134 S.Ct. 2751
Supreme Court of the United States
Sylvia BURWELL, Secretary of Health and Human Services, et al., Petitioners
v.
HOBBY LOBBY STORES, INC., et al.
Conestoga Wood Specialties Corporation et al., Petitioners
v.
Sylvia Burwell, Secretary of Health and Human Services, et al.
Nos. 13–354, 13–356.
Argued March 25, 2014.Decided June 30, 2014.
Synopsis
Background: In first case, for-profit closely held corporations, and individuals who owned or
controlled the corporations, brought action against Secretary of Health and Human Services (HHS)
and other government officials and agencies, seeking declaratory and injunctive relief regarding
regulations issued under Patient Protection and Affordable Care Act (ACA), based on allegations
that the preventive services coverage mandate for employers violated constitutional and statutory
protections of religious freedom by forcing them to provide health insurance coverage for abortioninducing drugs and devices, as well as related education and counseling. The United States District
Court for the Western District of Oklahoma, Joe Heaton, J., 870 F.Supp.2d 1278, denied plaintiffs'
motion for preliminary injunction. Plaintiffs appealed. The United States Court of Appeals for the
Tenth Circuit, en banc, Tymkovich, Circuit Judge, 723 F.3d 1114, reversed and remanded. In
second case, for-profit closely held corporation and its shareholders brought similar claims for
declaratory and injunctive relief against federal officials and agencies. The United States District
Court for the Eastern District of Pennsylvania, Mitchell S. Goldberg, J., 917 F.Supp.2d 394, denied
plaintiffs' motion for preliminary injunction. Plaintiffs appealed. After denial of stay pending
appeal, 2013 WL 1277419, the United States Court of Appeals for the Third Circuit, Cowen, Circuit
Judge, 724 F.3d 377, affirmed. Certiorari was granted in each case and cases were consolidated.
Holdings: The Supreme Court, Justice Alito, held that:
1 “person,” within meaning of RFRA's protection of a person's exercise of religion, includes for-profit
corporations, abrogating Autocam Corp. v. Sebelius, 730 F.3d 618;
2 the HHS contraceptives mandate, as applied to for-profit closely held corporations, substantially
burdened the exercise of religion, for purposes of RFRA; and
3 the HHS contraceptives mandate did not satisfy RFRA's least-restrictive-means requirement.
Affirmed in first case; reversed and remanded in second case.
Justice Kennedy filed a concurring opinion.
Justice Ginsburg filed a dissenting opinion, which Justice Sotomayor joined, and
Justices Breyer and Kagan joined except for one part.
Justices Breyer and Kagan filed a dissenting opinion.
West Headnotes (19)
1Civil Rights
Particular cases and contexts
By enacting RFRA, which includes a least-restrictive means test, Congress did more than merely
restore the balancing test used in the Sherbert line of Free Exercise Clause cases; it provided even
broader protection for religious liberty than was available under those decisions. U.S.C.A.
Const.Amend. 1; Religious Freedom Restoration Act of 1993, § 3(b), 42 U.S.C.A. § 2000bb–1(b).
Cases that cite this headnote
2Civil Rights
Particular cases and contexts
Civil Rights
Liability of Federal Government and Its Agencies and Officers
As applied to a federal agency, RFRA is based on the enumerated power that supports the particular
agency's work. Religious Freedom Restoration Act of 1993, § 2 et seq., 42 U.S.C.A. § 2000bb et
seq.
Cases that cite this headnote
3Civil Rights
Particular cases and contexts
“Exercise of religion,” under RFRA, must be given the same broad meaning that applies under
RLUIPA. Religious Freedom Restoration Act of 1993, § 5(4), 42 U.S.C.A. § 2000bb–2(4); Religious
Land Use and Institutionalized Persons Act of 2000, §§ 5(g), 8(7)(A), 42 U.S.C.A. §§ 2000cc–
3(g), 2000cc–5(7)(A).
Cases that cite this headnote
4Corporations and Business Organizations
Status of Corporation in General
When rights, whether constitutional or statutory, are extended to corporations, the purpose is to
protect the rights of people, including shareholders, officers, and employees, who are associated
with a corporation in one way or another.
Cases that cite this headnote
5Civil Rights
Persons Aggrieved, and Standing in General
“Person,” within meaning of RFRA's protection of a person's exercise of religion, includes for-profit
corporations; abrogating Autocam Corp. v. Sebelius, 730 F.3d 618. Religious Freedom Restoration
Act of 1993, § 3(a, b), 42 U.S.C.A. § 2000bb–1(a, b).
Cases that cite this headnote
6Civil Rights
Particular cases and contexts
Constitutional Law
Free Exercise of Religion
The “exercise of religion,” for purposes of the Free Exercise Clause and RFRA, involves not only
belief and profession, but the performance of, or abstention from, physical acts that are engaged in
for religious reasons. U.S.C.A. Const.Amend. 1; Religious Freedom Restoration Act of 1993, § 3(a,
b), 42 U.S.C.A. § 2000bb–1(a, b).
Cases that cite this headnote
7Civil Rights
Contracts, trade, and commercial activity
A law that operates so as to make the practice of religious beliefs more expensive in the context of
business activities imposes a burden on the exercise of religion, for purposes of RFRA. Religious
Freedom Restoration Act of 1993, § 3(a, b), 42 U.S.C.A. § 2000bb–1(a, b).
Cases that cite this headnote
8Corporations and Business Organizations
Scope of Corporate Power in General
Modern corporate law allows for-profit corporations to perpetuate religious values.
Cases that cite this headnote
9Statutes
Prior or existing law in general
When Congress wants to link the meaning of a statutory provision to a body of the Supreme Court's
case law, it knows how to do so.
Cases that cite this headnote
10Civil Rights
Religion
Civil Rights
Contracts, trade, and commercial activity
To qualify for RFRA's protection, an asserted religious belief must be sincere, and a corporation's
pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would
fail. Religious Freedom Restoration Act of 1993, § 2 et seq., 42 U.S.C.A. § 2000bb et seq.
Cases that cite this headnote
11Abortion and Birth Control
Contraceptives and Birth Control
Insurance
Family Planning Services
Insurance
Abortion
Labor and Employment
Regulatory supervision
Department of Health and Human Services' (HHS) contraceptives mandate, implementing Patient
Protection and Affordable Care Act's (ACA) general requirement that an employer's group health
insurance provide coverage for preventive care and screenings for women without any cost sharing
requirements, substantially burdened the exercise of religion, for purposes of RFRA, to extent that
for-profit closely held corporations were required to provide their employees with insurance coverage
for four contraceptive methods that violated the sincerely held religious beliefs of corporations'
owners; owners believed that their compliance with the HHS contraceptives mandate would facilitate
abortions, while non-compliance would expose them to substantial economic consequences. Patient
Protection and Affordable Care Act, § 1001(a)(5), 42 U.S.C.A. § 300gg–13(a)(4); Religious Freedom
Restoration Act of 1993, § 3(a, b), 42 U.S.C.A. § 2000bb–1(a, b); 45 C.F.R. § 147.130(a)(1)(iv).
Cases that cite this headnote
12Federal Courts
Presentation of Questions Below or on Review; Record; Waiver
Supreme Court does not generally entertain arguments that were not raised below and are not
advanced in the Supreme Court by any party.
Cases that cite this headnote
13Amicus Curiae
Powers, functions, and proceedings
Federal Courts
Presentation of Questions Below or on Review; Record; Waiver
Supreme Court would not entertain argument by amici supporting Department of Health and Human
Services (HHS), which was not raised below and was not advanced in the Supreme Court by HHS,
that per-employee penalty under Patient Protection and Affordable Care Act (ACA), for failing to
comply with HHS mandate to provide employees with group health insurance coverage for
contraceptives, would be less than the average cost of providing health insurance, so that
corporations could readily eliminate any substantial burden on exercise of religion by forcing their
employees to obtain insurance in government exchanges; Court did not even know what
government's position might be with respect to amici's intensely empirical argument, and
corporations and their owners had never had an opportunity to respond to this novel claim. Patient
Protection and Affordable Care Act, § 1001(a)(4), 42 U.S.C.A. § 300gg–13(a)(4); Religious Freedom
Restoration Act of 1993, § 3(a, b), 42 U.S.C.A. § 2000bb–1(a, b).
