In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

LITTLE SISTERS OF THE POOR HOME FOR THEAGED, DENVER, COLORADO, et al.,

Petitioners,v.

SYLVIA BURWELL, SECRETARY OF HEALTH ANDHUMAN SERVICES, et al.

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals for the Tenth Circuit

BRIEF FOR AMICI CURIAE DOMINICAN SISTERSOF MARY, MOTHER OF THE EUCHARIST;

SISTERS OF LIFE; AND THE JUDICIAL EDUCATIONPROJECT IN SUPPORT OF THE PETITION FOR CERTIORARI

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

Carrie SeverinoJonathan KeimJudicial Education Project722 Twelfth Street, N.W.Fourth FloorWashington, D.C. 20005

NO. 15-105

Counsel for Amici Curiae

Eileen J. O’Connor Counsel of RecordRobert S. LoganPillsbury Winthrop ShawPittman LLP1200 Seventeenth Street, N.W.Washington, D.C. 20036(202) 663-8380eileen.oconnor@pillsburylaw.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Government Wrongly Relies on § 6033’sReturn Filing Requirements to GovernApplication of the Contraceptive Mandate . . . . . 5

A. The HHS Mandate Wrongly Conditions theReligious Accommodation on Return FilingStatus Under § 6033 of the Internal RevenueCode . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Section 6033 Provides No GuidanceRegarding the Treatment of ReligiousOrganizations; It Merely Prescribes ReturnFiling Requirements for Tax-ExemptOrganizations . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Section 6033 Is Not a Classification ofReligious Rights . . . . . . . . . . . . . . . . . . . . . . 13

D. HHS Ignored the More Suitable Definition ofReligious Organizations Already Codified inTitle VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ii

TABLE OF AUTHORITIES

CASES

American Guidance Foundation, Inc. v. United States,490 F. Supp. 304 (D.D.C. 1980) . . . . . . . . . . . . . 15

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) . . . . . . . . . . . . . . 2, 3, 5, 17

Greater New Orleans Broadcasting Association, Inc., etal. v. United States, et al., 527 U.S. 173 (1999) . . . . . . . . . . . . . . . . . . . . . . 17

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012) . . . . . . . . . . . . . . . . . . . . . 18

Lutheran Social Service of Minn. v. United States, 758 F.2d 1283 (8th Cir. 1985) . . . . . . . . . . . . . . 15

McCulloch v. Maryland, 17 U.S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . 19

Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), aff’d on rehearing, 158 U.S. 601 (1895) . . . . . . . . . . . . . . . . . . . . . . . 8

Walz v. Tax Comm’n of the City of New York, 397 U.S. 664 (1970) . . . . . . . . . . . . . . . . . . . . . . 10

STATUTES AND REGULATIONS

13 C.F.R. § 113.3-1(h) . . . . . . . . . . . . . . . . . . . . . . . 17

41 C.F.R. § 60-1.5(a)(5) . . . . . . . . . . . . . . . . . . . . . . 17

42 U.S.C. § 2000e-1 . . . . . . . . . . . . . . . . . . . 16, 17, 20

iii

42 U.S.C. § 12113(d)(1) . . . . . . . . . . . . . . . . . . . . . . 17

45 C.F.R. § 147.131(a) . . . . . . . . . . . . . . . . . . . . . . . . 6

48 C.F.R. § 22.807(b)(7) . . . . . . . . . . . . . . . . . . . . . . 17

I.R.C. § 6033 . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Coverage of Certain Preventive Services Under theAffordable Care Act, 78 Fed. Reg. 39,870 (July 2,2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18

Revenue Act of 1894, ch. 349, § 32, 28 Stat. 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Revenue Act of 1909, ch. 6, § 38, 36 Stat. 11 (1909) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Revenue Act of 1913, ch. 16, 38 Stat. 114 (1913) . . . . . . . . . . . . . . . . . . . . . . . . 8

Revenue Act of 1943, ch. 63, § 117, 58 Stat. 21 (1944) . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Revenue Act of 1950, ch. 994, 64 Stat. 906 (1950) . . . . . . . . . . . . . . . . . . . . . . . . 9

Tax Reform Act of 1969, tit. I, § 101, 83 Stat. 487 (1969) . . . . . . . . . . . . . . . . . . . . . 9, 10

