Summary of Legal Arguments from Briefs (Full arguments below)
Becket Funds Arguments Governments Arguments
The Religious Freedom Restoration Act protects the free-exercise rights of persons, which,
according to federal definitions, include both non-profit and for-profit corporations.
The Greens run their businesses according to their religious beliefs, and they always have.
Hobby Lobby has a Christian mission statement, its trustees sign a statement of faith, and all of its
business transactions and policies reflect the Greens Christian values. This extends to the products
they sell, the benefits they offer their employees, the hours they operate their stores, the messages
they send through advertisements, etc.
The Greens cannot, in good conscience, provide access through their health care plans to drugs
that have the potential to end a human life. The contraceptive mandate substantially burdens the
Greens religious excercise, by forcing them to either provide drugs at odds with their religious
beliefs, or pay severe fines.
The Greens provide their employees with access to good health care benefits. They do not
interfere with any of their health decisions or prevent them from using any type of health
service. The Greens cannot facilitate access to drugs they see as deeply immoral.
The Greens provide generous health care benefits. In fact, they already provide contraceptive
coverage. They have no objection to 16 of the 20 FDA-approved contraceptive methods.
The Greens cannot and will not comply with the mandate. They will not violate their religious
beliefs. As a result, they face the impossible choice of dropping health care for their employees and
facing severe fines.
Considering the fact that the government has provided thousands of exemptions for religious
and secular reasons alike, including through a broad grandfathering clause, it makes no sense that
the Greens cannot be allowed to opt out.
The government spends hundreds of millions of dollars in public programs to provide access to
contraceptive coverage. Instead of forcing the Greens to violate their beliefs, over a question of
only four drugs, the government should rely on existing programs.
Page 1 of 15
But RFRA does not extend free-exercise rights to for-
profit corporations, because that would allow
corporations to evade otherwise applicable laws.
Business owners beliefs do not extend to the businesses
themselves. Business owners have no religious freedom
claims in the regulations placed on their corporations.
The contraceptive mandate does not constitute a direct
burden on the Greens, because its the corporations that
must provide the coverage, not the Greens themselves.
The Greens dont have to play any part in their
businesses operations.
The Greens are not responsible for the type of healthcare
an individual chooses to use, so their religious beliefs
would not be offended. They would not even know if an
employee used one of these drugs.
If they do not provide every one of the contraceptives in
the mandate, the Greens are hurting the goal of
advancing public health and womens equal access to it.
The Greens do not have to provide health care to their
employees. We are not forcing them to do anything. Only
their corporation is burdened.
The grandfathering clause is intended to be temporary.
Congress wanted to use private insurance to advance
these goals. Religious objections like the Greens claim
do not require the government to expand its programs.
 Extended Arguments from the Briefs
RFRA protects the free exercise rights of the Green family.
Becket Fund Government Response
(all citations from Brief for Respondents filed to the (all citations from
Supreme Court February 10, 2014) Brief for the
Petitioners, filed
January 10, 2014)

Hobby Lobby is protected under RFRA, plain and But RFRA does not The two bills cited by the government (Title VII and ADA) explicitly
simple. The Religious Freedom Restoration Act extend free-exercise include language distinguishing between non-profits and for-profits. There
protects the free-exercise rights of a person. In rights to for-profit is no language or context to even suggest that distinction in RFRA. If
federal legislative history, the word person applies corporations, because Congress had wanted to make that distinction in RFRA, it would have done
to both individuals and corporations, and to non- that would allow so.
profits and for-profits. corporations to evade
otherwise applicable The 10th Circuit Court found the governments argument strained, and not
[T]his is one of the most straight- forward violations of the laws. constitutinally based. (Brief for Respondents on Cert Petition to US Supreme Court,
Religious Freedom Restoration Act this Court is likely to see. p.10)
(1) RFRA does not grant
free-exercise rights to As the Becket Fund demonstrates in the Respondents latest brief,
The Religious Freedom Restoration Act protects Respondents for-profit corporations. Congress knows how to limit statutory protections to a subset of artificial entities or
religious exercise. RFRA covers any persons exercise of (15) persons, and it chose not to do so in RFRA. (Brief for Respondents filed to the
religion but it does not separately define person. The Supreme Court February 10, 2014; p. 17)
Dictionary Act thus supplies the meaning of the term, which is Congress distinguished
specifically designed to include both natural persons (like the between non-profits and Actual text of Religious Freedom Restoration Act
Greens) and corporations (like Hobby Lobby and Mardel). for-profits in two other
(13-14) (a) In general
bills, Title VII and ADA.
Government shall not substantially burden a persons exercise of religion even if the
The Tenth Circuit granted initial en banc hearing and burden results from a rule of general applicability, except as provided in subsection (b)
Title VIIs religious
reversed. Pet.App.5a, 16a. By a 5-3 majority, the en banc court of this section.
accommodation
held that Hobby Lobby and Mardel were persons capable of provision would never be (b) Exception
religious exercise and could therefore sue under RFRA. (11) interpreted to permit an Government may substantially burden a persons exercise of religion only if it
objecting employee to demonstrates that application of the burden to the person
Nothing else in RFRA suggests any limitation on the secure an exemption (1) is in furtherance of a compelling governmental interest; and
Dictionary Acts definition. (16) from federal law for his (2) is the least restrictive means of furthering that compelling governmental interest.
