LGBTQ Rights: Conflict of

Rights

[author name]
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Table of Contents

1 Boy Scouts of America v. Dale []

2 Harper v. Poway Unified School District []

3 Burwell v. Hobby Lobby Stores, Inc. []

4 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights

Comm'n []
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Boy Scouts of America v. Dale

Supreme Court of the United States

530 U.S. 640, 147 L. Ed. 2d 554, 120 S. Ct. 2446, 2000 U.S.
LEXIS 4487, SCDB 1999-085
No. 99-699
2000-06-28
Argued April 26, 2000 —

Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Kennedy,
and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg,
and Breyer, JJ., joined, post, p. 663. Souter, J., filed a dissenting opinion, in which Ginsburg
and Breyer, JJ., joined, post, p. 700.

George A. Davidson argued the cause for petitioners. With him on the briefs were Carla A.
Kerr, David K. Park, Michael W. McConnell, and Sanford D. Brown.

Evan Wolf son argued the cause for respondent. With him on the brief were Ruth E. Harlow,
David Buckel, Jon W. Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney,
Allyson W. Haynes, and Lewis H. Robertson. *

Chief Justice Rehnquist

delivered the opinion of the Court.

Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy
Scouts of America (col lectively, Boy Scouts). The Boy Scouts is a private, not-for-profit
organization engaged in instilling its system of values in young people. The Boy Scouts
asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent
is James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked
when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. The
New Jersey Supreme Court held that New Jersey’s public accommodations law requires that
the Boy Scouts readmit Dale. This ease presents the question whether applying New Jersey’s
public accommodations law in this way violates the Boy Scouts’ First Amendment right of
expressive association. We hold that it does.

James Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council’s Cub
Scout Pack 142. Dale became a Boy Scout in 1981 and remained a Scout until he turned 18.
By all accounts, Dale was an exemplary Scout. In 1988, he achieved the rank of Eagle Scout,
one of Scouting’s highest honors.

Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his
application for the position of assistant scoutmaster of Troop 78. Around the same time, Dale
left home to attend Rutgers University. After arriving at Rutgers, Dale first acknowledged to
**
Notice anything interesting about these case names? Who is Jack?
 5

himself and others that he is gay. He quickly became involved with, and eventually became
the eopresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a
seminar addressing the psychological and health needs of lesbian and gay teenagers. A
newspaper covering the event interviewed Dale about his advocacy of homosexual teenagers’
need for gay role models. In early July 1990, the newspaper published the interview and
Dale’s photograph over a caption identifying him as the eopresident of the Lesbian/ Gay
Alliance.

Later that month, Dale received a letter from Monmouth Council Executive James Kay
revoking his adult membership. Dale wrote to Kay requesting the reason for Monmouth
Council’s decision. Kay responded by letter that the Boy Scouts “specifically forbid
membership to homosexuals.” App. 137.

In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court.
The complaint alleged that the Boy Scouts had violated New Jersey’s public accommodations
statute and its common law by revoking Dale’s membership based solely on his sexual
orientation. New Jersey’s public accommodations statute prohibits, among other things,
discrimination on the basis of sexual orientation in places of public accommodation. N. J.
Stat. Ann. §§ 10:5-4 and 10:5-5 (West Supp. 2000); see Appendix, infra, at 661-663.

The New Jersey Superior Court’s Chancery Division granted summary judgment in favor of
the Boy Scouts. The court held that New Jersey’s public accommodations law was
inapplicable because the Boy Scouts was not a place of public accommodation, and that,
alternatively, the Boy Scouts is a distinctly private group exempted from coverage under
New Jersey’s law. The court rejected Dale’s common-law claim, holding that New Jersey’s
policy is embodied in the public accommodations law. The court also concluded that the Boy
Scouts’ position in respect of active homosexuality was clear and held that the First
Amendment freedom of expressive association prevented the government from forcing the
Boy Scouts to accept Dale as an adult leader.

The New Jersey Superior Court’s Appellate Division affirmed the dismissal of Dale’s
common-law claim, but otherwise reversed and remanded for further proceedings. 308 N. J.
Super. 516, 706 A. 2d 270 (1998). It held that New Jersey’s public accommodations law
applied to the Boy Scouts and that the Boy Scouts violated it. The Appellate Division
rejected the Boy Scouts’ federal constitutional claims.

The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that
the Boy Scouts was a place of public accommodation subject to the public accommodations
law, that the organization was not exempt from the law under any of its express exceptions,
and that the Boy Scouts violated the law by revoking Dale’s membership based on his
avowed homosexuality. After considering the state-law issues, the court addressed the Boy
Scouts’ claims that application of the public accommodations law in this ease violated its
federal constitutional rights “‘to enter into and maintain . . . intimate or private
relationships . . . [and] to associate for the purpose of engaging in protected speech.’” 160 N.
J. 562, 605,734 A. 2d 1196, 1219 (1999) (quoting Board of Directors of Rotary Int’l v.
Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With respect to the right to intimate
association, the court concluded that the Boy Scouts’ “large size, nonseleetivity, inclusive
rather than exclusive purpose, and practice of inviting or allowing nonmembers to attend
meetings, establish that the organization is not ‘sufficiently personal or private to warrant
constitutional protection’ under the freedom of intimate association.” 160 N. J., at 608-609,
734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the right of expressive
association, the court “agree[d] that Boy Scouts expresses a belief in moral values and uses
its activities to encourage the moral development of its members.” 160 N. J., at 613, 734 A.
2d, at 1223. But the court concluded that it was “not persuaded . . . that a shared goal of Boy
Scout members is to associate in order to preserve the view that homosexuality is immoral.”
Ibid., 734 A. 2d, at 1223-1224 (internal quotation marks omitted). Accordingly, the court
 6

held “that Dale’s membership does not violate the Boy Scouts’ right of expressive
association because his inclusion would not ‘affect in any significant way [the Boy Scouts’]
existing members’ ability to carry out their various purposes.’” Id., at 615, 734 A. 2d, at
1225 (quoting Duarte, supra, at 548). The court also determined that New Jersey has a
compelling interest in eliminating “the destructive consequences of discrimination from our
society,” and that its public accommodations law abridges no more speech than is necessary
to accomplish its purpose. 160 N. J., at 619-620, 734 A. 2d, at 1227-1228. Finally, the court
addressed the Boy Scouts’ reliance on Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557 (1995), in support of its claimed First Amendment right
to exclude Dale. The court determined that Hurley did not require deciding the ease in favor
of the Boy Scouts because “the reinstatement of Dale does not compel Boy Scouts to express
any message.” 160 N. J., at 624, 734 A. 2d, at 1229.

We granted the Boy Seouts’ petition for certiorari to determine whether the application of
New Jersey’s public accommodations law violated the First Amendment. 528 U. S. 1109
(2000).

II

In Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), we observed that “implicit in
the right to engage in activities protected by the First Amendment” is “a corresponding right
to associate with others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” This right is crucial in preventing the majority
from imposing its views on groups that would rather express other, perhaps unpopular, ideas.
See ibid. (stating that protection of the right to expressive association is “especially
important in preserving political and cultural diversity and in shielding dissident expression
from suppression by the majority”). Government actions that may unconstitutionally burden
this freedom may take many forms, one of which is “intrusion into the internal structure or
affairs of an association” like a “regulation that forces the group to accept members it does
not desire.” Id., at 623. Forcing a group to accept certain members may impair the ability of
the group to express those views, and only those views, that it intends to express. Thus,
“[fjreedom of association . . . plainly presupposes a freedom not to associate.” Ibid.

The forced inclusion of an unwanted person in a group infringes the group’s freedom of
expressive association if the presence of that person affects in a significant way the group’s
ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of
New York, 487 U. S. 1, 13 (1988). But the freedom of expressive association, like many
freedoms, is not absolute. We have held that the freedom could be overridden “by regulations
adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot
be achieved through means significantly less restrictive of associational freedoms.” Roberts,
supra, at 623.

To determine whether a group is protected by the First Amendment’s expressive

associational right, we must determine whether the group engages in “expressive
association.” The First Amendment’s protection of expressive association is not reserved for
advocacy groups. But to come within its ambit, a group must engage in some form of
expression, whether it be public or private.

Because this is a First Amendment ease where the ultimate conclusions of law are virtually
inseparable from findings of fact, we are obligated to independently review the factual record
to ensure that the state court’s judgment does not unlawfully intrude on free expression. See
Hurley, supra, at 567-568. The record reveals the following. The Boy Scouts is a private,
nonprofit organization. According to its mission statement:
 7

“It is the mission of the Boy Scouts of America to serve others by helping to instill
values in young people and, in other ways, to prepare them to make ethical choices
over their lifetime in achieving their full potential.

“The values we strive to instill are based on those found in the Scout Oath and Law:

“Scout Oath

“On my honor I will do my best

“To do my duty to God and my country

“and to obey the Scout Law;

“To help other people at all times;

“To keep myself physically strong,

“mentally awake, and morally straight.

“Scout Law

“A Scout is:

“Trustworthy Obedient

“Loyal Cheerful

“Helpful Thrifty

“Friendly Brave

“Courteous Clean

“Kind Reverent.” App. 184.

Thus, the general mission of the Boy Scouts is clear: “[T]o instill values in young people.”
Ibid. The Boy Scouts seeks to instill these values by having its adult leaders spend time with
the youth members, instructing and engaging them in activities like camping, archery, and
fishing. During the time spent with the youth members, the scoutmasters and assistant
scoutmasters inculcate them with the Boy Scouts’ values — both expressly and by example.
It seems indisputable that an association that seeks to transmit such a system of values
engages in expressive activity. See Roberts, swpra, at 636 (O’Connor, J., concurring) (“Even
the training of outdoor survival skills or participation in community service might become
expressive when the activity is intended to develop good morals, reverence, patriotism, and a
desire for self-improvement”).

Given that the Boy Scouts engages in expressive activity, we must determine whether the
forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy
Scouts’ ability to advocate public or private viewpoints. This inquiry necessarily requires us
first to explore, to a limited extent, the nature of the Boy Scouts’ view of homosexuality.

The values the Boy Scouts seeks to instill are “based on” those listed in the Scout Oath and
Law. App. 184. The Boy Scouts explains that the Scout Oath and Law provide “a positive
moral code for living; they are a list of ‘do’s’ rather than ‘don’ts.’ ” Brief for Petitioners 3.
 8

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in
the Scout Oath and Law, particularly with the values represented by the terms “morally
straight” and “clean.”

Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation.
See supra, at 649. And the terms “morally straight” and “clean” are by no means self-
defining. Different people would attribute to those terms very different meanings. For
example, some people may believe that engaging in homosexual conduct is not at odds with
being “morally straight” and “clean.” And others may believe that engaging in homosexual
conduct is contrary to being “morally straight” and “clean.” The Boy Scouts says it falls
within the latter category.

The New Jersey Supreme Court analyzed the Boy Scouts’ beliefs and found that the
“exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy
Scouts’ commitment to a diverse and ‘representative’ membership ... [and] contradicts Boy
Scouts’ overarching objective to reach ‘all eligible youth.’” 160 N. J., at 618, 734 A. 2d, at
1226. The court concluded that the exclusion of members like Dale “appears antithetical to
the organization’s goals and philosophy.” Ibid. But our cases reject this sort of inquiry; it is
not the role of the courts to reject a group’s expressed values because they disagree with
those values or find them internally inconsistent. See Democratic Party of United States v.
Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) (“[A]s is true of all expressions of
First Amendment freedoms, the courts may not interfere on the ground that they view a
particular expression as unwise or irrational”); see also Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U. S. 707, 714 (1981) (“[Rjeligious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in order to merit First
Amendment protection”).

The Boy Scouts asserts that it “teach[es] that homosexual conduct is not morally straight,”
Brief for Petitioners 39, and that it does “not want to promote homosexual conduct as a
legitimate form of behavior,” Reply Brief for Petitioners 5. We accept the Boy Scouts’
assertion. We need not inquire further to determine the nature of the Boy Scouts’ expression
with respect to homosexuality. But because the record before us contains written evidence of
the Boy Scouts’ viewpoint, we look to it as instructive, if only on the question of the
sincerity of the professed beliefs.

A 1978 position statement to the Boy Scouts’ Executive Committee, signed by Downing B.
Jenks, the President of the Boy Scouts, and Harvey L. Price, the Chief Scout Executive,
expresses the Boy Scouts’ “official position” with regard to “homosexuality and Scouting”:

“Q. May an individual who openly declares himself to be a homosexual be a

volunteer Scout leader?

“A. No. The Boy Scouts of America is a private, membership organization and
leadership therein is a privilege and not a right. We do not believe that
homosexuality and leadership in Scouting are appropriate. We will continue to
select only those who in our judgment meet our standards and qualifications for
leadership.” App. 453-454.

Thus, at least as of 1978 — the year James Dale entered Scouting — the official position of
the Boy Scouts was that avowed homosexuals were not to be Scout leaders.

A position statement promulgated by the Boy Scouts in 1991 (after Dale’s membership was
revoked but before this litigation was filed) also supports its current view:

‘We believe that homosexual conduct is inconsistent with the requirement in the
Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be
 9

clean in word and deed, and that homosexuals do not provide a desirable role model
for Scouts.” Id., at 457.

This position statement was redrafted numerous times but its core message remained
consistent. For example, a 1993 position statement, the most recent in the record, reads, in
part:

“The Boy Scouts of America has always reflected the expectations that Scouting
families have had for the organization. We do not believe that homosexuals provide
a role model consistent with these expectations. Accordingly, we do not allow for
the registration of avowed homosexuals as members or as leaders of the BSA.” Id.,
at 461.

The Boy Scouts publicly expressed its views with respect to homosexual conduct by its
assertions in prior litigation. For example, throughout a California ease with similar facts
filed in the early 1980’s, the Boy Scouts consistently asserted the same position with respect
to homosexuality that it asserts today. See Curran v. Mount Diablo Council of Boy Scouts of
America, No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th 670, 29 Cal. Rptr.
2d 580 (1994); 17 Cal. 4th 670,952 P. 2d 218 (1998). We cannot doubt that the Boy Scouts
sincerely holds this view.

We must then determine whether Dale’s presence as an assistant scoutmaster would

significantly burden the Boy Scouts’ desire to not “promote homosexual conduct as a
legitimate form of behavior.” Reply Brief for Petitioners 5. As we give deference to an
association’s assertions regarding the nature of its expression, we must also give deference to
an association’s view of what would impair its expression. See, e. g., La Follette, supra, at
123-124 (considering whether a Wisconsin law burdened the National Party’s assoeiational
rights and stating that “a State, or a court, may not constitutionally substitute its own
judgment for that of the Party”). That is not to say that an expressive association can erect a
shield against antidiscrimination laws simply by asserting that mere acceptance of a member
from a particular group would impair its message. But here Dale, by his own admission, is
one of a group of gay Scouts who have “become leaders in their community and are open and
honest about their sexual orientation.” App. 11. Dale was the copresident of a gay and
lesbian organization at college and remains a gay rights activist. Dale’s presence in the Boy
Scouts would, at the very least, force the organization to send a message, both to the youth
members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate
form of behavior.

Hurley is illustrative on this point. There we considered whether the application of

Massachusetts’ public accommodations law to require the organizers of a private St.
Patrick’s Day parade to include among the marchers an Irish-American gay, lesbian, and
bisexual group, GLIB, violated the parade organizers’ First Amendment rights. We noted
that the parade organizers did not wish to exclude the GLIB members because of their sexual
orientations, but because they wanted to march behind a GLIB banner. We observed:

“[A] contingent marching behind the organization’s banner would at least bear
witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of
the organized marchers would suggest their view that people of their sexual
orientations have as much claim to unqualified social acceptance as
heterosexuals .... The parade’s organizers may not believe these facts about Irish
sexuality to be so, or they may object to unqualified social acceptance of gays and
lesbians or have some other reason for wishing to keep GLIB’s message out of the
parade. But whatever the reason, it boils down to the choice of a speaker not to
propound a particular point of view, and that choice is presumed to lie beyond the
government’s power to control.” 515 U. S., at 574-575.
 10

Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent
with the values it seeks to instill in its youth members; it will not “promote homosexual
conduct as a legitimate form of behavior.” Reply Brief for Petitioners 5. As the presence of
GLIB in Boston’s St. Patrick’s Day parade would have interfered with the parade organizers’
choice not to propound a particular point of view, the presence of Dale as an assistant
scoutmaster would just as surely interfere with the Boy Scout’s choice not to propound a
point of view contrary to its beliefs.

The New Jersey Supreme Court determined that the Boy Scouts’ ability to disseminate its
message was not significantly affected by the forced inclusion of Dale as an assistant
scoutmaster because of the following findings:

“Boy Scout members do not associate for the purpose of disseminating the belief
that homosexuality is immoral; Boy Scouts discourages its leaders from
disseminating any views on sexual issues; and Boy Scouts includes sponsors and
members who subscribe to different views in respect of homosexuality.” 160 N. J.,
at 612, 734 A. 2d, at 1223.

We disagree with the New Jersey Supreme Court’s conclusion drawn from these findings.

First, associations do not have to associate for the “purpose” of disseminating a certain
message in order to be entitled to the protections of the First Amendment. An association
must merely engage in expressive activity that could be impaired in order to be entitled to
protection. For example, the purpose of the St. Patrick’s Day parade in Hurley was not to
espouse any views about sexual orientation, but we held that the parade organizers had a
right to exclude certain participants nonetheless.

Second, even if the Boy Scouts discourages Scout leaders from disseminating views on
sexual issues — a fact that the Boy Scouts disputes with contrary evidence — the First
Amendment protects the Boy Scouts’ method of expression. If the Boy Scouts wishes Scout
leaders to avoid questions of sexuality and teach only by example, this fact does not negate
the sincerity of its belief discussed above.

Third, the First Amendment simply does not require that every member of a group agree on
every issue in order for the group’s policy to be “expressive association.” The Boy Scouts
takes an official position with respect to homosexual conduct, and that is sufficient for First
Amendment purposes. In this same vein, Dale makes much of the claim that the Boy Scouts
does not revoke the membership of heterosexual Scout leaders that openly disagree with the
Boy Scouts’ policy on sexual orientation. But if this is true, it is irrelevant. The presence of
an avowed homosexual and gay rights activist in an assistant scoutmaster’s uniform sends a
distinctly different message from the presence of a heterosexual assistant scoutmaster who is
on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First Amendment
right to choose to send one message but not the other. The fact that the organization does not
trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not
mean that its views receive no First Amendment protection.

Having determined that the Boy Scouts is an expressive association and that the forced
inclusion of Dale would significantly affect its expression, we inquire whether the
application of New Jersey’s public accommodations law to require that the Boy Scouts
accept Dale as an assistant scoutmaster runs afoul of the Scouts’ freedom of expressive
association. We conclude that it does.

State public accommodations laws were originally enacted to prevent discrimination in

traditional places of public accommodation — like inns and trains. See, e.g., Hurley, supra,
at 571-572 (explaining the history of Massachusetts’ public accommodations law); Romer v.
Evans, 517 U. S. 620, 627-629 (1996) (describing the evolution of public accommodations
 11

laws). Over time, the public accommodations laws have expanded to cover more places. New
Jersey’s statu tory definition of “ ‘[a] place of public accommodation’ ” is extremely broad.
The term is said to “include, but not be limited to,” a list of over 50 types of places. N. J.
Stat. Ann. § 10:5 — 5(Z) (West Supp. 2000); see Appendix, infra, at 661-663. Many on the
list are what one would expect to be places where the public is invited. For example, the
statute includes as places of public accommodation taverns, restaurants, retail shops, and
public libraries. But the statute also includes places that often may not carry with them open
invitations to the public, like summer camps and roof gardens. In this ease, the New Jersey
Supreme Court went a step further and applied its public accommodations law to a private
entity without even attempting to tie the term “place” to a physical location. As the definition
of “public accommodation” has expanded from clearly commercial entities, such as
restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the
potential for conflict between state public accommodations laws and the First Amendment
rights of organizations has increased.

We recognized in cases such as Roberts and Duarte that States have a compelling interest in
eliminating discrimination against women in public accommodations. But in each of these
cases we went on to conclude that the enforcement of these statutes would not materially
interfere with the ideas that the organization sought to express. In Roberts, we said “[i]ndeed,
the Jayeees has failed to demonstrate ... any serious burdens on the male members' freedom
of expressive association.” 468 U. S., at 626. In Duarte, we said:

“impediments to the exercise of one’s right to choose one’s associates can violate
the right of association protected by the First Amendment. In this case, however,
the evidence fails to demonstrate that admitting women to Rotary Clubs will affect
in any significant way the existing members’ ability to carry out their various
purposes.” 481 U. S., at 548 (internal quotation marks and citations omitted).

We thereupon concluded in each of these cases that the organizations’ First Amendment
rights were not violated by the application of the States’ public accommodations laws.

In Hurley, we said that public accommodations laws “are well within the State’s usual power
to enact when a legislature has reason to believe that a given group is the target of
discrimination, and they do not, as a general matter, violate the First or Fourteenth
Amendments.” 515 U. S., at 572. But we went on to note that in that case “the Massachusetts
[public accommodations] law has been applied in a peculiar way” because “any contingent of
protected individuals with a message would have the right to participate in petitioners’
speech, so that the communication produced by the private organizers would be shaped by all
those protected by the law who wished to join in with some expressive demonstration of their
own.” Id., at 572-573. And in the associational freedom cases such as Roberts, Duarte, and
New York State Club Assn., after finding a compelling state interest, the Court went on to
examine whether or not the application of the state law would impose any “serious burden”
on the organization’s rights of expressive association. So in these cases, the associational
interest in freedom of expression has been set on one side of the scale, and the State’s
interest on the other.

Dale contends that we should apply the intermediate standard of review enunciated in United
States v. O’Brien, 391 U. S. 367 (1968), to evaluate the competing interests. There the Court
enunciated a four-part test for review of a governmental regulation that has only an
incidental effect on protected speech — in that case the symbolic burning of a draft card. A
law prohibiting the destruction of draft cards only incidentally affects the free speech rights
of those who happen to use a violation of that law as a symbol of protest. But New Jersey’s
public accommodations law directly and immediately affects assoeiational rights, in this ease
associational rights that enjoy First Amendment protection. Thus, O’Brien is inapplicable.
 12

In Hurley, we applied traditional First Amendment analysis to hold that the application of the
Massachusetts public accommodations law to a parade violated the First Amendment rights
of the parade organizers. Although we did not explicitly deem the parade in Hurley an
expressive association, the analysis we applied there is similar to the analysis we apply here.
We have already concluded that a state requirement that the Boy Scouts retain Dale as an
assistant scoutmaster would significantly burden the organization’s right to oppose or
disfavor , homosexual conduct. The state interests embodied in New Jersey’s public
accommodations law do not justify such a severe intrusion on the Boy Scouts’ rights to
freedom of expressive association. That being the case, we hold that the First Amendment
prohibits the State from imposing such a requirement through the application of its public
accommodations law.

