Skip to content

Judicial Watch • Hobby Lobby Amicus

Hobby Lobby Amicus

Hobby Lobby Amicus

Page 1: Hobby Lobby Amicus

Category:Lawsuit

Number of Pages:22

Date Created:January 27, 2014

Date Uploaded to the Library:January 30, 2014

Tags:HHS, Supreme Court, EPA, IRS, ICE, CIA


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

No. 13-354 THE 

Supreme Court the United States 
KATHLEEN SEBELIUS, SECRETARY HEALTH AND HUMAN SERVICES, al.,
 Petitioners, 
HOBBY LOBBY STORES, INC., al.
 Respondents. Writ Certiorari the United States 
Court Appeals for the Tenth Circuit 

BRIEF AMICUS CURIAE  
JUDICIAL WATCH, INC. SUPPORT RESPONDENTS 

Paul Orfanedes Meredith Liberto 
Counsel Record Counsel 
JUDICIAL WATCH, INC. 1925 Vince Road Ste. 800 Virginia Beach, 23464425 Third Street, S.W. (757) 448-8329Washington, 20024meredithcavallo@yahoo.com 
(202) 646-5172 porfanedes@judicialwatch.org 
Counsel for Amicus Curiae 
TABLE CONTENTS 
TABLE CONTENTS ............................................. 

TABLE AUTHORITIES ..................................... iii 

INTEREST AMICUS CURIAE ............................1 

SUMMARY THE ARGUMENT ............................1 

ARGUMENT ...............................................................2 	
THE CONGRESSIONAL INTENT THE 
RELIGIOUS FREEDOM RESTORATION ACT UNAMBIGUOUSLY CLEAR ................................2 
The Plain Meaning Congress
Words Makes Its Intent Clear .........................4 
Congress Subsequent Actions
Further Support the Clear Intent the RFRA ......................................................7 

II. 	
PETITIONERS CONTRACEPTIVE MANDATE
 HAS SUBSTANTIALLY BURDENED THE 
RELIGIOUS LIBERTIES FOR-PROFIT
 BUSINESSES LIKE HOBBY LOBBY,
 AND THE COMPELLING INTEREST TEST
 CLEARLY WEIGHS FAVOR
 HOBBY LOBBY ....................................................9 
Hobby Lobbys Religious Liberties
Are Substantially Burdened the
Contraceptive Mandate ..................................10 
Petitioners Stated Government 
Interest Does Not Rise the Level Compelling ..................................................12 
The Contraceptive Mandate Not the
Least Restrictive Means Achieving  
the Governments Interest .............................14 

CONCLUSION..........................................................15 

TABLE AUTHORITIES CASES PAGE America Production Co. Burton, 
549 U.S. (2006) ............................................ 

Carr U.S., 560 U.S. 438 (2010) .......................................... 
Chevron Natural Resources Def. Council, 467 U.S. 837 (1984) .......................................... 
Church Lukumi Babalu City Hialeah, 
508 U.S. 520 (1993) ........................................ 

Citizens United Fedl Election Commn, 558 U.S. 310 (2010) ...................................... 
Connecticut Natl Bank Germain, 
503 U.S. 249 (1992) .......................................... 

Desert Palace, Inc., Costa, 539 U.S. (2003) ............................................ 
Employment Div. Smith, 494 U.S. 872 (1990) .................................... 
Federal Communications Commn ATT, 131 Ct. 1177 (2011) .................. 

Federal Election Commn Wisconsin Right Life, 551 U.S. 449 (2007) .................... 

First Natl Bank Boston Bellotti, 
435 U.S. 765 (1978) ......................................8, 

Florida Star B.J.F., 
491 U.S. 524 (1989) ........................................ 

Geneva College Sebelius,
2012 U.S. Dist. LEXIS 179476 

(W.D. Pa, December 23, 2013) ....................... 