The scope of RFRA is answered by the statutory text, employer, much less one
which covers all persons, including corporations, without that would come at the (c) Judicial relief
regard to their tax status. (22) expense of his fellow A person whose religious exercise has been burdened in violation of this section may
employees. (31) assert that violation as a claim or defense in a judicial proceeding and obtain appropriate
[T]he place to look for the scope of RFRAs coverage is its relief against a government. Standing to assert a claim or defense under this section shall
text. (18) be governed by the general rules of standing under article III of the Constitution.

Page 2 of 15
 Corporations can be run according to the religious beliefs of their owners.
Becket Fund
(all citations from Brief for Respondents filed to the Supreme Court
February 10, 2014)
Hobby Lobby and Mardel are covered under RFRA, and
therefore can file suit challenging the mandate. Corporations
have the right to free exercise, just as they have other First
Amendment rights. Corporations exercise religion all the time,
and Hobby Lobby and Mardel are no exception.
Hobby Lobby and Mardel remain closely held family businesses,
organized as general corporations under Oklahoma law, and exclusively
controlled by the Greens. (8)
[R]eligion is commonly exercised by and through corporations,
associations, and societies (17)
[T]he Court has never suggested that free exercise rights are purely
personal, or that individuals could not exercise religion when engaged in
particular activities (22)
The history of the Free Exercise right confirms that religious activity
has been routinely undertaken through corporations. In his
Commentaries on the Law of England, Blackstone lists advancement of
religion first in the list of purposes that corporations might pursue.
(24)
RFRA broadly protects any religious exercise, and does not purport to corportions and not their individual
limit the choice of means by which believers may exercise their faith.
(30)
Nor does the government offer any support for the odd notion that the
First Amendment singles out religious exercise as the only right that may
not be exercised while earning a living. (27)
Government
(all citations from Brief for the
Petitioners, filed January 10, 2014)
Hobby Lobby and Mardel cannot claim
that their religious views are violated,
because it is only the Greens whose
faith is affected, not the corporations.
Business owners beliefs have nothing
to do with their corporations.
The corporate-respondents RFRA claim
fails for the independent reason that it
attributes the religious beliefs of the
corporate shareholders to the corporate-
respondents themselves. (13)
There isno basis on which to impute the
individual respondents religious beliefs to
the corporate respondents. (25)
But the Greens beliefs, although deeply
held, do not justify an injunction under the
Religious Freedom Restoration Act
exempting Hobby Lobby and Mardel from
an obligation to comply with a generally
applicable law that regulates only these
owners. (12)
RFRA does not entitle them [the Greens]
to an exemption for the corporations based
on their individual religious beliefs. (14)
Page 3 of 15
Response
Businesses like Hobby Lobby make
ethical, philosophical, and religious
decisions all the time. Corporations do
not run themselves. Owners, especially
of exclusively family-owned companies
like Hobby Lobby, are directly
connected to the values and decisions
of the companies.
CVS plans to stop selling tobacco products
because it is the right thing for us to do.
Whole Foods has a welfare rating system
for how well they treat their animals.
Chipotle recently refused to sponsor a Boy
Scouts event because of the organizations
stance on gay scout leaders. Starbucks has
ethical standards for the coffee beans it
buys. No one questions these decisions.
These moral convictions are no more
compelling than specifically religious or
sectarian beliefs.
The 10th Circuit Court stated that
excluding Hobby Lobby and Mardel from
RFRA would be particularly inappropriate,
since the companies publicly express
themselves for religious purposes
(Brief for Respondents on Cert Petition to
US Supreme Court, p.11)
 RFRA protects both the individual and the corporation.
Becket Fund
(all citations from Brief for Respondents filed to the
Supreme Court February 10, 2014)
The Greens have every right to religious freedom
under RFRA. The government mandate forces them to
directly violate their religious beliefs. The Greens have
always operated their family-owned businesses
according to their deeply held Christian beliefs.
Hobby Lobby and Mardel publically state Christian missions,
their trustees sign statement[s] of faith, and their business
operations are always conducted in accordance with their
religious beliefs. (Look to pp 8-9 in Respondents brief for
summary.)
The unremarkable principle that a corporation is distinct
from its owners for some purposes does not permit the
government to divide and conquer Respondents so that their
religious rights simply vanish. (28)
Respondents unwillingness to facilitate acts they regard as
immoral is plainly an exercise of religion under RFRA.
(36)
Both the Greens and their businesses can sue under RFRA.