Justice Stevens’ dissent makes much of its observation that the public perception of
homosexuality in this country has changed. See post, at 699-700. Indeed, it appears that
homosexuality has gained greater societal acceptance. See ibid. But this is scarcely an
argument for denying First Amendment protection to those who refuse to accept these views.
The First Amendment protects expression, be it of the popular variety or not. See, e. g.,
Texas v. Johnson, 491 U. S. 397 (1989) (holding that Johnson’s conviction for burning the
American flag violates the First Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969)
(per curiam) (holding that a Ku Klux Klan leader’s conviction for advocating unlawfulness
as a means of political reform violates the First Amendment). And the fact that an idea may
be embraced and advocated by increasing numbers of people is all the more reason to protect
the First Amendment rights of those who wish to voice a different view.

Justice Stevens’ extolling of Justice Brandéis’ comments in New State Ice Co. v. Liebmann,
285 U. S. 262, 311 (1932) (dissenting opinion); see post, at 664, 700, confuses two entirely
different principles. In New State Ice, the Court struck down an Oklahoma regulation
prohibiting the manufacture, sale, and distribution of ice without a license. Justice Brandéis,
a champion of state experimentation in the economic realm, dissented. But Justice Brandéis
was never a champion of state experimentation in the suppression of free speech. To the
contrary, his First Amendment commentary provides compelling support for the Court’s
opinion in this case. In speaking of the Founders of this Nation, Justice Brandéis emphasized
that they “believed that free dom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth.” Whitney v. California, 274 U. S.
357, 375 (1927) (concurring opinion). He continued:

“Believing in the power of reason as applied through public discussion, they

eschewed silence coerced by law — the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be guaranteed.” Id., at 375-
376.

We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings
with respect to homosexual conduct are right or wrong; public or judicial disapproval of a
tenet of an organization’s expression does not justify the State’s effort to compel the
organization to accept members where such acceptance would derogate from the
organization’s expressive message. “While the law is free to promote all sorts of conduct in
place of harmful behavior, it is not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one, however enlightened
either purpose may strike the government.” Hurley, 515 U. S., at 579.

The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.

It is so ordered.
 13

[…]

Justice Stevens,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

New Jersey “prides itself on judging each individual by his or her merits” and on being “in
the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from
our society.” Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80, 389 A. 2d 465, 478
(1978). Since 1945, it has had a law against discrimination. The law broadly protects the
opportunity of all persons to obtain the advantages and privileges “of any place of public
accommodation.” N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). The New Jersey Supreme
Court’s construction of the statutory definition of a “place of public accommodation” has
given its statute a more expansive coverage than most similar state statutes. And as amended
in 1991, the law prohibits discrimination on the basis of nine different traits including an
individual’s “sexual orientation.” The question in this case is whether that ex pansive
construction trenches on the federal constitutional rights of the Boy Scouts of America
(BSA).

Because every state law prohibiting discrimination is designed to replace prejudice with
principle, Justice Brandéis’ comment on the States’ right to experiment with “things social”
is directly applicable to this ease.

“To stay experimentation in things social and economic is a grave responsibility.

Denial of the right to experiment may be fraught with serious consequences to the
Nation. It is one of the happy incidents of the federal system that a single
courageous State may, if its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the country. This Court
has the power to prevent an experiment. We may strike down the statute which
embodies it on the ground that, in our opinion, the measure is arbitrary, capricious
or unreasonable. We have power to do this, because the due process clause has been
held by the Court applicable to matters of substantive law as well as to matters of
procedure. But in the exercise of this high power, we must be ever on our guard,
lest we erect our prejudices into legal principles. If we would guide by the light of
reason, we must let our minds be bold.” New State Ice Co. v. Liebmann, 285 U. S.
262, 311 (1932) (dissenting opinion).

In its “exercise of this high power” today, the Court does not accord this “courageous State”
the respect that is its due.

The majority holds that New Jersey’s law violates BSA’s right to associate and its right to
free speech. But that law does not “impos[e] any serious burdens” on BSA’s "collective
effort on behalf of [its] shared goals,” Roberts v. United States Jaycees, 468 U. S. 609, 622,
626-627 (1984), nor does it force BSA to communicate any message that it does not wish to
endorse. New Jersey’s law, therefore, abridges no constitutional right of BSA.

James Dale joined BSA as a Cub Scout in 1978, when he was eight years old. Three years
later he became a Boy Scout, and he remained a member until his 18th birthday. Along the
way, he earned 25 merit badges, was admitted into the prestigious Order of the Arrow, and
was awarded the rank of Eagle Scout — an honor given to only three percent of all Scouts. In
1989, BSA approved his application to be an Assistant Scoutmaster.

On July 19, 1990, after more than 12 years of active and honored participation, the BSA sent
Dale a letter advising him of the revocation of his membership. The letter stated that
membership in BSA “is a privilege” that may be denied "whenever there is a concern that an
 14

individual may not meet the high standards of membership which the BSA seeks to provide
for American youth.” App. 185. Expressing surprise at.his sudden expulsion, Dale sent a
letter requesting an explanation of the decision. Id., at 186. In response, BSA sent him a
second letter stating that the grounds for the decision “are the standards for leadership
established by the Boy Scouts of America, which specifically forbid membership to
homosexuals.” Id., at 137. At that time, no such standard had been publicly expressed by
BSA.

In this case, BSA contends that it teaches the young boys who are Scouts that homosexuality
is immoral. Consequently, it argues, it would violate its right to associate to force it to admit
homosexuals as members, as doing so would be at odds with its own shared goals and values.
This contention, quite plainly, requires us to look at what, exactly, are the values that BSA
actually teaches.

BSA’s mission statement reads as follows: “It is the mission of the Boy Seouts of America to
serve others by helping to instill values in young people and, in other ways, to prepare them
to make ethical choices over their lifetime in achieving their full potential.” Id., at 184. Its
federal charter declares its purpose is “to promote, through organization, and cooperation
with other agencies, the ability of boys to do things for themselves and others, to train them
in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred values, using
the methods which were in common use by Boy Scouts on June 15, 1916.” 86 U. S. C. §23;
see also App. 315-316. BSA describes itself as having a “representative membership,” which
it defines as “boy membership [that] reflects proportionately the characteristics of the boy
population of its service area.” Id., at 65. In particular, the group emphasizes that “[n]either
the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy....
To meet these responsibilities we have made a commitment that our membership shall be
representative of all the population in every community, district, and council.” Id., at 66-67
(emphasis in original).

To instill its shared values, BSA has adopted a “Scout Oath” and a “Scout Law” setting forth
its central tenets. For example, the Scout Law requires a member to promise, among other
things, that he will be “obedient.” Accompanying definitions for the terms found in the Oath
and Law are provided in the Boy Scout Handbook and the Scoutmaster Handbook. For
instance, the Boy Scout Handbook defines “obedient” as follows:

“A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop.
He obeys the laws of his community and country. If he thinks these rules and laws
are unfair, he tries to have them changed in an orderly manner rather than disobey
them.” Id., at 188 (emphasis deleted).

To bolster its claim that its shared goals include teaching that homosexuality is wrong, BSA
directs our attention to two terms appearing in the Scout Oath and Law. The first is the
phrase “morally straight,” which appears in the Oath (“On my honor I will do my best ... To
keep myself . . . morally straight”); the second term is the word “clean,” which appears in a
list of 12 characteristics together constituting the Scout Law.

The Boy Scout Handbook defines “morally straight,” as such:

“To be a person of strong character, guide your life with honesty, purity, and
justice. Respect and defend the rights of all people. Your relationships with others
should be honest and open. Be clean in your speech and actions, and faithful in your
religious beliefs. The values you follow as a Scout will help you become virtuous
and self-reliant.” Id,., at 218 (emphasis deleted).

The Scoutmaster Handbook emphasizes these points about being “morally straight”:
 15

“In any consideration of moral fitness, a key word has to be ‘courage.’ A boy’s
courage to do what his head and his heart tell him is right. And the courage to
refuse to do what his heart and his head say is wrong. Moral fitness, like emotional
fitness, will clearly present opportunities for wise guidance by an alert
Scoutmaster.” Id., at 239-240.

As for the term “clean,” the Boy Scout Handbook offers the following:

“A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the
company of those who live by these same ideals. He helps keep his home and
community clean.

“Yoti never need to be ashamed of dirt that will wash off. If you play hard and
work hard you can’t help get ting dirty. But when the game is over or the work is
done, that kind of dirt disappears with soap and water. “There’s another kind of dirt
that won’t come off by washing. It is the kind that shows up in foul language and
harmful thoughts.

“Swear words, profanity, and dirty stories are weapons that ridicule other people
and hurt their feelings. The same is true of racial slurs and jokes making fun of
ethnic groups or people with physical or mental limitations. A Scout knows there is
no kindness or honor in such mean-spirited behavior. He avoids it in his own words
and deeds. He defends those who are targets of insults.” Id., at 225-226 (emphasis
in original); see also id., at 189.

It is plain as the light of day that neither one of these principles — “morally straight” and
“clean” — says the slightest thing about homosexuality. Indeed, neither term in the Boy
Scouts’ Law and Oath expresses any position whatsoever on sexual matters.

BSA’s published guidance on that topic underscores this point. Scouts, for example, are
directed to receive their sex education at home or in school, but not from the organization:
“Your parents or guardian or a sex education teacher should give you the facts about sex that
you must know.” Boy Scout Handbook (1992) (reprinted in App. 211). To be sure, Scouts are
not forbidden from asking their Scoutmaster about issues of a sexual nature, but
Scoutmasters are, literally, the last person Scouts are encouraged to ask: “If you have
questions about growing up, about relationships, sex, or making good decisions, ask. Talk
with your parents, religious leaders, teachers, or Scoutmaster.” Ibid. Moreover, Scoutmasters
are specifically directed to steer curious adolescents to other sources of information:

“If Scouts ask for information regarding... sexual activity, answer honestly and
factually, but stay within your realm of expertise and comfort. If a Scout has
serious concerns that you cannot answer, refer him to his family, religious leader,
doctor, or other professional.” Scoutmaster Handbook (1990) (reprinted in App.
264).

More specifically, BSA has set forth a number of rules for Scoutmasters when these types of
issues come up:

“You may have boys asking you for information or advice about sexual matters....

“How should you handle such matters?

 16

“Rule number 1: You do not undertake to instruct Scouts, in any formalized manner,
in the subject of sex and family life. The reasons are that it is not construed to be
Scouting’s proper area, and that you are probably not well qualified to do this.

“Rule number 2: If Scouts come to you to ask questions or to seek advice, you
would give it within your compe- tenee. A boy who appears to he asking about
sexual intercourse, however, may really only be worried about his pimples, so it is
well to find out just what information is needed.

“Rule number 3: You should refer boys with sexual problems to persons better
qualified than you [are] to handle them. If the boy has a spiritual leader or a doctor
who can deal with them, he should go there. If such persons are not available, you
may just have to do the best you can. But don’t try to play a highly professional
role. And at the other extreme, avoid passing the buck.” Scoutmaster Handbook
(1972) (reprinted in App. 546-547) (emphasis added).

In light of BSA’s self-proclaimed ecumenism, furthermore, it is even more difficult to

discern any shared goals or common moral stance on homosexuality. Insofar as religious
matters are concerned, BSA’s bylaws state that it is “absolutely nonsectarian in its attitude
toward... religious training.” Id., at 362. “The BSA does not define what constitutes duty to
God or the practice of religion. This is the responsibility of parents and religious leaders.”
Id., at 76. In fact, many diverse religious organizations sponsor local Boy Scout troops. Brief
for Petitioners 3. Because a number of religious groups do not view homosexuality as
immoral or wrong and reject discrimination against homosexuals, it is exceedingly difficult
to believe that BSA none theless adopts a single particular religious or moral philosophy
when it comes to sexual orientation. This is especially so in light of the fact that Scouts are
advised to seek guidance on sexual matters from their religious leaders (and Scoutmasters are
told to refer Scouts to them); BSA surely is aware that some religions do not teach that
homosexuality is wrong.

II

The Court seeks to fill the void by pointing to a statement of “policies and procedures
relating to homosexuality and Scouting,” App. 453, signed by BSA’s President and Chief
Scout Executive in 1978 and addressed to the members of the Executive Committee of the
national organization. Ante, at 651-652. The letter says that the BSA does “not believe that
homosexuality and leadership in Scouting are appropriate.” App. 454. But when the entire
1978 letter is read, BSA’s position is far more equivocal:

“4. Q. May an individual who openly declares himself to be a homosexual be

employed by the Boy Scouts of America as a professional or non-professional?

“A. Boy Scouts of America does not knowingly employ homosexuals as

professionals or non-professionals. We are unaware of any present laws which
would prohibit this policy.

“5. Q. Should a professional or non-professional individual who openly declares

himself to be a homosexual be terminated?

“A. Yes, in the absence of any law to the contrary. At the present time we are
unaware of any statute or ordinance in the United States which prohibits
discrimination against individual’s employment upon the basis of homosexuality. In
the event that such a law was applicable, it would be necessary for the Boy Scouts
of America to obey it, in this case as in Paragraph I above. It is our position,
 17

however, that homosexuality and professional or non-professional employment in

Scouting are not appropriate.” Id., at 454-455 (emphasis added).

Four aspects of the 1978 policy statement are relevant to the proper disposition of this case.
First, at most this letter simply adopts an exclusionary membership policy. But simply
adopting such a policy has never been considered sufficient, by itself, to prevail on a right to
associate claim. See infra, at 678-685.

Second, the 1978 policy was never publicly expressed — unlike, for example, the Scout’s
duty to be “obedient.” It was an internal memorandum, never circulated beyond the few
members of BSA’s Executive Committee. It remained, in effect, a secret Boy Scouts policy.
Far from claiming any intent to express an idea that would be burdened by the presence of
homosexuals, BSA’s public posture — to the world and to the Scouts themselves —
remained what it had always been: one of tolerance, welcoming all classes of boys and young
men. In this respect, BSA’s claim is even weaker than those we have rejected in the past. See
ibid.

Third, it is apparent that the draftsmen of the policy statement foresaw the possibility that
laws against discrimination might one day be amended to protect homosexuals from
employment discrimination. Their statement clearly provided that, in the event such a law
conflicted with their policy, a Scout’s duty to be “obedient” and “obe[y] the laws,” even if
“he thinks [the laws] are unfair,” would prevail in such a contingency. See supra, at 666. In
1978, however, BSA apparently did not consider it to be a serious possibility that a State
might one day characterize the Scouts as a “place of public accommodation” with a duty to
open its membership to all qualified individuals. The portions of the statement dealing with
membership simply assume that membership in the Scouts is a “privilege” that BSA is free to
grant or to withhold. The statement does not address the question whether the publicly
proclaimed duty to obey the law should prevail over the private discriminatory policy if, and
when, a conflict between the two should arise — as it now has in New Jersey. At the very
least, then, the statement reflects no unequivocal view on homosexuality. Indeed, the
statement suggests that an appropriate way for BSA to preserve its unpublished exclusionary
policy would include an open and forthright attempt to seek an amendment of New Jersey’s
statute. (“If he thinks these rules and laws are unfair, he tries to have them changed in an
orderly manner rather than disobey them.”)

Fourth, the 1978 statement simply says that homosexuality is not “appropriate.” It makes no
effort to connect that statement to a shared goal or expressive activity of the Boy Scouts.
Whatever values BSA seeks to instill in Scouts, the idea that homosexuality is not
“appropriate” appears entirely unconnected to, and is mentioned nowhere in, the myriad of
publicly declared values and creeds of the BSA. That idea does not appear to be among any
of the principles actually taught to Scouts. Rather, the 1978 policy appears to be no more
than a private statement of a few BSA executives that the organization wishes to exclude
gays — and that wish has nothing to do with any expression BSA actually engages in.

The majority also relies on four other policy statements that were issued between 1991 and
1993. 5 All of them were written and issued after BSA revoked Dale’s membership.

5*
Briefs ofamici curiae urging reversal were filed for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice et al.
by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and Laura B. Hernandez; for the American Civil Rights Union by Peter J. Ferrara; for the
Becket Fund for Religious Liberty by Kevin J. Hasson and Eric W. Treene; for the California State Club Association et al. by William I. Edlund; for the
Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kim-berlee Wood Colby and Carl H.
Esbeck; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund et
al. by Erik S. Jaffe; for the Family Defense Council et al. by William E. Fay III; for the Family Research Council by Janet M. LaRue; for Gays and
Lesbians for Individual Liberty by William H. Mellar, Clint Bolick, and Scott G. Bullock; for the Individual Rights Foundation by Paul A Hoffman and
Patrick J. Manshardt; for the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America by Nathan J. Diament; for the
Liberty Legal Institute by Kelly Shackelford and George B. Flint; for the National Catholic Committee on Scouting et al. by Von G. Keetch; for the
National Legal Foundation by Barry C. Hodge; for the Pacific Legal Foundation by John H. Findley; for Public Advocate of the United States et al. by
William J. Olson and John S. Miles; for the United States Catholic Conference et al. by Mark E. Ghopko and Jeffrey Hunter Moon; and for John J.
Hurley et al. by Chester Darling, Michael Williams, and Dwight G. Duncan.
 18

Accordingly, they have little, if any, relevance to the legal question before this Court. In any
event, they do not bolster BSA’s claim.

In 1991, BSA issued two statements both stating: “We believe that homosexual conduct is
inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in
the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a
desirable role model for Scouts.” App. 457-458. A third statement issued in 1992 was
substantially the same. Id., at 459. By 1998, however, the policy had changed:

“BSA Position

“The Boy Scouts of America has always reflected the expectations that Scouting
families have had for the organization.

“We do not believe that homosexuals provide a role model consistent with these
expectations.

“Accordingly, we do not allow for the registration of avowed homosexuals as

members or as leaders of the BSA.” Id., at 461.

Aside from the fact that these statements were all issued after Dale’s membership was
revoked, there are four important points relevant to them. First, while the 1991 and 1992
statements tried to tie BSA’s exclusionary policy to the meaning of the Scout Oath and Law,
the 1998 statement abandoned that effort. Rather, BSA’s 1993 homosexual exclusion policy
was based on its view that including gays would be contrary to “the expectations that
Scouting families have had for the organization.” Ibid. Instead of linking its policy to its
central tenets or shared goals — to teach certain definitions of what it means to be “morally
straight” and “clean” — BSA chose instead to justify its policy on the “expeetatio[n]” that its
members preferred to exclude homosexuals. The 1998 policy statement, in other words, was
not based on any expressive activity or on any moral view about homosexuality. It was
simply an exclusionary membership policy, similar to those we have held insufficient in the
past. See infra, at 678-685.

Second, even during the brief period in 1991 and 1992, when BSA tried to connect its
exclusion of homosexuals to its definition of terms found in the Oath and Law, there is no
evidence that Scouts were actually taught anything about homosexuality’s alleged
inconsistency with those principles. Beyond the single sentence in these policy statements,
there is no indication of any shared goal of teaching that homosexuality is incompatible with
being “morally straight” and “clean.” Neither BSA’s mission statement nor its official
membership policy was altered; no Boy Scout or Scoutmaster Handbook was amended to
reflect the policy statement; no lessons were imparted to Scouts; no change was made to
BSA’s policy on limiting discussion of sexual matters; and no effort was made to restrict
acceptable religious affiliations to those that condemn homosexuality. In short, there is no

Briefs ofamici curiae urging affirmance were filed for the State of New Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior Deputy
Attorney General, and Charles S. Cohen, Deputy Attorney General; for the State of New York et al. by Eliot Spitzer, Attorney General of New York,
Preeta D. Bansal, Solicitor General, and Adam L. Aronson, Assistant Solicitor General, and by the Attorneys General for their respective States as
follows: Bill Lockyer of California, Earl I. Anzai of Hawaii, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Philip T.
McLaughlin of New Hampshire, W. A Drew Edmondson of Oklahoma; Hardy Myers of Oregon, William H. Sorrell of Vermont, and Christine O.
Gregoire of Washington; for the city of Atlanta et al. by Peter T. Barhur, Sara M. Darehshori, James K Hahn, David I. Schulman, Jeffrey L. Rogers,
Madelyn F. Wessel, Thomas J. Berning, Lawrence E. Rosenthal, Benna Ruth Solomon, Michael D. Hess, Leonard J. Koerner, Florence A Hutner, and
Louise Renne; for the American Association of School Administrators et al. by Mitchell A Karlan; for the American Bar Association by William G. Paul
and Robert H. Murphy; for the American Civil Liberties Union et al. by Matthew A Coles, Steven R. Shapiro, Sara L. Mandelbaum, and Leñara M.
Lapidus; for the American Jewish Congress by Marc D. Stem; for the American Psychological Association by Paul M. Smith, Nory Miller, James L.
McHugh, and Nathalie F. P. Gil-foyle; for the American Public Health Association et al. by Marvin E. Frankel, Jeffrey S. Trachtman, and Kerri Ann
Law; for Bay Area Lawyers for Individual Freedom et al. by Edward W. Swanson and Paula A Brantner; for Deans of Divinity Schools and Rabbinical
Institutions by David A Schulz; for the National Association for the Advancement of Colored People by Dennis C. Hayes and David T. Goldberg; for
Parents, Families, and Friends of Lesbians and Gays, Inc., et al. by John H. Pickering, Daniel H. Squire, and Carol J. Banta; for the Society of American
Law Teachers by Nan D. Hunter and David Cole; and for Roland Pool et al. by David M. Gische and Merril Hirsh.
Michael D. Silve'rmanfiled a brief for the General Board of Church and Society of the United Methodist Church et al.
 19

evidence that this view was part of any collective effort to foster beliefs about
homosexuality.

Third, BSA never took any clear and unequivocal position on homosexuality. Though the
1991 and 1992 policies state one interpretation of “morally straight” and “clean,” the group’s
published definitions appearing in the Boy Scout and Scoutmaster Handbooks take quite
another view. And BSA’s broad religious tolerance combined with its declaration that sexual
matters are not its “proper area” render its views on the issue equivocal at best and
incoherent at worst. We have never held, however, that a group can throw together any
mixture of contradictory positions and then invoke the right to associate to defend any one of
those views. At a minimum, a group seeking to prevail over an antidis-crimination law must
adhere to a clear and unequivocal view.

Fourth, at most the 1991 and 1992 statements declare only that BSA believed “homosexual
conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally
straight and in the Scout Law that a Scout be clean in word and deed.” App. 457 (emphasis
added). But New Jersey’s law prohibits discrimination on the basis of sexual orientation.
And when Dale was expelled from the Boy Scouts, BSA said it did so because of his sexual
orientation, not because of his sexual conduct.

It is clear, then* that nothing in these policy statements supports BSA’s claim. The only
policy written before the revocation of Dale’s membership was an equivocal, undisclosed
statement that evidences no connection between the group’s discriminatory intentions and its
expressive interests. The later policies demonstrate a brief — -though ulti mately abandoned
— attempt to tie BSA’s exclusion to its expression, but other than a single sentence, BSA
fails to show that it ever taught Scouts that homosexuality is not “morally straight” or
“clean,” or that such a view was part of the group’s collective efforts to foster a belief.
Furthermore, BSA’s policy statements fail to establish any clear, consistent, and unequivocal
position on homosexuality. Nor did BSA have any reason to think Dale’s sexual conduct, as
opposed to his orientation, was contrary to the group’s values.