Treas. Reg. § 1.6033-6(b)(2)(iii), (iv) . . . . . . . . . . . . 11

OTHER AUTHORITIES

Rev. Proc. 96-10, 1996-1 C.B. 577 . . . . . . . . . . . . . . 11

iv

Staff of the Joint Committee on Internal RevenueTaxation, 91st Cong., General Explanationof the Tax Reform Act of 1969 (Comm. print1970) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12, 14

1

INTEREST OF AMICI CURIAE1

The Dominican Sisters of Mary, Mother of theEucharist is a Roman Catholic community of womenreligious based in Ann Arbor, Michigan. Thecommunity was founded in the Dominican tradition tospread the witness of religious life in accord with SaintJohn Paul II’s vision for a New Evangelization. TheDominican Sisters profess the vows of poverty, chastityand obedience, along with a contemplative emphasis onEucharistic adoration and Marian devotion, for thesalvation of souls and the building of the Churchthroughout the world. Women religious have been anintegral part of the history of Catholic education in theUnited States. The Dominican Sisters seek to continuethe tradition of educating generations of young peoplein their Faith and most of all, to bring youth intodeeper relationship with Christ through a faithformation that includes liturgical, doctrinal, spiritualand moral dimensions.

The Sisters of Life is a Roman Catholic communityof contemplative and active women religious. JohnCardinal O’Connor founded The Sisters of Life in 1991for the protection and enhancement of the sacrednessof every human life. In addition to the traditional vowsof poverty, chastity, and obedience, The Sisters of Lifeare consecrated under a special fourth vow to protect

1 Counsel for all parties received at least 10 days notice of theintent to file this brief. Counsel for all parties have submittedblanket consent to the filing of amicus briefs in this case. Nocounsel for a party authored this brief in whole or in part. Noperson, other than amici curiae, their members, or their counsel,made a monetary contribution that was intended to fund preparingor submitting this brief.

2

and enhance the sacredness of human life. The Sistersof Life community includes 80 Sisters from around theworld, who minister to pregnant women throughhospitality, practical assistance, spiritual retreats, andhealing. In addition, The Sisters of Life promote RomanCatholic teaching about the value of life in churchesand communities through pro-life activities and a widevariety of educational programs.

The Judicial Education Project (JEP) is dedicated tostrengthening liberty and justice through defending theConstitution as envisioned by the Framers—a federalgovernment of defined and limited power, dedicated tothe rule of law, and supported by a fair and impartialjudiciary. JEP educates citizens about theseconstitutional principles and focuses on issues such asthe judiciary’s role in our democracy, how judgesinterpret the Constitution, and the impact of courtrulings on the nation. JEP’s educational efforts areconducted through various outlets, including print,broadcast, and internet media. In pursuit of theseconstitutional principles, JEP has filed amicus curiaebriefs in numerous cases before the federal courts ofappeals and the Supreme Court, including Burwell v.Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

3

SUMMARY OF ARGUMENT

The Affordable Care Act (ACA) is one of the mostcomprehensive and far-reaching legislative enactmentsin history, and its effects will be felt by almost everyperson and organization in the country for decades tocome. This case squarely presents issues regarding theintersection of vast and intrusive governmentmandates with profound issues of religious freedomand government coercion that warrants the promptintervention of the highest court in the land. Thestakes could hardly be higher; the issues are ripe fordecision. The Tenth Circuit’s opinion is not only wrongfor all of the many reasons the petitioners havedemonstrated, but also represents a misreading andmisapplication of the Court’s most recent religiousprecedent on nearly the same issue in Burwell v. HobbyLobby Stores, Inc., 134 S. Ct. 2751, 2775-76, 2779(2014). The result can only be to confuse andundermine the clear principles set out in that case forthe resolution of religious challenges to governmentdictates.

Amici wish to highlight the arbitrary nature of thedecision by the Department of Health and HumanServices (HHS) to base the availability of religiousexemptions to the HHS contraceptive mandate (“HHSMandate” or “Mandate”) not on factors that go to anemployer’s religious character, but on the way it istreated in tax law. The HHS Mandate relies on severalcategories set forth in Internal Revenue Code2 § 6033

2 Unless otherwise specified, any reference to “Code” in this briefrefers to the Internal Revenue Code, which is found at Title 26 ofthe United States Code.

