/>iThe popular sitcom, Seinfeld, spawned numerous catchphrases in the nineties, perhaps none more famous than the one in episode six of season seven entitled, The Soup Nazi.[i] “No soup for you!”[ii] In the episode, Jerry and George reveal to Elaine a new fondness for a soup stand in New York City.[iii] As the trio prepares to set out to the stand together, Jerry discloses a caveat -- that one must adhere to a particular etiquette required by the owner, a “gentleman” known to patrons as “The Soup Nazi.”[iv] Jerry and George elaborate that the ordering procedure is critical. The line must not be held up; so, one must have her money ready, and speak her order loudly, clearly and without any extraneous comments or questions.[v] Or else…“No soup for you!”[vi] Not only would this be yelled at the patron, but she would be denied her soup and, sometimes, banned from attempting to re-order.[vii]
That catchphrase has been stuck in my head as I have watched the debate unfold over the controversial 2011 Health and Human Services (HHS) mandate requiring all insurance carriers to provide, at no cost to the insured, all FDA approved contraceptives for women with reproductive capacity.[viii] The Soup Nazi episode may serve as an analogy for the current legislative treatment of religion. An organization must conform to specific characteristics of a religious organization as defined by the government or “no religious exemption for you.” Some have argued that these characteristics are an attempt to define religion and religious exercise in a manner that is exceedingly narrow – a manner unprecedented in American legislation and jurisprudence.[ix]
On March 23, 2010, following more than a year of partisan debate, President Obama signed the Patient Protection and Affordable Care Act (PPACA) into law, signaling the apparent conclusion to a half-century’s efforts to meaningfully address health care at the national level, but also sparking a flurry of political assaults and litigation aimed at dismantling the new law.[x] The PPACA and the Health Care and Education Reconciliation Act of 2010 form what is known as the Affordable Care Act (ACA).[xi]The government scored a partial victory when the Supreme Court upheld the constitutionality of the ACA’s mandate for certain individuals to purchase and maintain health insurance coverage.[xii] However, the battle continues over another hotly debated and highly litigated mandate of the ACA requiring the full coverage of FDA-approved contraceptives.[xiii] Catholics, Evangelicals and Mennonites have been at the forefront of the litigation over this ACA mandate.[xiv]
The ACA had no provisions regarding any specific contraception methods at its enactment but did have a provision mandating coverage of “preventative care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” (HRSA)[xv] The HRSA, a division of HHS, made the contraceptive mandate a part of the guidelines following a solicited recommendation from the Institute of Medicine (IOM).[xvi] IOM is part of The National Academy of Sciences, a private, non-profit, governmental advisory organization.[xvii] IOM’s recommendation was that the full range of FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity be considered preventative services.[xviii]
After receiving feedback and requests for exemptions, the interim final rules were amended to give HRSA the freedom to create an exemption for certain religious employers and their group insurance plans.[xix] The HRSA guidelines thus included an exemption for religious employers and their group health plans, but limited the definition of religious employers to those employers that had the inculcation of religious values as its purpose; primarily employed people who shared those religious tenets; primarily served people who shared the same religious tenets; and were churches (or their integrated auxiliaries), church conventions or associations, or religious orders (but only as to those activities of the order that were exclusively religious).[xx] This definition of religious employer was adopted into “final regulations” issued on February 12, 2012 while simultaneously creating a one-year safe harbor provision for some non-exempted, non-profit organizations with religious objections.[xxi]
Despite sparking lawsuits, congressional hearings, a national opposition campaign by Catholic bishops, and a fiery political debate in an election year, the administration veered only slightly from its February 2012 policy decision and on June 28, 2013, made its fourth policy attempt in 20 months its final one.[xxii] While the coverage stayed the same, the exemption clauses changed slightly. Under the final rule, religious employers are those non-profits referred to in the Internal Revenue Code as “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.”[xxiii] An additional accommodation for eligible organizations not considered religious employers per the definition above was offered in this final version as well, which purports to exempt such organizations from any requirement to “contract, arrange, pay, or refer for contraceptive coverage,” while still providing plan participants and beneficiaries with those services.[xxiv] An organization is eligible if it:
(1) Opposes providing coverage for some or all of the contraceptive services required to be covered under section 2713 of the PHS Act and the companion provisions of ERISA and the Code on account of religious objections;
(2) is organized and operates as a nonprofit entity;
(3) holds itself out as a religious organization; and