Gonzalez Centro Espirita, 
546 U.S. 418 (2006) .................................. 10, 

Hobby Lobby Sebelius,
723 F.3d 1114 (10th Cir. 2012) ............ 10,
 
Kedroff Saint Nicholas Cathedral, 
344 U.S. (1952) .......................................... 

Mohammed Palestinian Authority, 
132 Ct. 1702 (2012) .................................. 

Natl Fedn Indep. Bus. Sebelius, 
132 Ct. 2566 (2012) .................................. 

Roberts U.S. Jaycees,
468 U.S. 609 (1984) .......................................... 

Rubin U.S., 
449 U.S. 424 (1981) .......................................... 

Sebelius Cloer, 
133 Ct. 188 (2013) ........................................ 

Sherbert Verner, 
374 U.S. 398 (1963) ................................ 

Wisconsin Yoder, 
406 U.S. 205 (1972) .......................... 12, 

STATUTES U.S.C.  ...................................................... U.S.C.  2000bb ...................................................... U.S.C.  2000bb(a) .................................................. U.S.C.  2000bb(b) .................................................. U.S.C.  2000bb(b)(1) ............................................. U.S.C.  2000bb-1(b) ............................................ U.S.C.  2000bb-3(a) .............................................. 
Pub. No. 111-148, 124 Stat. 119 ............................. 

RULES AND REGULATIONS 
Supreme Court Rule 37.6 ........................................... Fed. Reg. 16,503 ................................................... Fed. Reg. 39,870 .....................................................3 

OTHER AUTHORITIES 
FEDERALIST PAPERS, Alexander Hamilton, 
Federalist No. ..............................................4 

FEDERALIST PAPERS, James Madison, 
Federalist No. ..............................................3 

The Becket Fund, HHS Information Central, 
http://www.becketfund.org/
hhsinformationcentral .....................................4 

INTEREST THE AMICUS CURIAE1 
Judicial Watch, Inc. (Judicial Watch) anon-partisan educational organization that seeks topromote transparency, accountability and integrityin government and fidelity the rule law. Judicial Watch regularly files amicus curiae briefs advance its public interest mission and has appeared amicus curiae this Court number occasions. 
Judicial Watch participating amicus curiae this matter because believes religiousliberty and respect for sincerely held religious beliefsare profoundly important, yet under increasing threat expanding government, this case demonstrates.  
SUMMARY THE ARGUMENT 
The Religious Freedom Restoration Act (RFRA), U.S.C.  2000bb, seq., applies for-profit corporations like Hobby Lobby Stores, Inc. andMardel, Inc. (collectively Hobby Lobby).  The text the RFRA makes the congressional intent unambiguously clear. Additionally, the Dictionary Act,subsequent congressional actions, and this Courts Pursuant Supreme Court Rule 37.6, amicus curiae states that counsel for party authored this brief wholeor part and that person entity, other than amicus curiae and their counsel, made monetary contributionintended fund the preparation and submission this brief.All parties have consented the filing this brief; letters reflecting this blanket consent have been filed with the Clerk. 
precedents support applying the RFRA for-profit corporations such Hobby Lobby. 
Applying the RFRA this case the U.S. Court Appeals for Tenth Circuit (Tenth Circuit) did, evident that Hobby Lobbys religious liberties are substantially burdened the so-called contraceptive mandate requirement the Affordable Care Act 2010 (ACA). equally clear thatthe mandate cannot withstand strict scrutiny and therefore must overturned.   
ARGUMENT 	THE CONGRESSIONAL INTENT THE RELIGIOUS FREEDOM RESTORATION ACT UNAMBIGUOUSLY CLEAR. 
The ACA, Pub. No. 111-148, 124 Stat. 119, has been wholly controversial. This Court has spoken number specific provisions and has reminded that the 
[m]embers this Court are vested withthe authority interpret the law; posses neither the expertise nor the prerogative make policy judgments.Those decisions are entrusted our Nations elected leaders, who can thrown out office the people disagree with them. not our job protect the people from the consequences oftheir political choices. 
Natl Fedn Sebelius, 132 Ct. 2566, 2579 (2012). 
The challenged regulation, Fed. Reg.39,870, not simply the consequence poor political choices; the product dangerous entanglement Congress and Executive agency thatultimately tramples religious liberties. unprecedented grab for power, the U.S. Department Health and Human Services (HHS) has not only unilaterally authored, enacted, and changed the contraceptive mandate, but now seeksto redefine separate act Congress  the ReligiousFreedom Restoration Act  preserve its power grab. This simply cannot stand. 
Our system governance depends greatly onan adherence three distinct spheres power. the words James Madison, an elective despotism was not the government fought for; but one inwhich the powers government should dividedand balanced among the several bodies magistracy that one could transcend their legal limits without being effectually checked and restrained the others. FEDERALIST NO. 58. Executive agenciesare the furthest removed from the will the people. Only when they are kept check the Executive himself Congress are they truly operatingfor the people. this case the Executive has backed Petitioners entirely. Congress, despite several attempts amend abolish the contraceptive mandate has failed so. such, peopleharmed the contraceptive mandate have turnedto the judiciary their last line defense protecting their religious liberties.2 It not otherwise supposed that the constitution could intend toenable the representatives the people substitute their will that their constituents. far more rational suppose that the courts were designed tobe intermediate body between the people and thelegislature; order, among other things, keep thelatter within the limits assigned their authority. Alexander Hamilton, FEDERALIST NO. 78. 
The Courts task this case quite simple: employ the ordinary canons statutory constructionto the RFRA. Doing so, the only logical conclusionthe Court can reach that Congress intended the RFRA apply for-profit corporations like HobbyLobby. Once applied, the contraceptive mandate must fail against Hobby Lobby and similar for-profitcorporations.	 The Plain Meaning 
 Congress Words Make 
Its Intent Clear. 