4

to distinguish between its treatment of differentreligious organizations. But the history and applicationof § 6033 show that the classification was solelyintended to facilitate administration of the tax laws,not to draw a line between religious institutions whosefree exercise was fully protected and those whoreceived less consideration. In short, the availability ofan exemption to the Mandate should turn on anorganization’s claim to religious exercise rights, not itstax filing obligations.

In fact, employment law has long managed toreconcile its own demanding requirements withreligious exercise. Title VII of the Civil Rights Act of1964 defines religious organizations who are exemptfrom other employment law much more broadly thandoes § 6033, and in a way that captures both the LittleSisters and amici. That definition has served as themodel for other religious exemptions in employmentlaw and regulations, and gives evidence of a readily-available alternative to the burdensome rule of theHHS Mandate.

5

ARGUMENT

The Government Wrongly Relies on § 6033’sReturn Filing Requirements to GovernApplication of the Contraceptive Mandate

When HHS proposed its Mandate, the regulationtriggered thousands of comments pointing out theserious risks to religious freedom if the governmentwere to force employers opposed to contraception orabortion to provide contraceptive or abortifacient drugsor services. Coverage of Certain Preventive ServicesUnder the Affordable Care Act, 78 Fed. Reg. 39,870,39,871 (July 2, 2013).

The initial version of the rule included noexemptions for religious groups. After serious FirstAmendment and Religious Freedom Restoration Act(RFRA) concerns were raised, however, the governmentsettled on a tripartite division in which only houses ofworship and affiliated entities would be entirelyexempted from the mandate, while, in sharp contrast,other religious organizations would receive a mere“accommodation” to the rule, and all other employerswould be required to follow the rule regardless ofreligious objection.3

3 This Court held in Burwell v. Hobby Lobby Stores, Inc. that evenfor-profit religious employers that do not fit within the not-for-profit categories of § 6033 enjoy religious freedom protection underRFRA and therefore must be granted accommodation for theirreligious beliefs. 134 S. Ct. 2751, 2768-69 (2014).

6

A. The HHS Mandate Wrongly Conditions theReligious Accommodation on Return FilingStatus Under § 6033 of the InternalRevenue Code

The arbitrary division of religious institutions intomore- and less-protected castes is at the heart of thiscase. Had HHS chosen to group the Little Sisters of thePoor with churches and integrated auxiliaries thathave similar religious objections, the Sisters wouldhave received a full exemption from the HHS Mandateand would not now be faced with choosing betweenviolating a fundamental tenet of their religious faith orfacing crushing fines. Ultimately, however, HHSofficials made a momentous decision to distinguishbetween groups of religious organizations, even thosewith similar or identical religious beliefs andemployment practices, giving some a full exemptionfrom the rule but only allowing others a mere“accommodation” that would force these other groupsto play an important role in imposing the HHSMandate. Moreover, the regulators distinguishedbetween the two classes by importing a distinction fromtax law that has no relation to the religious freedomconcerns that it purports to “accommodate.”

Exempted organizations include only “churches,their integrated auxiliaries, and conventions orassociations of churches,” as well as “the exclusivelyreligious activities of any religious order,” as thoseterms are used in clauses (i) and (iii) of § 6033(a)(3)(A)of the Code, and organized and operated as nonprofitentities. 45 C.F.R. § 147.131(a) (citing I.R.C.§ 6033(a)(3)(A)(i) & (iii)). Merely because they fall intoa different category for tax filing purposes, other

7

religious organizations, including the Little Sisters, areoffered an “accommodation” which does not addresstheir religious objections to cooperating in providingcontraceptives and abortifacients to their employees.While that distinction between different categories ofreligious organization may make sense in the taxcontext, it is neither designed nor appropriate forallocating free exercise burdens on religious employers.

B. Section 6033 Provides No GuidanceRegarding the Treatment of ReligiousOrganizations; It Merely Prescribes ReturnFiling Requirements for Tax-ExemptOrganizations

Throughout the long history of taxation in theUnited States, the tax-writing committees of Congresshave generally tried to avoid entangling the InternalRevenue Service in First Amendment religiousconsiderations.