(4) self-certifies that it satisfies the first three criteria.[xxv]
Such a self-certification is deemed to be an official designation of a third-party administrator to act as plan and claims administrator for contraceptive benefits, and the eligible organization may not attempt to interfere with or influence a third party administrator’s payment or arrangements for payments for such benefits.[xxvi] Despite being exempted from direct payment for contraceptive services, some eligible, non-profit organizations still took issue with the self-certification accommodation.[xxvii]
Religious freedom[xxviii] in the United States arises from a mere sixteen words in the First Amendment to the Constitution of the United States: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]”[xxix] The Free Exercise Clause is the name commonly given to the second half of the religion portion of the First Amendment,[xxx] “. . . or prohibiting the free exercise thereof;”[xxxi] The first American legal document to contain the term “free exercise” was an instructive document to Maryland’s new Protestant governor “that Christians, Roman Catholics in particular, were not to disturbed in the ‘free exercise’ of their religion.”[xxxii] This demonstrates that the concept was not a new one at the time the Bill of Rights was under consideration at the convening of the First Congress in 1789.[xxxiii] In fact, as former federal appellate judge and constitutional scholar Michael W. McConnell points out, between 1776 and 1789, eleven of the thirteen states adopted new constitutions - nine with a bill of rights.[xxxiv] All but Connecticut included a provision to protect religious freedom.[xxxv] Although the meaning of “free exercise of religion” can be debated, McConnell reasons that it can be inferred that the drafters of the First Amendment probably assumed it meant what it meant in their own state constitutions.[xxxvi] None of those constitutions confined free exercise to a protection of beliefs or to the expression of those beliefs, but as an affirmative right based on the duties to God as perceived by the believer.[xxxvii] This provides evidence that the religious right was not one of belief only, but of conduct as well. The states, however, were divided on what religious conduct was to be protected; some protected all conduct flowing from the discharging of one’s duties to God, while others extended protection of conduct to worship only.[xxxviii] However, the First Amendment Free Exercise Clause included the broader interpretation, whether deliberate or not.[xxxix]
The fact that the state free exercise provisions limited the right to conduct not detrimental to state peace and safety “strongly suggest[s] that the free exercise provisions themselves contemplated religiously compelled exemptions from at least some generally applicable laws (those not needed to protect the public ‘peace and safety,’ or other particularly important types of laws).”[xl]
Although some argue that the “peace and safety” provisos found in pre-First Amendment state constitutions meant that any religious conduct determined to be in opposition to the peace or safety of a state could be restricted, the fact that religious exemptions were common practice among the states evidences otherwise.[xli] Federal Free Exercise Supreme Court jurisprudence, although resolute on the fact that protection certainly extends to religious belief and expression, has been inconsistent on protections and exemptions for religiously motivated conduct.[xlii] Nineteenth Century Supreme Court jurisprudence may lead one to conclude that free exercise for religious minorities was of little interest to the Court. [xliii] With its holding in Barron v. City of Baltimore, 32 U.S. 243 (1833), the Court basically allowed for state violations of federal free exercise in ruling that the Bill of Rights did not apply to the states regulation of conduct.[xliv] This did not prevent it from asserting authority over Utah in the landmark case of Reynolds v. United States, 98 U.S. 145 (1878) because Utah was not yet a state.[xlv] Even there, though, the Court declined to extend Free Exercise protection to conduct of the Mormon faith by allowing criminal prosecution to proceed against Mormons practicing polygamy in accordance with their religious beliefs.[xlvi] The court went so far as to say, “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”[xlvii] This dichotomy came to be understood in many circles as the creation of a “beliefs and actions” distinction, but others discredit this idea citing the inconsistency of such a distinction with the term “free exercise,” which seems to imply some conduct or action beyond mere belief and opinion.[xlviii] This later implication is supported by the inclusion of the term “free exercise” into the final draft of the First Amendment, over what earlier drafts had referred to as “rights of conscience.”[xlix]