Cases that cite this headnote
14Civil Rights
Religion
Courts have no business addressing whether sincerely held religious beliefs asserted in a RFRA
case are reasonable. Religious Freedom Restoration Act of 1993, § 2 et seq., 42 U.S.C.A. § 2000bb
et seq.
Cases that cite this headnote
15Civil Rights
Particular cases and contexts
In RFRA cases, when determining whether a substantial burden on the exercise of religion is in
furtherance of a compelling governmental interest, the court must look beyond broadly formulated
interests and scrutinize the asserted harm of granting specific exemptions to particular religious
claimants. Religious Freedom Restoration Act of 1993, § 3(a, b), 42 U.S.C.A. § 2000bb–1(a, b).
Cases that cite this headnote
16Abortion and Birth Control
Contraceptives and Birth Control
Women and men have a constitutional right to obtain contraceptives.
Cases that cite this headnote
17Civil Rights
Particular cases and contexts
RFRA's least-restrictive-means standard, for substantial burdens on the exercise of religion, is
exceptionally demanding. Religious Freedom Restoration Act of 1993, § 3(a, b), 42 U.S.C.A. §
2000bb–1(a, b).
Cases that cite this headnote
18Insurance
Family Planning Services
Labor and Employment
Regulatory supervision
Assuming that Department of Health and Human Services' (HHS) contraceptives mandate, that
employers provide group health insurance coverage for contraceptives without cost sharing,
furthered a compelling governmental interest, the HHS mandate was not the least restrictive means
of furthering that interest, for purposes of RFRA; government could simply assume the cost of
providing the contraceptives to any women unable to obtain them under their health insurance
coverage, or could adopt an approach similar to the accommodation given to nonprofit organizations
with religious objections to contraceptives. Religious Freedom Restoration Act of 1993, § 3(b), 42
U.S.C.A. § 2000bb–1(b); 45 C.F.R. § 147.130(a)(1)(iv).
Cases that cite this headnote
19Civil Rights
Particular cases and contexts
In applying RFRA, courts must take adequate account of the burdens a requested accommodation
of religious beliefs may impose on nonbeneficiaries, and that consideration will often inform the
analysis of the government's compelling interest and the availability of a less restrictive means of
advancing that interest, but it cannot reasonably be maintained that any burden on religious
exercise, no matter how onerous and no matter how readily the government interest could be
achieved through alternative means, is permissible under RFRA so long as the relevant legal
obligation requires the religious adherent to confer a benefit on third parties. Religious Freedom
Restoration Act of 1993, § 3(a, b), 42 U.S.C.A. § 2000bb–1(a, b).
Cases that cite this headnote
West Codenotes
Held Invalid
26 C.F.R. § 54.9815–2713(a)(1)(iv); 29 C.F.R. § 2590.715–2713(a)(1)(iv); 45 C.F.R. §
147.130(a)(1)(iv)
Prior Version Recognized as Unconstitutional
42 U.S.C.A. § 2000bb-2
*2754 Syllabus*
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from]
substantially burden[ing] a person's exercise of religion even if the burden results from a rule of
general applicability” unless the Government “demonstrates that application of the burden to the
person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb–1(a), (b). As
amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA
covers “any exercise of religion, whether or not compelled by, or central to, a system of religious
belief.” § 2000cc–5(7)(A).
At issue here are regulations promulgated by the Department of Health and Human Services (HHS)
under the Patient Protection and Affordable Care Act of 2010(ACA), which, as relevant here,
requires specified employers' group health plans to furnish “preventive care and screenings” for
women without “any cost sharing requirements,” 42 U.S.C. § 300gg–13(a)(4). Congress did not
specify what types of preventive care must be covered; it authorized the Health Resources and
Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally
required to provide coverage for the 20 contraceptive methods approved by the Food and Drug
Administration, including the 4 that may have the effect of preventing an already fertilized egg from
developing any further by inhibiting its attachment to the uterus. Religious employers, such as
churches, are exempt from this contraceptive mandate. HHS has also effectively exempted
religious *2755 nonprofit organizations with religious objections to providing coverage for
contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive
coverage from the employer's plan and provide plan participants with separate payments for
contraceptive services without imposing any cost-sharing requirements on the employer, its
insurance plan, or its employee beneficiaries.
In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs
that life begins at conception and that it would violate their religion to facilitate access to
contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and
other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause,
seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide
health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied
the Hahns and their company—Conestoga Wood Specialties—a preliminary injunction. Affirming,
the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under
RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their
personal capacity. In No. 13–354, the Greens, their children, and their companies—
HobbyLobby Stores and Mardel—were also denied a preliminary injunction, but the Tenth Circuit
reversed. It held that the Greens' businesses are “persons” under RFRA, and that the corporations
had established a likelihood of success on their RFRA claim because the contraceptive mandate
substantially burdened their exercise of religion and HHS had not demonstrated a compelling
interest in enforcing the mandate against them; in the alternative, the court held that HHS had not
proved that the mandate was the “least restrictive means” of furthering a compelling governmental
interest.
Held : As applied to closely held corporations, the HHS regulations imposing the contraceptive
mandate violate RFRA. Pp. 2761 – 2785.
(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like
Conestoga, Hobby Lobby, and Mardel. Pp. 2761 – 2775.
(1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the
owners cannot sue because the regulations apply only to the companies, but that would leave
merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty
or forgo the benefits of operating as corporations. RFRA's text shows that Congress designed the
statute to provide very broad protection for religious liberty and did not intend to put merchants to
such a choice. It employed the familiar legal fiction of including corporations within RFRA's definition
of “persons,” but the purpose of extending rights to corporations is to protect the rights of people
associated with the corporation, including shareholders, officers, and employees. Protecting the freeexercise rights of closely held corporations thus protects the religious liberty of the humans who own
and control them. Pp. 2761 – 2768.
(2) HHS and the dissent make several unpersuasive arguments. Pp. 2768 – 2775.
(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of
“person,” which “include[s] corporations, ... as well as individuals.” 1 U.S.C. § 1. The Court has
entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v.
O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d
1017. *2756 And HHS's concession that a nonprofit corporation can be a “person” under RFRA
effectively dispatches any argument that the term does not reach for-profit corporations; no
conceivable definition of “person” includes natural persons and nonprofit corporations, but not forprofit corporations. Pp. 2768 – 2769.
(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby,
and Mardel because they cannot “exercise ... religion.” They offer no persuasive explanation for this
conclusion. The corporate form alone cannot explain it because RFRA indisputably protects
nonprofit corporations. And the profit-making objective of the corporations cannot explain it because
the Court has entertained the free-exercise claims of individuals who were attempting to make a
profit as retail merchants. Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563. Business
practices compelled or limited by the tenets of a religious doctrine fall comfortably within the
understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876. Any
suggestion that for-profit corporations are incapable of exercising religion because their purpose is
simply to make money flies in the face of modern corporate law. States, including those in which the
plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or
business, including the pursuit of profit in conformity with the owners' religious principles. Pp. 2769 –
2772.
(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free
Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit
corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of
religion” was meant to be tied to pre-Smith interpretations of the First Amendment. Second, if
RFRA's original text were not clear enough, the RLUIPA amendment surely dispels any doubt that
Congress intended to separate the definition of the phrase from that in First Amendment case law.
Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617,
81 S.Ct. 1122, 6 L.Ed.2d 536, suggests, if anything, that for-profit corporations can exercise religion.
Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for
religious liberty, merely restored this Court's pre-Smith decisions in ossified form and restricted
RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had
recognized before Smith. Pp. 2772 – 2774.