BSA’s inability to make its position clear and its failure to connect its alleged policy to its
expressive activities is highly significant. By the time Dale was expelled from the Boy
Scouts in 1990, BSA had already been engaged in several suits under a variety of state
antidiscrimination public accommodation laws challenging various aspects of its membership
policy. Indeed, BSA had filed amicus briefs before this Court in two earlier right to associate
cases (Roberts v. United States Jaycees, 468 U. S. 609 (1984), and Board of Directors of
Rotary Int’l v. Rotary Club of Duarte, 481U. S. 537 (1987)) pointing to these very cases; it
was clearly on notice by 1990 that it might well be subjected to state public accommodation
antidiscrimination laws, and that a court might one day reject its claimed right to associate.
Yet it took no steps prior to Dale’s expulsion to clarify how its exclusivity was connected to
its expression. It speaks volumes about the credibility of BSA’s claim to a shared goal that
homosexuality is incompatible with Scouting that since at least 1984 it had been aware of
this issue — indeed, concerned enough to twice file amicus briefs before this Court — yet it
did nothing in the intervening six years (or even in the years after Dale’s explusion) to
explain clearly and openly why the presence of homosexuals would affect its expressive
activities, or to make the view of “morally straight” and “clean” taken in its 1991 and 1992
policies a part of the values actually instilled in Scouts through the Handbook, lessons, or
otherwise.

[…]
 20

Harper v. Poway Unified School District

United States Court of Appeals for the Ninth Circuit

445 F.3d 1166
No. 04-57037
2006-04-20
Argued and Submitted June 6, 2005.

As Amended May 31, 2006.

Before REINHARDT, KOZINSKI, and THOMAS, Circuit Judges.

Robert H. Tyler, Kevin Theriot; Alliance Defense Fund, Murrieta, CA, for the plaintiff-
appellant.

Daniel Shinoff, Jack M. Sleeth, Jr., Paul V. Carelli, TV; Stutz, Artiano, Shinoff & Holtz,
APC, San Diego, CA, for the defendants-appellees.

REINHARDT, Circuit Judge.

May a public high school prohibit students from wearing T-shirts with messages that
condemn and denigrate other students on the basis of their sexual orientation? Appellant in
this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to
school that read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CON-
DEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL”
handwritten on the back. He appeals the district court’s order denying his motion for a
preliminary injunction. Because he is not likely to succeed on the merits, we affirm the
district court’s order.

I. Factual Background

Poway High School (“the School”) has had a history of conflict among its students over
issues of sexual orientation. In 2003, the School permitted a student group called the Gay-
Straight Alliance to hold a “Day of Silence” at the School which, in the words of an
Assistant Principal, is intended to “teach tolerance of others, particularly those of a different
sexual orientation.” During the days surrounding the 2003 “Day of Silence,” a series of
incidents and altercations occurred on the school campus as a result of anti-homosex ual
comments that were made by students. One such confrontation required the Principal to
separate students physically. According to David LeMaster, a teacher at Poway, several
students were suspended as a result of these conflicts. Moreover, a week or so after the “Day
of Silence,” a group of heterosexual students informally organized a “Straight-Pride Day,”
during which they wore T-shirts which displayed derogatory remarks about homosexuals.
According to Assistant Principal Lynell Antrim, some students were asked to remove the
shirts and did so, while others “had an altercation and were suspended for their actions.”

Because of these conflicts in 2003, when the Gay-Straight Alliance sought to hold another
“Day of Silence” in 2004, the School required the organization to consult with the Principal
to “problem solve” and find ways to reduce tensions and potential altercations. On April 21,
2004, the date of the 2004 “Day of Silence,” appellant Tyler Chase Harper wore a T-shirt to
school on which “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED,” was
handwritten on the front and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’ ” was
 21

handwritten on the back. There is no evidence in the record that any school staff saw
Harper’s T-shirt on that day.

The next day, April 22, 2004, Harper wore the same T-shirt to school, except that the front of
the shirt read “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CON-
DEMNED,” while the back retained the same message as before, “HOMOSEXUALITY IS
SHAMEFUL ‘Romans 1:27.’ ” LeMaster, Harper’s second period teacher, noticed Harper’s
shirt and observed “several students off-task talking about” the shirt. LeMaster, recalling the
altercations that erupted as a result of “anti-homosexual speech” during the previ ous year’s
“Day of Silence,” explained to Harper that he believed that the shirt was “inflammatory,”
that it violated the School’s dress code, and that it “created a negative and hostile working
environment for others.” When Harper refused to remove his shirt and asked to speak to an
administrator, LeMaster gave him a dress code violation card to take to the front office.

When Harper arrived at the front office, he met Assistant Principal Antrim. She told Harper
that the “Day of Silence” was “not about the school promoting homosexuality but rather it
was a student activity trying to raise other students’ awareness regarding tolerance in their
judgement [sic] of others.” Antrim believed that Harper’s shirt “was inflammatory under the
circumstances and could cause disruption in the educational setting.” Like LeMaster, she also
recalled the altercations that had arisen as a result of anti-homosexual speech one year prior.
According to her affidavit, she “discussed [with Harper] ways that he and students of his
faith could bring a positive light onto this issue without the condemnation that he displayed
on his shirt.” Harper was informed that if he removed the shirt he could return to class.

When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him,
explaining his concern that the shirt was “inflammatory” and that it was the School’s “intent
to avoid physical conflict on campus.” Fisher also explained to Harper that it was not healthy
for students to be addressed in such a derogatory manner. According to Fisher, Harper in -
formed him that he had already been “confronted by a group of students on campus” and was
“involved in a tense verbal conversation” earlier that morning. The Principal eventually
decided that Harper could not wear his shirt on campus, a decision that, he asserts, was
influenced by “the fact that during the previous year, there was tension on campus
surrounding the Day of Silence between certain gay and straight students.” Fisher proposed
some alternatives to wearing the shirt, all of which Harper turned down. Harper asked two
times to be suspended. Fisher “told him that [he] did not want him suspended from school,
nor did [he] want him to have something in his disciplinary record because of a stance he felt
strongly about.” Instead, Fisher told Harper that he would be required to remain in the front
office for the remainder of the school day.

Harper spent the rest of the day in the school conference room doing his homework. At some
point during that day, Deputy Sheriff Norman Hubbert, who served as the school resource
officer for Poway High, came in to speak with Harper. The complaint alleges that Hubbert
“came to interrogate” Harper to “determine if he was a dangerous student.” Hubbert,
however, asserts in his affidavit that he and Harper had a “casual conversation concerning
the content of the shirt ... the Bible and [the] scripture reference on the shirt,” and that the
conversation was conducted “simpl[y out of] curiosity ... to understand the situation.”

Toward the end of the school day, Assistant Principal Ed Giles spoke with Harper. Giles had
discovered earlier in the day that Harper attended the same church that he had previously
attended, and that he “knew [Harper’s] father personally and had attended Biblical studies
that [Harper’s] father led on Tuesday nights.” According to Giles, he went to speak with
Harper “out of respect to [Harper] and his family” and “to make sure he was alright.” Giles
told Harper that he understood “where he was coming from” but wished that he could
“express himself in a more positive way.” Giles also said that he shared the same Christian
faith as Harper, but that as a school employee, he had to watch how he expressed his beliefs
and that when he came to work, he had to “leave his faith in [the] car.” Giles then asked
 22

Harper to “consider other alternatives that would be more positive and non-confrontational,”
including sponsoring activities through the campus Bible Club.

After his conversation with Giles, Harper remained in the office for the last period of the
day, after which he was instructed to proceed directly off campus. Harper was not suspended,
no disciplinary record was placed in his file, and he received full attendance credit for the
day.

II. Procedural History

On June 2, 2004, Harper filed a lawsuit in district court against Poway Unified School
District and certain named individuals in their individual and official capacities. Harper
alleged five federal causes of action — violations of his right to free speech, his right to free
exercise of religion, the Establishment Clause, the Equal Protection Clause, and the Due
Process Clause — and one state law claim based on California Civil Code § 52.1, which
creates a private cause of action for the violation of individual federal and state
constitutional rights. On June 22, 2004, the School filed a motion to dismiss, and on July 12,
2004, Harper filed a motion for a preliminary injunction seeking to enjoin the school from
“continuing [its] violation of the constitutional rights of Plaintiff Tyler Chase Harper.” On
November 4, 2004, the district court granted the School’s motion to dismiss as to Harper’s
equal protection, due process, and state law claims, but denied the motion as to his three First
Amendment claims: freedom of speech, free exercise of religion, and establishment of
religion. The district court also granted the School’s motion to dismiss Harper’s damages
claims against Poway Unified School District and the individual defendants on the ground of
qualified immunity. Finally, the district court denied Harper’s motion for a preliminary
injunction. Harper then filed an interlocutory appeal from the order denying the latter
motion.

III. Jurisdiction

We have jurisdiction to review the district court’s denial of the preliminary injunction
motion under 28 U.S.C. § 1292(a)(1).

IY. Standard and Scope of Review

For a district court to grant a preliminary injunction, the moving party must demonstrate
either “(1) a combination of probable success on the merits and the possibility of irreparable
harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.”
A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001). “Each of these
two formulations requires an examination of both the potential merits of the asserted claims
and the harm or hardships faced by the parties.” Sammartano v. First Judicial Dist. Court,
303 F.3d 959, 965 (9th Cir.2002). “These two alternatives represent extremes of a single
continuum, rather than two separate tests.” Sun Microsystems, Inc. v. Microsoft Corp., 188
F.3d 1115, 1119 (9th Cir.1999) (citation and internal quotation marks omitted). Accordingly,
“the greater the relative hardship to the moving party, the less probability of success must be
shown.” Id. (citation and internal quotation marks omitted).

The district court concluded, and the School concedes on appeal, that because Harper’s First
Amendment claims survived the motion to dismiss, Harper made the necessary showing of
irreparable harm. See Sammartano, 303 F.3d at 973 (internal quotation marks omitted) (“[A]
party seeking preliminary injunctive relief in a First Amendment context can establish
irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a
colorable First Amendment claim.”). The balance of hardships does not, however, tip in his
favor. Therefore, the question is whether Harper demonstrated a likelihood of success on the
merits as to any or all of his three First Amendment claims.
 23

We review a district court’s grant or denial of a preliminary injunction for abuse of

discretion. A & M Records, Inc., 239 F.3d at 1013. We will reverse “only where the district
court abused its discretion or based its decision on an erroneous legal standard or on clearly
erroneous findings of fact.” El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir.-
2003) (citation and internal quotation marks omitted). Where, as here, the appellant does not
dispute the district court’s factual findings, we are required to determine “whether the court
employed the appropriate legal standards governing the issuance of a preliminary injunction
and whether the district court correctly apprehended the law with respect to the underlying
issues in the case.” A & M Records, Inc., 239 F.3d at 1013 (internal quotation and citation
omitted). The district court’s interpretation of the underlying legal principles is subject to de
novo review. Id. We may affirm the district court’s order “on any ground supported by the
record even if it differs from the rationale of the district court.” Nat’l Wildlife Fed’n v. Unit-
ed States Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004).

V. Analysis

I. Freedom of Speech Claim

The district court concluded that Harper failed to demonstrate a likelihood of success on the
merits of his claim that the School violated his First Amendment right to free speech
because, under Tinker v. Des Moines Indep. Cmty. Sch. Dist., the evidence in the record was
sufficient to permit the school officials to “reasonably ... forecast substantial disruption of or
material interference with school activities.” 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d
731 (1969). Harper contends that the district court erred in rejecting his free speech claim on
three grounds: (1) his speech is protected under the Supreme Court’s holdings in Tinker and
Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); (2) the
School’s actions and policies amount to viewpoint discrimination under Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700
(1995); and (3) the School’s dress code and speech policies are over-broad under Bd. of
Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568,
96 L.Ed.2d 500 (1987). We affirm the district court’s denial of the requested preliminary
injunction. Although we, like the district court, rely on Tinker, we rely on a different
provision — that schools may prohibit speech that “intrudes upon ... the rights of other
students.” Tinker, 393 U.S. at 508, 89 S.Ct. 733.

a. Student Speech Under Tinker

Public schools are places where impressionable young persons spend much of their time
while growing up. They do so in order to receive what society hopes will be a fair and full
education — an education without which they will almost certainly fail in later life, likely
sooner rather than later. See Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98
L.Ed. 873 (1954) (“[I]t is doubtful that any child may reasonably be expected to succeed in
life if he is denied the opportunity of an education.”). The public school, with its free
education, is the key to our democracy. See id. (stating that public education “is the very
foundation of good citizenship”). Almost all young Americans attend public schools. During
the time they do — from first grade through twelfth — students are discovering what and
who they are. Often, they are insecure. Generally, they are vulnerable to cruel, inhuman, and
prejudiced treatment by others.

The courts have construed the First Amendment as applied to public schools in a manner that
attempts to strike a balance between the free speech rights of students and the special need to
maintain a safe, secure and effective learning environment. See, e.g., Tinker, 393 U.S. at
507, 89 S.Ct. 733 (balancing the need for “scrupulous protection of Constitutional freedoms
of the individual” against the need of schools to perform their proper educational function).
This court has expressly recognized the need for such balance: “States have a compelling
interest in their educational system, and a balance must be met between the First Amend ment
 24

rights of students and preservation of the educational process.” LaVine v. Blaine Sch. Dist.,
257 F.3d 981, 988 (9th Cir.2001). Although public school students do not “shed their
constitutional rights to freedom of speech or expression at the sehoolhouse gate,” Tinker, 393
U.S. at 506, 89 S.Ct. 733, the Supreme Court has declared that “the First Amendment rights
of students in public schools are not automatically coextensive with the rights of adults in
other settings, and must be applied in light of the special characteristics of the school
environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98
L.Ed,2d 592 (1988) (internal citation and quotation marks omitted). Thus, while Harper’s
shirt embodies the very sort of political speech that would be afforded First Amendment
protection outside of the public school setting, his rights in the case before us must be
determined “in light of [those] special characteristics.” Tinker, 393 U.S. at 506, 89 S.Ct. 733.

This court has identified “three distinct areas of student speech,” each of which is governed
by different Supreme Court precedent: (1) vulgar, lewd, obscene, and plainly offensive
speech which is governed by Fraser, (2) school-sponsored speech which is governed by
Hazelwood, and (3) all other speech which is governed by Tinker. Chandler v. McMinnville
Sch. Dist., 978 F.2d 524, 529 (9th Cir.1992) (internal citations omitted).

In Tinker, the Supreme Court confirmed a student’s right to free speech in public schools.16
In balancing that right against the state interest in maintaining an ordered and effective
public education system, however, the Court declared that a student’s speech rights could be
curtailed under two circumstances. First, a school may regulate student speech that would
“impinge upon the rights of other students.” Tinker, 393 U.S. at 509, 89 S.Ct. 733. Second, a
school may prohibit student speech that would result in “substantial disruption of or material
interference with school activities.” Id. at 514, 89 S.Ct. 733. Because, as we explain below,
the School’s prohibition of the wearing of the demeaning T-shirt is constitutionally per-
missible under the first of the Tinker prongs, we conclude that the district court did not abuse
its discretion in finding that Harper failed to demonstrate a likelihood of success on the
merits of his free speech claim.

i. The Rights of Other Students

In Tinker, the Supreme Court held that public schools may restrict student speech which
“intrudes upon ... the rights of other students” or “collides] with the rights of other students
to be secure and to be let alone.” 393 U.S. at 508, 89 S.Ct. 733. Harper argues that Tinker’s
reference to the “rights of -other students” should be construed narrowly to involve only
circumstances in which a student’s right to be free from direct physical confrontation is
infringed. Drawing on the Fifth Circuit’s opinion in Blackwell v. Issaquena County Bd. of
Ed., 363 F.2d 749, 751 (5th Cir.1966), which the Supreme Court cited in Tinker, Harper
contends that because the speakers in Blackwell “accosted other students by pinning the
buttons on them even though they did not ask for one,” a student must be physically accosted
in order to have his rights infringed.

Notwithstanding the facts of Blackwell, the law does not support Harper’s argument. This
court has explained that vulgar, lewd, obscene, indecent, and plainly offensive speech “by
definition, may well ‘impinge[] upon the rights of other students,’ ” even if the speaker does
not directly accost individual students with his remarks. Chandler, 978 F.2d at 529 (quoting
Tinker, 393 U.S. at 509, 89 S.Ct. 733). So too may other speech capable of causing
psychological injury. The Tenth Circuit has held that the “display of the Confederate flag
might ... interfere with the rights of other students to be secure and let alone,” even though
there was no indication that any student was physically accosted with the flag, aside from its
general display. West v. Derby Unified Sch. Dist., 206 F.3d 1358, 1366 (10th Cir.2000).
While “[t]he precise scope of Tinker’s ‘interference with the rights of others’ language is
unclear,” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3rd Cir.2001), we
unequivocally reject Harper’s overly narrow reading of the phrase.
 25

We conclude that Harper’s wearing of his T-shirt “collides] with the rights of other students”
in the most fundamental way. Tinker, 393 U.S. at 508, 89 S.Ct. 733. Public school students
who may be injured by verbal assaults on the basis of a core identifying characteristic such
as race, religion, or sexual orientation, have a right to be free from such attacks while on
school campuses. As Tinker clearly states, students have the right to “be secure and to be let
alone.” Id,. Being secure involves not only freedom from physical assaults but from
psychological attacks that cause young people to question their self-worth and their rightful
place in society. The “right to be let alone” has been recognized by the Supreme Court, of
course, as “ ‘the most comprehensive of rights and the right most valued by civilized men.’ ”
Hill v. Colorado, 530 U.S. 703, 716-17, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting
Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandéis,
J., dissenting)). Indeed, the “recognizable privacy interest in avoiding unwanted
communication” is perhaps most important “when persons are ‘powerless to avoid’ it.” Id. at
716, 120 S.Ct. 2480 (quoting Cohen v. California, 403 U.S. 15, 21-22, 91 S.Ct. 1780, 29
L.Ed.2d 284 (1971)). Because minors are subject to mandatory attendance requirements, the
Court has emphasized “the obvious concern on the part of parents, and school authorities
acting in loco parentis, to protect children — especially in a captive audience.... ” Fraser, 478
U.S. at 684, 106 S.Ct. 3159. Although name-calling is ordinarily protected outside the school
context, “[sjtudents cannot hide behind the First Amendment to protect their ‘right’ to abuse
and intimidate other students at school.” Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307
F.3d 243, 264 (3rd Cir.2002).

Speech that attacks high school students who are members of minority groups that have
historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior,
serves to injure and intimidate them, as well as to damage their sense of security and
interfere with their opportunity to learn. The demeaning of young gay and lesbian students in
a school environment is detrimental not only to their psychological health and well-being,
but also to their educational development. Indeed, studies demonstrate that “academic
underachievement, truancy, and dropout are prevalent among homosexual youth and are the
probable consequences of violence and verbal and physical abuse at school.” Susanne M.
Stronski Huwiler and Gary Remafedi, Adolescent Homosexuality, 33 Rev. Jur. U.I.P.R. 151,
164 (1999); see also Thomas A. Mayes, Confronting Same-Sex, Student-to-Student Sexual
Harassment: Recommendations for Educators and Policy Makers, 29 Fordham Urb. L.J. 641,
655 (2001) (describing how gay students are at a greater risk of school failure and dropping
out, most likely as a result of “social pressure and isolation”); Amy Lovell, “Other Students
Always Used to Say, ‘Look At The Dykes’ ”: Protecting Students From Peer Sexual
Orientation Harassment, 86 Cal. L.Rev. 617, 625-28 (1998) (summarizing the negative
effects on gay students of peer sexual orientation harassment). One study has found that
among teenage victims of anti-gay discrimination, 75% experienced a decline in academic
performance, 39% had truancy problems and 28% dropped out of school. See Courtney
Weiner, Note, Sex Education: Recognizing Anti-Gay Harassment as Sex Discrimination
Under Title VII and Title IX, 37 Colum. Hum. Rts. L.Rev. 189, 225 (2005). Another study
confirmed that gay students had difficulty concentrating in school and feared for their safety
as a result of peer harassment, and that verbal abuse led some gay students to skip school and
others to drop out altogether. Human Rights Watch, Hatred in the Hallways (1999), http://hr
w.org/reports/2001/uslgbt/Final-05.htm# P609_91364. Indeed, gay teens suffer a school
dropout rate over three times the national average. Nat’l Mental Health Ass’n, Bullying in
Schools: Harassment Puts Gay Youth at Risk, http://
www.nmha.org/pbedu/backtoschool/bullyingGayYouth.pdf; see also Maurice R. Dyson, Safe
Rules or Gays’ Schools? The Dilemma of Sexual Orientation Segregation in Public
Education, 7 U. Pa. J. Const. L. 183, 187 (2004) (gay teens face greater risks of “dropping
out [and] performing poorly in school”); Kelli Armstrong, The Silent Minority Within a Mi-
nority: Focusing on the Needs of Gay Youth in Our Public Schools, 24 Golden Gate U.
L.Rev. 67, 76-77 (1994) (describing how abuse by peers causes gay youth to experience
 26

social isolation and drop out of school). In short, it is well established that attacks on
students on the basis of their sexual orientation are harmful not only to the students’ health
and welfare, but also to their educational performance and their ultimate potential for success
in life.

Those who administer our public educational institutions need not tolerate verbal assaults
that may destroy the self-esteem of our most vulnerable teenagers and interfere with their
educational development. See Muller by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530,
1540 (7th Cir.1996) (stating that elementary schools may restrict speech “that could crush a
child’s sense of self-worth”); Saxe, 240 F.3d at 217 (observing that speech that “substantially
interferes] with a student’s educational performance” may satisfy the Tinker standard). To
the contrary, the School had a valid and lawful basis for restricting Harper’s wearing of his
T-shirt on the ground that his conduct was injurious to gay and lesbian students and
interfered with their right to learn.

The dissent claims that we should not take notice of the fact that gay students are harmed by
derogatory messages such as Harper’s because there is no “evidence” that they are in fact
injured by being shamed or humiliated by their peers. See dis. op. at 1198-1199. It is simply
not a novel concept, however, that such attacks on young minority students can be harmful to
their self-esteem and to their ability to learn. As long ago as in Brown v. Board of Education,
the Supreme Court recognized that “[a] sense of inferiority affects the motivation of a child
to learn.” 347 U.S. at 494, 74 S.Ct. 686 (internal quotation marks omitted). If a school per -
mitted its students to wear shirts reading, “Negroes: Go Back To Africa,” no one would
doubt that the message would be harmful to young black students. So, too, in the case of gay
students, with regard to messages such as those written on Harper’s T-shirt. As our
dissenting colleague recently concluded, “[y]ou don’t need an expert witness to figure out”
the self-evident effect of certain policies or messages. Jespersen v. Harrah’s Operat ing Co.,
Inc., 444 F.3d 1104, 1117, at *13 (9th Cir.2006) (Kozinski, Circuit Judge, dissenting). Just as
Judge Kozinski found it to be “perfectly clear” — without the aid of any evidence in the
record — that an employer’s makeup requirement burdened women, the fact that Harper’s
demeaning statement is harmful to gay students at Poway High “hardly seem[s] like [a] ques -
tion ] reasonably subject to dispute.” Id. at *12, 1117. One would think that if we should be
able to take notice of how long it takes women to put on makeup, or that makeup is an
expensive item, we can certainly take notice that it is harmful to gay teenagers to be publicly
degraded and called immoral and shameful. Certainly, the California legislature had no
difficulty in determining that harassment on the basis of sexual orientation adversely affects
the rights of public high school students. See Cal. Educ.Code § 201(c).