It is clear from subsequent jurisprudence that laws targeting religious conduct would not survive unless crafted to serve “interests of the highest order.”[l] For a period of time in the post-Reynolds era, the Court saw fit to require religious exemptions from even generally applicable laws.[li] In Sherbert v. Verner, a South Carolina unemployment policy permitting the denial of benefits for “fail[ure], without good cause . . . to accept available suitable work when offered him by the employment office or the employer” was struck down as an unconstitutional burden on the free exercise of a Seventh-day Adventist who refused to continue working or to accept new work if it meant working on Saturdays, her Sabbath.[lii] The Court said that the substantial infringement of her First Amendment right could not be justified by just any state interest, but “[o]nly the gravest abuses, endangering paramount interest, give occasion for permissible limitation.”[liii] The state’s suggestion that the possibility of fraudulent claims of those purporting to have religious objections to Saturday work would expose the unemployment fund to dilution was not enough for the Court, nor was the employer’s difficulty in scheduling around those who object to working on Saturdays.[liv] Wisconsin v. Yoder affirmed this position when the Court held that Amish parents of children who completed the eighth grade could not be compelled to continue sending their children to school until the age of sixteen because of the sincerely held belief that high school attendance was contrary to the Amish faith.[lv] The Court held that two years of mandated high school was not justified by the state’s interests, given the Amish’s self-sufficient, agrarian way of life and track record for preparing its members for that life, and in any event did not overbalance the free exercise rights of the parents.[lvi] The prevailing thought for some time was that religious liberty deserved special protection as a preferred freedom under the Bill of Rights, but the extent of protection gained under these strict scrutiny balancing tests and Court-compelled exemptions for cases like Sherbert and Yoder would not continue ad infinitum.[lvii]
In the years following Yoder, there was a slow decline in the vigorous application of the compelling interest balancing test to statutes of general applicability until finally, in 1990, the Court repudiated the compelling interest test for most cases with its holding in Employment Division v. Smith, signaling an end to Court-granted, compelled accommodations.[lviii] Smith involved two drug and alcohol abuse counselors who were fired for ingesting peyote as part of a religious ceremony of the Native American Church and were subsequently denied unemployment benefits.[lix] It didn’t matter whether the peyote use was part of a legitimate religious practice or not, or whether or not there was a compelling interest to justify the denial of unemployment benefits to the counselors for its use, because the Court held that the Free Exercise Clause does not bar the “application of a neutral, generally applicable law to religiously motivated action.”[lx] It went on to say that the only time the First Amendment does offer such a bar is for cases that “have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.”[lxi] This First Amendment hybrid approach is how the Court distinguished its earlier holdings compelling accommodations from the holding in Smith.[lxii] It seems difficult to reconcile Smith’s abandonment of the compelling interest test with the historical background of free exercise provisions discussed in an earlier section of this paper unless one accepts Justice Scalia’s position that the “peace and safety” limitations in those early state constitutions were not precursors to the doctrine of “compelling state interests,” meant that religious practice could be prohibited by general laws.[lxiii] Reaction from religious and academics to the decision in Smith was swift and critical; some esteemed law professors called it “a sweeping disaster for religious liberty.”[lxiv]
Shortly after Smith, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) in an apparent attempt to overturn the decision statutorily by restoring the compelling interest test as set forth in Sherbert and Yoder and “providing a claim or defense to persons whose religious exercise is substantially burdened by government.”[lxv] Specifically, RFRA provides that the government may not substantially burden a person’s free exercise even if the burden results from a rule of general applicability unless the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.[lxvi] RFRA was later held to have exceeded Congress’s power under the Fourteenth Amendment and was declared unconstitutional as applied to states and local governments[lxvii]; its constitutionality in governing federal action has yet to be specifically addressed by the Court, but there are decisions that hint that it may pass constitutional muster on this front.[lxviii] The battle over the contraceptive mandate may be the vehicle to finally force the Court to rule on this issue, as RFRA is implicated in the litigation to be decided by the Supreme Court this summer.
As of this writing, ninety-one lawsuits challenging the HHS mandate have been filed by over 300 plaintiffs in twenty-three states.[lxix] Forty-five of the cases involve non-profit organizations, and of those, nineteen of the twenty that have reached a decision on the merits have resulted in an injunction exempting them from complying with the mandate while their cases proceed in court.[lxx] The other forty-six were filed on behalf of for-profit organizations – two of them class action suits.[lxxi] Thirty-three of the thirty-nine for-profit cases with rulings on the merits have been granted injunctions.[lxxii] More of these for-profit cases have been decided on the merits than have non-profits, because they were not considered for religious accommodation under any versions of the rules for contraceptive coverage and, therefore, did not need to await the Final Rule to satisfy justiciability requirements.