Indeed, they are indistinguishable for purposes of this case:
Hobby Lobby and Mardel will comply with the mandate only
if the Greens, and no one else, direct them to do so. But in all
events the government cannot possibly be correct that neither
the Greens nor their businesses can sue under RFRA, based
on the specious reasoning that only the flesh-- and--blood
Greens can exercise religion while only the corporate entity
can suffer the mandates burdens. That shell game defies
both law and logic. (32)
Government
(all citations from Brief for the
Petitioners, filed January 10, 2014)
The Greens have no right to
religious protection under RFRA,
because the mandate affects only the
corporation.
Federal law does not require the Greens
to provide health insurance, particular
health benefits, or any other form of
compensation to the corporations
employees. The Greens do not personally
employ the 13,000 individuals who work
for Hobby Lobby; the corporation does.
(27)
It is Hobby Lobby that sponsors the the
group health plan (27)
The Greens would face no personal
liability for any failure by Hobby Lobby
and its group health plan to comply with
the contraceptive-coverage provision.
The Hobby Lobby plan (not the Greens)
would be subject to a suit by a plan
participant or beneficiary (27)
A manager takes actions on behalf of
the corporation itself, not on behalf of
himself as an individual. (29)
It follows that RFRA grants the Greens
as individuals no right to challenge an
obligation that applies only to the
corporate-respondents. (28)
Page 4 of 15
Response
It is absurd to separate the Greens from their
family owned business and insist that neither
has the right to religious freedom under
RFRA. If an individual cannot be protected,
and a corporation has no rights, who does
RFRA protect?
It defies logic that neither a business nor its owner
has the right to free exercise of religious values.
Indeed, as Becket Fund lawyers argue, that divide
and conquer mentality clearly goes against the
intent of RFRA (and against the principles in our
Constitution).
The governments argument boils down to heads I
win, tails you lose. It says that a family business
has no power to assert a religious freedom claim
because its just a business. Then it turns around and
says that the family can have no religious freedom
interest in what happens to their livelihoodtheir
family business. If that were true, then the
government could force businesses to do any
number of morally and religiously objectionable
things, and no one would have any recourse.
It is illogical to suggest that the Greens beliefs do
not extend to their companies. Just look at the
examples: Hobby Lobby and Mardel already
exercise religion in their operations, and that is
purely a result of the Greens deeply held Christian
beliefs.
 As owners of Hobby Lobby, the Greens are the only people to seek exemptions for the company.
Becket Fund
(all citations from Brief for Respondents filed to the
Supreme Court February 10, 2014)
The Greens personally operate their companies
according to their beliefs. Their claims as the
owners are different from claims of any
managerial employee of a company.
Government Response
(all citations from Brief for the Petitioners,
filed January 10, 2014)
The Greens cannot claim their religious The government is also wrong to suggest
rights are violated as managers of their that Respondents position would allow any
companies, because that would imply human resources manager to seek an
that any managerial employee could exemption under RFRA for the entire
seek exemption for his company company A human resources manager
because of a personal religious might seek a Title VII accommodation from
objection to a law. his employer if asked to violate his beliefs,
but would have no RFRA claim against the
Respondentspositionwould government to exempt the entire company he
seemingly mean that any human resources works for. (Brief for Respondents filed to
manager who objects to the contraceptive- the Supreme Court February 10, 2014; p. 32,
coverage provision could sue under RFRA footnote #14)
to seek an exemption for the corporation
that employs him (30)
Page 5 of 15
 The mandate is a substantial burden on the Green familys free exercise of religion.
Becket Fund
(all citations from Brief for Respondents
filed to the Supreme Court February 10,
2014)
The Greens cannot provide access to
drugs that violate their religious beliefs.
The contraceptive mandate substantially
and directly burdens the Greens religious
expression, by forcing them to either
provide drugs at odds with their religious
beliefs, or pay debilitating fines that will
threaten their livelihood.
Respondents religious beliefs prohibit them
from providing health coverage for
contraceptive drugs and devices that end
human life after conception. Yet, the
government mandate at issue here compels
them to do just that, or face crippling fines,
private lawsuits, and government
enforcement. That is a textbook substantial
burden on religious exercise under RFRA.
(1)
Threats against ones business and
livelihoodlike threats against ones home,
bank account, or unemployment checkcan
obviously impose unbearable pressure. Here,
the devastating consequences for non-
compliance will be visited upon the Greens
family businesses, and will occur only if the
Greens continue to exercise their faith by
excluding four products from their
companies health plan (31)
But a fine imposed for adherence to
religious beliefs is as direct an obvious a
burden as one could imagine. (36-37)
Government
(all citations from Brief for the Petitioners,
filed January 10, 2014)
The contraceptive mandate does not
constitute a direct or substantial burden on
the Greens, because its the corporations
that must provide the coverage, not the
Greens themselves. The Greens do not have
to be personally involved in any part of
their business operations. And they can
choose not to cover health care at all.