The dissent takes comfort in the fact that there is a political disagreement regarding
homosexuality in this country. See dis. op. at 1197. We do not deny that there is, just as there
was a longstanding political disagreement about racial equality that reached its peak in the
1950’s and about whether religious minorities should hold high office that lasted at least
until after the 1960 presidential election, or whether blacks or Jews should be permitted to
attend private universities and prep schools, work in various industries such as banks,
brokerage houses, and Wall Street law firms, or stay at prominent resorts or hotels. Such
disagreements may justify social or political debate, but they do not justify students in high
schools or elementary schools assaulting their fellow students with demeaning statements: by
calling gay students shameful, by labeling black students inferior or by wearing T-shirts
saying that Jews are doomed to Hell. Perhaps our dissenting colleague believes that one can
condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that
homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful. There
are numerous locations and opportunities available to those who wish to advance such an
argument. It is not necessary to do so by directly condemning, to their faces, young students
trying to obtain a fair and full education in our public schools.
 27

Our dissenting colleague also appears to believe that the fact that Harper wore his T-shirt in
response to a “Day of Silence” somehow lessens the injurious effect of his act because by
participating in the gay rights event, gay students “perforce acknowledge that their status is
not universally admired or respected.” Dis. op. at 1200. This argument is completely without
merit. The fact that gays, or for that matter blacks, Jews, or Latinos, recognize that they are
the subject of prejudice and are not “respected” or considered equal by some in certain public
schools in this country does not mean that they are not injured when the usually unspoken
prejudice turns into harmful verbal conduct. Moreover, the dissent’s assertion that gay stu-
dents may prefer to see the demeaning statements contained on Harper’s T-shirt rather than
on bathroom walls makes even less sense. See id. The First Amendment does not justify
students launching such injurious and harmful personal attacks in either location.

What we hold in this opinion is a far cry from what the dissent suggests. We do not hold that
schools may “define civic responsibility and then ban opposing points of view.” Id. at 1196
n. 7. The question of what types of assemblies schools should or may conduct regarding
controversial public issues or what types of speech students may otherwise generally engage
in regarding such issues is not before us. Different circumstances require different results.
We consider here only whether schools may prohibit the wearing of T-shirts on high school
campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms
relating to a core characteristic of particularly vulnerable students and that may cause them
significant injury. We do not believe that the schools are forbidden to regulate such conduct.
Nor, contrary to the dissent, do we believe that because a school sponsors or permits a “Day
of Tolerance” or a “Day of Silence” minority students should be required to publicly
“[c]onfront[ ]” and “refut[e]” demeaning verbal assaults on them — that they may be left
with no option other than to try to justify their sexual practices to the entire student body or
explain to all their fellow students why they are not inferior or evil. Id. at 1200. The First
Amendment does not require that young students be subjected to such a destructive and
humiliating experience.

In his declaration in the district court, the school principal justified his actions on the basis
that “any shirt which is worn on campus which speaks in a derogatory manner towards an
individual or group of individuals is not healthy for young people.... ” If, by this, the
principal meant that all such shirts may be banned under Tinker, we do not agree. T-shirts
proclaiming, “Young Republicans Suck,” or “Young Democrats Suck,” for example, may not
be very civil but they would certainly not be sufficiently damaging to the individual or the
educational process to warrant a limitation on the wearer’s First Amendment rights.
Similarly, T-shirts that denigrate the President, his administration, or his policies, or
otherwise invite political disagreement or debate, including debates over the war in Iraq,
would not fall within the “rights of others” Tinker prong.

Although we hold that the School’s restriction of Harper’s right to carry messages on his T-
shirt was permissible under Tinker, we reaffirm the importance of preserving student speech
about controversial issues generally and protecting the bedrock principle that students “may
not be confined to the expression of those sentiments that are officially approved.” Tinker,
393 U.S. at 511, 89 S.Ct. 733; see also Fraser, 478 U.S. at 681, 106 S.Ct. 3159 (noting
students’ “freedom to advocate unpopular and controversial views in schools and
classrooms”). It is essential that students have the opportunity to engage in full and open
political expression, both in and out of the school environment. Engaging in controversial
political speech, even when it is offensive to others, is an important right of all Americans
and learning the value of such freedoms is an essential part of a public school education.
Indeed, the inculcation of “the fundamental values necessary to the maintenance of a
democratic political system” is “truly the ‘work of the schools.’ ” Fraser, 478 U.S. at 683,
106 S.Ct. 3159 (quoting Tinker, 393 U.S. at 508, 89 S.Ct. 733). Limitations on student
speech must be narrow, and applied with sensitivity and for reasons that are consistent with
the fundamental First Améndment mandate. Accordingly, we limit our holding to instances
 28

of derogatory and injurious remarks directed at students’ minority status such as race,
religion, and sexual orientation. Moreover, our decision is based not only on the type and
degree of injury the speech involved causes to impressionable young people, but on the
locale in which it takes place. See Tinker, 393 U.S. at 506, 89 S.Ct. 733 (student rights must
be construed “in light of the special characteristics of the school environment”). Thus,' it is
limited to conduct that occurs in public high schools (and in elementary schools). As young
students acquire more strength and maturity, and specifically as they reach college age, they
become adequately equipped emotionally and intellectually to deal with the type of verbal
assaults that may be prohibited during their earlier years. Accordingly, we do not condone
the use in public colleges or other public institutions of higher learning of restrictions similar
to those permitted here.

Finally, we emphasize that the School’s actions here were no more than necessary to prevent
the intrusion on the rights of other students. Aside from prohibiting the wearing of the shirt,
the School did not take the additional step of punishing the speaker: Harper was not
suspended from school nor was the incident made a part of his disciplinary record.

Under the circumstances present here, we conclude that the School’s actions did not extend
beyond the scope of the restrictions permitted by Tinker, and that the district court did not
abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the
merits of his free speech claim.

ii. Substantial Disruption

The district court concluded that Harper had failed to demonstrate a likelihood of success on
the merits of his free speech claim because there was sufficient evidence to permit the school
officials to “reasonably ... forecast substantial disruption of or material interference with
school activities.” Tinker, 393 U.S. at 514, 89 S.Ct. 733. In so holding, the district court re-
lied on the declarations of Principal Fisher, Assistant Principal Antrim, and Le-Master which
described how the previous year’s “Day of Silence” had resulted in “volatile behavior” and
“tensions between students,” including physical altercations. The court also cited LeMaster’s
testimony that he had observed disruption in the class that Harper attended while wearing the
T-shirt, and Principal Fisher’s testimony that Harper told him that a “tense verbal
conversation with a group of students” had already taken place due to the T-shirt’s message.

In light of our conclusion regarding the application of the “rights of others” prong of Tinker,
we have no cause to decide whether the evidence would be sufficient to warrant denial of a
preliminary injunction under the “substantial disruption” prong as well.

b. Viewpoint Discrimination

In reaching our decision that Harper may lawfully be prohibited from wearing his T-shirt, we
reject his argument that the School’s action constituted impermissible viewpoint
discrimination. The government is generally prohibited from regulating speech “when the
specific motivating ideology or the opinion or perspective of the speaker is the rationale for
the restriction.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. However, as the district court
correctly pointed out, speech in the public schools is not always governed by the same rules
that apply in other circumstances. See Hazelwood, 484 U.S. at 266, 108 S.Ct. 562; Fraser,
478 U.S. at 685, 106 S.Ct. 3159; West, 206 F.3d at 1366 (schools may ban student speech
that “could well be considered a form of political speech to be afforded First Amendment
protection outside the educational setting”). Indeed, the Court in Tinker held that a school
may prohibit student speech, even if the consequence is viewpoint discrimination, if the
speech violates the rights of other students or is materially disruptive. See Tinker, 393 U.S.
at 511, 89 S.Ct. 733 (stating school cannot prohibit “expression of one particular opinion”
unless it makes a specific showing of constitutionally valid reasons); see also Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir.2004) (stating that Tinker “applies to
 29

school regulations directed at specific student viewpoints”); Muller by Muller, 98 F.3d at

1538 (emphasis added) (observing difference between suppressing religious speech “solely
because it is religious” and suppressing speech that is “religious and disruptive or hurtful”).
Thus, pursuant to Tinker, courts have allowed schools to ban the display of Confederate flags
despite the fact that such a ban may constitute viewpoint discrimination. See Scott, 324 F.3d
at 1248 (upholding ban on Confederate flag where school officials presented evidence of
racial tensions at the school); West, 206 F.3d at 1366 (same). While the Confederate flag
may express a particular viewpoint, “[i]t is not only constitutionally allowable for school
officials” to limit the expression of racially explosive views, “it is their duty to do so.” Scott,
324 F.3d at 1249. Because, as we have already explained, the record demonstrates that
Harper’s speech intruded upon the rights of other students, the School’s restriction is
permissible under Tinker, and we must reject Harper’s viewpoint discrimination claim.

The dissent claims that although the School may have been justified in banning discussion of
the subject of sexual orientation altogether, it cannot “gag[ ] only those who oppose the Day
of Silence.” Dis. op. at 1197. As we have explained, however, although Tinker does not
allow schools to restrict the non-invasive, non-disruptive expression of political viewpoints,
it does permit school authorities to restrict “one particular opinion” if the expression would
“impinge upon the rights of other students” or substantially disrupt school activities. Tinker,
393 U.S. at 509, 511, 89 S.Ct. 733. Accordingly, a school may permit students to discuss a
particular subject without being required to allow them to launch injurious verbal assaults
that intrude upon the rights of other students.

“A school need not tolerate student speech that is inconsistent with its basic educational
mission, [] even though the government could not censor similar speech outside the school.”
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592
(1988) (citation and internal quotation marks omitted). Part of a school’s “basic educational
mission” is the inculcation of “fundamental values of habits and manners of civility essential
to a democratic society.” Fraser, 478 U.S. at 681, 106 S.Ct. 3159 (internal quotation marks
omitted). For this reason, public schools may permit, and even encourage, discussions of
tolerance, equality and democracy without being required to provide equal time for student
or other speech espousing intolerance, bigotry or hatred. As we have explained, supra pp.
1182-1183, because a school sponsors a “Day of Religious Tolerance,” it need not permit its
students to wear T-shirts reading, “Jews Are ChrisNKillers” or “All Muslims Are Evil
Doers.” Such expressions would be “wholly inconsistent with the ‘fundamental values’ of
public school education.” Id. at 685-86, 106 S.Ct. 3159. Similarly, a school that permits a
“Day of Racial Tolerance,” may restrict a student from displaying a swastika or a Confeder -
ate Flag. See West, 206 F.3d at 1365-66. In sum, a school has the right to teach-civic
responsibility and tolerance as part of its basic educational mission; it need not as a quid pro
quo permit hateful and injurious speech that runs counter to that mission.

We again emphasize that we do not suggest that all debate as to issues relating to tolerance
or equality may be prohibited. As we have stated repeatedly, we consider here only the
question of T-shirts, banners, and other similar items bearing slogans that injure students
with respect to their core characteristics. Other issues must await another day.

2. Free Exercise of Religion Claim

Harper also contends that the district court erred because he was entitled to a preliminary
injunction as a result of the School’s violation of his rights under the Free Exercise Clause. -
He asserts that his wearing of the T-shirt was “motivated by sincerely held religious beliefs”
regarding homosexuality and that the School “punished” him for expressing them, or other-
wise burdened the exercise of those views. Additionally, Harper argues that the School
“attempted to change” his religious views and that this effort violated both the Free Exercise
Clause and the Establishment Clause.
 30

The Free Exercise Clause of the First Amendment provides that Congress shall make no law
“prohibiting the free exercise” of religion. U.S. Const, amend. I. The Clause prohibits the
government from “compelling] affirmation of religious belief, punish[ing] the expression of
religious doctrines it believes to be false, imposing] special disabilities on the basis of
religious views or religious status, or lending] its power to one or the other side in
controversies over religious authority or dogma.” Employment Div., Dep’t of Human Res. of
Oregon v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (internal
quotation marks and citations omitted).

In Sherbert v. Vemer, the Supreme Court held that governmental actions that substantially
burden a religious belief or practice must be justified by a compelling state interest and must
be narrowly tailored to serve that interest. 374 U.S. 398, 402-03, 83 S.Ct. 1790, 10 L.Ed.2d
965 (1963). The Sherbert test was later largely discarded in Smith, which held that the “right
of free.exercise does not relieve an individual of the obligation to comply with a ‘valid and
neutral law of general applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes).’ ” 494 U.S. 872, 879, 110 S.Ct. 1595,
108 L.Ed.2d 876 (1990) (citation omitted). The Court held that a neutral law of general
applicability need not be supported by a compelling governmental interest even though it has
the incidental effect of burdening religion. See id. at 885, 110 S.Ct. 1595; see also Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124
L.Ed.2d 472 (1993). The Court noted, however, that a “hybrid claim,” ie., a claim that
involves “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction
with other constitutional protections, such as freedom of speech,” merits application of strict
scrutiny: the law or action must be narrowly tailored to advance a compelling government
interest. Smith, 494 U.S. at 881, 110 S.Ct. 1595; see also Miller v. Reed, 176 F.3d 1202,
1207 (9th Cir.1999) (same). Although it did not say so expressly, in Smith the Court
preserved the Sherbert test for use in hybrid-rights cases. In order, however, “to assert a
hybrid-rights claim, a free exercise plaintiff must make out a colorable claim that a
companion right has been violated — that is, a fair probability or a likelihood, but not a
certitude, of success on the merits.” Miller, 176 F.3d at 1207 (internal citation and quotation
marks omitted).

Harper does not contend that the School’s prohibition against his wearing his T-shirt was
motivated by other than secular reasons or that it was applied to him because of his religious
views. Nor is there anything in the record to suggest that other students wearing T-shirts
similarly demeaning of gay and lesbian members of the student body would be treated
differently, Christians or not. Under Smith, Harper’s claim would surely fail. Harper asserts,
however, that we should apply Sherbert’s strict scrutiny test to his free exercise claim
because his is a “hybrid” claim involving the Free Exercise Clause in conjunction with other
constitutional claims. The School disagrees, arguing that the district court properly applied
rational basis review under Smith because its prohibition of Harper’s speech involved a
“valid and neutral [rule] of general applicability.” Smith, 494 U.S. at 879, 110 S.Ct. 1595.

We seriously doubt that there is “a fair probability or a likelihood” that Harper’s claim that a
companion right — free speech — has been violated will succeed on the merits, as required
by Miller. 176 F.3d at 1207 (internal quotation marks omitted). In fact, we are fairly
confident that it will not, for the reasons we have explained supra Part V.l. Nevertheless, we
need not decide whether Harper’s free exercise claim is properly deemed a “hybrid” claim,
because, whether or not Sherbert’s strict scrutiny test applies, Harper cannot prevail here.
“Under the Sherbert test, governmental actions that substantially burden a religious practice
must be justified by a compelling governmental interest.” Smith, 494 U.S. at 883, 110 S.Ct.
1595. In this case, Harper flunks the test in every respect.

Assuming that Sherbert applies, we must first consider whether the School’s actions
“substantially burden” a religious practice or belief. The record simply does not demonstrate
 31

that the School’s restriction regarding Harper’s T-shirt imposed a substantial burden upon
the free exercise of Harper’s religious beliefs. There is no evidence that the School
“compelled] affirmation of a repugnant belief,” “penalize[d] or discriminate^] against
[Harper] because [he] hold[s] religious views abhorrent to the authorities,” or “conditioned]
the availability of benefits upon [Harper’s] willingness to violate a cardinal principle of [his]
religious faith.” Sherbert, 374 U.S. at 402, 406, 83 S.Ct. 1790. Nor did the School “lend its
power to one or the other side in controversies over religious authority or dogma,” or “punish
the expression of religious doctrines it believes to be false.” Smith, 494 U.S. at 877, 110
S.Ct. 1595.

Despite Harper’s allegation that the School “punished” him for expressing his religious
views, the record demonstrates the contrary: the School did not punish Harper at all. It
simply prohibited him from wearing the offensive and disruptive shirt and required him to
refrain from attending class for a portion of a day, if he insisted on.continuing to wear it. Nor
did the restriction imposed on Harper’s wearing of the T-shirt constitute a substantial
limitation on his right to express his religious views. No one has the right to proclaim his
views at all times in all manners in all places, regardless of the circumstances, and Harper
does not contend that his religion suggests otherwise. Harper remains free to express his
views, whatever their merits, on other occasions and in other places. The prohibition against
the wearing of a T-shirt in school does not constitute a substantial burden on the ex ercise of
his religious beliefs.

Even if a religious creed, or an individual’s interpretation of that creed, could be said to

require its adherents to proclaim their religious views at all times and in all places, and to do
so in a manner that interferes with the rights of others, the First Amendment would not
prohibit the state from banning such disruptive conduct in certain circumstances, including
on a high school campus. The Constitution does not authorize one group of persons to force
its religious views on others or to compel others to abide by its precepts. Nor does it
authorize individuals to engage in conduct, including speech, on the grounds of public
schools, that is harmful to other students seeking to obtain a fair and equal education — even
if those individuals hold a sincere belief that the principles of their religion require them to
discriminate against others, or to publicly proclaim their discriminatory views whenever they
believe that “evil” practices are being condoned. See Sherbert, 374 U.S. at 403, 83 S.Ct.
1790 (internal quotation marks omitted) (“[E]ven when the action is in accord with one’s
religious convictions, it is not totally free from legislative restrictions”). Schools may
prohibit students and others from disrupting the educational process or causing physical or
psychological injury to young people entrusted to their care, whatever the motivations or
beliefs of those engaged in such conduct. Indeed, the state’s interest in doing so is
compelling.

Because there is no evidence that the School’s restriction on Harper’s wearing of his T-shirt
substantially burdened a religious practice or belief, and because the School has a compelling
interest in providing a proper educational environment for its students and because its actions
were narrowly tailored to achieve that end, it would appear that the district court did not
abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the
merits as to his free exercise of religion claim. Before reaching that conclusion, however, we
must deal with one final argument that Harper raises as a part of that claim. Harper asserts
that the School “attempted to change” his religious views that “homosexuality is harmful to
both those who practice it and the community at large.” Specifically, Harper alleges that the
school officials’ comments that his shirt was “inflammatory,” Detective Hubbert’s
questioning of him, and Assistant Principal Giles’ statement that he leaves his Christian faith
in the car when he comes to school, all were attempts by school authorities to change his
religious views.
 32

The district court rejected Harper’s contention. Indeed, there is no evidence in the record that
the school representatives sought to change Harper’s religious beliefs. Harper’s complaint
avers that Detective Hubbert “proposed to [Harper] that as a member of the Christian faith,
he should understand that Christianity was based on love not hate, and that [he] should not be
offensive to others.” Hubbert’s homily did not constitute an attempt to change Harper’s
religious views, simply his offensive behavior; at most, it was, as the district court
concluded, an “option[] presented to and left with” Harper. The statements that the message
on Harper’s shirt was “inflammatory” and would be harmful to the educational environment
were merely statements of fact that represented the School’s informed judgment. More
important, like Hubbert’s statement, they were designed to affect Harper’s behavior not his
beliefs. As for Giles’ comments, his affidavit stated that he did not tell Harper to “leave his
own faith in the car,” but explained that, as a school employee, he, Giles, had to leave his
own Christian faith in the car when he came to work. While Giles’ statement might also be
construed as an attempt to encourage Harper to change his conduct — to refrain, while on
campus, from expressing religious views that denigrate others — it cannot be characterized
as an attempt to change his views. In fact, rather than tell Harper to change his beliefs, Giles
encouraged him to join the campus Bible Club so that he could become part of an “activity
that would express his [Christian] opinions in a positive way on campus,” an activity that
was wholly consistent with Harper’s religious views. The record thus does not support
Harper’s claim that the School violated his free exercise right by “attempting to change” his
religious views.

Moreover, school officials’ statements and any other school activity intended to teach Harper
the virtues of tolerance constitute a proper exercise of a school’s educational function, even
if the message conflicts with the views of a particular religion. A public school’s teaching of
secular democratic values does not constitute an unconstitutional attempt to influence
students’ religious beliefs. Rather, it simply reflects the public school’s performance of its
duty to educate children regarding appropriate secular subjects in an appropriate secular
manner. As we have reiterated earlier, “the inculcation of fundamental values necessary to
the maintenance of a democratic political system” is “truly the ‘work of the schools.’ ”
Fraser, 478 U.S. at 681, 683, 106 S.Ct. 3159 (quoting Ambach v. Norwich, 441 U.S. 68, 76- -
77, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979); quoting Tinker, 393 U.S. at 508, 89 S.Ct. 733).
Public schools are not limited to teaching materials that are consistent with all aspects of the
views of all religions. So long as the subject and materials are appropriate from an
educational standpoint and the purpose of the instruction is secular, the school’s teaching is
not subject to a constitutional objection that it conflicts with a view held by members of a
particular religion. There is no evidence here that the school officials’ comments were
associated with a religious, as opposed to a secular, purpose. Their affidavits demonstrate
that the School acted in order to maintain a secure and healthy learning environment for all
its students, not to advance religion.

The Constitution does not preclude school districts from teaching the essential elements of
democracy or otherwise performing their proper educational mission simply because some
individuals or groups may assert that their religious views are inconsistent with the lessons
taught as a part of that mission. Accordingly, we affirm the district court’s decision that
Harper was not entitled to a preliminary injunction on the basis of his free exercise claim.

3. Establishment Clause Claim

Finally, we consider the district court’s conclusion that Harper did not demonstrate a
likelihood of success on the merits of his claim that the School violated the Establishment
Clause by attempting to “coerce” him into changing his religious beliefs that “homosexuality
is harmful to both those who practice it and the community at large.”

Harper’s Establishment Clause claim as presented on appeal appears to be simply a

restatement of his Free Exercise claim. In fact, as the Supreme Court has noted, its
 33

Establishment Clause cases “for the most part have addressed governmental efforts to benefit
religion or particular religions,” and thus allegations of an “attempt to disfavor” a religion,
such as Harper’s, are properly analyzed under the Free Exercise Clause. Lukumi, 508 U.S. at
532, 113 S.Ct. 2217 (emphasis added). However, in the interest of thoroughness, we briefly
address Harper’s claim of “coercion” under the Establishment Clause.