With the HHS contraceptive mandate, by contrast,an administrative agency of the government has chosento demand that the Little Sisters provide their femaleemployees and dependents (including minordependents) contraceptives and abortifacients orauthorize someone else to do so, while entirelyexempting other religious organizations. It bases thiscrucial distinction on an entirely irrelevant fact:Section 6033 requires the Little Sisters to file with theInternal Revenue Service an annual return of incomeand expenses and other information relevant to its taxexemption but does not require churches and theiraffiliates to do so. As the following history makes clear,however, § 6033 provides no logical or legally defensiblebasis for distinguishing among religious institutions to

8

determine the degree of protection their religiousfreedom merits. The history shows, rather, that theprovision is aimed solely at collecting information toenable the Internal Revenue Service to confirm thattax-exempt organizations are operating in accordancewith the terms of their tax-exempt status.

Generally speaking, every exempt organization isrequired by § 6033(a)(1) of the Code to file an annualreturn of income and expenses and other informationthe Internal Revenue Service needs to determinewhether the organization continues to qualify for thetax exemption and meets other tax-relatedrequirements. Section 6033(a)(3)(A) specifies whichorganizations are statutorily exempt from that generalrule.

When Congress first imposed an income tax oncorporate entities, it specifically exempted from alltaxation – and filing requirements – all “corporations,companies, or associations organized and conductedsolely for charitable, religious, or educationalpurposes[.]” Revenue Act of 1894, ch. 349, § 32, 28 Stat.509, 556 (declared unconstitutional in Pollock v.Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), aff’don rehearing, 158 U.S. 601 (1895)); see also RevenueAct of 1909, ch. 6, § 38, 36 Stat. 11, 113 (1909). Afterthe Sixteenth Amendment was ratified, the RevenueAct of 1913 preserved the exemption. Revenue Act of1913, ch. 16, 38 Stat. 114, 172 (1913).

It was not until the 1943 Revenue Act that tax-exempt organizations were required to file any sort ofinformation returns, and even then the requirementdid not apply to “religious organization[s]” and“organization[s] . . . operated, supervised, or controlled

9

by or in connection with a religious organization.”Revenue Act of 1943, ch. 63, § 117, 58 Stat. 21, 37(1944).

Over time, it became clear that some tax-exemptorganizations were engaging in income-producingactivity unrelated to their exempt purpose, and thuscompeting at an unfair advantage against taxableentities. So in 1950, Congress added the unrelatedbusiness income tax (UBIT) provisions to the Code,requiring otherwise tax-exempt organizations,including religious institutions, to file income taxreturns and pay taxes on their unrelated businesstaxable income. Revenue Act of 1950, ch. 994, 64 Stat.906, 948 (1950). These UBIT returns were entirelyseparate from the information returns filed to report onnontaxable exempt operations. “Churches” wereexcluded from the UBIT return requirement, but thestatute did not define “church.” Thus, although non-church religious organizations now had to file UBITreturns, the broad category of religious organizationsas a whole remained exempt from filing informationreturns.

In 1969, in response to the increasing complexityand sophistication of tax-exempt entities and actual orperceived abuses of their tax status, the Tax ReformAct of 1969 (the “1969 Act”) made major changes to thetaxation of otherwise tax-exempt organizations. TaxReform Act of 1969, tit. I, § 101, 83 Stat. 487, 494-96(1969). Among them was a narrowing of theinformation return filing exemption for religiousorganizations. Now it applied only to “churches, theirintegrated auxiliaries, and conventions or associations

10

of churches” and “the exclusively religious activities ofany religious order.”4 See id. at 520.

At the same time, though, Congress tried to avoidgiving the Internal Revenue Service power to interferewith the free exercise of religion. As the Supreme Courtstated the following year,

For so long as federal income taxes have had anypotential impact on churches—over 75 years—religious organizations have been expresslyexempt from the tax. . . . Few concepts are moredeeply embedded in the fabric of our national lifebeginning with pre-revolutionary colonial times,than for the government to exercise at the veryleast this kind of benevolent neutrality towardchurches and religious exercise generally, solong as none was favored over others and nonesuffered interference.

Walz v. Tax Comm’n of the City of New York, 397 U.S.664, 676 (1970).

The General Explanation of the Tax Reform Act of1969 (also known as the 1969 Blue Book) noted the newlegislation’s narrow information return exemption forchurch-related organizations, observing that “[i]naddition to these three categories, the TreasuryDepartment may exempt other type of organizationsfrom the filing requirements if it concludes that theinformation is not of significant value.” Staff of theJoint Committee on Internal Revenue Taxation, 91st

4 These statutory criteria remain today in clauses (i) and (ii) of§ 6033(a)(3)(A) and constitute the sole basis for exemption from theHHS Mandate.