The challenged provision imposes no
personal obligations on the GreensThe
provision therefore does not burden the
Greens individual exercise in any cognizable
sense. (14)
Federal law does not require the Greens to
provide health insuranceThe Greens do not
personally employ the 13,000 individuals who
work for Hobby Lobby; the corporation
does. (27)
Nothing in federal law requires the Greens to
play any particular role at the
corporationsFurther, self-insured group
health plansare not generally administered
directly by corporate managers but instead by
third-party administrators (29)
[A]n objecting employer retains the option of
choosing not to offer a group health plan at all
(thus allowing its employees to obtain
individual coverage on the insurance
exchangesand potentially being subject to a
tax instead. (57)
Page 6 of 15
Response
It is not up to the government to decide what constitutes a
valid religious belief, or a direct enough imposition on that
belief. The government does not have the right to force people
to choose between their family businesses and their right to
free exercise. Forcing the Greens to forego providing benefits
is hardly reasonablethey want to offer good health care to
their employees, and paying $26 million in fines is not a
reasonable alternative.
The Greens believe that in offering insurance coverage that
provides access to potentially life-ending drugs, they are complicit
in abortions. The fact that the government does not share this
belief does not change the authenticity of the moral conviction
The 10th Circuit Court stated that [s]uch reason is fundamentally
flawedbecause it requires an inquiry into the theological merit
of the belief in question rather than the intensity of the coercion
applied by the government to act contrary to those belifes.
(Brief for Respondents filed to the Supreme Court February 10,
2014; p. 13)
The government states that it does not force the Greens to
personally play any role in their own businesses, and that by this
logic, they cannot challenge a mandate that forces them to violate
their religious beliefs. This claim suggests that business owners
have no say over their company decisions when it comes to
matters of ethics. This, of course, is unprecedented.
Individuals do not forfeit their religious rights when they do
business. The courts have rejected the notion that the profit motive
negates the exercise of constitutional rights.
The Greens face two options: violate their religious beliefs, or face
severe financial penalties. This constitutes a substantial burden.
 Hobby Lobby employees are free to use these drugs, the Greens just dont want to be forced to provide them.
Becket Fund
(all citations from Brief for Respondents filed to the
Supreme Court February 10, 2014)
The Greens support their employees with good health
care benefits and do not interfere in the health care
decisions of their employees in any way. According to
their beliefs, the Greens cannot provide access to
certain potentially life-terminating drugs. This does not
stop their employees from using those drugs.
The major premise of [the governments] attenuation up to the individual and his/her
argument is that the burden is insubstantial because
Respondents are merely required to pay[ ] money into an
undifferentiated fund to finance covered benefits that
employees may independent[ly] elect to useBut that
premise is incorrect. The mandate does not require the
funding of health care accounts for whatever service the
employee needs. It unambiguously requires Respondents to
cover specifically-named items in their health plan. (40)
Respondents have never filed suit regarding any decisions
by their employees. Respondents sued only when the
government forced Respondents to provide specific drugs
and devices in violation of their faith. (41)
At bottom, the government insinuates that Respondents
simply misapprehend their own beliefs because their
employees use of the objectionable items cannot be
attributed to Respondents in any meaningful sense.But
that is not how Respondents see itAnd that belief is not
open to question here. (41)
Government
(all citations from Brief for the
Petitioners, filed January 10, 2014)
The effect of the mandate on the
Greens is indirect, because health care
choices are made by individuals, not
their employers. The Greens would
not even know if one of their
employees used one of these drugs,
because health care decisions are left
Mardel employees use certain drugs. It is whether
provider. Because they would not
know, their religious beliefs would not
be violated.
A group health plan covers many items
and services, and participants and their
dependents, in consultation with their
healthcare providers, decide which ones
to use. Those decisions by independent
third parties are not attributable to the
employer that finances the plan or to the
individuals who own the company, and
the connection is too indirect as a matter
of law to impose a substantial burden.
(14)
the companies would not even know
whether any employee was using the
contraceptives to which respondents
object. (33)
Page 7 of 15
Response
The government is trying to judge importance of
one of the Greens particular belief (that to
provide insurance coverage of certain potentially
life-terminating drugs makes them complicit in
abortion).
But the issue here is not whether Hobby Lobby or
the government can force the Greens to provide
drugs to which they morally object.
Hobby Lobby and Mardel have never instituted any
policies to prevent the use of any type of health care,
including use of legal drugs they oppose on moral
grounds, by their employees.
The Greens do not impose their beliefs on their
employees, who are free to behave as they choose.
They do, however, make their own values clear to
their employees, through their mission statement and
business operations. It is no surprise to employees of
Hobby Lobby and Mardel that the companies (and
the Greens) are Christian.
The government should not be able to second-guess
the Greens theological determinations. The Greens
should not be forced to choose between following
their faith and following the law.
 All religious beliefs are protected by RFRA, regardless of societal expectations of the belief.