(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit
corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded
corporations, but HHS has not pointed to any example of a publicly traded corporation asserting
RFRA rights, and numerous practical restraints would likely prevent that from occurring. HHS has
also provided no evidence that the purported problem of determining the sincerity of an asserted
religious belief moved Congress to exclude for-profit corporations from RFRA's protection. That
disputes among the owners of corporations might arise is not a problem unique to this context. State
corporate law provides a ready means for resolving any conflicts by, for example, dictating how a
corporation can establish its governing structure. Courts will turn to that structure and the underlying
state law in resolving disputes. Pp. 2774 – 2775.
*2757 (b) HHS's contraceptive mandate substantially burdens the exercise of religion. Pp. 2775 –
2779.
(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere
religious belief that life begins at conception. If they and their companies refuse to provide
contraceptive coverage, they face severe economic consequences: about $475 million per year
for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if
they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby,
$1.8 million for Conestoga, and $800,000 for Mardel. Pp. 2775 – 2776.
(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost
of providing insurance, and therefore that dropping insurance coverage eliminates any substantial
burden imposed by the mandate. HHS has never argued this and the Court does not know its
position with respect to the argument. But even if the Court reached the argument, it would find it
unpersuasive: It ignores the fact that the plaintiffs have religious reasons for providing healthinsurance coverage for their employees, and it is far from clear that the net cost to the companies of
providing insurance is more than the cost of dropping their insurance plans and paying the ACA
penalty. Pp. 2776 – 2777.
(3) HHS argues that the connection between what the objecting parties must do and the end that
they find to be morally wrong is too attenuated because it is the employee who will choose the
coverage and contraceptive method she uses. But RFRA's question is whether the mandate
imposes a substantial burden on the objecting parties' ability to conduct business in accordance
with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important
question of religion and moral philosophy, namely, the circumstances under which it is immoral for a
person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the
commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the
plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical
argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 101 S.Ct.
1425, 67 L.Ed.2d 624. The Court's “narrow function ... is to determine” whether the plaintiffs'
asserted religious belief reflects “an honest conviction,” id., at 716, 101 S.Ct. 1425, and there is no
dispute here that it does. Tilton v. Richardson, 403 U.S. 672, 689, 91 S.Ct. 2091, 29 L.Ed.2d
790; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 248–249, 88 S.Ct. 1923,
20 L.Ed.2d 1060, distinguished. Pp. 2777 – 2779.
(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged
contraceptive methods is a compelling governmental interest, but the Government has failed to show
that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 2779 –
2785.
(1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged
contraceptive methods is compelling within the meaning of RFRA. Pp. 2779 – 2780.
(2) The Government has failed to satisfy RFRA's least-restrictive-means standard. HHS has not
shown that it lacks other means of achieving its desired goal without imposing a substantial burden
on the exercise of religion. The Government could, e.g., assume the cost of providing the four
contraceptives to women unable to obtain coverage due to their *2758 employers' religious
objections. Or it could extend the accommodation that HHS has already established for religious
nonprofit organizations to non-profit employers with religious objections to the contraceptive
mandate. That accommodation does not impinge on the plaintiffs' religious beliefs that providing
insurance coverage for the contraceptives at issue here violates their religion and it still serves
HHS's stated interests. Pp. 2780 – 2783.
(3) This decision concerns only the contraceptive mandate and should not be understood to hold
that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily
fall if they conflict with an employer's religious beliefs. Nor does it provide a shield for employers who
might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U.S. 252,
102 S.Ct. 1051, 71 L.Ed.2d 127, which upheld the payment of Social Security taxes despite an
employer's religious objection, is not analogous. It turned primarily on the special problems
associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point
would still be that there is no less restrictive alternative to the categorical requirement to pay
taxes. Here, there is an alternative to the contraceptive mandate. Pp. 2783 – 2785.
No. 13–354, 723 F.3d 1114, affirmed; No. 13–356, 724 F.3d 377, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS,
C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J.,filed a concurring
opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in
which BREYER and KAGAN, JJ., joined as to all but Part III–C–1. BREYER AND KAGAN, JJ., filed
a dissenting opinion.
Attorneys and Law Firms
Paul D. Clement, Washington, DC, for the private parties.
Donald B. Verrilli, Jr., Solicitor General, for the federal government.
Paul D. Clement, Michael H. McGinley, Bancroft PLLC, Washington, DC, Peter M. Dobelbower,
General Counsel and Chief Legal Officer, Hobby Lobby Stores, Inc., Oklahoma City, OK, S. Kyle
Duncan, Counsel of Record, Eric C. Rassbach, Luke W. Goodrich, Hannah C. Smith, Mark L. Rienzi,
Lori H. Windham, Adèle Auxier Keim, The Becket Fund for Religious Liberty, Washington, DC,
Joshua D. Hawley, University of Missouri, Columbia, MO, counsel for Respondents.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney
General, Ian Heath Gershengorn, Edwin S. Kneedler, Deputy Solicitors General, Joseph R.
Palmore, Assistant to the Solicitor General, Mark B. Stern, Alisa B. Klein, Washington, DC, for
Petitioners.
Jordan W. Lorence, Steven H. Aden, Gregory S. Baylor, Matthew S. Bowman, Alliance Defending
Freedom, Washington, DC, David A. Cortman, Counsel of Record, Kevin H. Theriot, Rory T. Gray,
Alliance Defending Freedom, Lawrenceville, GA, Charles W. Proctor, III, Law Offices of Proctor,
Lindsay & Dixon, Chadds Ford, PA, Randall L. Wenger, Independence Law Center, Harrisburg, PA,
for Petitioners Conestoga Wood Specialties Corporation et al.
Opinion
*2759 Justice ALITO delivered the opinion of the Court.
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA),
107 Stat. 1488, 42 U.S.C. § 2000bb et seq., permits the United States Department of Health and
Human Services (HHS) to demand that three closely held corporations provide health-insurance
coverage for methods of contraception that violate the sincerely held religious beliefs of the
companies' owners. We hold that the regulations that impose this obligation violate RFRA, which
prohibits the Federal Government from taking any action that substantially burdens the exercise of
religion unless that action constitutes the least restrictive means of serving a compelling government
interest.
In holding that the HHS mandate is unlawful, we reject HHS's argument that the owners of the
companies forfeited all RFRA protection when they decided to organize their businesses as
corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make
it perfectly clear that Congress did not discriminate in this way against men and women who wish to
run their businesses as for-profit corporations in the manner required by their religious beliefs.
Since RFRA applies in these cases, we must decide whether the challenged HHS regulations
substantially burden the exercise of religion, and we hold that they do. The owners of the businesses
have religious objections to abortion, and according to their religious beliefs the four contraceptive
methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they
will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as
$1.3 million per day, or about $475 million per year, in the case of one of the companies. If these
consequences do not amount to a substantial burden, it is hard to see what would.
Under RFRA, a Government action that imposes a substantial burden on religious exercise must
serve a compelling government interest, and we assume that the HHS regulations satisfy this
requirement. But in order for the HHS mandate to be sustained, it must also constitute the least
restrictive means of serving that interest, and the mandate plainly fails that test. There are other
ways in which Congress or HHS could equally ensure that every woman has cost-free access to the
particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.
In fact, HHS has already devised and implemented a system that seeks to respect the religious
liberty of religious nonprofit corporations while ensuring that the employees of these entities have
precisely the same access to all FDA-approved contraceptives as employees of companies whose
owners have no religious objections to providing such coverage. The employees of these religious
nonprofit corporations still have access to insurance coverage without cost sharing for all FDAapproved contraceptives; and according to HHS, this system imposes no net economic burden on
the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections
to the contraceptive mandate, HHS has provided no reason why the same system cannot be made
available when the owners of for-profit corporations have similar religious objections. We therefore
conclude that this system constitutes an alternative that achieves all of the Government's aims while
providing greater respect for religious liberty. And under RFRA, that conclusion means that
enforcement of the *2760 HHS contraceptive mandate against the objecting parties in these cases is
unlawful.