Harper bases his claim almost entirely on the Supreme Court’s statement in Lee v. Weisman,
that “at a minimum, the Constitution guarantees that government may not coerce anyone to
support or participate in religion or its exercise, or otherwise act in a way which ‘establishes
a [state] religion or religious faith, or tends to do so.’ ” 505 U.S. 577, 587, 112 S.Ct. 2649,
120 L.Ed.2d 467 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 79
L.Ed.2d 604 (1984)). Here, there is no evidence that the School’s actions were based on
anything other than an entirely secular and legitimate aim of protecting the rights of students
and promoting a tolerant and safe learning environment. There is certainly no evidence (or
even allegation) that school authorities sought to coerce or encourage Harper to participate in
some other religion or to adopt some state-supported or other religious faith. To reiterate
what we explained in the “Free Exercise” section of this opinion, the teaching of secular
democratic values does not violate the First Amendment, even if that teaching conflicts in
some respect with a sincerely held view that a student or his parents may attribute to the
particular religion to which they adhere.

Government conduct does not violate the Establishment Clause when (1) it has a secular
purpose, (2) its principal and primary effect neither advances nor inhibits religion, and (3) it
does not foster excessive government entanglement in religion. See Lemon v. Kurtzman, 403
U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). For the reasons we have already
explained, the record supports the district court’s conclusion that the School’s actions “had a
secular purpose, ie., promoting tolerance, and not advancing or inhibiting religion.” It is also
clear from the record that the primary effect of the School’s banning of the T-shirt was not to
advance or inhibit religion but to protect and preserve the educational environment and the
rights of other members of the student body. Nor can there be any question in this case of
excessive government entanglement in religion. Finally, as we have already discussed, there
is no evidence in the record that school officials attempted to change Harper’s religious
beliefs. A fortiori, there is no evidence that they attempted to coerce Harper into changing
his beliefs. For all the above reasons, we hold that the district court did not abuse its
discretion in finding that Harper failed to demonstrate a likelihood of success on the merits
of his Establishment Clause claim.

4. Other Claims

In addition to the denial of his preliminary injunction motion, Harper asks that we review the
district court’s dismissal of his due process and equal protection causes of action, as well as
the court’s grant of qualified immunity to the individual defendants, under the doctrine of
“pendent appellate jurisdiction.” We may exercise pendent appellate jurisdiction “over
rulings that are inextricably intertwined with or necessary to ensure meaningful review of
decisions that are properly before us on interlocutory appeal.” Poulos v. Caesars World, Inc.,
379 F.3d 654, 668 (9th Cir.2004) (internal quotation marks omitted). In order for pendent
issues to be “inextricably intertwined” they must either “ ‘(a) be so intertwined that we must
decide the pendent issue in order to review the claims properly raised on interlocutory appeal
... or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves
the pendent issue.’ ” Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003) (quoting
Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir.2000)).

With regard to Harper’s due process cause of action, it is based on his claim that the School’s
dress code is impermissibly vague in violation of the Due Process Clause. As we have
already explained, see supra note 11, we need not consider the validity of the School’s dress
code in order to rule on the preliminary injunction. As to Harper’s equal protection
 34

contention, as presented on this appeal it is simply a restatement of his viewpoint

discrimination. claim which, for the reasons already provided, we have rejected. Whether or
not there may be other aspects to the claim we do not know with certainty at this point in the
proceedings; thus we do not review that claim here. Accordingly, neither the due process nor
equal protection claim is one we must decide in order to resolve the issue before us, and our
resolution of the issue before us does not require us to determine the merits of either claim.
Whatever the merits of those claims (and we have no cause here to question the district
court’s decision as to either), their validity or invalidity is of no consequence here. Finally,
the district court’s dismissal of Harper’s damages claims based on a finding of qualified im -
munity is not “inextricably intertwined” with the denial of the preliminary injunction motion,
Poulos, 379 F.3d at 668, as we need not “decide the [qualified immunity] issue in order to
review the claims properly raised on interlocutory appeal.... ” Batzel, 333 F.3d at 1023
(quoting Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir.2000)).

VI. Conclusion

We hold that the district court did not abuse its discretion in denying the preliminary
injunction. Harper failed to demonstrate that he will likely prevail on the merits of his free
speech, free exercise of religion, or establishment of religion claims. In fact, such future
success on Harper’s part is highly unlikely, given the legal principles discussed in this
opinion. The Free Speech Clause permits public schools to .restrict student speech that in -
trudes upon the rights of other students. Injurious speech that may be so limited is not
immune from regulation simply because it reflects the speaker’s religious views.
Accordingly, we affirm the district court’s denial of Harper’s motion for a preliminary
injunction.

AFFIRMED; REMANDED for further proceedings consistent with this opinion.

[…]

Burwell v. Hobby Lobby Stores, Inc.

Supreme Court of the United States

134 S. Ct. 2751, 189 L. Ed. 2d 675, 82 U.S.L.W. 4636
Nos. 13–354; 13–356.
2014-06-30
Held Invalid
26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. §
147.130(a)(1)(iv)

Prior Version Recognized as Unconstitutional

42 U.S.C.A. § 2000bb-2 Syllabus *

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the "Government [from]
substantially burden[ing] a person's exercise of religion even if the burden results from a rule
of general applicability" unless the Government "demonstrates that application of the burden
to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest." 42 U.S.C. §§ 2000bb-
 35

1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), RFRA covers "any exercise of religion, whether or not compelled by, or central
to, a system of religious belief." § 2000cc-5(7)(A).

At issue here are regulations promulgated by the Department of Health and Human Services
(HHS) under the Patient Protection and Affordable Care Act of 2010(ACA), which, as
relevant here, requires specified employers' group health plans to furnish "preventive care
and screenings" for women without "any cost sharing requirements," 42 U.S.C. § 300gg-
13(a)(4). Congress did not specify what types of preventive care must be covered; it
authorized the Health Resources and Services Administration, a component of HHS, to
decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20
contraceptive methods approved by the Food and Drug Administration, including the 4 that
may have the effect of preventing an already fertilized egg from developing any further by
inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt
from this contraceptive mandate. HHS has also effectively exempted religious nonprofit
organizations with religious objections to providing coverage for contraceptive services.
Under this accommodation, the insurance issuer must exclude contraceptive coverage from
the employer's plan and provide plan participants with separate payments for contraceptive
services without imposing any cost-sharing requirements on the employer, its insurance plan,
or its employee beneficiaries.

In these cases, the owners of three closely held for-profit corporations have sincere Christian
beliefs that life begins at conception and that it would violate their religion to facilitate
access to contraceptive drugs or devices that operate after that point. In separate actions, they
sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the
Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it
requires them to provide health coverage for the four objectionable contraceptives. In No.
13-356, the District Court denied the Hahns and their company-Conestoga Wood Specialties-
a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could
not "engage in religious exercise" under RFRA or the First Amendment, and that the mandate
imposed no requirements on the Hahns in their personal capacity. In No. 13-354, the Greens,
their children, and their companies-Hobby Lobby Stores and Mardel-were also denied a
preliminary injunction, but the Tenth Circuit reversed. It held that the Greens' businesses are
"persons" under RFRA, and that the corporations had established a likelihood of success on
their RFRA claim because the contraceptive mandate substantially burdened their exercise of
religion and HHS had not demonstrated a compelling interest in enforcing the mandate
against them; in the alternative, the court held that HHS had not proved that the mandate was
the "least restrictive means" of furthering a compelling governmental interest.

Held : As applied to closely held corporations, the HHS regulations imposing the
contraceptive mandate violate RFRA. Pp. 2761 - 2785.

(a) RFRA applies to regulations that govern the activities of closely held for-profit
corporations like Conestoga, Hobby Lobby, and Mardel. Pp. 2761 - 2775.

(1) HHS argues that the companies cannot sue because they are for-profit corporations, and
that the owners cannot sue because the regulations apply only to the companies, but that
would leave merchants with a difficult choice: give up the right to seek judicial protection of
their religious liberty or forgo the benefits of operating as corporations. RFRA's text shows
that Congress designed the statute to provide very broad protection for religious liberty and
did not intend to put merchants to such a choice. It employed the familiar legal fiction of
including corporations within RFRA's definition of "persons," but the purpose of extending
rights to corporations is to protect the rights of people associated with the corporation,
including shareholders, officers, and employees. Protecting the free-exercise rights of closely
held corporations thus protects the religious liberty of the humans who own and control
them. Pp. 2761 - 2768.
 36

(2) HHS and the dissent make several unpersuasive arguments. Pp. 2768 - 2775.

(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act
definition of "person," which "include[s] corporations, ... as well as individuals." 1 U.S.C. §
1. The Court has entertained RFRA and free-exercise claims brought by nonprofit
corporations. See, e.g.,Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 546
U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017.

And HHS's concession that a nonprofit corporation can be a "person" under RFRA
effectively dispatches any argument that the term does not reach for-profit corporations; no
conceivable definition of "person" includes natural persons and nonprofit corporations, but
not for-profit corporations. Pp. 2768 - 2769.

(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby
Lobby, and Mardel because they cannot "exercise ... religion." They offer no persuasive
explanation for this conclusion. The corporate form alone cannot explain it because RFRA
indisputably protects nonprofit corporations. And the profit-making objective of the
corporations cannot explain it because the Court has entertained the free-exercise claims of
individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown,
366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563. Business practices compelled or limited by the
tenets of a religious doctrine fall comfortably within the understanding of the "exercise of
religion" that this Court set out in Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876. Any suggestion that for-profit
corporations are incapable of exercising religion because their purpose is simply to make
money flies in the face of modern corporate law. States, including those in which the
plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose
or business, including the pursuit of profit in conformity with the owners' religious
principles. Pp. 2769 - 2772.

(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-
Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise
rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that
its definition of "exercise of religion" was meant to be tied to pre- Smith interpretations of
the First Amendment. Second, if RFRA's original text were not clear enough, the RLUIPA
amendment surely dispels any doubt that Congress intended to separate the definition of the
phrase from that in First Amendment case law. Third, the pre- Smith case of Gallagher v.
Crown Kosher Super Market of Mass., Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536,
suggests, if anything, that for-profit corporations can exercise religion. Finally, the results
would be absurd if RFRA, a law enacted to provide very broad protection for religious
liberty, merely restored this Court's pre- Smith decisions in ossified form and restricted
RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had
recognized before Smith. Pp. 2772 - 2774.

(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit
corporations because of the difficulty of ascertaining the "beliefs" of large, publicly traded
corporations, but HHS has not pointed to any example of a publicly traded corporation
asserting RFRA rights, and numerous practical restraints would likely prevent that from
occurring. HHS has also provided no evidence that the purported problem of determining the
sincerity of an asserted religious belief moved Congress to exclude for-profit corporations
from RFRA's protection. That disputes among the owners of corporations might arise is not a
problem unique to this context. State corporate law provides a ready means for resolving any
conflicts by, for example, dictating how a corporation can establish its governing structure.
Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 2774
- 2775.
 37

(b) HHS's contraceptive mandate substantially burdens the exercise of religion. Pp. 2775 -
2779.

(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere
religious belief that life begins at conception. If they and their companies refuse to provide
contraceptive coverage, they face severe economic consequences: about $475 million per
year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for
Mardel. And if they drop coverage altogether, they could face penalties of roughly $26
million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. Pp. 2775 -
2776.

(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the
average cost of providing insurance, and therefore that dropping insurance coverage
eliminates any substantial burden imposed by the mandate. HHS has never argued this and
the Court does not know its position with respect to the argument. But even if the Court
reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have
religious reasons for providing health-insurance coverage for their employees, and it is far
from clear that the net cost to the companies of providing insurance is more than the cost of
dropping their insurance plans and paying the ACA penalty. Pp. 2776 - 2777.

(3) HHS argues that the connection between what the objecting parties must do and the end
that they find to be morally wrong is too attenuated because it is the employee who will
choose the coverage and contraceptive method she uses. But RFRA's question is whether the
mandate imposes a substantial burden on the objecting parties' ability to conduct business in
accordance with their religious beliefs. The belief of the Hahns and Greens implicates a
difficult and important question of religion and moral philosophy, namely, the circumstances
under which it is immoral for a person to perform an act that is innocent in itself but that has
the effect of enabling or facilitating the commission of an immoral act by another. It is not
for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.
In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review
Bd. of Indiana Employment Security Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624. The
Court's "narrow function ... is to determine" whether the plaintiffs' asserted religious belief
reflects "an honest conviction," id., at 716, 101 S.Ct. 1425, and there is no dispute here that it
does. Tilton v. Richardson, 403 U.S. 672, 689, 91 S.Ct. 2091, 29 L.Ed.2d 790; and Board of
Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 248-249, 88 S.Ct. 1923, 20 L.Ed.2d
1060, distinguished. Pp. 2777 - 2779.

(c) The Court assumes that the interest in guaranteeing cost-free access to the four
challenged contraceptive methods is a compelling governmental interest, but the Government
has failed to show that the contraceptive mandate is the least restrictive means of furthering
that interest. Pp. 2779 - 2785.

(1) The Court assumes that the interest in guaranteeing cost-free access to the four
challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 2779 -
2780.

(2) The Government has failed to satisfy RFRA's least-restrictive-means standard. HHS has
not shown that it lacks other means of achieving its desired goal without imposing a
substantial burden on the exercise of religion. The Government could, e.g., assume the cost
of providing the four contraceptives to women unable to obtain coverage due to their
employers' religious objections. Or it could extend the accommodation that HHS has already
established for religious nonprofit organizations to non-profit employers with religious
objections to the contraceptive mandate. That accommodation does not impinge on the
plaintiffs' religious beliefs that providing insurance coverage for the contraceptives at issue
here violates their religion and it still serves HHS's stated interests. Pp. 2780 - 2783.
 38

(3) This decision concerns only the contraceptive mandate and should not be understood to
hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must
necessarily fall if they conflict with an employer's religious beliefs. Nor does it provide a
shield for employers who might cloak illegal discrimination as a religious practice. United
States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127, which upheld the payment of
Social Security taxes despite an employer's religious objection, is not analogous. It turned
primarily on the special problems associated with a national system of taxation; and if Lee
were a RFRA case, the fundamental point would still be that there is no less restrictive
alternative to the categorical requirement to pay taxes. Here, there is an alternative to the
contraceptive mandate. Pp. 2783 - 2785.

No. 13-354, 723 F.3d 1114, affirmed; No. 13-356, 724 F.3d 377, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA,
KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion.
GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which
BREYER and KAGAN, JJ., joined as to all but Part III-C-1. BREYER AND KAGAN, JJ.,
filed a dissenting opinion.

Paul D. Clement, Washington, DC, for the private parties.

Donald B. Verrilli, Jr., Solicitor General, for the federal government.

Paul D. Clement, Michael H. McGinley, Bancroft PLLC, Washington, DC, Peter M.

Dobelbower, General Counsel and Chief Legal Officer, Hobby Lobby Stores, Inc., Oklahoma
City, OK, S. Kyle Duncan, Counsel of Record, Eric C. Rassbach, Luke W. Goodrich, Hannah
C. Smith, Mark L. Rienzi, Lori H. Windham, Adèle Auxier Keim, The Becket Fund for
Religious Liberty, Washington, DC, Joshua D. Hawley, University of Missouri, Columbia,
MO, counsel for Respondents.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant
Attorney General, Ian Heath Gershengorn, Edwin S. Kneedler, Deputy Solicitors General,
Joseph R. Palmore, Assistant to the Solicitor General, Mark B. Stern, Alisa B. Klein,
Washington, DC, for Petitioners.

Jordan W. Lorence, Steven H. Aden, Gregory S. Baylor, Matthew S. Bowman, Alliance

Defending Freedom, Washington, DC, David A. Cortman, Counsel of Record, Kevin H.
Theriot, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, Charles W.
Proctor, III, Law Offices of Proctor, Lindsay & Dixon, Chadds Ford, PA, Randall L. Wenger,
Independence Law Center, Harrisburg, PA, for Petitioners Conestoga Wood Specialties
Corporation et al.

Justice ALITO delivered the opinion of the Court.

We must decide in these cases whether the Religious Freedom Restoration Act of 1993
(RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq., permits the United States Department of
Health and Human Services (HHS) to demand that three closely held corporations provide
health-insurance coverage for methods of contraception that violate the sincerely held
religious beliefs of the companies' owners. We hold that the regulations that impose this
obligation violate RFRA, which prohibits the Federal Government from taking any action
that substantially burdens the exercise of religion unless that action constitutes the least
restrictive means of serving a compelling government interest.

In holding that the HHS mandate is unlawful, we reject HHS's argument that the owners of
the companies forfeited all RFRA protection when they decided to organize their businesses
 39

as corporations rather than sole proprietorships or general partnerships. The plain terms of
RFRA make it perfectly clear that Congress did not discriminate in this way against men and
women who wish to run their businesses as for-profit corporations in the manner required by
their religious beliefs.

Since RFRA applies in these cases, we must decide whether the challenged HHS regulations
substantially burden the exercise of religion, and we hold that they do. The owners of the
businesses have religious objections to abortion, and according to their religious beliefs the
four contraceptive methods at issue are abortifacients. If the owners comply with the HHS
mandate, they believe they will be facilitating abortions, and if they do not comply, they will
pay a very heavy price-as much as $1.3 million per day, or about $475 million per year, in
the case of one of the companies. If these consequences do not amount to a substantial
burden, it is hard to see what would.

Under RFRA, a Government action that imposes a substantial burden on religious exercise
must serve a compelling government interest, and we assume that the HHS regulations
satisfy this requirement. But in order for the HHS mandate to be sustained, it must also
constitute the least restrictive means of serving that interest, and the mandate plainly fails
that test. There are other ways in which Congress or HHS could equally ensure that every
woman has cost-free access to the particular contraceptives at issue here and, indeed, to all
FDA-approved contraceptives.

In fact, HHS has already devised and implemented a system that seeks to respect the
religious liberty of religious nonprofit corporations while ensuring that the employees of
these entities have precisely the same access to all FDA-approved contraceptives as
employees of companies whose owners have no religious objections to providing such
coverage. The employees of these religious nonprofit corporations still have access to
insurance coverage without cost sharing for all FDA-approved contraceptives; and according
to HHS, this system imposes no net economic burden on the insurance companies that are
required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious
objections to the contraceptive mandate, HHS has provided no reason why the same system
cannot be made available when the owners of for-profit corporations have similar religious
objections. We therefore conclude that this system constitutes an alternative that achieves all
of the Government's aims while providing greater respect for religious liberty. And under
RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against
the objecting parties in these cases is unlawful.

As this description of our reasoning shows, our holding is very specific. We do not hold, as
the principal dissent alleges, that for-profit corporations and other commercial enterprises
can "opt out of any law (saving only tax laws) they judge incompatible with their sincerely
held religious beliefs." Post, at 2787 (opinion of GINSBURG, J.). Nor do we hold, as the
dissent implies, that such corporations have free rein to take steps that impose
"disadvantages ... on others" or that require "the general public [to] pick up the tab." Post, at
2787 . And we certainly do not hold or suggest that "RFRA demands accommodation of a
for-profit corporation's religious beliefs no matter the impact that accommodation may have
on ... thousands of women employed by Hobby Lobby." Post, at 2787. 1 The effect of the
HHS-created accommodation on the women employed by Hobby Lobby and the other
companies involved in these cases would be precisely zero. Under that accommodation, these
women would still be entitled to all FDA-approved contraceptives without cost sharing.

A
 40

Congress enacted RFRA in 1993 in order to provide very broad protection for religious
liberty . RFRA's enactment came three years after this Court's decision in Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876
(1990), which largely repudiated the method of analyzing free-exercise claims that had been
used in cases like Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963),
and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In determining
whether challenged government actions violated the Free Exercise Clause of the First
Amendment, those decisions used a balancing test that took into account whether the
challenged action imposed a substantial burden on the practice of religion, and if it did,
whether it was needed to serve a compelling government interest. Applying this test, the
Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath
could not be denied unemployment benefits. 374 U.S., at 408-409, 83 S.Ct. 1790. And in
Yoder, the Court held that Amish children could not be required to comply with a state law
demanding that they remain in school until the age of 16 even though their religion required
them to focus on uniquely Amish values and beliefs during their formative adolescent years.
406 U.S., at 210-211, 234-236, 92 S.Ct. 1526.

In Smith, however, the Court rejected "the balancing test set forth in Sherbert." 494 U.S., at
883, 110 S.Ct. 1595. Smith concerned two members of the Native American Church who
were fired for ingesting peyote for sacramental purposes. When they sought unemployment
benefits, the State of Oregon rejected their claims on the ground that consumption of peyote
was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial
of benefits violated the Free Exercise Clause. 494 U.S., at 875, 110 S.Ct. 1595.

This Court then reversed, observing that use of the Sherbert test whenever a person objected
on religious grounds to the enforcement of a generally applicable law "would open the
prospect of constitutionally required religious exemptions from civic obligations of almost
every conceivable kind." 494 U.S., at 888, 110 S.Ct. 1595. The Court therefore held that,
under the First Amendment, "neutral, generally applicable laws may be applied to religious
practices even when not supported by a compelling governmental interest." City of Boerne v.
Flores, 521 U.S. 507, 514, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

Congress responded to Smith by enacting RFRA. "[L]aws [that are] 'neutral' toward religion,"
Congress found, "may burden religious exercise as surely as laws intended to interfere with
religious exercise." 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure
broad protection for religious liberty, RFRA provides that "Government shall not
substantially burden a person's exercise of religion even if the burden results from a rule of
general applicability." § 2000bb-1(a). 2 If the Government substantially burdens a person's
exercise of religion, under the Act that person is entitled to an exemption from the rule
unless the Government "demonstrates that application of the burden to the person-(1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest." § 2000bb-1(b). 3

As enacted in 1993, RFRA applied to both the Federal Government and the States, but the
constitutional authority invoked for regulating federal and state agencies differed. As applied
to a federal agency, RFRA is based on the enumerated power that supports the particular
agency's work, 4 but in attempting to regulate the States and their subdivisions, Congress
relied on its power under Section 5 of the Fourteenth Amendment to enforce the First
Amendment. 521 U.S., at 516-517, 117 S.Ct. 2157. In City of Boerne, however, we held that
Congress had overstepped its Section 5 authority because "[t]he stringent test RFRA
demands" "far exceed[ed] any pattern or practice of unconstitutional conduct under the Free
Exercise Clause as interpreted in Smith." Id., at 533-534, 117 S.Ct. 2157. See also id., at 532,
117 S.Ct. 2157.

Following our decision in City of Boerne, Congress passed the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. § 2000cc et seq.
 41

That statute, enacted under Congress's Commerce and Spending Clause powers, imposes the
same general test as RFRA but on a more limited category of governmental actions. See
Cutter v. Wilkinson, 544 U.S. 709, 715-716, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). And,
what is most relevant for present purposes, RLUIPA amended RFRA's definition of the
"exercise of religion." See § 2000bb-2(4) (importing RLUIPA definition). Before RLUIPA,
RFRA's definition made reference to the First Amendment. See § 2000bb-2(4) (1994 ed.)
(defining "exercise of religion" as "the exercise of religion under the First Amendment"). In
RLUIPA, in an obvious effort to effect a complete separation from First Amendment case
law, Congress deleted the reference to the First Amendment and defined the "exercise of
religion" to include "any exercise of religion, whether or not compelled by, or central to, a
system of religious belief." § 2000cc-5(7)(A). And Congress mandated that this concept "be
construed in favor of a broad protection of religious exercise, to the maximum extent
permitted by the terms of this chapter and the Constitution." § 2000cc-3(g). 5

At issue in these cases are HHS regulations promulgated under the Patient Protection and
Affordable Care Act of 2010(ACA), 124 Stat. 119. ACA generally requires employers with
50 or more full-time employees to offer "a group health plan or group health insurance
coverage" that provides "minimum essential coverage." 26 U.S.C. § 5000A(f)(2); §§
4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a
substantial price. Specifically, if a covered employer provides group health insurance but its
plan fails to comply with ACA's group-health-plan requirements, the employer may be
required to pay $100 per day for each affected "individual." §§ 4980D(a)-(b). And if the
employer decides to stop providing health insurance altogether and at least one full-time
employee enrolls in a health plan and qualifies for a subsidy on one of the government-run
ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees.
§§ 4980H(a), (c)(1).