Becket Fund
(all citations from Brief for Respondents filed to the
Supreme Court February 10, 2014)
The government, instead of applying existing
substantial burden standards to the mandate,
applies an unprecedented and tortured standard
to try to justify it. (39)
In past substantial burden tests, a mandate and a
penalty were the quintessential substantial burden
even when the fine was a mere $5 (40)
Government
(all citations from Brief for the
Petitioners, filed January 10, 2014)
Sometimes societal expectations
mean that a line on religious liberty
can be drawn at certain religious
beliefs.
a proferred burden may be
deemed not substantial in cases
where the nature of applicable legal
regimes and societal expectations
necessarily impose objective outer
limits on when an individual can
insist on modification of, or
heightened justifications for,
governmental programs that may
offend his beliefs. (33)
Page 8 of 15
Response
This is nothing more than a request to ignore
RFRA whenever the government asks the
courts to do so. When Congress passed
RFRA, it said that it struck sensible balances
between religious freedom and other
government goals. Laws mean nothing if the
courts can ignore them whenever societal
expectations get in the way.
The Constitution protects the free-exercise rights
of all, not just those with popular beliefs.
The government is arguing that it has the
authority to judge whether a religious belief
deserves protection based on societal
expectations.
 If this is such a compelling interest, why is the government already exempting millions from the mandate?
Becket Fund
(all citations from Brief for Respondents filed to the
Supreme Court February 10, 2014)
The government asserts interests in public health and
gender equalitybut it fails to prove that those
interests would be endangered by permitting a narrow
exemption for Hobby Lobby. Furthermore, even
though the government claims that contraceptive
coverage is essential to public health and gender
equality, it allows thousands of organizations to forego
providing that coverage for merely administrative and
economic reasons.
The interests identified in the lower courtspublic health
and gender equalityare overly general, when RFRA
requires specificity. (44)
While public health and gender equality are noble
interests, they provide no better guidance in applying strict
scrutiny than the equally noble interest in promoting the
general welfare. There are countless other ways of
promoting public health that would have little or no impact
on anyones religious exercise. (46)
[N]ot only has the government already granted myriad
exemptions covering millions, but its justification for
many of those is mere administrative convenience (52)
Government
(all citations from Brief for the
Petitioners, filed January 10, 2014)
The compelling interests of public
health and gender equality are
specifically targeted and achieved with
the contraception mandate.
The contraceptive-coverage provision
directly and materially advances the
public health, which is unquestionably a
compelling governmental interest. (46)
The contraceptive-coverage provision
also advances the governments related
compelling interest in assuring that
women have equal access to
recommended health-care services. (49)
Individualized religion-based
exemptionswould directly and
materially harm the very individuals the
scheme was intended to benefit
including the more than 13,000
employees of Hobby Lobby and Mardel
and their covered family members. (38)
Page 9 of 15
Response
It appears that the governments interest in
contraceptive coverage is compelling, but
not as compelling as covering children up to
age 26, covering preexisting conditions, and
reducing waiting periods. Clearly, womens
preventive services are not at the top of the
list for public health priorities.
Based on the governments own estimates,
the contraceptive-coverage requirement
presently does not apply to tens of millions of
people. (Brief for Respondents filed to the
Supreme Court February 10, 2014; 7)
While grandfathered plans must comply with
certain other ACA requirementssuch as
covering dependents to age 26, covering
preexisting conditions, and reducing waiting
periodsgrandfathered plans need not cover
contraceptives or any other womens
preventive service. (Brief for Respondents
filed to the Supreme Court February 10, 2014;
5-6)
 The Greens already provide 16 out of 20 contraceptive methods in their health insurance.
Becket Fund Government Response
(all citations from Brief for Respondents filed to the Supreme (all citations from Brief
Court February 10, 2014) for the Petitioners, filed
January 10, 2014)

The Greens offer the people who work at Hobby Lobby If they are not The Greens provide excellent health benefits to
healthcare, including access to contraceptives. In fact, providing every single their employees, including 16 out of 20
the Greens insurance packages already offer 16 of the approved contraceptive contraceptive methods. Fining them, or forcing
20 contraceptives included in the mandate. method, then the them to drop health insurance altogether, will not
Greens are hurting the advance the governments interests in public health
The governments broad assertions would justify virtually government goal of and gender equality.
any forced subsidization of health care costs for women, but advancing public health
they hardly suffice to demonstrate that forcing Respondents and womens equal to If this is a matter of access to contraceptives, its clear
to provide four drugs and devices is strictly necessary to health care. that people can and do easily get them.
promote gender equality. (47)
contraceptive Contraception coverage in U.S. private health plans
The governmentfails to articulate a public health methods are not was fairly standard even before the HHS mandate.
justification for two of the products Respondents do not interchangeable. For According to a research article published by the
cover, Plan B and Ella. Instead, it merely asserts that women with certain Guttmacher Institute in Septemebr 2013, in 2002,
contraceptive methods are not interchangeable, and that medical conditions or almost every reversible and permanent contraceptive
certain IUDs are more effective than otherswithout any risk factors, some method available was covered by 89% or more of
evidence that Respondents inability to cover the four contraceptive methods typical insurance plans at that time. (Changes in out-
objectionable products actually creates a compelling public may be contraindicated; of-pocket payments for contraception by privately
health problem in need of remedy. (footnote #21, p. 47) those women and their insured women during implementation of the federal
health-care providers contraceptive coverage requirement, Guttmacher
Any time a statute takes the form of a mandate that party A thus need an array of Institute, accepted 19 November 2013; 1.)
must do something for party B, granting a RFRA exemption options so that an
to party A will make party B worse off. But there is no appropriate method can Its unclear why forcing a few companies, whose
reason whatsoever to treat exemptions from such Peter-to- be selected for the owners object on religious grounds, would significantly
Paul mandates as uniquely disfavored under RFRA. (55) individual. (48) interfere with the goal of increased access.