11

Cong., General Explanation of the Tax Reform Act of1969 53 (Comm. print 1970) (“1969 Blue Book”),available at https://www.jct.gov/publications.html?func=startdown&id=2406. This discretionary authority ofthe Treasury was codified in § 6033(a)(3)(B), whichcontinues to provide that the Treasury Secretary mayrelieve any organization from filing an informationreturn “where he determines that such filing is notnecessary to the efficient administration of the internalrevenue laws.”

In fact, pursuant to this discretionary authority, theTreasury has exempted certain other non-churchreligious organizations from information return filingbecause it determined the information was notnecessary for administration of the tax laws.5 In justone of the anomalies created by HHS’s restrictivecriteria for the HHS Mandate exemption, thesereligious organizations are just as legally exempt frominformation return filing as church-relatedorganizations, but yet are not eligible for an exemptionfrom the HHS Mandate solely because their filing

5 These organizations include, in general terms, (i) missionsocieties sponsored by or affiliated with a church and primarilyacting in or towards foreign countries, (ii) below-college-leveleducational institutions affiliated with a church or operated by areligious order, and (iii) organizations operated, supervised, orcontrolled by church-related organizations and that are engagedexclusively in financing, funding, or managing funds for suchorganizations, or that maintain retirement insurance plansprimarily for such organizations where more than half of thecovered individuals are directly employed by those organizations,or more than 50 percent of the assets are contributed by, or heldfor the benefit of, employees of those organizations. See Treas. Reg.§ 1.6033-6(b)(2)(iii), (iv); Rev. Proc. 96-10, 1996-1 C.B. 577.

12

exemption is discretionary under § 6033(a)(3)(B) ratherthan statutory under § 6033(a)(3)(A)(i) and (iii) asrequired by the HHS Mandate exemption.

Even the extensive 1969 Act statutory changes,however, were not uniform in their treatment ofchurch-related organizations and other religiousorganizations, as they varied based upon Congressionalviews on sound tax policy and the Department ofTreasury’s requirements for information. Accordingly,although church-related organizations remainedexempt from filing information returns under thenarrower exemptions in § 6033(a), Congress revokedthe general religious organization exemption fromfiling UBIT returns for all religious organizations, evenchurch-related organizations. Congress took this stepbecause it believed that it was inappropriate even forchurch-related organizations to be exempt from UBITwhen

. . . exempt organizations not subject to theunrelated business income tax—such aschurches, social clubs, fraternal beneficiarysocieties, etc.—began to engage in substantialcommercial activity. For example, numerousbusiness activities of churches were brought tothe attention of the Congress. Some churchesare engaged in operating publishing houses,hotels, factories, radio and TV stations, parkinglots, newspapers, bakeries, restaurants, etc.

1969 Blue Book 66-67. The development of§ 6033(a)(3)’s exemptions from otherwise applicableinformation filing requirements, especially in contextwith the imposition of UBIT filing requirementsregardless of the type of religious organization, makes

13

clear that the sole purpose of return filing is to providethe Internal Revenue Service with the information itneeds to administer and enforce the tax laws, nothingmore.

C. Section 6033 Is Not a Classification ofReligious Rights

The government uses the distinctions drawn in§ 6033(a)(3)(A) to distinguish between religious groupswho are entirely exempt from the HHS mandate andthose whom it will only “accommodate.” But thoseprovisions in no way address the religious freedoms atthe heart of which groups should not be subject to theHHS Mandate.

Section 6033(a)(3)(A) provides exceptions to thegeneral rule of § 6033(a)(1), which requires tax-exemptorganizations to file an annual information return. Thefiling of this return has nothing to do with religiousexercise and everything to do with administration ofthe tax laws.

The general rule for the tax filing requirements oftax-exempt organizations makes that purpose explicit:

. . . every organization exempt from taxationunder § 501(a) shall file an annual return,stating specifically the items of gross income,receipts, and disbursements, and such otherinformation for the purpose of carrying out theinternal revenue laws as the Secretary may byforms or regulations prescribe, and shall keepsuch records, render under oath suchstatements, make such other returns, and

14

comply with such rules and regulations as theSecretary may from time to time prescribe . . . .

I.R.C. § 6033(a)(1) (emphasis added).