As of this writing, there were no circuit court decisions on the merits regarding non-profit organizations and the HHS mandate. Many of these cases were dismissed without prejudice on procedural grounds at the district court level or the appeals held in abeyance because plaintiffs were unable to show a “certainly impending threat” while there were still forthcoming amendments to and safe harbor provisions in the proposed rules.[lxxiii] One such case was Zubik v. Sebelius,[lxxiv]but the Western District of Pennsylvania finally issued an opinion on November 21, 2013 granting the plaintiff’s motion for an expedited preliminary injunction.[lxxv] I single this case out from decisions coming down because of the court’s interpretation of free exercise as it relates to a multi-faceted religion such as Catholicism, and because it helps to illuminate the Soup Nazi analogy set forth in the introduction to this paper.
The court, here, actually ruled on two cases, Zubik and Persico v. Sebelius, in the same opinion; both Zubik and Persico are similarly situated Roman Catholic bishops in Pennsylvania.[lxxvi] Both dioceses are organized as charitable trusts, and each bishop is the trustee of his respective diocesan trust.[lxxvii] In addition to this, several interrelated charitable outreaches were joined as plaintiffs.[lxxviii] The plaintiffs allege that the contraceptive mandate requires them to provide contraceptive drugs and services, which are contrary to their beliefs, in violation of RFRA and the First Amendment.[lxxix] It is these other charitable outreaches that get much of the focus of the court’s decision and that raise the most interesting questions in regard to free exercise protections.
The dioceses, themselves are recognized as “religious employers” for purposes of the mandate and are thus exempt.[lxxx] Outreach organization plaintiffs Catholic Charities, St. Martin Center, Prince of Peace Center, and Erie Catholic Preparatory School were covered by a safe harbor provision that expired December 31, 2013, but would have to comply by January 1, 2014 without the intervention of the court.[lxxxi] As trustees for these affiliated non-profits, the bishops would be conscripted to provide the organizations with the contraceptives (either directly or as signatory for the “self-certification accommodation” described earlier)[lxxxii] or risk the imposition of fines that may result in the severe reduction of charitable services or even closure. [lxxxiii] The affiliated organizations face the same choices and potential consequences.[lxxxiv]
Those courts ruling for injunctions against the HHS mandate seem to be signaling a shift back to the more liberal applications of the pre-Smith compelled accommodation doctrine in their application of RFRA. In fact, the Zubik court quotes a recent Seventh Circuit opinion that cites Yoder and other pre-Smith cases:[lxxxv] “[a]t a minimum, a substantial burden exists when the government compels a religious person to ‘perform acts undeniably at odds with fundamental tenets of [his] religious beliefs.’”[lxxxvi] The government’s argument that any impact self-certification has on the plaintiffs’ religious beliefs are too attenuated to rise to the level of a substantial burden because they have performed similar tasks for other purposes in the past was countered with a very compelling analogy from the plaintiffs:
Plaintiffs liken this result by analogy to a neighbor who asks to borrow a knife to cut something on the barbecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife which makes it impossible for the lender to provide it on the second day.[lxxxvii]
The court agreed and seemed to reason that the motivation for the actions were as important, if not more so, than the actions themselves in implicating a violation of a sincerely held religious belief.[lxxxviii] It went on to conclude that self-certification accommodation still substantially burdened the plaintiffs’ sincerely-held religious belief that shifting responsibility to a third party does not absolve or exonerate them from the moral turpitude created by the accommodation.[lxxxix]
The court seemed to make the issue of the divisibility of the affiliated organizations from the dioceses a key one, and equated such division to the severing of the Catholic Church into two parts – worship/faith and good works.[xc] If the government is permitted to do that, the court said, it will have been successful in restricting the right to the Free Exercise of Religion under the First Amendment to a right to worship only.[xci]
It is here that the Soup Nazi analogy from the introduction to this paper comes into play. Just as the “Soup Nazi” refused soup to those similarly situated patrons who failed to conform to his notions of acceptable customer etiquette, the government seems to be refusing religious liberty to entities of the same religious faith based upon its own notion of what constitutes religion. “[The p]laintiffs sincerely believe that religious worship, faith, and good works are essential and integral components of the Catholic faith and constitute the core mission of the Catholic Church.”[xcii] The court distinguished the dioceses (the “houses of worship” employers), from the affiliated organizations (“good works/faith in action” employers) but made a factual determination that the good works “arm” implements a germane guiding principle core to the faith.[xciii] It seems illogical to say that free exercise protection stops as one exits the church having just heard a message to “go out and love by serving one another.” The delivery of the message is protected but not the required implementation of that message by the believer. The court seems to agree when constraining itself to understand the logic behind the exemptions and accommodations:
The Bishops, given their three sincerely-held religious beliefs, while wearing their “house-of-worship” hats, are not in any moral peril; yet, when they wear their “head-of-the-‘good works'-agencies” hats, they must take affirmative actions which facilitate/initiate the provision of contraceptive products, services, and counseling in violation of their religious tenets.