Page 10 of 15
 The government has many federal programs that could accomplish the goals of the contraceptive mandate without
having to force the Greens to violate their beliefs.
Becket Fund
(all citations from Brief for
Respondents filed to the Supreme
Court February 10, 2014)
The government has federal
programs in place that work
toward the specific goals of
providing contraceptive coverage.
Hundreds of millions of dollars go
into these programs. Instead of
forcing the Greens to violate their
religious beliefs or give up their
business, the government should
expand those programs.
Respondents do not object to their
tax dollars being used by the
government to subsidize practices
with which they disagree. They
object to the government forcing
them to facilitate such services
directly or face draconian
penalties. (42)
It is not for the government to
insist that Respondents faith should
have reached a conclusion more
convenient for the governments
regulatory goals. (42)
Government
(all citations from Brief for the Petitioners,
filed January 10, 2014)
Congress specifically wanted to use
private insurance to advance its goals,
and thats enough reason not to give
religious exemptions to private
employers. Its less restrictive for the
government to force people like the
Greens to participate, than to expand
federal programs.
The contraceptive-coverage provisionis
the least restrictive means to achieve
[compelling governmental interests]. (37)
The suggestion that the government directly
provide the drugs that the Greens oppose is
not a less restrictive means within the
meaning of RFRA. (15)
Congress built upon the system of
employment-based coverage and private
insurance and the suggested alternative
would conflict with that goal. (15)
But RFRAs less-restrictive means test
does not require Congress to create or
expand federal programs. (57)
Page 11 of 15
Response
The governments desire to make use of private insurance does
not triumph over the constitutional rights of people like the
Greens. The drugs mandated by the contraceptive mandate
are already widely available, through public funded (free)
sources as well as at personal cost to individuals. The
government could easily expand its federal programs to
further its goals.
As stated above, most insurance plans already cover
contraceptives. But, for those who cannot afford them, the
government spends hundreds of millions of dollars in public funds
to provide a broad range of family planning methods through Title
X programs. (Facts on Publicly Funded Contraceptive Services in
the United States, Guttmacher Institute, July 2013).
The government has focused on saying that RFRA does not
require the expansion of federal programs. But they have not
justified why expanding publicly funded programs, and exempting
the small numbers of Americans who object to providing certain
drugs because of their religious beliefs, significantly interferes
with the governments goals.
If Congress had wanted to accommodate religious exercise only
where there was no budget-neutral restrictive alternative or no
least restrictive alternative available within the existing corpus of
federal programs, presumably it would have said so. (Brief for
Respondents filed to the Supreme Court February 10, 2014; 58)
 The government has already granted thousands of exemptions for secular reasons, so the Greens should have the right to
an exemption for religious reasons.
Becket Fund Government
(all citations from Brief for Respondents filed to the Supreme Court February (all citations from Brief for the Petitioners,
10, 2014) filed January 10, 2014)
The Greens certainly have the right to an exemption based on their religious The religious exemptions and
beliefs, especially considering the thousands of exemptions that the accommodations only extend to
government has granted to other organizations for religious reasons and for churches/houses of worship and non-profit
non-religious reasons through a grandfathering clause. organizations with specific religious
purposes. And the grandfathering clause is
If RFRA means anything, it means the government cannot hand out exceptions for intended to be temporary.
secular reasons and then insist that uniformity forecloses similar exceptions for
religious exercise. (1) The regulatory exemption for religious
employers extends to churches and other
The mandate [is] honeycombed with religious and secular exemptions (51) houses of worship and their integrated
RFRAmandates case-by-case consideration of religious exemptions under strict auxiliaries. (51)
scrutiny. (3) In establishing the religious-employer
exemption, the Departments explained that
HHS recognized that the mandate would significantly impact religious
believersHHS has provided an 'accommodation for other religious non-profit [h]ouses of worship and their integrated
organizations whose religious beliefs prevent them from complying with all or part of auxiliaries that object to contraceptive coverage
on religious grounds are more likely than other
the mandate. (5)
employers to employ people of the same faith
[W]holly apart from any religious concerns and for the sake of administrative who share the same objection and that those
convenience, grandfathered plans may indefinitely avoid the mandate by not making employees would therefore be less likely than
certain changes after March 2010. (6) other people to use contraceptive services even
While grandfathered plans must comply with certain other ACA requirementssuch if such services were covered under their plan.