The 1969 Blue Book emphasized the informationreporting purpose of § 6033:

The primary purpose of these requirements wasto provide the Internal Revenue Service with theinformation needed to enforce the tax laws. TheCongress concluded that experience of the pasttwo decades indicated that more information isneeded on a more current basis from moreorganizations and that this information shouldbe made more readily available to the public,including State officials.

1969 Blue Book 52, 53. Nothing in the CommitteeReport suggests that a religious organization’sobligation to file an annual information return with theInternal Revenue Service has any purpose other thanfacilitating administration of the tax laws.

In crafting the Mandate, HHS identified religiousconsiderations in its own explanation for the HHSMandate exemption. It noted that forcing religiousemployers to cover contraceptive services implicatedreligious freedoms, but then made the unsupportedassertion that the relationship of a religious employerwith its employees is unique for houses of worship andtheir affiliates as defined under the tax code.

But whether an organization is a “church” forpurposes of § 6033 and other areas of the tax code, or areligious organization like Little Sisters and amici, hasonly to do with its structure and its religious activities,

15

not the relative religiousness of the organization or itsrank-and-file employees.6 Furthermore, after a 10-yearfight and losses in litigation, the Treasury finallyabandoned the position that the activities of an“integrated auxiliary” of a church, one of the entitiesexempted under the HHS Mandate, must be“exclusively religious.” See, e.g., Lutheran SocialService of Minn. v. United States, 758 F.2d 1283 (8thCir. 1985) (striking down “exclusively religious”requirement). Indeed, such church auxiliaries oftenhave no purpose relating to religious teaching orceremonies, and may be engaged in the same types ofcommunity service activities and have the same typesof religiously-motivated members as the Little Sisters,yet such auxiliaries qualify under § 6033(a)(3)(A)(i) andthe Little Sisters do not. In the face of thesesimilarities, and despite the fact that religiousconsiderations were the reason for the HHS Mandateexemption in the first place, HHS has stubbornlycontinued to base availability of the exemption solelyon an organization’s tax filing obligations.

6 See, e.g., American Guidance Foundation, Inc. v. United States,490 F. Supp. 304, 306 (D.D.C. 1980) (requiring “associational”activities that mean “[a]t a minimum, a church includes a body ofbelievers or communicants that assembles regularly in order toworship.”).

16

D. HHS Ignored the More Suitable Definitionof Religious Organizations AlreadyCodified in Title VII

The Little Sisters are subject to the provisions of theAffordable Care Act not because they are taxpayers,but because they are employers. And federal lawalready provides guidance on the proper application ofemployment laws to religious employers in Title VII ofthe Civil Rights Act of 1964. Long before the ACA waspassed, federal employment law had already dealt withthe question of how to accommodate religiousorganizations in the context of its employmentmandates, and did so in way that was much morerespectful of the scope of free religious exercise and therange of religious devotion in the United States.

Recognizing the unique attributes of religiousdevotion and expression, Title VII of the Civil RightsAct of 1964 specifically exempts religious employersfrom antidiscrimination laws that apply to secularemployers. These provisions allow religious employersto hire only people who share their religious beliefswithout being subject to the penalties that apply tonon-religious employers. 42 U.S.C. § 2000e-1. The lawdefines broadly which religious employers fit withinthis exemption:

. . . a religious corporation, association,educational institution, or society with respect tothe employment of individuals of a particularreligion to perform work connected with thecarrying on by such corporation, association,

17

educational institution, or society of itsactivities.

Id. This exemption would clearly cover both LittleSisters of the Poor.

Indeed, other employment laws also track TitleVII’s definitions of religious organizations. TheAmericans with Disabilities Act, for example, similarlyprotects the ability of “a religious corporation,association, educational institution, or society” to hireemployees who share their beliefs, 42 U.S.C.§ 12113(d)(1), as do regulations of federal contractorsand subcontractors, 48 C.F.R. § 22.807(b)(7), 41 C.F.R.§ 60-1.5(a)(5), and recipients of Small BusinessAssociation assistance. 13 C.F.R. § 113.3-1(h).