As this description of our reasoning shows, our holding is very specific. We do not hold, as the
principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of
any law (saving only tax laws) they judge incompatible with their sincerely held religious
beliefs.” Post, at 2787 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such
corporations have free rein to take steps that impose “disadvantages ... on others” or that require
“the general public [to] pick up the tab.” Post, at 2787. And we certainly do not hold or suggest that
“RFRA demands accommodation of a for-profit corporation's religious beliefs no matter the impact
that accommodation may have on ... thousands of women employed by Hobby Lobby.” Post, at
2787.1 The effect of the HHS-created accommodation on the women employed
by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under
that accommodation, these women would still be entitled to all FDA-approved contraceptives without
cost sharing.
I
A
Congress enacted RFRA in 1993 in order to provide very broad protection for religious
liberty. RFRA's enactment came three years after this Court's decision in Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which
largely repudiated the method of analyzing free-exercise claims that had been used in cases
like Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v.
Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In determining whether challenged
government actions violated the Free Exercise Clause of the First Amendment, those decisions used
a balancing test that took into account whether the challenged action imposed a substantial burden
on the practice of religion, and if it did, whether it was needed to serve a compelling government
interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to
work on her Sabbath could not be denied unemployment benefits. 374 U.S., at 408–409, 83 S.Ct.
1790. And in Yoder, the Court held that Amish children could not be required to comply with a state
law demanding that they remain in school until the age of 16 even though their religion required
them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406
U.S., at 210–211, 234–236, 92 S.Ct. 1526.
In Smith, however, the Court rejected “the balancing test set forth in Sherbert.” 494 U.S., at 883,
110 S.Ct. 1595. Smith concerned two members of the Native American Church who were fired for
ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of
Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon
Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise
Clause. 494 U.S., at 875, 110 S.Ct. 1595.
This Court then reversed, observing that use of the Sherbert test whenever a person objected on
religious grounds to the enforcement of a generally applicable law “would open the prospect of
constitutionally *2761 required religious exemptions from civic obligations of almost every
conceivable kind.” 494 U.S., at 888, 110 S.Ct. 1595. The Court therefore held that, under the First
Amendment, “neutral, generally applicable laws may be applied to religious practices even when not
supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U.S. 507, 514,
117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
1Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,”
Congress found, “may burden religious exercise as surely as laws intended to interfere with religious
exercise.” 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure broad protection for
religious liberty, RFRA provides that “Government shall not substantially burden a person's exercise
of religion even if the burden results from a rule of general applicability.” § 2000bb–1(a).2 If the
Government substantially burdens a person's exercise of religion, under the Act that person is
entitled to an exemption from the rule unless the Government “demonstrates that application of the
burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” § 2000bb–1(b).3
2As enacted in 1993, RFRA applied to both the Federal Government and the States, but the
constitutional authority invoked for regulating federal and state agencies differed. As applied to a
federal agency, RFRA is based on the enumerated power that supports the particular agency's
work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power
under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U.S., at 516–
517, 117 S.Ct. 2157. In City of Boerne, however, we held that Congress had overstepped its Section
5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of
unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534,
117 S.Ct. 2157. See also id., at 532, 117 S.Ct. 2157.
3Following our decision in City of Boerne, Congress passed the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq. That
statute, enacted under Congress's Commerce and Spending Clause powers, imposes the same
general test as RFRA but on a more limited category of governmental actions. See Cutter v.
Wilkinson, 544 U.S. 709, 715–716, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). And, what is most
relevant for present purposes, RLUIPA amended RFRA's definition of the “exercise of religion.”
See § 2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA's definition made
reference to the First Amendment. See § 2000bb–2(4) (1994 ed.) (defining “exercise of religion” as
“the exercise of religion under the First Amendment”). In RLUIPA, in an obvious *2762 effort to effect
a complete separation from First Amendment case law, Congress deleted the reference to the First
Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” § 2000cc–5(7)(A). And Congress mandated
that this concept “be construed in favor of a broad protection of religious exercise, to the maximum
extent permitted by the terms of this chapter and the Constitution.” § 2000cc–3(g).5
B
At issue in these cases are HHS regulations promulgated under the Patient Protection and
Affordable Care Act of 2010(ACA), 124 Stat. 119. ACA generally requires employers with 50 or more
full-time employees to offer “a group health plan or group health insurance coverage” that provides
“minimum essential coverage.” 26 U.S.C. § 5000A(f)(2); §§ 4980H(a), (c)(2). Any covered employer
that does not provide such coverage must pay a substantial price. Specifically, if a covered employer
provides group health insurance but its plan fails to comply with ACA's group-health-plan
requirements, the employer may be required to pay $100 per day for each affected “individual.” §§
4980D(a)-(b). And if the employer decides to stop providing health insurance altogether and at least
one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-
run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees. §§
4980H(a), (c)(1).
Unless an exception applies, ACA requires an employer's group health plan or group-healthinsurance coverage to furnish “preventive care and screenings” for women without “any cost sharing
requirements.” 42 U.S.C. § 300gg–13(a)(4). Congress itself, however, did not specify what types of
preventive care must be covered. Instead, Congress authorized the Health Resources and Services
Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid.
The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in
determining which preventive services to require. See 77 Fed.Reg. 8725–8726 (2012).
In August 2011, based on the Institute's recommendations, the HRSA promulgated the Women's
Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at
http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in
Clerk of Court's case file). The Guidelines provide that nonexempt employers are generally required
to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [ (FDA) ] approved
contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed.Reg.
8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of
contraception work by preventing the fertilization of an egg, four of those methods (those specifically
at issue in these cases) may have the effect of preventing an already fertilized egg
from *2763 developing any further by inhibiting its attachment to the uterus. See Brief for HHS in No.
13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.7
HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for
“religious employers.” 45 CFR § 147.131(a). That category encompasses “churches, their integrated
auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious
activities of any religious order.” See ibid (citing 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii)). In its Guidelines,
HRSA exempted these organizations from the requirement to cover contraceptive services. See
http://hrsa.gov/womens guidelines.
In addition, HHS has effectively exempted certain religious nonprofit organizations, described under
HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §
147.131(b); 78 Fed.Reg. 39874 (2013). An “eligible organization” means a nonprofit organization
that “holds itself out as a religious organization” and “opposes providing coverage for some or all of
any contraceptive services required to be covered ... on account of religious objections.” 45 CFR §
147.131(b). To qualify for this accommodation, an employer must certify that it is such an
organization. § 147.131(b)(4). When a group-health-insurance issuer receives notice that one of its
clients has invoked this provision, the issuer must then exclude contraceptive coverage from the
employer's plan and provide separate payments for contraceptive services for plan participants
without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its
employee beneficiaries. § 147.131(c).8 Although this procedure requires the issuer to bear the cost
of these services, HHS has determined that this obligation will not impose any net expense on
issuers because its cost will be less than or equal to the cost savings resulting from the services. 78
Fed.Reg. 39877.9
In addition to these exemptions for religious organizations, ACA exempts a great *2764 many
employers from most of its coverage requirements. Employers providing “grandfathered health
plans”—those that existed prior to March 23, 2010, and that have not made specified changes after
that date—need not comply with many of the Act's requirements, including the contraceptive
mandate. 42 U.S.C. §§ 18011(a), (e). And employers with fewer than 50 employees are not required
to provide health insurance at all. 26 U.S.C. § 4980H(c)(2).
All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F.3d
1114, 1143 (C.A.10 2013). This is attributable, in large part, to grandfathered health plans: Over
one-third of the 149 million nonelderly people in America with employer-sponsored health plans were
enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family
Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey
43, 221.10 The count for employees working for firms that do not have to provide insurance at all
because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health
Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for
Small Businesses 1.11
II
A
Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a
Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its
earliest stages ... shares humanity with those who conceived it.”12
Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this
company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is
organized under Pennsylvania law as a for-profit corporation. The Hahns exercise sole ownership of
the closely held business; they control its board of directors and hold all of its voting shares. One of
the Hahn sons serves as the president and CEO.