(52)
as covering dependents to age 26, covering preexisting conditions, and reducing
waiting periodsgrandfathered plans need not cover contraceptives or any other That provision has the effects of allowing a
womens preventive service. (5-6) transition period for compliance with a number
The exceptions the government itself has allowed, for religious and non-religious of the [Affordable Care] Acts
reasons alike, conclusively demonstrate that the mandate is perfectly compatible with requirementsuntil a plan makes one or more
the religious exemptions required by RFRA. (54) specified changesThe impact of this
grandfathering provision is thus temporary
(53)
Page 12 of 15
Response
The governments only
argument against exempting
Hobby Lobby is its status as a
for-profit entity. Dividing up
who gets religious protections
based on tax status is
unprecedented. And, while the
government alleges that the
grandfathering provision is
temporary, the
organizations to which it
applies may indefinitely avoid
complying with the
contraceptive mandate.
None of this Courts
casessuggests that an entitys
particular form determines
whether it or its owners can
exercise religion. To the contrary,
the Court has unanimously
recognized the free exercise rights
of a not-for-profit corporation
organized under Florida law, a
New Mexico corporation on its
own behalf, and an
ecclesiastical corporation[.]
(Brief for Respondents filed to
the Supreme Court February 10,
2014; 20)
 Additional arguments from the government in Conestoga v. Sebelius, and responses:
*Government
(all citations from Brief for the Respondents, filed February
10, 2014)
*Brief in Conestoga v. Sebelius
Religious beliefs must sometimes yield to the common good.
Although the Hahns religious beliefs are sincerely held, in this
pluralistic nation of many faiths, some religious practices must yield
to the common good. (8)
While religious accommodations are available in a variety of
contexts, there are powerful legal and practical reasons to exclude
requests from for-profit corporations (and individuals in their capacity
as owners, managers, or directors) to exempt themselves from laws
meant to protect others. (8)
If we grant religious exemptions to corporations, it will alter the
competitive marketplace.
A rule requiring religion-based exemptions for for-profit corporations
would also create difficult problems of corporate governance (related
to how to define a corporations religious beliefs and commitments)
and tilt the competitive playing field (by permitting exemptions from
laws that still bind an exempted corporations competitors). (9)
Because for-profit corporations (unlike typical religious non-profits)
compete with other companies for commercial advantage, permitting
them to secure religion-based exemptions from generally applicable
laws would also pose serious market distortion concerns. (31)
Response
(any citations from briefs are from the Respondents brief filed in Hobby
Lobby v. Sebelius)
Granting an exemption for Hobby Lobby and Conestoga would not harm the
common good. The government has handed out delays, accommodations, and
grandfathering exemptions that cover millions of people.
Some laws demand virtually uniform and universal participation. In those rare cases,
the government might be able to show that opt outs, even for the best of reasons, are
incompatible with its objectives. (Brief for Respondents filed to the Supreme
Court February 10, 2014; 53)
But:
The governments willingness to exempt others, and many for reasons as mundane
as administrative convenience, dooms its efforts to meet strict scrutiny. (Brief for
Respondents filed to the Supreme Court February 10, 2014; 34)
Religious freedom is so fundamentally important that each case merits its own
assessment. Courts can, and do, weed out false claims made by those who want to
gain some advantage. Here, Hobby Lobby has repeatedly taken actions that hurt
its bottom line in order to comply with the Greens religious beliefs. This case is
not about saving a few dollars, but living out a sincerely held conviction, even at
great cost.
RFRAmandates case-by-case consideration of religious exemptions under strict
scrutiny. (Brief for Respondents filed to the Supreme Court February 10, 2014; 3)
If Respondents instead ceased providing any health insurance to their employees,
they would owe a lower but still substantial penalty of $26 million per yearand
would face severe disruption to their business. Dropping insurance would place them
at a competitive disadvantage, and hobble their employee recruitment and retention
efforts. (Brief for Respondents filed to the Supreme Court February 10, 2014; 10)
Page 13 of 15
*Government
(all citations from Brief for the Respondents, filed
February 10, 2014)
*Brief in Conestoga v. Sebelius
Religious exemptions for for-profits would work
against religious protection for truly religious
institutions.
Permitting for-profit corporations to seek religion-based
exemptions from generally applicable law would also
have the perverse effect of undermining the special place
of religious institutions in our society[I]t would
discourage Congress from providing accommodation to
non-profit religious entities out of fear that doing so would
automatically entitle for-profit corporations to the same
accommodation. (9)
Granting a religious exemption to the Hahns would
deprive their employees of a federally guaranteed
right.
