious organizations’ employees would
still receive the same insurance coverage from the same
insurer for contraceptives. As the Supreme Court explained
in its Wheaton College order: “Nothing in this interim order
affects the ability of the applicant’s employees and students to
obtain, without cost, the full range of FDA approved
contraceptives” or “precludes the Government from relying
on this notice, to the extent it considers it necessary, to
facilitate the provision of full contraceptive coverage under
the Act.” Wheaton College, 134 S. Ct. at 2807, slip op. at 1-2.
So accommodating the religious organizations by allowing
them to use the Wheaton College/Little Sisters of the Poor
notice would not, to use Justice Kennedy’s formulation,
“unduly restrict” third parties. Cf. Douglas NeJaime & Reva
B. Siegel, Conscience Wars: Complicity-Based Conscience
Claims in Religion and Politics, 124 Yale L.J., at 116
(forthcoming 2015) (version of Apr. 10, 2015) (“Wheaton
College, like Hobby Lobby, appears to tie accommodation to
the fact that the government has other ways of providing for
the statute’s intended beneficiaries so that no third-party harm
would result from the accommodation.”).

Although the Supreme Court’s Wheaton College and
Little Sisters of the Poor orders were not final merits rulings,
they at least qualify as extremely strong signals from the
 23
Supreme Court about how to resolve the least restrictive
means issue in this case. In particular, the Court in Wheaton
College granted an injunction under the All Writs Act, which
is appropriate “only where the legal rights at issue are
indisputably clear.” Wheaton College, 134 S. Ct. at 2808, slip
op. at 4 (Sotomayor, J., dissenting) (internal quotation marks
omitted). Moreover, the Court issued the Wheaton College
order just days after its Hobby Lobby decision, and it did so
over a detailed and forceful dissent.

In any event, regardless of whether we as a lower court
are formally bound by the Supreme Court stay orders in
Wheaton College and Little Sisters of the Poor, the notice
identified by the Supreme Court in those two cases is
undoubtedly a less restrictive way for the Government to
further its interest than the form required by current federal
regulations. It necessarily follows that the form required by
current regulations is not the “least restrictive means”
available to the Government. As the Supreme Court said a
few months ago in a similar context: If “a less restrictive
means is available for the Government to achieve its goals,
the Government must use it.” Holt v. Hobbs, 135 S. Ct. 853,
864, slip op. at 11 (2015) (internal quotation marks omitted).
So too here.

To be sure, some religious organizations claim that even
the less restrictive Wheaton College/Little Sisters of the Poor
notice still imposes a substantial burden on their religious
beliefs. But that obviously does not help the Government’s
argument in support of the current, even more burdensome
form. The key point here is that the Wheaton College/Little
Sisters of the Poor notice is less restrictive (that is, less
burdensome) than the currently required form and yet still
furthers the Government’s compelling interest. Under RFRA,
 24
the Government therefore must employ that less restrictive
means. 11

Put simply, the Government need not – and therefore
under RFRA may not – pursue its compelling interest in
facilitating access to contraception by requiring religious non-
profit organizations to submit the form required by current
federal regulations. 12

11
The Wheaton College/Little Sisters of the Poor notice
requires a religious organization to, in effect, raise its hand to opt
out. But contrary to what the panel’s concurrence in the denial of
rehearing en banc says, see Panel Concurrence at 3-4 n.1, the
currently required form requires a religious organization both to
raise its hand and to point to its insurer. From the perspective of
the plaintiff religious organizations, the currently required form is
therefore more burdensome because it makes the organizations
identify or notify their insurers, which the organizations believe
makes them more complicit in the provision of contraceptive
coverage to which they object as a matter of religious belief.
12
As the Court in Hobby Lobby noted, the Government could
directly subsidize or provide contraceptives to employees of
religious non-profit organizations. See Hobby Lobby, 134 S. Ct. at
2780-81, slip op. at 41. The direct funding option raises certain
feasibility issues. A means that is not a reasonably feasible way of
furthering the Government’s interest cannot be deemed a less
restrictive means of furthering that interest. In Little Sisters of the
Poor, Hobby Lobby, and Wheaton College, the Court did not say
that direct funding was the least restrictive means of furthering the
Government’s interest. If it had, then even the Wheaton
College/Little Sisters of the Poor notice would itself be too
restrictive. In any event, what matters in the present case is that the
Wheaton College/Little Sisters of the Poor notice is less restrictive
than the form required by the current federal regulations but still
achieves the Government’s interest.
 25
One final note for clarity: The Government may of
course continue to require the religious organizations’
insurers to provide contraceptive coverage to the religious
organizations’ employees, even if the religious organizations
object. As Judge Flaum correctly explained, “RFRA does not
authorize religious organizations to dictate the independent
actions of third-parties, even if the organization sincerely
disagrees with them.” University of Notre Dame v. Sebelius,
743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., dissenting),
vacated and remanded, 135 S. Ct. 1528 (2015). “That is true
whether the third-party is the government, an insurer, a
student, or some other actor.” Id. “So long as the
government does not require” religious organizations
themselves “to take action, RFRA does not give” the religious
organizations “a right to prevent the government from
providing contraceptives to” the religious organizations’
employees. Id.

***

In sum, I respectfully would grant rehearing en banc and
rule for the plaintiff religious organizations on the ground that
the Wheaton College/Little Sisters of the Poor notice is a less
restrictive way than the currently mandated form for the
Government to achieve its compelling interest in facilitating
access to contraception for the organizations’ employees.