There appears dispute that the RFRA was intended restore the compelling interest test situations which the government had substantially burdened religious exercise without compelling justification. U.S.C.  2000bb(a). The debate centered solely whether the RFRA was intended Legal counsel for Hobby Lobby maintains website dedicated the plentiful lawsuits against Petitioners regarding the contraceptive mandate. the beginning 2014there are lawsuits, including two class action lawsuits and over 300 plaintiffs. See becketfund.org/hhsinformationcentral/. Congress apply for-profit corporations.  See Petitioners Petition For Writ Certiorari (Petitoners Writ) 16; see also Hobby Lobby Sebelius, 723 F.3d 1114, 1133 (10th Cir. 2013). Petitioners argue that the term person was not intended Congress include for-profit corporations like Hobby Lobby. Petitioners Writ 16-23. This argument belied Congress own words. 
First, articulating the purpose the RFRA,Congress stated that the application the compelling interest test set forth this Court Sherbert
 Verner, 374 U.S. 398 (1963) and Wisconsin Yoder, 406 U.S. 205 (1972) was guaranteed all cases where free exercise religion substantiallyburdened. U.S.C.  2000bb(b)(1) (emphasisadded). The Court should adhere the plain meaning all cases absent implausible contradictory result. As any statutory construction, westart, course, with the statutory text, and proceed from the understanding that unless otherwise defined, statutory terms are generally interpreted with their ordinary meaning. Sebelius Cloer, 133 1888, 1893 (2013) (quoting America Production Co. Burton, 549 U.S. 84, (2006)). See also Desert Palace, Inc. Costa, 539 U.S. 90, (2003). 