Unless an exception applies, ACA requires an employer's group health plan or group-health-
insurance coverage to furnish "preventive care and screenings" for women without "any cost
sharing requirements." 42 U.S.C. § 300gg-13(a)(4). Congress itself, however, did not specify
what types of preventive care must be covered. Instead, Congress authorized the Health
Resources and Services Administration (HRSA), a component of HHS, to make that
important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine,
a nonprofit group of volunteer advisers, in determining which preventive services to require.
See 77 Fed.Reg. 8725-8726 (2012).

In August 2011, based on the Institute's recommendations, the HRSA promulgated the
Women's Preventive Services Guidelines. See id., at 8725-8726, and n. 1; online at http://
hrsa. gov/ womens guidelines (all Internet materials as visited June 26, 2014, and available
in Clerk of Court's case file). The Guidelines provide that nonexempt employers are
generally required to provide "coverage, without cost sharing" for "[a]ll Food and Drug
Administration [ (FDA) ] approved contraceptive methods, sterilization procedures, and
patient education and counseling." 77 Fed.Reg. 8725 (internal quotation marks omitted) .
Although many of the required, FDA-approved methods of contraception work by preventing
the fertilization of an egg, four of those methods (those specifically at issue in these cases)
may have the effect of preventing an already fertilized egg from developing any further by
inhibiting its attachment to the uterus. See Brief for HHS in No. 13-354, pp. 9-10, n. 4; 6
FDA, Birth Control: Medicines to Help You. 7

HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for
"religious employers." 45 CFR § 147.131(a). That category encompasses "churches, their
integrated auxiliaries, and conventions or associations of churches," as well as "the
exclusively religious activities of any religious order." See ibid (citing 26 U.S.C. §§ 6033(a)
 42

(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement
to cover contraceptive services. See http:// hrsa. gov/ womens guidelines.

In addition, HHS has effectively exempted certain religious nonprofit organizations,

described under HHS regulations as "eligible organizations," from the contraceptive
mandate. See 45 CFR § 147.131(b); 78 Fed.Reg. 39874 (2013). An "eligible organization"
means a nonprofit organization that "holds itself out as a religious organization" and
"opposes providing coverage for some or all of any contraceptive services required to be
covered ... on account of religious objections." 45 CFR § 147.131(b). To qualify for this
accommodation, an employer must certify that it is such an organization. § 147.131(b)(4).
When a group-health-insurance issuer receives notice that one of its clients has invoked this
provision, the issuer must then exclude contraceptive coverage from the employer's plan and
provide separate payments for contraceptive services for plan participants without imposing
any cost-sharing requirements on the eligible organization, its insurance plan, or its
employee beneficiaries. § 147.131(c). 8 Although this procedure requires the issuer to bear the
cost of these services, HHS has determined that this obligation will not impose any net
expense on issuers because its cost will be less than or equal to the cost savings resulting
from the services. 78 Fed.Reg. 39877. 9

In addition to these exemptions for religious organizations, ACA exempts a great many
employers from most of its coverage requirements. Employers providing "grandfathered
health plans"-those that existed prior to March 23, 2010, and that have not made specified
changes after that date-need not comply with many of the Act's requirements, including the
contraceptive mandate. 42 U.S.C. §§ 18011(a), (e). And employers with fewer than 50
employees are not required to provide health insurance at all. 26 U.S.C. § 4980H(c)(2).

All told, the contraceptive mandate "presently does not apply to tens of millions of people."
723 F.3d 1114, 1143 (C.A.10 2013). This is attributable, in large part, to grandfathered
health plans: Over one-third of the 149 million nonelderly people in America with employer-
sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No.
13-354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer
Health Benefits, 2013 Annual Survey 43, 221. 10 The count for employees working for firms
that do not have to provide insurance at all because they employ fewer than 50 employees is
34 million workers. See The Whitehouse, Health Reform for Small Businesses: The
Affordable Care Act Increases Choice and Saving Money for Small Businesses 1. 11

II

Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite
Church, a Christian denomination. The Mennonite Church opposes abortion and believes that
"[t]he fetus in its earliest stages ... shares humanity with those who conceived it." 12

Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then,
this company, Conestoga Wood Specialties, has grown and now has 950 employees.
Conestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns
exercise sole ownership of the closely held business; they control its board of directors and
hold all of its voting shares. One of the Hahn sons serves as the president and CEO.

The Hahns believe that they are required to run their business "in accordance with their
religious beliefs and moral principles." 917 F.Supp.2d 394, 402 (E.D.Pa.2013). To that end,
the company's mission, as they see it, is to "operate in a professional environment founded
upon the highest ethical, moral, and Christian principles." Ibid. (internal quotation marks
omitted). The company's "Vision and Values Statements" affirms that Conestoga endeavors
to "ensur[e] a reasonable profit in [a] manner that reflects [the Hahns'] Christian heritage."
App. in No. 13-356, p. 94 (complaint).
 43

As explained in Conestoga's board-adopted "Statement on the Sanctity of Human Life," the

Hahns believe that "human life begins at conception."

724 F.3d 377, 382, and n. 5 (C.A.3 2013) (internal quotation marks omitted). It is therefore
"against [their] moral conviction to be involved in the termination of human life" after
conception, which they believe is a "sin against God to which they are held accountable."
Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the
group-health-insurance plan they offer to their employees certain contraceptive methods that
they consider to be abortifacients. Id., at 382.

The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA
and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA's
contraceptive mandate insofar as it requires them to provide health-insurance coverage for
four FDA-approved contraceptives that may operate after the fertilization of an egg. 13 These
include two forms of emergency contraception commonly called "morning after" pills and
two types of intrauterine devices. 14

In opposing the requirement to provide coverage for the contraceptives to which they object,
the Hahns argued that "it is immoral and sinful for [them] to intentionally participate in, pay
for, facilitate, or otherwise support these drugs." Ibid. The District Court denied a
preliminary injunction, see 917 F.Supp.2d, at 419, and the Third Circuit affirmed in a divided
opinion, holding that "for-profit, secular corporations cannot engage in religious exercise"
within the meaning of RFRA or the First Amendment. 724 F.3d, at 381. The Third Circuit
also rejected the claims brought by the Hahns themselves because it concluded that the HHS
"[m]andate does not impose any requirements on the Hahns" in their personal capacity. Id., at
389.

David and Barbara Green and their three children are Christians who own and operate two
family businesses. Forty-five years ago, David Green started an arts-and-crafts store that has
grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores,
and the company has more than 13,000 employees. 723 F.3d, at 1122. Hobby Lobby is
organized as a for-profit corporation under Oklahoma law.

One of David's sons started an affiliated business, Mardel, which operates 35 Christian
bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit
corporation under Oklahoma law.

Though these two businesses have expanded over the years, they remain closely held, and
David, Barbara, and their children retain exclusive control of both companies. Ibid. David
serves as the CEO of Hobby Lobby, and his three children serve as the president, vice
president, and vice CEO. See Brief for Respondents in No. 13-354, p. 8. 15

Hobby Lobby's statement of purpose commits the Greens to "[h]onoring the Lord in all
[they] do by operating the company in a manner consistent with Biblical principles." App. in
No. 13-354, pp. 134-135 (complaint). Each family member has signed a pledge to run the
businesses in accordance with the family's religious beliefs and to use the family assets to
support Christian ministries. 723 F.3d, at 1122. In accordance with those commitments,
Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that
they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13-354, at 136-137.
The businesses refuse to engage in profitable transactions that facilitate or promote alcohol
use; they contribute profits to Christian missionaries and ministries; and they buy hundreds
of full-page newspaper ads inviting people to "know Jesus as Lord and Savior." Ibid.
(internal quotation marks omitted).
 44

Like the Hahns, the Greens believe that life begins at conception and that it would violate
their religion to facilitate access to contraceptive drugs or devices that operate after that
point. 723 F.3d, at 1122. They specifically object to the same four contraceptive methods as
the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved
methods of birth control. Id., at 1125. Although their group-health-insurance plan predates
the enactment of ACA, it is not a grandfathered plan because Hobby Lobby elected not to
retain grandfathered status before the contraceptive mandate was proposed. Id., at 1124.

The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to
challenge the contraceptive mandate under RFRA and the Free Exercise Clause. 16 The
District Court denied a preliminary injunction, see 870 F.Supp.2d 1278 (W.D.Okla.2012),
and the plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit
granted that motion and reversed in a divided opinion. Contrary to the conclusion of the
Third Circuit, the Tenth Circuit held that the Greens' two for-profit businesses are "persons"
within the meaning of RFRA and therefore may bring suit under that law.

The court then held that the corporations had established a likelihood of success on their
RFRA claim. 723 F.3d, at 1140-1147. The court concluded that the contraceptive mandate
substantially burdened the exercise of religion by requiring the companies to choose between
"compromis[ing] their religious beliefs" and paying a heavy fee-either "close to $475 million
more in taxes every year" if they simply refused to provide coverage for the contraceptives at
issue, or "roughly $26 million" annually if they "drop[ped] health-insurance benefits for all
employees." Id., at 1141.

The court next held that HHS had failed to demonstrate a compelling interest in enforcing the
mandate against the Greens' businesses and, in the alternative, that HHS had failed to prove
that enforcement of the mandate was the "least restrictive means" of furthering the
Government's asserted interests. Id., at 1143-1144 (emphasis deleted; internal quotation
marks omitted). After concluding that the companies had "demonstrated irreparable harm,"
the court reversed and remanded for the District Court to consider the remaining factors of
the preliminary-injunction test. Id., at 1147. 17

We granted certiorari. 571 U.S. ----, 134 S.Ct. 678, 187 L.Ed.2d 544 (2013).

III

RFRA prohibits the "Government [from] substantially burden[ing] a person's exercise of

religion even if the burden results from a rule of general applicability" unless the
Government "demonstrates that application of the burden to the person-(1) is in furtherance
of a compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest." 42 U.S.C. §§ 2000bb-1(a), (b) (emphasis added). The
first question that we must address is whether this provision applies to regulations that
govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.

HHS contends that neither these companies nor their owners can even be heard under RFRA.
According to HHS, the companies cannot sue because they seek to make a profit for their
owners, and the owners cannot be heard because the regulations, at least as a formal matter,
apply only to the companies and not to the owners as individuals. HHS's argument would
have dramatic consequences.

Consider this Court's decision in Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d
563 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small
retail businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation
of the Free Exercise Clause. Because of their faith, these merchants closed their shops on
Saturday, and they argued that requiring them to remain shut on Sunday threatened them
 45

with financial ruin. The Court entertained their claim (although it ruled against them on the
merits), and if a similar claim were raised today under RFRA against a jurisdiction still
subject to the Act (for example, the District of Columbia, see 42 U.S.C. § 2000bb-2(2)), the
merchants would be entitled to be heard. According to HHS, however, if these merchants
chose to incorporate their businesses-without in any way changing the size or nature of their
businesses-they would forfeit all RFRA (and free-exercise) rights. HHS would put these
merchants to a difficult choice: either give up the right to seek judicial protection of their
religious liberty or forgo the benefits, available to their competitors, of operating as
corporations.

As we have seen, RFRA was designed to provide very broad protection for religious liberty.
By enacting RFRA, Congress went far beyond what this Court has held is constitutionally
required. 18 Is there any reason to think that the Congress that enacted such sweeping
protection put small-business owners to the choice that HHS suggests? An examination of
RFRA's text, to which we turn in the next part of this opinion, reveals that Congress did no
such thing.

As we will show, Congress provided protection for people like the Hahns and Greens by
employing a familiar legal fiction: It included corporations within RFRA's definition of
"persons." But it is important to keep in mind that the purpose of this fiction is to provide
protection for human beings. A corporation is simply a form of organization used by human
beings to achieve desired ends. An established body of law specifies the rights and
obligations of the people (including shareholders, officers, and employees) who are
associated with a corporation in one way or another. When rights, whether constitutional or
statutory, are extended to corporations, the purpose is to protect the rights of these people.
For example, extending Fourth Amendment protection to corporations protects the privacy
interests of employees and others associated with the company. Protecting corporations from
government seizure of their property without just compensation protects all those who have a
stake in the corporations' financial well-being. And protecting the free-exercise rights of
corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the
humans who own and control those companies.

In holding that Conestoga, as a "secular, for-profit corporation," lacks RFRA protection, the
Third Circuit wrote as follows:

"General business corporations do not, separate and apart from the actions or belief systems
of their individual owners or employees, exercise religion. They do not pray, worship,
observe sacraments or take other religiously-motivated actions separate and apart from the
intention and direction of their individual actors." 724 F.3d, at 385 (emphasis added).

All of this is true-but quite beside the point. Corporations, "separate and apart from" the
human beings who own, run, and are employed by them, cannot do anything at all.

As we noted above, RFRA applies to "a person's" exercise of religion, 42 U.S.C. §§ 2000bb-
1(a), (b), and RFRA itself does not define the term "person." We therefore look to the
Dictionary Act, which we must consult "[i]n determining the meaning of any Act of
Congress, unless the context indicates otherwise." 1 U.S.C. § 1.

Under the Dictionary Act, "the wor[d] 'person' ... include[s] corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as well as
individuals." Ibid.; see FCC v. AT & T Inc., 562 U.S. ----, ----, 131 S.Ct. 1177, 1182-1183,
179 L.Ed.2d 132 (2011) ("We have no doubt that 'person,' in a legal setting, often refers to
artificial entities. The Dictionary Act makes that clear"). Thus, unless there is something
 46

about the RFRA context that "indicates otherwise," the Dictionary Act provides a quick,
clear, and affirmative answer to the question whether the companies involved in these cases
may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary
Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA
and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro
Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017
(2006) (RFRA);

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ----, 132 S.Ct.
694, 181 L.Ed.2d 650 (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (Free Exercise), and HHS
concedes that a nonprofit corporation can be a "person" within the meaning of RFRA. See
Brief for HHS in No. 13-354, at 17; Reply Brief in No. 13-354, at 7-8. 19

This concession effectively dispatches any argument that the term "person" as used in RFRA
does not reach the closely held corporations involved in these cases. No known
understanding of the term "person" includes some but not all corporations. The term "person"
sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes
is limited to natural persons. But no conceivable definition of the term includes natural
persons and nonprofit corporations, but not for-profit corporations. 20 Cf. Clark v. Martinez,
543 U.S. 371, 378, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) ("To give th[e] same words a
different meaning for each category would be to invent a statute rather than interpret one").

The principal argument advanced by HHS and the principal dissent regarding RFRA
protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term
"person," but on the phrase "exercise of religion." According to HHS and the dissent, these
corporations are not protected by RFRA because they cannot exercise religion. Neither HHS
nor the dissent, however, provides any persuasive explanation for this conclusion.

Is it because of the corporate form? The corporate form alone cannot provide the explanation
because, as we have pointed out, HHS concedes that nonprofit corporations can be protected
by RFRA. The dissent suggests that nonprofit corporations are special because furthering
their religious "autonomy ... often furthers individual religious freedom as well." Post, at
2794 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U.S. 327, 342, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (Brennan, J.,
concurring in judgment)). But this principle applies equally to for-profit corporations:
Furthering their religious freedom also "furthers individual religious freedom." In these
cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims
protects the religious liberty of the Greens and the Hahns. 21

If the corporate form is not enough, what about the profit-making objective? In Braunfeld,
366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563, we entertained the free-exercise claims of
individuals who were attempting to make a profit as retail merchants, and the Court never
even hinted that this objective precluded their claims. As the Court explained in a later case,
the "exercise of religion" involves "not only belief and profession but the performance of (or
abstention from) physical acts" that are "engaged in for religious reasons." Smith, 494 U.S.,
at 877, 110 S.Ct. 1595. Business practices that are compelled or limited by the tenets of a
religious doctrine fall comfortably within that definition. Thus, a law that "operates so as to
make the practice of ... religious beliefs more expensive" in the context of business activities
imposes a burden on the exercise of religion. Braunfeld, supra, at 605, 81 S.Ct. 1144; see
United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (recognizing
 47

that "compulsory participation in the social security system interferes with [Amish
employers'] free exercise rights").

If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a
free-exercise claim, 22 why can't Hobby Lobby, Conestoga, and Mardel do the same?

Some lower court judges have suggested that RFRA does not protect for-profit corporations
because the purpose of such corporations is simply to make money. 23 This argument flies in
the face of modern corporate law. "Each American jurisdiction today either expressly or by
implication authorizes corporations to be formed under its general corporation act for any
lawful purpose or business." 1 J. Cox & T. Hazen, Treatise of the Law of Corporations § 4:1,
p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of
Corporations § 102 (rev. ed. 2010). While it is certainly true that a central objective of for-
profit corporations is to make money, modern corporate law does not require for-profit
corporations to pursue profit at the expense of everything else, and many do not do so. For-
profit corporations, with ownership approval, support a wide variety of charitable causes, and
it is not at all uncommon for such corporations to further humanitarian and other altruistic
objectives. Many examples come readily to mind. So long as its owners agree, a for-profit
corporation may take costly pollution-control and energy-conservation measures that go
beyond what the law requires. A for-profit corporation that operates facilities in other
countries may exceed the requirements of local law regarding working conditions and
benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent
reason why they may not further religious objectives as well.

HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are
protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but
the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits
do so in order to maximize profit. For example, organizations with religious and charitable
aims might organize as for-profit corporations because of the potential advantages of that
corporate form, such as the freedom to participate in lobbying for legislation or campaigning
for political candidates who promote their religious or charitable goals. 24 In fact, recognizing
the inherent compatibility between establishing a for-profit corporation and pursuing
nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate
forms. Over half of the States, for instance, now recognize the "benefit corporation," a dual-
purpose entity that seeks to achieve both a benefit for the public and a profit for its owners. 25

In any event, the objectives that may properly be pursued by the companies in these cases are
governed by the laws of the States in which they were incorporated-Pennsylvania and
Oklahoma-and the laws of those States permit for-profit corporations to pursue "any lawful
purpose" or "act," including the pursuit of profit in conformity with the owners' religious
principles. 15 Pa. Cons.Stat. § 1301 (2001) ("Corporations may be incorporated under this
subpart for any lawful purpose or purposes"); Okla. Stat., Tit. 18, §§ 1002, 1005 (West 2012)
("[E]very corporation, whether profit or not for profit" may "be incorporated or organized ...
to conduct or promote any lawful business or purposes"); see also § 1006(A)(3); Brief for
State of Oklahoma as Amicus Curiae in No. 13-354.

HHS and the principal dissent make one additional argument in an effort to show that a for-
profit corporation cannot engage in the "exercise of religion" within the meaning of RFRA:
HHS argues that RFRA did no more than codify this Court's pre- Smith Free Exercise Clause
precedents, and because none of those cases squarely held that a for-profit corporation has
free-exercise rights, RFRA does not confer such protection. This argument has many flaws.

First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase
"exercise of religion under the First Amendment" was meant to be tied to this Court's pre-
 48

Smith interpretation of that Amendment. When first enacted, RFRA defined the "exercise of
religion" to mean "the exercise of religion under the First Amendment"-not the exercise of
religion as recognized only by then-existing Supreme Court precedents. 42 U.S.C. § 2000bb-
2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body
of this Court's case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death
Penalty Act of 1996, 28 U.S.C. § 2254(d)(1) (authorizing habeas relief from a state-court
decision that "was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States").

Second, if the original text of RFRA was not clear enough on this point-and we think it was-
the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted
the prior reference to the First Amendment, see 42 U.S.C. § 2000bb-2(4) (2000 ed.)
(incorporating § 2000cc-5), and neither HHS nor the principal dissent can explain why
Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our
pre- Smith free-exercise cases. Moreover, as discussed, the amendment went further,
providing that the exercise of religion "shall be construed in favor of a broad protection of
religious exercise, to the maximum extent permitted by the terms of this chapter and the
Constitution." § 2000cc-3(g). It is simply not possible to read these provisions as restricting
the concept of the "exercise of religion" to those practices specifically addressed in our pre-
Smith decisions.

Third, the one pre- Smith case involving the free-exercise rights of a for-profit corporation
suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown
Kosher Super Market of Mass., Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961), the
Massachusetts Sunday closing law was challenged by a kosher market that was organized as
a for-profit corporation, by customers of the market, and by a rabbi. The Commonwealth
argued that the corporation lacked "standing" to assert a free-exercise claim, 26 but not one
member of the Court expressed agreement with that argument. The plurality opinion for four
Justices rejected the First Amendment claim on the merits based on the reasoning in
Braunfeld, and reserved decision on the question whether the corporation had "standing" to
raise the claim. See 366 U.S., at 631, 81 S.Ct. 1122. The three dissenters, Justices Douglas,
Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the
other challengers and thus implicitly recognized their right to assert a free-exercise claim.
See id., at 642, 81 S.Ct. 1122 (Brennan, J., joined by Stewart, J., dissenting); McGowan v.
Maryland, 366 U.S. 420, 578-579, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) (Douglas, J.,
dissenting as to related cases including Gallagher ). Finally, Justice Frankfurter's opinion,
which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not
question or reserve decision on the issue of the right of the corporation or any of the other
challengers to be heard. See McGowan, 366 U.S., at 521-522, 81 S.Ct. 1101. It is quite a
stretch to argue that RFRA, a law enacted to provide very broad protection for religious
liberty, left for-profit corporations unprotected simply because in Gallagher-the only pre-
Smith case in which the issue was raised-a majority of the Justices did not find it necessary to
decide whether the kosher market's corporate status barred it from raising a free-exercise
claim.

Finally, the results would be absurd if RFRA merely restored this Court's pre- Smith
decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that
plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim
that this Court entertained in the years before Smith. For example, we are not aware of any
pre- Smith case in which this Court entertained a free-exercise claim brought by a resident
noncitizen. Are such persons also beyond RFRA's protective reach simply because the Court
never addressed their rights before Smith ?

Presumably in recognition of the weakness of this argument, both HHS and the principal
dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-
 49

profit corporations from generally applicable laws. By contrast, HHS contends, statutes like
Title VII, 42 U.S.C. § 2000e-19(A), expressly exempt churches and other nonprofit religious
institutions but not for-profit corporations. See Brief for HHS in No. 13-356, p. 26. In
making this argument, however, HHS did not call to our attention the fact that some federal
statutes do exempt categories of entities that include for-profit corporations from laws that
would otherwise require these entities to engage in activities to which they object on grounds
of conscience. See, e.g., 42 U.S.C. § 300a-7(b)(2); § 238n(a). 27 If Title VII and similar laws
show anything, it is that Congress speaks with specificity when it intends a religious
accommodation not to extend to for-profit corporations.

Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit
corporations because it is difficult as a practical matter to ascertain the sincere "beliefs" of a
corporation. HHS goes so far as to raise the specter of "divisive, polarizing proxy battles
over the religious identity of large, publicly traded corporations such as IBM or General
Electric." Brief for HHS in No. 13-356, at 30.

These cases, however, do not involve publicly traded corporations, and it seems unlikely that
the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not
pointed to any example of a publicly traded corporation asserting RFRA rights, and
numerous practical restraints would likely prevent that from occurring. For example, the idea
that unrelated shareholders-including institutional investors with their own set of
stakeholders-would agree to run a corporation under the same religious beliefs seems
improbable. In any event, we have no occasion in these cases to consider RFRA's
applicability to such companies. The companies in the cases before us are closely held
corporations, each owned and controlled by members of a single family, and no one has
disputed the sincerity of their religious beliefs. 28

HHS has also provided no evidence that the purported problem of determining the sincerity
of an asserted religious belief moved Congress to exclude for-profit corporations from
RFRA's protection. On the contrary, the scope of RLUIPA shows that Congress was
confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to
"institutionalized persons," a category that consists primarily of prisoners, and by the time of
RLUIPA's enactment, the propensity of some prisoners to assert claims of dubious sincerity
was well documented. 29 Nevertheless, after our decision in City of Boerne, Congress enacted
RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress
thought that the federal courts were up to the job of dealing with insincere prisoner claims,
there is no reason to believe that Congress limited RFRA's reach out of concern for the
seemingly less difficult task of doing the same in corporate cases. And if, as HHS seems to
concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No.
13-354, at 7-8, what reason is there to think that Congress believed that spotting insincere
claims would be tougher in cases involving for-profits?

HHS and the principal dissent express concern about the possibility of disputes among the
owners of corporations, but that is not a problem that arises because of RFRA or that is
unique to this context. The owners of closely held corporations may-and sometimes do-
disagree about the conduct of business. 1 Treatise of the Law of Corporations § 14:11. And
even if RFRA did not exist, the owners of a company might well have a dispute relating to
religion. For example, some might want a company's stores to remain open on the Sabbath in
order to make more money, and others might want the stores to close for religious reasons.
State corporate law provides a ready means for resolving any conflicts by, for example,
dictating how a corporation can establish its governing structure. See, e.g., ibid; id., § 3:2;
Del.Code Ann., Tit. 8, § 351 (2011) (providing that certificate of incorporation may provide
how "the business of the corporation shall be managed"). Courts will turn to that structure
and the underlying state law in resolving disputes.
 50

For all these reasons, we hold that a federal regulation's restriction on the activities of a for-
profit closely held corporation must comply with RFRA. 30

IV

Because RFRA applies in these cases, we must next ask whether the HHS contraceptive
mandate "substantially burden[s]" the exercise of religion. 42 U.S.C. § 2000bb-1(a). We have
little trouble concluding that it does.

As we have noted, the Hahns and Greens have a sincere religious belief that life begins at
conception. They therefore object on religious grounds to providing health insurance that
covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13-
354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and
Greens and their companies to arrange for such coverage, the HHS mandate demands that
they engage in conduct that seriously violates their religious beliefs.

If the Hahns and Greens and their companies do not yield to this demand, the economic
consequences will be severe. If the companies continue to offer group health plans that do
not cover the contraceptives at issue, they will be taxed $100 per day for each affected
individual. 26 U.S.C. § 4980D. For Hobby Lobby, the bill could amount to $1.3 million per
day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day
or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per
year. These sums are surely substantial.

It is true that the plaintiffs could avoid these assessments by dropping insurance coverage
altogether and thus forcing their employees to obtain health insurance on one of the
exchanges established under ACA. But if at least one of their full-time employees were to
qualify for a subsidy on one of the government-run exchanges, this course would also entail
substantial economic consequences. The companies could face penalties of $2,000 per
employee each year. § 4980H. These penalties would amount to roughly $26 million for
Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.

Although these totals are high, amici supporting HHS have suggested that the $2,000 per-
employee penalty is actually less than the average cost of providing health insurance, see
Brief for Religious Organizations 22, and therefore, they claim, the companies could readily
eliminate any substantial burden by forcing their employees to obtain insurance in the
government exchanges. We do not generally entertain arguments that were not raised below
and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell,
451 U.S. 56, 60, n. 2, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981); Bell v. Wolfish, 441 U.S. 520,
532, n. 13, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Knetsch v. United States, 364 U.S. 361,
370, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960), and there are strong reasons to adhere to that
practice in these cases. HHS, which presumably could have compiled the relevant statistics,
has never made this argument-not in its voluminous briefing or at oral argument in this Court
nor, to our knowledge, in any of the numerous cases in which the issue now before us has
been litigated around the country. As things now stand, we do not even know what the
Government's position might be with respect to these amici's intensely empirical argument. 31
For this same reason, the plaintiffs have never had an opportunity to respond to this novel
claim that-contrary to their longstanding practice and that of most large employers-they
would be better off discarding their employer insurance plans altogether.

Even if we were to reach this argument, we would find it unpersuasive. As an initial matter,
it entirely ignores the fact that the Hahns and Greens and their companies have religious
reasons for providing health-insurance coverage for their employees. Before the advent of
 51

ACA, they were not legally compelled to provide insurance, but they nevertheless did so-in
part, no doubt, for conventional business reasons, but also in part because their religious
beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13-356,
p. 11g; App. in No. 13-354, at 139.

Putting aside the religious dimension of the decision to provide insurance, moreover, it is far
from clear that the net cost to the companies of providing insurance is more than the cost of
dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit
that employees value. If the companies simply eliminated that benefit and forced employees
to purchase their own insurance on the exchanges, without offering additional compensation,
it is predictable that the companies would face a competitive disadvantage in retaining and
attracting skilled workers. See App. in No. 13-354, at 153.

The companies could attempt to make up for the elimination of a group health plan by
increasing wages, but this would be costly. Group health insurance is generally less
expensive than comparable individual coverage, so the amount of the salary increase needed
to fully compensate for the termination of insurance coverage may well exceed the cost to
the companies of providing the insurance. In addition, any salary increase would have to take
into account the fact that employees must pay income taxes on wages but not on the value of
employer-provided health insurance. 26 U.S.C. § 106(a). Likewise, employers can deduct the
cost of providing health insurance, see § 162(a)(1), but apparently cannot deduct the amount
of the penalty that they must pay if insurance is not provided; that difference also must be
taken into account. Given these economic incentives, it is far from clear that it would be
financially advantageous for an employer to drop coverage and pay the penalty. 32

In sum, we refuse to sustain the challenged regulations on the ground-never maintained by

the Government-that dropping insurance coverage eliminates the substantial burden that the
HHS mandate imposes. We doubt that the Congress that enacted RFRA-or, for that matter,
ACA-would have believed it a tolerable result to put family-run businesses to the choice of
violating their sincerely held religious beliefs or making all of their employees lose their
existing healthcare plans.

In taking the position that the HHS mandate does not impose a substantial burden on the
exercise of religion, HHS's main argument (echoed by the principal dissent) is basically that
the connection between what the objecting parties must do (provide health-insurance
coverage for four methods of contraception that may operate after the fertilization of an egg)
and the end that they find to be morally wrong (destruction of an embryo) is simply too
attenuated. Brief for HHS in 13-354, pp. 31-34; post, at 2798 - 2799. HHS and the dissent
note that providing the coverage would not itself result in the destruction of an embryo; that
would occur only if an employee chose to take advantage of the coverage and to use one of
the four methods at issue. 33Ibid.

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a
substantial burden on the ability of the objecting parties to conduct business in accordance
with their religious beliefs ) and instead addresses a very different question that the federal
courts have no business addressing (whether the religious belief asserted in a RFRA case is
reasonable). The Hahns and Greens believe that providing the coverage demanded by the
HHS regulations is connected to the destruction of an embryo in a way that is sufficient to
make it immoral for them to provide the coverage. This belief implicates a difficult and
important question of religion and moral philosophy, namely, the circumstances under which
it is wrong for a person to perform an act that is innocent in itself but that has the effect of
enabling or facilitating the commission of an immoral act by another. 34 Arrogating the
authority to provide a binding national answer to this religious and philosophical question,
HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For
 52

good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U.S., at
887, 110 S.Ct. 1595 ("Repeatedly and in many different contexts, we have warned that courts
must not presume to determine ... the plausibility of a religious claim"); Hernandez v.
Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989); Presbyterian
Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440,
450, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).

Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 101
S.Ct. 1425, 67 L.Ed.2d 624 (1981), we considered and rejected an argument that is nearly
identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah's Witness was
initially employed making sheet steel for a variety of industrial uses, but he was later
transferred to a job making turrets for tanks. Id., at 710, 101 S.Ct. 1425. Because he objected
on religious grounds to participating in the manufacture of weapons, he lost his job and
sought unemployment compensation. Ruling against the employee, the state court had
difficulty with the line that the employee drew between work that he found to be consistent
with his religious beliefs (helping to manufacture steel that was used in making weapons)
and work that he found morally objectionable (helping to make the weapons themselves).
This Court, however, held that "it is not for us to say that the line he drew was an
unreasonable one." Id., at 715, 101 S.Ct. 1425. 35

Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that
providing the insurance coverage demanded by the HHS regulations lies on the forbidden
side of the line, and it is not for us to say that their religious beliefs are mistaken or
insubstantial. Instead, our "narrow function ... in this context is to determine" whether the
line drawn reflects "an honest conviction," id., at 716, 101 S.Ct. 1425, and there is no dispute
that it does.

HHS nevertheless compares these cases to decisions in which we rejected the argument that
the use of general tax revenue to subsidize the secular activities of religious institutions
violated the Free Exercise Clause. See Tilton v. Richardson, 403 U.S. 672, 689, 91 S.Ct.
2091, 29 L.Ed.2d 790 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen,
392 U.S. 236, 248-249, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). But in those cases, while the
subsidies were clearly contrary to the challengers' views on a secular issue, namely, proper
church-state relations, the challengers never articulated a religious objection to the subsidies.
As we put it in Tilton, they were "unable to identify any coercion directed at the practice or
exercise of their religious beliefs." 403 U.S., at 689, 91 S.Ct. 2091 (plurality opinion); see
Allen, supra, at 249, 88 S.Ct. 1923 ("[A]ppellants have not contended that the New York law
in any way coerces them as individuals in the practice of their religion"). Here, in contrast,
the plaintiffs do assert that funding the specific contraceptive methods at issue violates their
religious beliefs, and HHS does not question their sincerity. Because the contraceptive
mandate forces them to pay an enormous sum of money-as much as $475 million per year in
the case of Hobby Lobby-if they insist on providing insurance coverage in accordance with
their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.

Since the HHS contraceptive mandate imposes a substantial burden on the exercise of
religion, we must move on and decide whether HHS has shown that the mandate both "(1) is
in furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b).

HHS asserts that the contraceptive mandate serves a variety of important interests, but many
of these are couched in very broad terms, such as promoting "public health" and "gender
equality." Brief for HHS in No. 13-354, at 46, 49. RFRA, however, contemplates a "more
 53

focused" inquiry: It "requires the Government to demonstrate that the compelling interest test
is satisfied through application of the challenged law 'to the person'-the particular claimant
whose sincere exercise of religion is being substantially burdened." O Centro, 546 U.S., at
430-431, 126 S.Ct. 1211 (quoting § 2000bb-1(b)). This requires us to "loo[k] beyond broadly
formulated interests" and to "scrutiniz[e] the asserted harm of granting specific exemptions
to particular religious claimants"-in other words, to look to the marginal interest in enforcing
the contraceptive mandate in these cases. O Centro, supra, at 431, 126 S.Ct. 1211.

In addition to asserting these very broadly framed interests, HHS maintains that the mandate
serves a compelling interest in ensuring that all women have access to all FDA-approved
contraceptives without cost sharing. See Brief for HHS in No. 13-354, at 14-15, 49; see Brief
for HHS in No. 13-356, at 10, 48. Under our cases, women (and men) have a constitutional
right to obtain contraceptives, see Griswold v. Connecticut, 381 U.S. 479, 485-486, 85 S.Ct.
1678, 14 L.Ed.2d 510 (1965), and HHS tells us that "[s]tudies have demonstrated that even
moderate copayments for preventive services can deter patients from receiving those
services." Brief for HHS in No. 13-354, at 50 (internal quotation marks omitted).

The objecting parties contend that HHS has not shown that the mandate serves a compelling
government interest, and it is arguable that there are features of ACA that support that view.
As we have noted, many employees-those covered by grandfathered plans and those who
work for employers with fewer than 50 employees-may have no contraceptive coverage
without cost sharing at all.

HHS responds that many legal requirements have exceptions and the existence of exceptions
does not in itself indicate that the principal interest served by a law is not compelling. Even a
compelling interest may be outweighed in some circumstances by another even weightier
consideration. In these cases, however, the interest served by one of the biggest exceptions,
the exception for grandfathered plans, is simply the interest of employers in avoiding the
inconvenience of amending an existing plan. Grandfathered plans are required "to comply
with a subset of the Affordable Care Act's health reform provisions" that provide what HHS
has described as "particularly significant protections." 75 Fed.Reg. 34540 (2010). But the
contraceptive mandate is expressly excluded from this subset. Ibid.

We find it unnecessary to adjudicate this issue. We will assume that the interest in
guaranteeing cost-free access to the four challenged contraceptive methods is compelling
within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA
test, i.e., whether HHS has shown that the contraceptive mandate is "the least restrictive
means of furthering that compelling governmental interest." § 2000bb-1(b)(2).

The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521

U.S., at 532, 117 S.Ct. 2157, and it is not satisfied here. HHS has not shown that it lacks
other means of achieving its desired goal without imposing a substantial burden on the
exercise of religion by the objecting parties in these cases. See §§ 2000bb-1(a), (b) (requiring
the Government to "demonstrat[e] that application of [a substantial] burden to the person ...
is the least restrictive means of furthering [a] compelling governmental interest" (emphasis
added)).

The most straightforward way of doing this would be for the Government to assume the cost
of providing the four contraceptives at issue to any women who are unable to obtain them
under their health-insurance policies due to their employers' religious objections. This would
certainly be less restrictive of the plaintiffs' religious liberty, and HHS has not shown, see §
2000bb-1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of
the average cost per employee of providing access to these contraceptives, two of which,
according to the FDA, are designed primarily for emergency use. See Birth Control:
 54

Medicines to Help You, online at http:// www. fda. gov/ forconsumers/ byaudience/
forwomen/ free publications/ ucm 313215. htm. Nor has HHS provided any statistics
regarding the number of employees who might be affected because they work for
corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is
unable to provide such statistics. It seems likely, however, that the cost of providing the
forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives)
would be minor when compared with the overall cost of ACA. According to one of the
Congressional Budget Office's most recent forecasts, ACA's insurance-coverage provisions
will cost the Federal Government more than $1.3 trillion through the next decade. See CBO,
Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable
Care Act, April 2014, p. 2. 36 If, as HHS tells us, providing all women with cost-free access to
all FDA-approved methods of contraception is a Government interest of the highest order, it
is hard to understand HHS's argument that it cannot be required under RFRA to pay anything
in order to achieve this important goal.

HHS contends that RFRA does not permit us to take this option into account because "RFRA
cannot be used to require creation of entirely new programs." Brief for HHS in 13-354, at
15.37 But we see nothing in RFRA that supports this argument, and drawing the line between
the "creation of an entirely new program" and the modification of an existing program
(which RFRA surely allows) would be fraught with problems. We do not doubt that cost may
be an important factor in the least-restrictive-means analysis, but both RFRA and its sister
statute, RLUIPA, may in some circumstances require the Government to expend additional
funds to accommodate citizens' religious beliefs. Cf. § 2000cc-3(c) (RLUIPA: "[T]his
chapter may require a government to incur expenses in its own operations to avoid imposing
a substantial burden on religious exercise."). HHS's view that RFRA can never require the
Government to spend even a small amount reflects a judgment about the importance of
religious liberty that was not shared by the Congress that enacted that law.

In the end, however, we need not rely on the option of a new, government-funded program in
order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself
has demonstrated that it has at its disposal an approach that is less restrictive than requiring
employers to fund contraceptive methods that violate their religious beliefs. As we explained
above, HHS has already established an accommodation for nonprofit organizations with
religious objections. See supra, at 2763 - 2764, and nn. 8-9. Under that accommodation, the
organization can self-certify that it opposes providing coverage for particular contraceptive
services. See 45 CFR §§ 147.131(b)(4), (c)(1); 26 CFR §§ 54.9815-2713A(a)(4), (b). If the
organization makes such a certification, the organization's insurance issuer or third-party
administrator must "[e]xpressly exclude contraceptive coverage from the group health
insurance coverage provided in connection with the group health plan" and "[p]rovide
separate payments for any contraceptive services required to be covered" without imposing
"any cost-sharing requirements ... on the eligible organization, the group health plan, or plan
participants or beneficiaries." 45 CFR § 147.131(c)(2); 26 CFR § 54.9815-2713A(c)(2). 38

We do not decide today whether an approach of this type complies with RFRA for purposes
of all religious claims. 39 At a minimum, however, it does not impinge on the plaintiffs'
religious belief that providing insurance coverage for the contraceptives at issue here violates
their religion, and it serves HHS's stated interests equally well. 40

The principal dissent identifies no reason why this accommodation would fail to protect the
asserted needs of women as effectively as the contraceptive mandate, and there is none. 41
Under the accommodation, the plaintiffs' female employees would continue to receive
contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they
would continue to "face minimal logistical and administrative obstacles," post, at 2802
(internal quotation marks omitted), because their employers' insurers would be responsible
for providing information and coverage, see, e.g.,45 CFR §§ 147.131(c)- (d); cf.
 55

26 CFR §§ 54.9815-2713A(b), (d). Ironically, it is the dissent's approach that would

"[i]mped[e] women's receipt of benefits by 'requiring them to take steps to learn about, and
to sign up for, a new government funded and administered health benefit,' " post, at 2802,
because the dissent would effectively compel religious employers to drop health-insurance
coverage altogether, leaving their employees to find individual plans on government-run
exchanges or elsewhere. This is indeed "scarcely what Congress contemplated." Ibid.

HHS and the principal dissent argue that a ruling in favor of the objecting parties in these
cases will lead to a flood of religious objections regarding a wide variety of medical
procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no
effort to substantiate this prediction. 42 HHS points to no evidence that insurance plans in
existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS
provided evidence that any significant number of employers sought exemption, on religious
grounds, from any of ACA's coverage requirements other than the contraceptive mandate.

It is HHS's apparent belief that no insurance-coverage mandate would violate RFRA-no

matter how significantly it impinges on the religious liberties of employers-that would lead
to intolerable consequences. Under HHS's view, RFRA would permit the Government to
require all employers to provide coverage for any medical procedure allowed by law in the
jurisdiction in question-for instance, third-trimester abortions or assisted suicide. The owners
of many closely held corporations could not in good conscience provide such coverage, and
thus HHS would effectively exclude these people from full participation in the economic life
of the Nation. RFRA was enacted to prevent such an outcome.

In any event, our decision in these cases is concerned solely with the contraceptive mandate.
Our decision should not be understood to hold that an insurance-coverage mandate must
necessarily fall if it conflicts with an employer's religious beliefs. Other coverage
requirements, such as immunizations, may be supported by different interests (for example,
the need to combat the spread of infectious diseases) and may involve different arguments
about the least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on the
basis of race, might be cloaked as religious practice to escape legal sanction. See post, at
2804 - 2805. Our decision today provides no such shield. The Government has a compelling
interest in providing an equal opportunity to participate in the workforce without regard to
race, and prohibitions on racial discrimination are precisely tailored to achieve that critical
goal.

HHS also raises for the first time in this Court the argument that applying the contraceptive
mandate to for-profit employers with sincere religious objections is essential to the
comprehensive health-insurance scheme that ACA establishes. HHS analogizes the
contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in
Lee despite the religious objection of an employer, but these cases are quite different. Our
holding in Lee turned primarily on the special problems associated with a national system of
taxation. We noted that "[t]he obligation to pay the social security tax initially is not
fundamentally different from the obligation to pay income taxes." 455 U.S., at 260, 102 S.Ct.
1051. Based on that premise, we explained that it was untenable to allow individuals to seek
exemptions from taxes based on religious objections to particular Government expenditures:
"If, for example, a religious adherent believes war is a sin, and if a certain percentage of the
federal budget can be identified as devoted to war-related activities, such individuals would
have a similarly valid claim to be exempt from paying that percentage of the income tax."
Ibid. We observed that "[t]he tax system could not function if denominations were allowed to
challenge the tax system because tax payments were spent in a manner that violates their
religious belief." Ibid.; see O Centro, 546 U.S., at 435, 126 S.Ct. 1211.
 56

Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the
RFRA framework, the fundamental point would be that there simply is no less restrictive
alternative to the categorical requirement to pay taxes. Because of the enormous variety of
government expenditures funded by tax dollars, allowing taxpayers to withhold a portion of
their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from
the contraceptive mandate is very different. ACA does not create a large national pool of tax
revenue for use in purchasing healthcare coverage. Rather, individual employers like the
plaintiffs purchase insurance for their own employees. And contrary to the principal dissent's
characterization, the employers' contributions do not necessarily funnel into "undifferentiated
funds." Post, at 2799. The accommodation established by HHS requires issuers to have a
mechanism by which to "segregate premium revenue collected from the eligible organization
from the monies used to provide payments for contraceptive services." 45 CFR § 147.131(c)
(2)(ii). Recognizing a religious accommodation under RFRA for particular coverage
requirements, therefore, does not threaten the viability of ACA's comprehensive scheme in
the way that recognizing religious objections to particular expenditures from general tax
revenues would. 43

In its final pages, the principal dissent reveals that its fundamental objection to the claims of
the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal
courts to apply RFRA to a host of claims made by litigants seeking a religious exemption
from generally applicable laws, and the dissent expresses a desire to keep the courts out of
this business. See post, at 2804 - 2806. In making this plea, the dissent reiterates a point
made forcefully by the Court in Smith. 494 U.S., at 888-889, 110 S.Ct. 1595 (applying the
Sherbert test to all free- exercise claims "would open the prospect of constitutionally
required religious exemptions from civic obligations of almost every conceivable kind"). But
Congress, in enacting RFRA, took the position that "the compelling interest test as set forth
in prior Federal court rulings is a workable test for striking sensible balances between
religious liberty and competing prior governmental interests." 42 U.S.C. § 2000bb(a)(5). The
wisdom of Congress's judgment on this matter is not our concern. Our responsibility is to
enforce RFRA as written, and under the standard that RFRA prescribes, the HHS
contraceptive mandate is unlawful.

***

The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our
decision on that statutory question makes it unnecessary to reach the First Amendment claim
raised by Conestoga and the Hahns.

The judgment of the Tenth Circuit in No. 13-354 is affirmed; the judgment of the Third
Circuit in No. 13-356 is reversed, and that case is remanded for further proceedings
consistent with this opinion.