Thus, the practical application of the two distinct regulations (one an “exemption” and one an “accommodation”) allows the same members of the same religion to completely adhere to their religious beliefs at times (when the “exemption” applies), while other times, forces them to violate those beliefs (when the “accommodation” applies). Stated another way, even though Plaintiffs here share identical, religious beliefs, and even though they share the same persons as the religious heads of their organizations, the heads of Plaintiffs' service organizations may not fully exercise their right to those specific beliefs, when acting as the heads of the charitable and educational arms of the Church. The Court finds this enigmatic.[xciv]
The court went on to conclude that the accommodation for those religious organizations without an exemption under the mandate places a substantial burden on those plaintiffs’ free exercise, thus satisfying the first prong of RFRA.
For similar reasons, the court also held that government did not satisfy the compelling interest prong of RFRA[xcv]. Although it agreed that the stated interests were important, it held that they were not “of the highest order” in accordance with Yoder.[xcvi] The court thought that the mere existence of a religious employer exemption for houses of worship signaled the government’s own insecurity that its interests could not overbalance legitimate free exercise claims for those employers.[xcvii] By extension, the court held that if the government’s interests could not overbalance the house of worship employer’s free exercise claims, they could not overbalance the same claims asserted on behalf of the religious affiliated employers.[xcviii] Again, the court noted that to rule otherwise “would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and “good works,” thereby entangling the Government in deciding what comprises ‘religion.’”[xcix]
It seems logical to extend these same protections to other ineligible, religiously motivated, non-profit employers who, although not formally affiliated with the diocese are nonetheless subject to the religious authority and teachings of the bishop (e.g. lay apostolates with stated mission statements to serve in accordance with Christian values or teaching -- perhaps a lay-run soup kitchen?). It should be noted, if only for the irony, that one of the affiliated non-profits in the Zubik case did, in fact, run a soup kitchen.[c]
Freedom of Religion seems to be an ever-evolving concept, and it seems that we are on the precipice of yet another shift in free exercise interpretation. The Supreme Court is now poised to rule on the contraceptive mandate for the first time, having just heard oral arguments in Hobby Lobby v. Sebelius, involving a for-profit objector. Given the lower courts’ trend towards exempting non-profits from the mandate as illustrated by Zubik, if the Supreme Court finds for Hobby Lobby, it may indeed signal another era of preferential free exercise protections and an apparent retreat from the more recent and restrictive Smith principles.
[i] Seinfeld: The Soup Nazi (NBC television broadcast Nov. 2, 1995).
[ii] Id.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Seinfeld: The Soup Nazi (NBC television broadcast Nov. 2, 1995).
[vii] Id.
[viii] Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25, 29 (D.D.C. 2012) reconsideration denied, CIV.A. 11-1989 JEB, 2012 WL 3861255 (D.D.C. Sept. 5, 2012) and appeal held in abeyance, 703 F.3d 551 (D.C. Cir. 2012).
[ix] Michelle Bauman, Bishops say mandate fight is about government defining religion, Catholic New Agency (Mar. 14, 2012, 5:20 PM), http://www.catholicnewsagency.com/news/bishops-say-mandate-fight-is-about-government-defining-religion/.
[x] USA Today, Landmark health vote aids millions, leaves tough choices, USA Today, Mar. 23, 2010 at 19A. Associated Press, Bill marks ‘new season in America’ – Obama signs health care plan to reshape nation, Com. Appeal, Mar. 24, 2010 at A1. Kara Rowland, Obama signs health bill with gleeful Democrats – Historic overhaul still faces skeptical voters, Wash. Times, Mar. 24, 2010 at A01.
[xi]Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725-01 (Feb. 15, 2012) (codified at 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131).
[xii] Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2600 (2012).