Second, the applicability section the RFRA,Congress states that the RFRA applies all Federal law  whether statutory otherwise, andwhether adopted before after the enactment. 
U.S.C.  2000bb-3(a). Petitioners argue that Congress intended return pre-Smith jurisprudenceand ask this Court simply erase post-Smith jurisprudence. Petitioners Writ 17-20.3  However, Congress words are unambiguous that the RFRAshould apply all Federal law and should apply toall federal laws before and after the enactment. could not clearer that Congress intended the RFRA apply liberally. The rule law adhered this Court presume Congress understands the words writes. We have stated time and again that courts must presume that legislature says astatute what means and means statute what says there. See Carr U.S., 560 U.S. 438, 458 (2010) 
Lastly the consideration the term person. Petitioners expend great amount time andenergy attempting convince the Court that, despite the inclusive language the RFRA itself, Congress did not intend person include for-profit corporations like Hobby Lobby for the purposes RFRA protection. Petitioners theory faces twoinsurmountable problems. First, Congress hascreated default definition the term person foruse any enactment which the term not defined specifically alternatively. The DictionaryAct 1947 defines person including corporations, companies, associations, firms, partnerships, societies and joint stock companies. U.S.C.  Second, Congress chose the term person rather Employment Div. Smith, 494 U.S. 872, 883-890 (1990), this Court held that the government may burdenreligious practices through generally applicable laws anddecided that case-by-case assessment was unnecessarywhere the burden was caused facially constitutional laws.The RFRA was Congress response Smith. 
than the term individual the RFRA. The Court has held that this distinction not insignificant. Mohammed Palestinian Authority, 132 Ct. 1702, 1707 (2012), the Court stated that routinelyuses individual denote natural person, and particular distinguish between natural personand corporation. Congress does not, the ordinary course, employ the word any differently.(internal citations omitted). See also Federal Communications Comn ATT, 131 Ct. 1177 (2011)(affirming use Dictionary Acts definition the term person).	 Congress Subsequent Actions Further Support the Clear Intent the RFRA. 
Congress passed the RFRA 1993.  Since that time there have been several amendments the Act; amendments have been made, however, the Acts definition the term person. the twenty years that have passed since the Acts enactment, Congress has rested its original plainmeaning person. Even after this Court expresslyaffirmed First Amendment protections for for-profit corporations Citizens United Federal Election Commission, 558 U.S. 310 (2010), Congress did not attempt alter the term person the RFRA orthe Dictionary Act. undisputable that Congress ought bethe author its intent. not for Petitioners suggest, invent redefine intent which manifestly odds with the plain meaning the words chosen Congress well subsequent congressional action and inaction. See Chevron NRDC, 467 U.S. 837, 843 (1984) (The judiciary the final authority issues statutory construction and must reject administrative constructions that are contrary clear congressional intent.) (emphasisadded). 
This where the judicial inquiry should end regarding the congressional intent behind the RFRA, for when the words the statute are unambiguousthen, the first canon also the last: judicial inquiryis complete. Connecticut Natl Bank Germain, 503 U.S. 249, 254 (1992) (quoting Rubin U.S., 449 
U.S. 424, 430 (1981)). important note, however, that thisCourts precedents affirm the congressional intent ofapplying the term person for-profit corporations like Hobby Lobby the context the RFRA.  First, shown above, the Court has applied the Dictionary Act cases involving statutory constructionwhen the term was not alternatively defined thelaw issue. See e.g., Fedl Communications Commission ATT, 131 Ct. 1182; Mohammed, 132 Ct. 1707. Second, this Court has explicitly extended First Amendment protection corporations both the for-profit and non-profit settings. See e.g., Citizens United, 558 U.S. 342 (affirmingFirst Amendment protection for-profit corporations); First Natl Bank Boston Bellotti, 435 U.S. 765, 778, (1978) (The inherent worth speech does not depend upon the identity its source, whether corporation, association, union, individual.); Roberts U.S. Jaycees, 468 U.S. 609, 622 (1984) ([W]e have long understood that implicit the right engage activities protected theFirst Amendment corresponding right associate with others pursuit wide variety political, social, economic, educational, religious andcultural ends.); Federal Election Commission Wisconsin Right Life, 551 U.S. 449, 476-77 (2007)(recognizing the 501(c)(4) corporations First Amendment rights and applying the strict scrutinytest the restrictive law). 