The Hahns believe that they are required to run their business “in accordance with their religious
beliefs and moral principles.” 917 F.Supp.2d 394, 402 (E.D.Pa.2013). To that end, the company's
mission, as they see it, is to “operate in a professional environment founded upon the highest
ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company's
“Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in
[a] manner that reflects [the Hahns'] Christian heritage.” App. in No. 13–356, p. 94 (complaint).
As explained in Conestoga's board-adopted “Statement on the Sanctity of Human Life,” the Hahns
believe that “human life begins at conception.” *2765 724 F.3d 377, 382, and n. 5 (C.A.3
2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be
involved in the termination of human life” after conception, which they believe is a “sin against God
to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have
accordingly excluded from the group-health-insurance plan they offer to their employees certain
contraceptive methods that they consider to be abortifacients. Id., at 382.
The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the
Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA's contraceptive
mandate insofar as it requires them to provide health-insurance coverage for four FDA-approved
contraceptives that may operate after the fertilization of an egg.13 These include two forms
of emergency contraception commonly called “morning after” pills and two types of intrauterine
devices.14
In opposing the requirement to provide coverage for the contraceptives to which they object, the
Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate,
or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, see 917
F.Supp.2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “for-profit, secular
corporations cannot engage in religious exercise” within the meaning of RFRA or the First
Amendment. 724 F.3d, at 381. The Third Circuit also rejected the claims brought by the Hahns
themselves because it concluded that the HHS “[m]andate does not impose any requirements on the
Hahns” in their personal capacity. Id., at 389.
B
David and Barbara Green and their three children are Christians who own and operate two family
businesses. Forty-five years ago, David Green started an arts-and-crafts store that has grown into a
nationwide chain called Hobby Lobby. There are now 500 Hobby Lobbystores, and the company
has more than 13,000 employees. 723 F.3d, at 1122. Hobby Lobby is organized as a for-profit
corporation under Oklahoma law.
One of David's sons started an affiliated business, Mardel, which operates 35 Christian bookstores
and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under
Oklahoma law.
Though these two businesses have expanded over the years, they remain closely held, and David,
Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the
CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO.
See Brief for Respondents in No. 13–354, p. 8.15
*2766 Hobby Lobby's statement of purpose commits the Greens to “[h]onoring the Lord in all [they]
do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354,
pp. 134–135 (complaint). Each family member has signed a pledge to run the businesses in
accordance with the family's religious beliefs and to use the family assets to support Christian
ministries. 723 F.3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel
stores close on Sundays, even though the Greens calculate that they lose millions in sales annually
by doing so. Id., at 1122; App. in No. 13–354, at 136–137. The businesses refuse to engage in
profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian
missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to
“know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted).
Like the Hahns, the Greens believe that life begins at conception and that it would violate their
religion to facilitate access to contraceptive drugs or devices that operate after that point. 723 F.3d,
at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the
Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at
1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a
grandfathered plan because Hobby Lobby elected not to retain grandfathered status before the
contraceptive mandate was proposed. Id., at 1124.
The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to
challenge the contraceptive mandate under RFRA and the Free Exercise Clause.16 The District
Court denied a preliminary injunction, see 870 F.Supp.2d 1278 (W.D.Okla.2012), and the plaintiffs
appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and
reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held
that the Greens' two for-profit businesses are “persons” within the meaning of RFRA and therefore
may bring suit under that law.
The court then held that the corporations had established a likelihood of success on their RFRA
claim. 723 F.3d, at 1140–1147. The court concluded that the contraceptive mandate substantially
burdened the exercise of religion by requiring the companies to choose between “compromis[ing]
their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every
year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26
million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.
The court next held that HHS had failed to demonstrate a compelling interest in enforcing the
mandate against the Greens' businesses and, in the alternative, that HHS had failed to prove that
enforcement of the mandate was the “least restrictive means” of furthering the Government's
asserted interests. Id., at 1143–1144 (emphasis deleted; internal quotation marks omitted). After
concluding that the companies had “demonstrated irreparable harm,” the court reversed and
remanded for the District Court to consider the remaining factors of the preliminary-injunction
test. Id., at 1147.17
*2767 We granted certiorari. 571 U.S. ––––, 134 S.Ct. 678, 187 L.Ed.2d 544 (2013).
III
A
RFRA prohibits the “Government [from] substantially burden[ing] a person's exercise of religion even
if the burden results from a rule of general applicability” unless the Government “demonstrates that
application of the burden to the person—(1) is in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.
§§ 2000bb–1(a), (b) (emphasis added). The first question that we must address is whether this
provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby,
Conestoga, and Mardel.
HHS contends that neither these companies nor their owners can even be heard under RFRA.
According to HHS, the companies cannot sue because they seek to make a profit for their owners,
and the owners cannot be heard because the regulations, at least as a formal matter, apply only to
the companies and not to the owners as individuals. HHS's argument would have dramatic
consequences.
Consider this Court's decision in Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563
(1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail
businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free
Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they
argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court
entertained their claim (although it ruled against them on the merits), and if a similar claim were
raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of
Columbia, see 42 U.S.C. § 2000bb–2(2)), the merchants would be entitled to be heard. According to
HHS, however, if these merchants chose to incorporate their businesses—without in any way
changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise)
rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial
protection of their religious liberty or forgo the benefits, available to their competitors, of operating as
corporations.
As we have seen, RFRA was designed to provide very broad protection for religious liberty. By
enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is
there any reason to think that the Congress that enacted such sweeping protection put smallbusiness owners to the choice that HHS suggests? An examination of *2768 RFRA's text, to which
we turn in the next part of this opinion, reveals that Congress did no such thing.
4As we will show, Congress provided protection for people like the Hahns and Greens by employing
a familiar legal fiction: It included corporations within RFRA's definition of “persons.” But it is
important to keep in mind that the purpose of this fiction is to provide protection for human beings. A
corporation is simply a form of organization used by human beings to achieve desired ends. An
established body of law specifies the rights and obligations of the people (including shareholders,
officers, and employees) who are associated with a corporation in one way or another. When rights,
whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights
of these people. For example, extending Fourth Amendment protection to corporations protects the
privacy interests of employees and others associated with the company. Protecting corporations
from government seizure of their property without just compensation protects all those who have a
stake in the corporations' financial well-being. And protecting the free-exercise rights of corporations
like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and
control those companies.
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third
Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their
individual owners or employees,exercise religion. They do not pray, worship, observe sacraments or
take other religiously-motivated actions separate and apart from the intention and direction of their
individual actors.” 724 F.3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corporations, “separate and apart from” the human
beings who own, run, and are employed by them, cannot do anything at all.
B
1
5As we noted above, RFRA applies to “a person's” exercise of religion, 42 U.S.C. §§ 2000bb–
1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act,
which we must consult “[i]n determining the meaning of any Act of Congress, unless the context
indicates otherwise.” 1 U.S.C. § 1.
Under the Dictionary Act, “the wor[d] ‘person’ ... include[s] corporations, companies, associations,
firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT
& T Inc., 562 U.S. ––––, ––––, 131 S.Ct. 1177, 1182–1183, 179 L.Ed.2d 132 (2011) (“We have no
doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that
clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the
Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies
involved in these cases may be heard.
We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act
definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and freeexercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficente
Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017
(2006) (RFRA); *2769 Hosanna–Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S.
––––, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (Free Exercise); Church of the Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (Free Exercise), and HHS
concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for
HHS in No. 13–354, at 17; Reply Brief in No. 13–354, at 7–8.19
This concession effectively dispatches any argument that the term “person” as used in RFRA does
not reach the closely held corporations involved in these cases. No known understanding of the term
“person” includes some but not all corporations. The term “person” sometimes encompasses
artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But
no conceivable definition of the term includes natural persons and nonprofit corporations, but not forprofit corporations.20 Cf. Clark v. Martinez, 543 U.S. 371, 378, 125 S.Ct. 716, 160 L.Ed.2d 734
(2005) (“To give th[e] same words a different meaning for each category would be to invent a statute
rather than interpret one”).
2
The principal argument advanced by HHS and the principal dissent regarding RFRA protection
for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the
phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected
by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides
any persuasive explanation for this conclusion.