[xiii] Ethan Bronner, A Flood of Suits On the Coverage of Birth Control, N.Y. Times, Jan. 27, 2013 at A1.
[xiv] Id.
[xv] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1122 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (U.S. 2013) (citing 42 U.S.C. § 300gg–13(a)(4)).
[xvi] Id.
[xvii] Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps 109-110 (2011) (available at at http://www.nap.edu/catalog.php?record_id=13181).
[xviii] Clinical Preventive Services for Women: Closing the Gaps 109-110 (2011).
[xix] Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725-01 at 8726 (Feb. 15, 2012) (codified at 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131).
[xx] Id.
[xxi] Id. at 8727-28.
[xxii] Robert Pear, Contraceptives Stay Covered in Health Law, N.Y. Times, June 29, 2013, at A1. Robert Pear, Passions Flare as House Debates Birth Control Rule, N.Y. Times, Feb. 17, 2012, at A13.
[xxiii] Coverage of Certain Preventative Services Under the Affordable Care Act, 78 Fed. Reg. 39870-01 at 39874 (Jul. 2, 2013) (codified at 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131).
[xxiv] Id.
[xxv] Id.
[xxvi] Id. at 39879-80.
[xxvii] Pear, supra note 36.
[xxviii] Religious freedom as used here is meant to denote the more common First Amendment constitutional freedoms that are still discussed and litigated in modern times, not those granted by Article VI, section 3 of the US Constitution.
[xxix] U.S. Const. amend. I.
[xxx] Thomas C. Berg, The State and Religion 5-6 (2d ed. 2004).
[xxxi] Supra note 46.
[xxxii] Kristine Kalanges, Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition 52 (2012) (citing Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103Harv. L. Rev. 1409, 1425 (1990)).
[xxxiii] Patrick M. O’Neil, First Federal Congress and Religion, in Religion and American Law: An Encyclopedia 181 (Paul Finkelman, ed., 2000) (discussing the timeline of the First Congress and ratification of the Bill of Rights).
[xxxiv] Michael McConnell, Free Exercise Clause in Historical Perspective: The “New” American Philosophy of Religious Pluralism, in Religion and American Law: An Encyclopedia 196 (Paul Finkelman, ed., 2000).
[xxxv] Id.
[xxxvi] Id.
[xxxvii] Id.
[xxxviii] Id.
[xxxix] Michael McConnell, Free Exercise Clause in Historical Perspective: The “New” American Philosophy of Religious Pluralism, in Religion and American Law: An Encyclopedia 196-97 (Paul Finkelman, ed., 2000). (McConnell concludes that this broader interpretation was consistent with then prevailing Protestant theology and the ready availability of similar models in and near the final drafter’s home state.)
[xl] Michael McConnell, Free Exercise Clause in Historical Perspective: The “New” American Philosophy of Religious Pluralism, in Religion and American Law: An Encyclopedia 197 (Paul Finkelman, ed., 2000). See also City of Boerne v. Flores, 521 U.S. 507, 554 (1997).
[xli] Id.
[xlii] See Berg, supra note 47 at 26-29.
[xliii] W. Cole Durham, Jr. & Brett G. Scharffs, Law and Religion: National, International, and Comparative Perspectives 206 (Vicki Been et al. eds., 2010).
[xliv] Barron v. City of Baltimore, 32 U.S. 243 (1833). See also Cummings v. Missouri, 71 U.S. 277 (1866) (reversing on ex post facto grounds a Missouri Supreme Court decision affirming a conviction of a man who refused to take an oath required by the state constitution before being ordained a cleric, but affirming that the U.S. Constitution does not extend protection to freedom of religion secured by the state constitutions) (The Free Exercise Clause was later applied to the states through the Fourteenth Amendment; see Cantwell v. Connecticut, 310 U.S. 296 (1940)).
[xlv] Durham & Scharffs, supra note 60 at 206-07.
[xlvi] Reynolds v. U.S., 98 U.S. 145 (1878).
[xlvii] Id. at 166.
[xlviii] Berg, supra note 47 at 78. See also Durham & Scharffs, supra note 60 at 207.
[xlix] Berg, supra note 47 at 78. See also McConnell, supra note 57 at 198.
[l] See Wisconsin v. Yoder, 406 U.S. 205 (1972); McDaniel v. Paty, 435 U.S. 618 (1978); and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1992).
[li] Berg, supra note 47 at 84.