Considering the plain meaning Congresswords the RFRA, Congress actions subsequent topassing the RFRA, and this Courts precedents, unmistakable that the RFRA applies for-profitcorporations like Hobby Lobby. 
II. 	PETITIONERS CONTRACEPTIVE MANDATE HAS SUBSTANTIALLY BURDENED THE RELIGIOUS LIBERTIES FOR-PROFIT BUSINESSES LIKE HOBBY LOBBY, AND THE COMPELLING INTEREST TEST CLEARLY WEIGHS FAVOR HOBBY LOBBY. 
The compelling interest test has its roots inthis Courts Sherbert Verner, 374 U.S. 398 (1963)and Wisconsin Yoder, 406 U.S. 205 (1972) decisions. Congress reiterated the compelling interesttest the RFRA and reaffirmed its use all cases which free exercise substantially burdened. 
U.S.C.  2000bb(b). The only exception this prohibition the free exercise religion when the government can demonstrate the law furthers acompelling government interest and that the law isthe least restrictive means furthering that compelling government interest. U.S.C.  2000bb1(b); See also Gonzalez Centro Espirita, 546 U.S. 418, 424 (2006).	 Hobby Lobbys Religious Liberties Are Substantially Burdened the Contraceptive Mandate. 
The Tenth Circuit used three-part analysis determine whether the contraceptive mandatesubstantially burdens Hobby Lobbys religiousliberties. First, identified the religious belief atissue. Second, determined whether that belief was sincere. And third, resolved the question whether Petitioners contraceptive mandate placedsubstantial pressure Hobby Lobby. Hobby Lobby, 723 F.3d 1140. The first two inquiries are notand have never been issue. See id. Hobby Lobbysreligious belief clear  that life begins conception and any action taken end that life morally wrong. Petitioner has never questioned the sincerityof Hobby Lobbys belief.  See id. The only conflict between the two parties whether the mandateplaces substantial pressure Hobby Lobby andsimilar for-profit corporations. 
This Court has already ruled the matter and Sherbert held that even indirect burden can deemed substantial the pressure exerted the law rule requires the person choose between fidelity his her faith economic benefits. Sherbert, 374 U.S. 404. Surely this works toprotect against loss well  even indirect burdencan deemed substantial requires the person choose between fidelity his her faith theimposition unimaginable fines.  Hobby Lobby, 723 F.3d 1141. 
Petitioners not dispute that failure onHobby Lobbys part adhere fully the contraceptive mandate will result millions dollars fees. Instead, Petitioners attempt convince the Court that the burden too attenuated because the moneypaid Hobby Lobby too far removed from the actual purchase contraception.  Not only does thisdisregard this Courts reasoning Sherbert, also defies the basic principle religious liberties: not whether the reasonable observer would consider the plaintiffs complicit immoral act, but ratherhow the plaintiffs themselves measure their degree complicity.  Hobby Lobby, 723 F.3d 1142. not for Petitioners decide whether Hobby Lobby wrong its religious belief.4 This Court has been very clear that contrary thefundamental purpose the free exercise right for the government make judgments the worth particular religiousbeliefs.  See e.g., Employment Div. Smith, 494 U.S. 872, 877 (1990) (The free exercise religion means, first and foremost, the right believe and profess whatever religious doctrine one desires.); Kedroff Saint Nicholas Cathedral, 344 U.S. 94, 116 (1952) (religious organizations maintain the power decide for themselves  matters church government well asthose faith and doctrine.).	 Petitioners Stated Government  Interest Does Not Rise the   Level Compelling. 