Is it because of the corporate form? The corporate form alone cannot provide the explanation
because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by
RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious
“autonomy ... often furthers individual religious freedom as well.” Post, at 2794 (quoting Corporation
of Presiding Bishop of Church of Jesus Christ of Latter–day Saints v. Amos, 483 U.S. 327, 342,
107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (Brennan, J., concurring in judgment)). But this principle
applies equally to for-profit corporations: Furthering their religious freedom also “furthers individual
religious freedom.” In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to
assert RFRA claims protects the religious liberty of the Greens and the Hahns.21
67If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U.S.
599, 81 S.Ct. 1144, 6 L.Ed.2d 563, we entertained the free-exercise claims of individuals who were
attempting to make a profit as retail merchants, and the Court never even hinted that this objective
precluded their *2770 claims. As the Court explained in a later case, the “exercise of religion”
involves “not only belief and profession but the performance of (or abstention from) physical acts”
that are “engaged in for religious reasons.” Smith, 494 U.S., at 877, 110 S.Ct. 1595. Business
practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that
definition. Thus, a law that “operates so as to make the practice of ... religious beliefs more
expensive” in the context of business activities imposes a burden on the exercise of
religion. Braunfeld, supra, at 605, 81 S.Ct. 1144; see United States v. Lee, 455 U.S. 252, 257,
102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (recognizing that “compulsory participation in the social
security system interferes with [Amish employers'] free exercise rights”).
If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a freeexercise claim,22 why can't Hobby Lobby, Conestoga, and Mardel do the same?
8Some lower court judges have suggested that RFRA does not protect for-profit corporations
because the purpose of such corporations is simply to make money.23 This argument flies in the face
of modern corporate law. “Each American jurisdiction today either expressly or by implication
authorizes corporations to be formed under its general corporation act *2771 for any lawful
purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations § 4:1, p. 224 (3d ed.
2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations § 102 (rev. ed.
2010). While it is certainly true that a central objective of for-profit corporations is to make money,
modern corporate law does not require for-profit corporations to pursue profit at the expense of
everything else, and many do not do so. For-profit corporations, with ownership approval, support a
wide variety of charitable causes, and it is not at all uncommon for such corporations to further
humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its
owners agree, a for-profit corporation may take costly pollution-control and energy-conservation
measures that go beyond what the law requires. A for-profit corporation that operates facilities in
other countries may exceed the requirements of local law regarding working conditions and benefits.
If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they
may not further religious objectives as well.
HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are protected
by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is
less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize
profit. For example, organizations with religious and charitable aims might organize as for-profit
corporations because of the potential advantages of that corporate form, such as the freedom to
participate in lobbying for legislation or campaigning for political candidates who promote their
religious or charitable goals.24 In fact, recognizing the inherent compatibility between establishing a
for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally
recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit
corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for
its owners.25
In any event, the objectives that may properly be pursued by the companies in these cases are
governed by the laws of the States in which they were incorporated—Pennsylvania and Oklahoma—
and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,”
including the pursuit of profit in conformity with the owners' religious principles. 15 Pa. Cons.Stat. §
1301 (2001) (“Corporations may be incorporated under *2772 this subpart for any lawful purpose or
purposes”); Okla. Stat., Tit. 18, §§ 1002, 1005 (West 2012) (“[E]very corporation, whether profit or
not for profit” may “be incorporated or organized ... to conduct or promote any lawful business or
purposes”); see also § 1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354.
3
HHS and the principal dissent make one additional argument in an effort to show that a for-profit
corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues
that RFRA did no more than codify this Court's pre-Smith Free Exercise Clause precedents, and
because none of those cases squarely held that a for-profit corporation has free-exercise rights,
RFRA does not confer such protection. This argument has many flaws.
9First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase
“exercise of religion under the First Amendment” was meant to be tied to this Court's preSmith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion”
to mean “the exercise of religion under the First Amendment”—not the exercise of religion as
recognized only by then-existing Supreme Court precedents. 42 U.S.C. § 2000bb–2(4) (1994 ed.).
When Congress wants to link the meaning of a statutory provision to a body of this Court's case law,
it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
the United States”).
Second, if the original text of RFRA was not clear enough on this point—and we think it was—the
amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior
reference to the First Amendment, see 42 U.S.C. § 2000bb–2(4) (2000 ed.)(incorporating § 2000cc–
5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie
RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as
discussed, the amendment went further, providing that the exercise of religion “shall be construed in
favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of
this chapter and the Constitution.” § 2000cc–3(g). It is simply not possible to read these provisions
as restricting the concept of the “exercise of religion” to those practices specifically addressed in our
pre-Smith decisions.
Third, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if
anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super
Market of Mass., Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961), the Massachusetts
Sunday closing law was challenged by a kosher market that was organized as a for-profit
corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the
corporation lacked “standing” to assert a free-exercise claim,26 but not one member of the Court
expressed agreement with that argument. The plurality opinion for four Justices rejected the First
Amendment claim on the *2773 merits based on the reasoning in Braunfeld, and reserved decision
on the question whether the corporation had “standing” to raise the claim. See 366 U.S., at 631,
81 S.Ct. 1122. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law
unconstitutional as applied to the corporation and the other challengers and thus implicitly
recognized their right to assert a free-exercise claim. See id., at 642, 81 S.Ct. 1122 (Brennan, J.,
joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U.S. 420, 578–579, 81 S.Ct. 1101, 6
L.Ed.2d 393 (1961) (Douglas, J., dissenting as to related cases including Gallagher ). Finally, Justice
Frankfurter's opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the
merits but did not question or reserve decision on the issue of the right of the corporation or any of
the other challengers to be heard. See McGowan, 366 U.S., at 521–522, 81 S.Ct. 1101. It is quite a
stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left
for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which
the issue was raised—a majority of the Justices did not find it necessary to decide whether the
kosher market's corporate status barred it from raising a free-exercise claim.
Finally, the results would be absurd if RFRA merely restored this Court's pre-Smith decisions in
ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a
category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the
years before Smith. For example, we are not aware of any pre-Smith case in which this Court
entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond
RFRA's protective reach simply because the Court never addressed their rights before Smith ?
Presumably in recognition of the weakness of this argument, both HHS and the principal dissent fall
back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations
from generally applicable laws. By contrast, HHS contends, statutes like Title VII, 42 U.S.C. §
2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit
corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did
not call to our attention the fact that some federal statutes do exempt categories of entities that
include for-profit corporations from laws that would otherwise require these entities to engage in
activities to which they object on grounds of conscience. See, e.g., 42 U.S.C. § 300a–7(b)(2); §
238n(a).27 If Title VII and similar *2774 laws show anything, it is that Congress speaks with
specificity when it intends a religious accommodation not to extend to for-profit corporations.
4
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations
because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS
goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of
large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at
30.
10These cases, however, do not involve publicly traded corporations, and it seems unlikely that the
sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to
any example of a publicly traded corporation asserting RFRA rights, and numerous practical
restraints would likely prevent that from occurring. For example, the idea that unrelated
shareholders—including institutional investors with their own set of stakeholders—would agree to
run a corporation under the same religious beliefs seems improbable. In any event, we have no
occasion in these cases to consider RFRA's applicability to such companies. The companies in the
cases before us are closely held corporations, each owned and controlled by members of a single
family, and no one has disputed the sincerity of their religious beliefs.28
HHS has also provided no evidence that the purported problem of determining the sincerity of an
asserted religious belief moved Congress to exclude for-profit corporations from RFRA's protection.
On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal
courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category that
consists primarily of prisoners, and by the time of RLUIPA's enactment, the propensity of some
prisoners to assert claims of dubious sincerity was well documented.29 Nevertheless, after our
decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise
religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with
insincere prisoner claims, there is no reason to believe that Congress limited RFRA's reach out of
concern for the seemingly less difficult task of doing the same in corporate cases. And if, as HHS
seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in
No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere
claims would be tougher in cases involving for-profits?