The employer in such cases is thus asking not only that
the government accommodate the employers religious
exercise, but also that the employees be compelled to do
so, through sacrifice of their own statutorily guaranteed
rights. In this case, that would mean that Conestoga
employees and their covered dependents, none of whom is
a party to this litigation, would be deprived of the freedom
the Act affords them to elect to receive or not to receive
contraceptive services according to their own consciences,
medical needs, and health-care providers advice. (23)
Response
(any citations from briefs are from the Respondents brief filed in Hobby Lobby v. Sebelius)
Religious protections do not depend on an organizations tax status. And the government can
make distinctions on religious exemptions, when it it truly necessary to do so. It is not necessary
herebut not the way it is attempting to in these cases..
[T]he governments profit-based approach to religious exercise conflicts with this Courts First
Amendment cases, which do not turn on a claimants tax status. This is true not only for religious
exercise (as Lee and Braunfeld demonstrate), but also for the speech, press, and establishment
clauses. (Brief for Respondents filed to the Supreme Court February 10, 2014; 26)
This is not to say that if the government accommodates some religious exercise that it must
accommodate all. Conceivably, the government could accommodate some religious objectors in
particular circumstances and yet justify refusing to accommodate others with the same beliefs by
satisfying strict scrutiny. But logically the government cannot accommodate the religious exercise of
some while denying that the law substantially burdens others engaged in the exact same religious
exercise. (Brief for Respondents filed to the Supreme Court February 10, 2014;39)
The government cant make an end-run around RFRA by creating a statutory right to receive
something from a third party. When the government-created right is truly compelling, it will
prevail. It is not compelling here. fact that a third party is deprived of a good because of a
religious exemption is not a good enough reason to deny an exemption.
[N]ot receiving coerced coverage from Respondents cannot be a cognizable harm, because nobody is
lawfully entitled to a benefit from a regulatory scheme that violates RFRA. Religious exemptions to
laws forcing nurses to assist with abortions, bookstores to sell Bibles, or convenience stores to sell
liquor would all just as surely deprive someone of a statutorily-guaranteed benefit. (Brief for
Respondents filed to the Supreme Court February 10, 2014; 54-55)
Any time a statute takes the form of a mandate that party A must do something for party B, granting
a RFRA exemption to party A will make party B worse off. But there is no reason whatsoever to treat
exemptions from such Peter-to-Paul mandates as uniquely disfavored under RFRA. (Brief for
Respondents filed to the Supreme Court February 10, 2014; 55)
Page 14 of 15
*Government Response
(all citations from Brief for the Respondents, filed (any citations from briefs are from the Respondents brief filed in Hobby Lobby v. Sebelius)
February 10, 2014)

*Brief in Conestoga v. Sebelius

Free exercise deserves less protection than freedom of Free exercise benefits the community at large, and is not a lesser-value interest than free speech.
speech because there are benefits to others in the latter
The government makes an unprecedented distinction between two rights enunciated in the First
but not the former.
Amendment. The difference, the government claims, between speech and religious exercise is that
[T]his Court has recognized that corporate speakers speech benefits listeners, while religious exercise for one does not necessarily advance free exercise
contribute ideas and arguments on matters of public concern, for all.
thus implicating the First Amendment interests of
This distinction directly contradicts the very intention of the First Amendment. It would give the
listenersThere is no comparable history of a central role of
government the authority to decide which religious views benefit the publicand which they can
for-profit corporations in advancing the free exercise of
censor or suppress as not beneficial to the public. The point of RFRA and the First Amendment is,
religion by individuals and the religious organizations they
contrary to this idea, that religious expression is protected even when it is unpopular.
have chosen to form. (35)
Further, not receiving coerced coverage from Respondents cannot be a cognizable harm, because
Indeed, the third-party interests at stake here are those of
nobody is lawfully entitled to a benefit from a regulatory scheme that violates RFRA. (Brief for
petitioners employees and their covered family members,
Respondents filed to the Supreme Court February 10, 2014; 54)
who would be affirmatively harmednot benefittedby the
corporate exemption that petitioners seek. (35)

Granting an exemption would mean allowing employers
to impose their religious views on their employees, and
would interfere with health care decisions that belong
between an individual and his or her health care
provider.
Petitioners requested accommodation would effectively put
a third party in the room during these conversations between
the woman and her health-care professional: the employer,
which would decide which (if any) of the recommended
services will be available to the woman without cost sha
sharing based on the employers or its shareholders asserted
religious beliefs. RFRA should not be interpreted to require
such an intrusion into private medical decisionmaking. (44)
The government wants to force employers to pay for drugs and services that they find morally
objectionable. This is what the employers object tonot to their employees decisions about
whether or not to use these drugs.
Respondents object to being forced to facilitate abortion by providing abortifacients, and that
objection does not turn on the independent decisions of their employees. (Brief for Respondents
filed to the Supreme Court February 10, 2014; 15)
The Greens (and the Hahns) do not want to be put in the middle of their employees and their health
decisions. They want to stay out of those decisions, and let their employees make them on their own.
The government has forced them into this position by demanding that they pay for drugs, even though
paying for these drugs specifically violates their deeply held beliefs.
RFRA is not requiring such an intrusion into private medical decisionmaking; the governments
contraceptive-coverage provision is requiring it.

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