Once has been established that HobbyLobbys religious liberties have been substantiallyburdened the contraceptive mandate, the onlyway Petitioners can defend the application the law Hobby Lobby demonstrating that its interestis compelling. this Court has held, compelling does not simply mean important.  The governments interest must also rise above vague overlygeneral interest.  See Yoder, 406 U.S. 221 (Wherefundamental claims religious freedom are atstake, however, cannot accept such sweeping claim; despite its admitted validity the generalityof cases; must searchingly examine the intereststhat the State seeks promote its requirement.). The stated government interest this caseis the promotion public health.  See Petitioners Writ 27. Perhaps seeing how general and vague such interest is, Petitioners added that the contraceptive mandate specifically was key component the preventative health services the ACA because a lack contraception use has proven many cases have negative health consequencesand because the need for women have equalaccess health-care services. Id. 28. Settingaside the question whether that medical information proven Petitioners suggest, stilldoes not rise the level compelling interest.  
First, the stated interest too vague and general considered compelling. this Court held Yoder, even strong interest may fail rise the level compelling interest the government cannot demonstrate with particularity how that interest would adversely affected granting the exemption. Yoder, 406 U.S. 236. Petitioners offer plenty anecdotal scenarios and general medical information, but they completely fail todemonstrate how granting exemption for Hobby Lobby and other similar for-profit corporations willaffect their broad goals.  There simply direct particular correlation. 
Second, the contraceptive mandate itself negates the label compelling permitting number exemptions. Following closely the death-knell generality Petitioners interest the factthat Petitioners have already granted large number exemptions. Several these exemptions had nothing with the contraceptive mandate specifically  grandfathered plans and very small businesses with less than employees  but Petitioners specifically exempted many other businesses for the exact reason Hobby Lobby now seeks exemption  clearly defined religious belief that life begins conception. fact, Petitioners have expanded theuniverse those businesses exempt from the contraceptive mandate for religious reasons multiple, separate times, and, through the Advanced Notice Proposed Rulemaking (ANPRM) March 21, 2012,even sought protect religious organizations from having contract, arrange, pay for contraceptive coverage. Geneva College Sebelius, 2012 
U.S. Dist. LEXIS 179476 (W.D. Pa, December 23, 2013) (quoting Fed. Reg. 16,503).  Clearly, Petitioners were well aware the conflict that the contraceptive mandate would cause those espousingcertain religious beliefs. fact, they were awareenough that they carved out exemptions. simply untenable for Petitioners turn around and claim that for-profit corporations likeHobby Lobby should not granted the same religious exemption that they have already grantedmany others. Gonzalez, this Court noted that precluding one group people from exerting analready recognized religious exemption the verysame law that another group already enjoyed madethe governments position very difficult. Gonzalez, 546 U.S. 433. Indeed, makes Petitioners position untenable. See also Church Lukumi Babalu City Hialeah, 508 U.S. 520, 547 (a law cannotbe regarded protecting interest the highestorder when leaves appreciable damage that supposedly vital interest unprohibited.) (quoting Florida Star B.J.F., 491 U.S. 524, 541-42, (1989)) (Scalia, concurring part and concurring judgment).	 The Contraceptive Mandate Not the Least Restrictive Means Achieving the Governments Interest. 
Lastly, Petitioners have not offered modicum evidence that the contraceptive mandate isthe least restrictive means accomplishing their extraordinarily general interest. Petitioners onlystate that the various forms FDA-approved contraceptives are not fungible. Petitioners Writ 
32. Even were this true, simply does not comeclose carrying the least restrictive means burden. Hobby Lobby well several amici have offered reasonable and feasible alternatives the contraceptive mandate that would not force Respondentsand similar for-profit corporations choose betweenviolating their religious beliefs pay crushing fines. See Brief for Respondents Petition for Writ 35. 
CONCLUSION 
For the foregoing reasons, Amicus respectfullyrequests that this Court affirm the Tenth Circuitsdecision. 
Respectfully submitted, 
Paul Orfanedes 
Counsel Record 
JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington, 20024 
(202) 646-5172 porfanedes@judicialwatch.org 
Meredith Liberto Counsel 
1925 Vince Road Virginia Beach,  23464 
(757) 448-8329 meredithcavallo@yahoo.com 
Counsel for Amicus Curiae