HHS and the principal dissent express concern about the possibility of disputes among the owners
of corporations, but that is not a problem that arises because of RFRA or that is unique to this
context. The owners of closely held corporations may—and sometimes do—disagree
about *2775 the conduct of business. 1 Treatise of the Law of Corporations § 14:11. And even if
RFRA did not exist, the owners of a company might well have a dispute relating to religion. For
example, some might want a company's stores to remain open on the Sabbath in order to make
more money, and others might want the stores to close for religious reasons. State corporate law
provides a ready means for resolving any conflicts by, for example, dictating how a corporation can
establish its governing structure. See, e.g., ibid; id., § 3:2; Del.Code Ann., Tit. 8, § 351 (2011)
(providing that certificate of incorporation may provide how “the business of the corporation shall be
managed”). Courts will turn to that structure and the underlying state law in resolving disputes.
For all these reasons, we hold that a federal regulation's restriction on the activities of a for-profit
closely held corporation must comply with RFRA.30
IV
Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate
“substantially burden[s]” the exercise of religion. 42 U.S.C. § 2000bb–1(a). We have little trouble
concluding that it does.
A
11As we have noted, the Hahns and Greens have a sincere religious belief that life begins at
conception. They therefore object on religious grounds to providing health insurance that covers
methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4,
may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies
to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously
violates their religious beliefs.
If the Hahns and Greens and their companies do not yield to this demand, the economic
consequences will be severe. If the companies continue to offer group health plans that do not cover
the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U.S.C. §
4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or *2776 about $475 million
per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for
Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely
substantial.
It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether
and thus forcing their employees to obtain health insurance on one of the exchanges established
under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the
government-run exchanges, this course would also entail substantial economic consequences. The
companies could face penalties of $2,000 per employee each year. § 4980H. These penalties would
amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for
Mardel.
B
1213Although these totals are high, amici supporting HHS have suggested that the $2,000 peremployee penalty is actually less than the average cost of providing health insurance, see Brief for
Religious Organizations 22, and therefore, they claim, the companies could readily eliminate any
substantial burden by forcing their employees to obtain insurance in the government exchanges. We
do not generally entertain arguments that were not raised below and are not advanced in this Court
by any party, see United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, n. 2, 101 S.Ct. 1559, 67
L.Ed.2d 732 (1981); Bell v. Wolfish, 441 U.S. 520, 532, n. 13, 99 S.Ct. 1861, 60 L.Ed.2d 447
(1979); Knetsch v. United States, 364 U.S. 361, 370, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960), and there
are strong reasons to adhere to that practice in these cases. HHS, which presumably could have
compiled the relevant statistics, has never made this argument—not in its voluminous briefing or at
oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue
now before us has been litigated around the country. As things now stand, we do not even know
what the Government's position might be with respect to these amici's intensely empirical
argument.31 For this same reason, the plaintiffs have never had an opportunity to respond to this
novel claim that—contrary to their longstanding practice and that of most large employers—they
would be better off discarding their employer insurance plans altogether.
Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely
ignores the fact that the Hahns and Greens and their companies have religious reasons for providing
health-insurance coverage for their employees. Before the advent of ACA, they were not legally
compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional
business reasons, but also in part because their religious beliefs govern their relations with their
employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354, at 139.
Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from
clear that the net cost to the companies of providing insurance is more than the cost of dropping
their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees
value. If the companies simply eliminated that benefit and forced employees to *2777 purchase their
own insurance on the exchanges, without offering additional compensation, it is predictable that the
companies would face a competitive disadvantage in retaining and attracting skilled workers. See
App. in No. 13–354, at 153.
The companies could attempt to make up for the elimination of a group health plan by increasing
wages, but this would be costly. Group health insurance is generally less expensive than
comparable individual coverage, so the amount of the salary increase needed to fully compensate
for the termination of insurance coverage may well exceed the cost to the companies of providing
the insurance. In addition, any salary increase would have to take into account the fact that
employees must pay income taxes on wages but not on the value of employer-provided health
insurance. 26 U.S.C. § 106(a). Likewise, employers can deduct the cost of providing health
insurance, see § 162(a)(1), but apparently cannot deduct the amount of the penalty that they must
pay if insurance is not provided; that difference also must be taken into account. Given these
economic incentives, it is far from clear that it would be financially advantageous for an employer to
drop coverage and pay the penalty.32
In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the
Government—that dropping insurance coverage eliminates the substantial burden that the HHS
mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—
would have believed it a tolerable result to put family-run businesses to the choice of violating their
sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.
C
In taking the position that the HHS mandate does not impose a substantial burden on the exercise of
religion, HHS's main argument (echoed by the principal dissent) is basically that the connection
between what the objecting parties must do (provide health-insurance coverage for four methods of
contraception that may operate after the fertilization of an egg) and the end that they find to be
morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–
34; post, at 2798 – 2799. HHS and the dissent note that providing the coverage would not itself
result in the destruction of an embryo; that would occur only if an employee chose to take advantage
of the coverage and to use one of the four methods at issue.33 Ibid.
*2778 14This argument dodges the question that RFRA presents (whether the HHS mandate
imposes a substantial burden on the ability of the objecting parties to conduct business in
accordance with their religious beliefs ) and instead addresses a very different question that the
federal courts have no business addressing (whether the religious belief asserted in a RFRA case is
reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS
regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral
for them to provide the coverage. This belief implicates a difficult and important question of religion
and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an
act that is innocent in itself but that has the effect of enabling or facilitating the commission of an
immoral act by another.34 Arrogating the authority to provide a binding national answer to this
religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that
their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.
See, e.g., Smith, 494 U.S., at 887, 110 S.Ct. 1595 (“Repeatedly and in many different contexts, we
have warned that courts must not presume to determine ... the plausibility of a religious
claim”); Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766
(1989); Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393
U.S. 440, 450, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).
Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 101 S.Ct.
1425, 67 L.Ed.2d 624 (1981), we considered and rejected an argument that is nearly identical to the
one now urged by HHS and the dissent. In Thomas, a Jehovah's Witness was initially employed
making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets
for tanks. Id., at 710, 101 S.Ct. 1425. Because he objected on religious grounds to participating in
the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling
against the employee, the state court had difficulty with the line that the employee drew between
work that he found to be consistent with his religious beliefs (helping to manufacture steel that was
used in making weapons) and work that he found morally objectionable (helping to make the
weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was
an unreasonable one.” Id., at 715, 101 S.Ct. 1425.35
*2779 Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that
providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the
line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our
“narrow function ... in this context is to determine” whether the line drawn reflects “an honest
conviction,” id., at 716, 101 S.Ct. 1425, and there is no dispute that it does.
HHS nevertheless compares these cases to decisions in which we rejected the argument that the
use of general tax revenue to subsidize the secular activities of religious institutions violated the Free
Exercise Clause. See Tilton v. Richardson, 403 U.S. 672, 689, 91 S.Ct. 2091, 29 L.Ed.2d 790
(1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 248–249,
88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). But in those cases, while the subsidies were clearly contrary
to the challengers' views on a secular issue, namely, proper church-state relations, the challengers
never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable to
identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U.S., at 689,
91 S.Ct. 2091 (plurality opinion); see Allen, supra, at 249, 88 S.Ct. 1923 (“[A]ppellants have not
contended that the New York law in any way coerces them as individuals in the practice of their
religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at
issue violates their religious beliefs, and HHS does not question their sincerity. Because the
contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million
per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance
with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.
V
Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we
must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb–1(b).
A
15HHS asserts that the contraceptive mandate serves a variety of important interests, but many of
these are couched in very broad terms, such as promoting “public health” and “gender equality.”
Brief for HHS in No. 13–354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It
“requires the Government to demonstrate that the compelling interest test is satisfied through
application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of
religion is being substantially burdened.” O Centro, 546 U.S., at 430–431, 126 S.Ct. 1211 (quoting §
2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the
asserted harm of granting specific exemptions to particular religious claimants”—in other words, to
look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro,
supra, at 431, 126 S.Ct. 1211.