Viewed in light of these other exemptions, the HHSMandate’s list of religious classifications is absurd.Religious employers like the Little Sisters of the Poorare expressly permitted by Title VII to hire only peoplewho do not want contraceptives, but governmentpenalties can drive them out of existence for failing toprovide them.7

7 The Court has said in the context of a less sensitive First Amendmentfreedom, the protection of commercial speech, that “the flaw in theGovernment’s case is more fundamental: The operation of [the statute]and its attendant regulatory regime is so pierced by exemptions andinconsistencies that the Government cannot hope to exonerate it.”Greater New Orleans Broadcasting Association, Inc., et al. v. UnitedStates, et al., 527 U.S. 173, 190 (1999). In that case, one law bannedadvertising of casinos, and another one encouraged tribal casinogambling. The resulting havoc was considerably less troubling than thatwreaked by the HHS mandate. As the Court noted in Hobby Lobby, theACA itself, and the contraceptive mandate in particular, is riddled withexceptions and exemptions. 134 S. Ct. 2751, 2763-64 (2014).

18

Just as incomprehensible is HHS’ explanation forlimiting exemptions to houses of worship and relatedauxiliaries under § 6033. In its responses to more than400,000 comments on proposed regulations governingcoverage of certain preventive services, HHS opined:

Houses of worship and their integratedauxiliaries that object to contraceptive coverageon religious grounds are more likely than otheremployers to employ people of the same faithwho share the same objection, and who wouldtherefore be less likely than other people to usecontraceptive services even if such services werecovered under their plan.

78 Fed. Reg. 39,870, 39,874.

But if the likelihood that most employees share theorganization’s religious beliefs was the reason forexempting an organization from the HHS Mandate, itmakes no sense for those exemptions to track tax law– and specifically the language dealing with filingreturns – rather than the very employment laws thatdeal with hiring people of shared faith in the firstplace.

It is unsurprising that employment law wouldinclude broad religious exemptions. Employment lawhas the potential to interfere directly with theseinstitutions’ religious exercise by placing thegovernment between religious institutions and theemployees who carry out their mission. See Hosanna-Tabor Evangelical Lutheran Church & School v.EEOC, 132 S. Ct. 694, 705-07 (2012) (applyingemployment discrimination law to churches “interfereswith the internal governance of the church, depriving

19

the church of control over the selection of those whowill personify its beliefs.”).

Ironically, taxing religious organizations directlyand providing free contraceptives from a general fundcould have been less intrusive (at least in principle)than regulating religious entities’ employmentdecisions. Mindful that “the power to tax involves thepower to destroy,” McCulloch v. Maryland, 17 U.S. 316,431 (1819) (Marshall, J.), tax laws are less burdensometo religious exercise than the HHS Mandate. The taxlaws do not require a religious organization to provideor assist in providing any benefits, or to engage in anyactivities, that it doesn’t already. HHS’ heavy-handedmandate, by contrast, insists the Little Sistersaffirmatively act in contravention of their religiousprinciples.

CONCLUSION

The HHS Mandate threatens the Little Sisters withfines that are more than just a substantial burden;they are a death sentence. Yet the only basis that HHSprovides for treating the Little Sisters as a second-classreligious institution is its classification for purposes ofa tax reporting requirement having nothing to do withthe relationship between employers and theiremployees and certainly nothing to with the Mandate.

The Little Sisters and other religious orders devotetheir entire financial resources to the accomplishmentof their purpose – in the case of the Little Sisters, careof the elderly; in the case of Sisters of Life, care ofpregnant women and their newborns; in the case of theDominican Sisters, education of children – and to thefood, clothing and shelter of the religious women

20

engaged in the mission. The government’s failure toacknowledge and respect the Little Sisters’ andsimilarly situated religious orders’ adherence to afundamental teaching of the faith to which they havededicated their lives would deprive Americancommunities of their valuable contributions to society.

Even if HHS was within its authority to requiremost employers to provide contraceptive coverage tofemale employees, it selected and applied irrelevanttax-law criteria in determining which employers areentitled to a religious exemption. Rather than pullirrelevant classifications from thin air, HHS shouldhave adopted the relevant criteria already expressed inTitle VII.

The Court should grant the petition.

Respectfully submitted,

Eileen J. O’Connor Counsel of RecordRobert S. LoganPillsbury Winthrop Shaw Pittman LLP1200 Seventeenth Street, N.W.Washington, D.C. 20036(202) 663-8380eileen.oconnor@pillsburylaw.com

Carrie SeverinoJonathan KeimJudicial Education Project722 Twelfth Street, N.W. Fourth FloorWashington, D.C. 20005Counsel for Amici Curiae

August 24, 2015