[lii] Sherbert v. Verner, 374 U.S. 398 (1963).
[liii] Id. at 407 (quoting Thomas v. Collins, 323 U.S. 516 (1945)).
[liv] Id.
[lv] Wisconsin v. Yoder, 406 U.S. 205 (1972).
[lvi] Id.
[lvii] McConnell, supra note 57 at 458. Berg, supra note 47 at 151.
[lviii] See Berg, supra note 47 at 100-12, and Durham & Scharffs, supra note 60 at 218, for a discussion of a string of cases that eroded strict scrutiny and the compelling interest test.
[lix] Emp’t Div., Dep't. of Human Res. of Or. v. Smith, 494 U.S. 872, 885 (1990).
[lx] Id. at 881.
[lxi] Id.
[lxii] Id. at 882.
[lxiii] Berg, supra note 47 at 97 (citing Scalia’s concurrence in Boerne v. Flores, 521 U.S. 507, 554 (1997)).
[lxiv] Richard B. Saphire, Religious Freedom Restoration Act of 1993, in Religion and American Law: An Encyclopedia 409, 410-11 (Paul Finkelman, ed., 2000) (quoting W. Cole Durham, Jr., Edward McGlynn Gaffney, Douglas Laycock & Michael W. McConnell, A Declaration: For the Religious Freedom Restoration Act, First Things, Mar. 1992, at 42).
[lxv] 42 U.S.C. § 2000bb.
[lxvi] 42 U.S.C. § 2000bb-1 (a)-(b).
[lxvii] City of Boerne v. Flores, 521 U.S. 507 (1997),
[lxviii] Durham & Scharffs, supra note 60 at 228 (citing to Cutter v. Wilkinson, 544 U.S. 709 (2005) and Gonzales v. 0 Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006)),
[lxix] HHS Mandate Information Central, Becket Fund for Religious Liberty, http://www.becketfund.org/hhsinformationcentral/ (last visited Jan. 17, 2014).
[lxx] Id.
[lxxi] Id.
[lxxii] Id.
[lxxiii] See, e.g., Zubik v. Sebelius, 911 F.Supp.2d 314 (W.D. Pa. 2012); Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012).
[lxxiv] Zubik v. Sebelius, 911 F.Supp.2d 314 (W.D. Pa. 2012).
[lxxv] Zubik v. Sebelius, 13CV1459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013).
[lxxvi] Id. at *2.
[lxxvii] Id.
[lxxviii] Id. at *2-3
[lxxix] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *2 (W.D. Pa. Nov. 21, 2013).
[lxxx] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *1 (W.D. Pa. Nov. 21, 2013).
[lxxxi] Id.
[lxxxii] See Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *14 (W.D. Pa. Nov. 21, 2013) (Completion of the self-certification is akin to cooperating with/facilitating sin and poses the potential for the sin of scandal by an apparent show of cooperation with a practice contrary to Church teaching).
[lxxxiii] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *3-5 (W.D. Pa. Nov. 21, 2013).
[lxxxiv] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *4-5 (W.D. Pa. Nov. 21, 2013).
[lxxxv] Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2012).
[lxxxvi] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *23(W.D. Pa. Nov. 21, 2013) (quoting Korte v. Sebelius, 735 F.3d 654, 682 (7th Cir. 2012) (citing Wisconsin v. Yoder, 406 U.S. 205, 218,(1972)).
[lxxxvii] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *25 (W.D. Pa. Nov. 21, 2013).
[lxxxviii] Id.
[lxxxix] Id.
[xc] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *1, *34 (W.D. Pa. Nov. 21, 2013).
[xci] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *34 (W.D. Pa. Nov. 21, 2013).
[xcii] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *5 (W.D. Pa. Nov. 21, 2013).
[xciii] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *25-26 (W.D. Pa. Nov. 21, 2013).
[xciv] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *26-27 (W.D. Pa. Nov. 21, 2013).
[xcv] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *30 (W.D. Pa. Nov. 21, 2013).
[xcvi] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *28 (W.D. Pa. Nov. 21, 2013).
[xcvii] Id.
[xcviii] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *29 (W.D. Pa. Nov. 21, 2013).
[xcix] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *29 (W.D. Pa. Nov. 21, 2013).
[c] Zubik v. Sebelius, 13CV1459, 2013 WL 16118696, at *29 (W.D. Pa. Nov. 21, 2013).