16In addition to asserting these very broadly framed interests, HHS maintains that the mandate
serves a compelling interest in ensuring that all women have access to all FDA-approved
contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for
HHS in No. 13–356, at 10, 48. Under our *2780 cases, women (and men) have a constitutional right
to obtain contraceptives, see Griswold v. Connecticut, 381 U.S. 479, 485–486, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate
copayments for preventive services can deter patients from receiving those services.” Brief for HHS
in No. 13–354, at 50 (internal quotation marks omitted).
The objecting parties contend that HHS has not shown that the mandate serves a compelling
government interest, and it is arguable that there are features of ACA that support that view. As we
have noted, many employees—those covered by grandfathered plans and those who work for
employers with fewer than 50 employees—may have no contraceptive coverage without cost
sharing at all.
HHS responds that many legal requirements have exceptions and the existence of exceptions does
not in itself indicate that the principal interest served by a law is not compelling. Even a compelling
interest may be outweighed in some circumstances by another even weightier consideration. In
these cases, however, the interest served by one of the biggest exceptions, the exception for
grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending
an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care
Act's health reform provisions” that provide what HHS has described as “particularly significant
protections.” 75 Fed.Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from
this subset. Ibid.
We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing
cost-free access to the four challenged contraceptive methods is compelling within the meaning of
RFRA, and we will proceed to consider the final prong of the RFRA test, i.e.,whether HHS has
shown that the contraceptive mandate is “the least restrictive means of furthering that compelling
governmental interest.” § 2000bb–1(b)(2).
B
1718The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U.S.,
at 532, 117 S.Ct. 2157, and it is not satisfied here. HHS has not shown that it lacks other means of
achieving its desired goal without imposing a substantial burden on the exercise of religion by the
objecting parties in these cases. See §§ 2000bb–1(a), (b) (requiring the Government to
“demonstrat[e] that application of [a substantial] burden to the person ... is the least restrictive means
of furthering [a] compelling governmental interest” (emphasis added)).
The most straightforward way of doing this would be for the Government to assume the cost of
providing the four contraceptives at issue to any women who are unable to obtain them under their
health-insurance policies due to their employers' religious objections. This would certainly be less
restrictive of the plaintiffs' religious liberty, and HHS has not shown, see § 2000bb–1(b)(2), that this
is not a viable alternative. HHS has not provided any estimate of the average cost per employee of
providing access to these contraceptives, two of which, according to the FDA, are designed primarily
for emergency use. See Birth Control: Medicines to Help You, online at http://
www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm. Nor has HHS
provided any statistics regarding the number of employees who might be affected because they
work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is
unable to provide such *2781 statistics. It seems likely, however, that the cost of providing the forms
of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor
when compared with the overall cost of ACA. According to one of the Congressional Budget Office's
most recent forecasts, ACA's insurance-coverage provisions will cost the Federal Government more
than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the
Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.36 If, as HHS tells us,
providing all women with cost-free access to all FDA-approved methods of contraception is a
Government interest of the highest order, it is hard to understand HHS's argument that it cannot be
required under RFRA to pay anything in order to achieve this important goal.
19HHS contends that RFRA does not permit us to take this option into account because “RFRA
cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But
we see nothing in RFRA that supports this argument, and drawing the line between the “creation of
an entirely new program” and the modification of an existing program (which RFRA surely allows)
would be fraught with problems. We do not doubt that cost may be an important factor in the leastrestrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some
circumstances require the Government to expend additional funds to accommodate citizens'
religious beliefs. Cf. § 2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur
expenses in its own operations to avoid imposing a substantial burden on religious exercise.”).
HHS's view that RFRA can never require the Government to spend even a small amount reflects a
judgment about the importance of religious liberty that was not shared by the Congress that enacted
that law.
In the end, however, we need not rely on the option of a new, government-funded *2782 program in
order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has
demonstrated that it has at its disposal an approach that is less restrictive than requiring employers
to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has
already established an accommodation for nonprofit organizations with religious objections.
See supra, at 2763 – 2764, and nn. 8–9. Under that accommodation, the organization can selfcertify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§
147.131(b)(4), (c)(1); 26 CFR §§ 54.9815–2713A(a)(4), (b). If the organization makes such a
certification, the organization's insurance issuer or third-party administrator must “[e]xpressly exclude
contraceptive coverage from the group health insurance coverage provided in connection with the
group health plan” and “[p]rovide separate payments for any contraceptive services required to be
covered” without imposing “any cost-sharing requirements ... on the eligible organization, the group
health plan, or plan participants or beneficiaries.” 45 CFR § 147.131(c)(2); 26 CFR § 54.9815–
2713A(c)(2).38
We do not decide today whether an approach of this type complies with RFRA for purposes of all
religious claims.39 At a minimum, however, it does not impinge on the plaintiffs' religious belief that
providing insurance coverage for the contraceptives at issue here violates their religion, and it serves
HHS's stated interests equally well.40
The principal dissent identifies no reason why this accommodation would fail to protect the asserted
needs of women as effectively as the contraceptive mandate, and there is none.41 Under the
accommodation, the plaintiffs' female employees would continue to receive contraceptive coverage
without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal
logistical and administrative obstacles,” post, at 2802 (internal quotation marks omitted), because
their employers' insurers would be responsible for providing information and coverage, see, e.g., 45
CFR §§ 147.131(c)-(d); cf. *2783 26 CFR §§ 54.9815–2713A(b), (d). Ironically, it is the dissent's
approach that would “[i]mped[e] women's receipt of benefits by ‘requiring them to take steps to learn
about, and to sign up for, a new government funded and administered health benefit,’ ” post, at
2802, because the dissent would effectively compel religious employers to drop health-insurance
coverage altogether, leaving their employees to find individual plans on government-run exchanges
or elsewhere. This is indeed “scarcely what Congress contemplated.” Ibid.
C
HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will
lead to a flood of religious objections regarding a wide variety of medical procedures and drugs,
such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this
prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of
ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number
of employers sought exemption, on religious grounds, from any of ACA's coverage requirements
other than the contraceptive mandate.
It is HHS's apparent belief that no insurance-coverage mandate would violate RFRA—no matter how
significantly it impinges on the religious liberties of employers—that would lead to intolerable
consequences. Under HHS's view, RFRA would permit the Government to require all employers to
provide coverage for any medical procedure allowed by law in the jurisdiction in question—for
instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations
could not in good conscience provide such coverage, and thus HHS would effectively exclude these
people from full participation in the economic life of the Nation. RFRA was enacted to prevent such
an outcome.
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our
decision should not be understood to hold that an insurance-coverage mandate must necessarily fall
if it conflicts with an employer's religious beliefs. Other coverage requirements, such as
immunizations, may be supported by different interests (for example, the need to combat the spread
of infectious diseases) and may involve different arguments about the least restrictive means of
providing them.
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of
race, might be cloaked as religious practice to escape legal sanction. See post, at 2804 – 2805. Our
decision today provides no such shield. The Government has a compelling interest in providing an
equal opportunity to participate in the workforce without regard to race, and prohibitions on racial
discrimination are precisely tailored to achieve that critical goal.
HHS also raises for the first time in this Court the argument that applying the contraceptive mandate
to for-profit employers with sincere religious objections is essential to the comprehensive healthinsurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the
requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of
an employer, but these*2784 cases are quite different. Our holding in Lee turned primarily on the
special problems associated with a national system of taxation.We noted that “[t]he obligation to pay
the social security tax initially is not fundamentally different from the obligation to pay income
taxes.” 455 U.S., at 260, 102 S.Ct. 1051. Based on that premise, we explained that it was untenable
to allow individuals to seek exemptions from taxes based on religious objections to particular
Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain
percentage of the federal budget can be identified as devoted to war-related activities, such
individuals would have a similarly valid claim to be exempt from paying that percentage of the
income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were
allowed to challenge the tax system because tax payments were spent in a manner that violates
their religious belief.” Ibid.; see O Centro, 546 U.S., at 435, 126 S.Ct. 1211.
Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA
framework, t...
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