It is so ordered.

Justice KENNEDY, concurring.

It seems to me appropriate, in joining the Court's opinion, to add these few remarks. At the
outset it should be said that the Court's opinion does not have the breadth and sweep ascribed
to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper
interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree
on the purpose of that statute. 42 U.S.C. § 2000bb et seq.It is to ensure that interests in
religious freedom are protected. Ante, at 2760 - 2761; post, at 2790 - 2791 (GINSBURG, J.,
dissenting).

In our constitutional tradition, freedom means that all persons have the right to believe or
strive to believe in a divine creator and a divine law. For those who choose this course, free
exercise is essential in preserving their own dignity and in striving for a self-definition
 57

shaped by their religious precepts. Free exercise in this sense implicates more than just
freedom of belief. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed.
1213 (1940). It means, too, the right to express those beliefs and to establish one's religious
(or nonreligious) self-definition in the political, civic, and economic life of our larger
community. But in a complex society and an era of pervasive governmental regulation,
defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem
it necessary to exercise their religious beliefs within the context of their own closely held,
for-profit corporations. They claim protection under RFRA, the federal statute discussed with
care and in detail in the Court's opinion.

As the Court notes, under our precedents, RFRA imposes a " 'stringent test.' " Ante, at 2761
(quoting City of Boerne v. Flores, 521 U.S. 507, 533, 117 S.Ct. 2157, 138 L.Ed.2d 624
(1997)). The Government must demonstrate that the application of a substantial burden to a
person's exercise of religion "(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest." §
2000bb-1(b).

As to RFRA's first requirement, the Department of Health and Human Services (HHS) makes
the case that the mandate serves the Government's compelling interest in providing insurance
coverage that is necessary to protect the health of female employees, coverage that is
significantly more costly than for a male employee. Ante, at 2779; see, e.g., Brief for HHS in
No. 13-354, pp. 14-15. There are many medical conditions for which pregnancy is
contraindicated. See, e.g., id., at 2784. It is important to confirm that a premise of the Court's
opinion is its assumption that the HHS regulation here at issue furthers a legitimate and
compelling interest in the health of female employees. Ante, at 2780.

But the Government has not made the second showing required by RFRA, that the means it
uses to regulate is the least restrictive way to further its interest. As the Court's opinion
explains, the record in these cases shows that there is an existing, recognized, workable, and
already-implemented framework to provide coverage. That framework is one that HHS has
itself devised, that the plaintiffs have not criticized with a specific objection that has been
considered in detail by the courts in this litigation, and that is less restrictive than the means
challenged by the plaintiffs in these cases. Ante, at 2763 - 2764, and n. 9, 2781 - 2782.

The means the Government chose is the imposition of a direct mandate on the employers in
these cases. Ante, at 2762 - 2763. But in other instances the Government has allowed the
same contraception coverage in issue here to be provided to employees of nonprofit religious
organizations, as an accommodation to the religious objections of those entities. See ante, at
2763 - 2764, and n. 9, 2781 - 2782. The accommodation works by requiring insurance
companies to cover, without cost sharing, contraception coverage for female employees who
wish it. That accommodation equally furthers the Government's interest but does not impinge
on the plaintiffs' religious beliefs. See ante, at 2782.

On this record and as explained by the Court, the Government has not met its burden of
showing that it cannot accommodate the plaintiffs' similar religious objections under this
established framework. RFRA is inconsistent with the insistence of an agency such as HHS
on distinguishing between different religious believers-burdening one while accommodating
the other-when it may treat both equally by offering both of them the same accommodation.

The parties who were the plaintiffs in the District Courts argue that the Government could
pay for the methods that are found objectionable. Brief for Respondents in No. 13-354, p. 58.
In discussing this alternative, the Court does not address whether the proper response to a
legitimate claim for freedom in the health care arena is for the Government to create an
additional program. Ante, at 2780 - 2782. The Court properly does not resolve whether one
freedom should be protected by creating incentives for additional government constraints. In
these cases, it is the Court's understanding that an accommodation may be made to the
 58

employers without imposition of a whole new program or burden on the Government. As the
Court makes clear, this is not a case where it can be established that it is difficult to
accommodate the government's interest, and in fact the mechanism for doing so is already in
place. Ante, at 2781 - 2782.

"[T]he American community is today, as it long has been, a rich mosaic of religious faiths."
Town of Greece v. Galloway, 572 U.S. ----, ----, 134 S.Ct. 1811, 1849, 188 L.Ed.2d 835
(2014) (KAGAN, J., dissenting). Among the reasons the United States is so open, so tolerant,
and so free is that no person may be restricted or demeaned by government in exercising his
or her religion. Yet neither may that same exercise unduly restrict other persons, such as
employees, in protecting their own interests, interests the law deems compelling. In these
cases the means to reconcile those two priorities are at hand in the existing accommodation
the Government has designed, identified, and used for circumstances closely parallel to those
presented here. RFRA requires the Government to use this less restrictive means. As the
Court explains, this existing model, designed precisely for this problem, might well suffice to
distinguish the instant cases from many others in which it is more difficult and expensive to
accommodate a governmental program to countless religious claims based on an alleged
statutory right of free exercise. Ante, at 2782 - 2783.

For these reasons and others put forth by the Court, I join its opinion.

Justice GINSBURG, with whom Justice Sotomayor joins, and with whom Justice
BREYER and Justice KAGAN join as to all but Part III-C-1, dissenting.

In a decision of startling breadth, the Court holds that commercial enterprises, including
corporations, along with partnerships and sole proprietorships, can opt out of any law (saving
only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at
2767 - 2785. Compelling governmental interests in uniform compliance with the law, and
disadvantages that religion-based opt-outs impose on others, hold no sway, the Court
decides, at least when there is a "less restrictive alternative." And such an alternative, the
Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a
religion-based exemption, the government, i.e., the general public, can pick up the tab. See
ante, at 2780 - 2782. 1

The Court does not pretend that the First Amendment's Free Exercise Clause demands
religion-based accommodations so extreme, for our decisions leave no doubt on that score.
See infra, at 2789 - 2791. Instead, the Court holds that Congress, in the Religious Freedom
Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq., dictated the extraordinary
religion-based exemptions today's decision endorses. In the Court's view, RFRA demands
accommodation of a for-profit corporation's religious beliefs no matter the impact that
accommodation may have on third parties who do not share the corporation owners' religious
faith-in these cases, thousands of women employed by Hobby Lobby and Conestoga or
dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to
serve a far less radical purpose, and mindful of the havoc the Court's judgment can introduce,
I dissent.

"The ability of women to participate equally in the economic and social life of the Nation has
been facilitated by their ability to control their reproductive lives."

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992). Congress acted on that understanding when, as part of a nationwide
insurance program intended to be comprehensive, it called for coverage of preventive care
responsive to women's needs. Carrying out Congress' direction, the Department of Health
and Human Services (HHS), in consultation with public health experts, promulgated
regulations requiring group health plans to cover all forms of contraception approved by the
 59

Food and Drug Administration (FDA). The genesis of this coverage should enlighten the
Court's resolution of these cases.

The Affordable Care Act (ACA), in its initial form, specified three categories of preventive
care that health plans must cover at no added cost to the plan participant or beneficiary. 2
Particular services were to be recommended by the U.S. Preventive Services Task Force, an
independent panel of experts. The scheme had a large gap, however; it left out preventive
services that "many women's health advocates and medical professionals believe are
critically important." 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this
oversight, Senator Barbara Mikulski introduced the Women's Health Amendment, which
added to the ACA's minimum coverage requirements a new category of preventive services
specific to women's health.

Women paid significantly more than men for preventive care, the amendment's proponents
noted; in fact, cost barriers operated to block many women from obtaining needed care at all.
See, e.g., id., at 29070 (statement of Sen. Feinstein) ("Women of childbearing age spend 68
percent more in out-of-pocket health care costs than men."); id., at 29302 (statement of Sen.
Mikulski) ("copayments are [often] so high that [women] avoid getting [preventive and
screening services] in the first place"). And increased access to contraceptive services, the
sponsors comprehended, would yield important public health gains. See, e.g., id., at 29768
(statement of Sen. Durbin) ("This bill will expand health insurance coverage to the vast
majority of [the 17 million women of reproductive age in the United States who are
uninsured].... This expanded access will reduce unintended pregnancies.").

As altered by the Women's Health Amendment's passage, the ACA requires new insurance
plans to include coverage without cost sharing of "such additional preventive care and
screenings ... as provided for in comprehensive guidelines supported by the Health Resources
and Services Administration [ (HRSA) ]," a unit of HHS. 42 U.S.C. § 300gg-13(a)(4). Thus
charged, the HRSA developed recommendations in consultation with the Institute of
Medicine (IOM). See 77 Fed.Reg. 8725-8726 (2012). 3 The IOM convened a group of
independent experts, including "specialists in disease prevention [and] women's health";
those experts prepared a report evaluating the efficacy of a number of preventive services.
IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM
Report). Consistent with the findings of "[n]umerous health professional associations" and
other organizations, the IOM experts determined that preventive coverage should include the
"full range" of FDA-approved contraceptive methods. Id., at 10. See also id., at 102-110.

In making that recommendation, the IOM's report expressed concerns similar to those voiced
by congressional proponents of the Women's Health Amendment. The report noted the
disproportionate burden women carried for comprehensive health services and the adverse
health consequences of excluding contraception from preventive care available to employees
without cost sharing. See, e.g., id., at 19 ("[W]omen are consistently more likely than men to
report a wide range of cost-related barriers to receiving ... medical tests and treatments and to
filling prescriptions for themselves and their families."); id., at 103-104, 107 (pregnancy may
be contraindicated for women with certain medical conditions, for example, some congenital
heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be
used to reduce risk of endometrial cancer, among other serious medical conditions); id., at
103 (women with unintended pregnancies are more likely to experience depression and
anxiety, and their children face "increased odds of preterm birth and low birth weight").

In line with the IOM's suggestions, the HRSA adopted guidelines recommending coverage of
"[a]ll [FDA-] approved contraceptive methods, sterilization procedures, and patient
education and counseling for all women with reproductive capacity." 4 Thereafter, HHS, the
Department of Labor, and the Department of Treasury promulgated regulations requiring
 60

group health plans to include coverage of the contraceptive services recommended in the
HRSA guidelines, subject to certain exceptions, described infra, at 2800 - 2801. 5 This
opinion refers to these regulations as the contraceptive coverage requirement.

While the Women's Health Amendment succeeded, a countermove proved unavailing. The
Senate voted down the so-called "conscience amendment," which would have enabled any
employer or insurance provider to deny coverage based on its asserted "religious beliefs or
moral convictions." 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162-S1173 (Mar. 1,
2012) (debate and vote). 6 That amendment, Senator Mikulski observed, would have "pu[t]
the personal opinion of employers and insurers over the practice of medicine." Id., at S1127
(Feb. 29, 2012). Rejecting the "conscience amendment," Congress left health care decisions-
including the choice among contraceptive methods-in the hands of women, with the aid of
their health care providers.

II

Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga 7 might assert
is foreclosed by this Court's decision in Employment Div., Dept. of Human Resources of Ore.
v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, two members of
the Native American Church were dismissed from their jobs and denied unemployment
benefits because they ingested peyote at, and as an essential element of, a religious
ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that
prohibition, rejected the employees' claim that the denial of unemployment benefits violated
their free exercise rights. The First Amendment is not offended, Smith held, when
"prohibiting the exercise of religion ... is not the object of [governmental regulation] but
merely the incidental effect of a generally applicable and otherwise valid provision." Id., at
878, 110 S.Ct. 1595; see id., at 878-879, 110 S.Ct. 1595 ("an individual's religious beliefs
[do not] excuse him from compliance with an otherwise valid law prohibiting conduct that
the State is free to regulate"). The ACA's contraceptive coverage requirement applies
generally, it is "otherwise valid," it trains on women's well being, not on the exercise of
religion, and any effect it has on such exercise is incidental.

Even if Smith did not control, the Free Exercise Clause would not require the exemption
Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the
Court has clarified, must not significantly impinge on the interests of third parties. 8

The exemption sought by Hobby Lobby and Conestoga would override significant interests
of the corporations' employees and covered dependents. It would deny legions of women who
do not hold their employers' beliefs access to contraceptive coverage that the ACA would
otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th
527, 565, 10 Cal.Rptr.3d 283, 85 P.3d 67, 93 (2004) ("We are unaware of any decision in
which ... [the U.S. Supreme Court] has exempted a religious objector from the operation of a
neutral, generally applicable law despite the recognition that the requested exemption would
detrimentally affect the rights of third parties."). In sum, with respect to free exercise claims
no less than free speech claims, " '[y]our right to swing your arms ends just where the other
man's nose begins.' " Chafee, Freedom of Speech in War Time, 32 Harv. L.Rev. 932, 957
(1919).

III

Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely
on RFRA, a statute instructing that "[g]overnment shall not substantially burden a person's
exercise of religion even if the burden results from a rule of general applicability" unless the
 61

government shows that application of the burden is "the least restrictive means" to further a
"compelling governmental interest." 42 U.S.C. § 2000bb-1(a), (b)(2). In RFRA, Congress
"adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith." Gonzales
v. O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 424, 126 S.Ct. 1211, 163
L.Ed.2d 1017 (2006).

RFRA's purpose is specific and written into the statute itself. The Act was crafted to "restore
the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790,
10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972) and to guarantee its application in all cases where free exercise of religion is
substantially burdened." § 2000bb(b)(1). 9 See also § 2000bb(a)(5) ("[T]he compelling
interest test as set forth in prior Federal court rulings is a workable test for striking sensible
balances between religious liberty and competing prior governmental interests."); ante, at
2785 (agreeing that the pre- Smith compelling interest test is "workable" and "strike[s]
sensible balances").

The legislative history is correspondingly emphatic on RFRA's aim. See, e.g.,S.Rep. No.
103-111, p. 12 (1993) (hereinafter Senate Report) (RFRA's purpose was "only to overturn the
Supreme Court's decision in Smith," not to "unsettle other areas of the law."); 139 Cong. Rec.
26178 (1993) (statement of Sen. Kennedy) (RFRA was "designed to restore the compelling
interest test for deciding free exercise claims."). In line with this restorative purpose,
Congress expected courts considering RFRA claims to "look to free exercise cases decided
prior to Smith for guidance." Senate Report 8. See also H.R.Rep. No. 103-88, pp. 6-7 (1993)
(hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to
Smith, without "creat[ing] ... new rights for any religious practice or for any potential
litigant." 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act's moderate
purpose, it is hardly surprising that RFRA's enactment in 1993 provoked little controversy.
See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators Brief) (RFRA
was approved by a 97-to-3 vote in the Senate and a voice vote in the House of
Representatives).

Despite these authoritative indications, the Court sees RFRA as a bold initiative departing
from, rather than restoring, pre-Smith jurisprudence. See ante, at 2761, n. 3, 2761 - 2762,
2767, 2771 - 2773. To support its conception of RFRA as a measure detached from this
Court's decisions, one that sets a new course, the Court points first to the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq., which
altered RFRA's definition of the term "exercise of religion." RFRA, as originally enacted,
defined that term to mean "the exercise of religion under the First Amendment to the
Constitution." § 2000bb-2(4) (1994 ed.). See ante, at 2761 - 2762. As amended by RLUIPA,
RFRA's definition now includes "any exercise of religion, whether or not compelled by, or
central to, a system of religious belief." § 2000bb-2(4) (2012 ed.) (cross-referencing §
2000cc-5). That definitional change, according to the Court, reflects "an obvious effort to
effect a complete separation from First Amendment case law." Ante, at 2761 - 2762.

The Court's reading is not plausible. RLUIPA's alteration clarifies that courts should not
question the centrality of a particular religious exercise. But the amendment in no way
suggests that Congress meant to expand the class of entities qualified to mount religious
accommodation claims, nor does it relieve courts of the obligation to inquire whether a
government action substantially burdens a religious exercise. See Rasul v. Myers, 563 F.3d
527, 535 (C.A.D.C.2009) (Brown, J., concurring) ("There is no doubt that RLUIPA's
drafters, in changing the definition of 'exercise of religion,' wanted to broaden the scope of
the kinds of practices protected by RFRA, not increase the universe of individuals protected
by RFRA."); H.R.Rep. No. 106-219, p. 30 (1999). See also Gilardi v. United States Dept. of
Health and Human Servs., 733 F.3d 1208, 1211 (C.A.D.C.2013) (RFRA, as amended,
 62

"provides us with no helpful definition of 'exercise of religion.' "); Henderson v. Kennedy,

265 F.3d 1072, 1073 (C.A.D.C.2001) ("The [RLUIPA] amendments did not alter RFRA's
basic prohibition that the '[g]overnment shall not substantially burden a person's exercise of
religion.' "). 10

Next, the Court highlights RFRA's requirement that the government, if its action
substantially burdens a person's religious observance, must demonstrate that it chose the least
restrictive means for furthering a compelling interest. "[B]y imposing a least-restrictive-
means test," the Court suggests, RFRA "went beyond what was required by our pre- Smith
decisions." Ante, at 2767, n. 18 (citing City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct.
2157, 138 L.Ed.2d 624 (1997)). See also ante, at 2761, n. 3. But as RFRA's statements of
purpose and legislative history make clear, Congress intended only to restore, not to scrap or
alter, the balancing test as this Court had applied it pre-Smith. See supra, at 2790 - 2791. See
also Senate Report 9 (RFRA's "compelling interest test generally should not be construed
more stringently or more leniently than it was prior to Smith."); House Report 7 (same).

The Congress that passed RFRA correctly read this Court's pre- Smith case law as including
within the "compelling interest test" a "least restrictive means" requirement. See, e.g., Senate
Report 5 ("Where [a substantial] burden is placed upon the free exercise of religion, the
Court ruled [in Sherbert ], the Government must demonstrate that it is the least restrictive
means to achieve a compelling governmental interest."). And the view that the pre- Smith test
included a "least restrictive means" requirement had been aired in testimony before the
Senate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969
before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78-79 (1993) (statement
of Prof. Douglas Laycock).

Our decision in City of Boerne, it is true, states that the least restrictive means requirement
"was not used in the pre- Smith jurisprudence RFRA purported to codify." See ante, at 2761,
n. 3, 2767, n. 18. As just indicated, however, that statement does not accurately convey the
Court's pre- Smith jurisprudence. See Sherbert, 374 U.S., at 407, 83 S.Ct. 1790 ("[I]t would
plainly be incumbent upon the [government] to demonstrate that no alternative forms of
regulation would combat [the problem] without infringing First Amendment rights.");
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718, 101 S.Ct.
1425, 67 L.Ed.2d 624 (1981) ("The state may justify an inroad on religious liberty by
showing that it is the least restrictive means of achieving some compelling state interest.").
See also Berg, The New Attacks on Religious Freedom Legislation and Why They Are
Wrong, 21 Cardozo L.Rev. 415, 424 (1999) ("In Boerne, the Court erroneously said that the
least restrictive means test 'was not used in the pre- Smith jurisprudence.' "). 11

With RFRA's restorative purpose in mind, I turn to the Act's application to the instant
lawsuits. That task, in view of the positions taken by the Court, requires consideration of
several questions, each potentially dispositive of Hobby Lobby's and Conestoga's claims: Do
for-profit corporations rank among "person[s]" who "exercise ... religion"? Assuming that
they do, does the contraceptive coverage requirement "substantially burden" their religious
exercise? If so, is the requirement "in furtherance of a compelling government interest"? And
last, does the requirement represent the least restrictive means for furthering that interest?

Misguided by its errant premise that RFRA moved beyond the pre- Smith case law, the Court
falters at each step of its analysis.

RFRA's compelling interest test, as noted, see supra, at 2790, applies to government actions
that "substantially burden a person's exercise of religion." 42 U.S.C. § 2000bb-1(a)
(emphasis added). This reference, the Court submits, incorporates the definition of "person"
 63

found in the Dictionary Act, 1 U.S.C. § 1, which extends to "corporations, companies,

associations, firms, partnerships, societies, and joint stock companies, as well as
individuals." See ante, at 2768 . The Dictionary Act's definition, however, controls only
where "context" does not "indicat[e] otherwise." § 1. Here, context does so indicate. RFRA
speaks of "a person's exercise of religion." 42 U.S.C. § 2000bb-1(a) (emphasis added). See
also §§ 2000bb-2(4), 2000cc-5(7)(a). 12 Whether a corporation qualifies as a "person" capable
of exercising religion is an inquiry one cannot answer without reference to the "full body" of
pre- Smith "free-exercise caselaw." Gilardi, 733 F.3d, at 1212. There is in that case law no
support for the notion that free exercise rights pertain to for-profit corporations.

Until this litigation, no decision of this Court recognized a for-profit corporation's

qualification for a religious exemption from a generally applicable law, whether under the
Free Exercise Clause or RFRA. 13 The absence of such precedent is just what one would
expect, for the exercise of religion is characteristic of natural persons, not artificial legal
entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is "an
artificial being, invisible, intangible, and existing only in contemplation of law." Trustees of
Dartmouth College v. Woodward, 4 Wheat. 518, 636, 4 L.Ed. 629 (1819). Corporations,
Justice Stevens more recently reminded, "have no consciences, no beliefs, no feelings, no
thoughts, no desires." Citizens United v. Federal Election Comm'n, 558 U.S. 310, 466, 130
S.Ct. 876, 175 L.Ed.2d 753 (2010) (opinion concurring in part and dissenting in part).

The First Amendment's free exercise protections, the Court has indeed recognized, shelter
churches and other nonprofit religion-based organizations. 14 "For many individuals,
religious activity derives meaning in large measure from participation in a larger religious
community," and "furtherance of the autonomy of religious organizations often furthers
individual religious freedom as well." Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U.S. 327, 342, 107 S.Ct. 2862, 97 L.Ed.2d 273
(1987) (Brennan, J., concurring in judgment). The Court's "special solicitude to the rights of
religious organizations,"

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ----, ----, 132
S.Ct. 694, 706, 181 L.Ed.2d 650 (2012), however, is just that. No such solicitude is
traditional for commercial organizations. 15 Indeed, until today, religious exemptions had
never been extended to any entity operating in "the commercial, profit-making world." Amos,
483 U.S., at 337, 107 S.Ct. 2862. 16

The reason why is hardly obscure. Religious organizations exist to foster the interests of
persons subscribing to the same religious faith. Not so of for-profit corporations. Workers
who sustain the operations of those corporations commonly are not drawn from one religious
community. Indeed, by law, no religion-based criterion can restrict the work force of for-
profit corporations. See 42 U.S.C. §§ 2000e(b), 2000e-1(a), 2000e-2(a); cf. Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 80-81, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (Title
VII requires reasonable accommodation of an employee's religious exercise, but such
accommodation must not come "at the expense of other[ employees]").

The distinction between a community made up of believers in the same religion and one
embracing persons of diverse beliefs, clear as it is, constantly escapes the Court's attention. 17
One can only wonder why the Court shuts this key difference from sight.

Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-
profit corporations surely is not grounded in the pre- Smith precedent Congress sought to
preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to
that effect likely would have been made in the legislation. See Whitman v. American
Trucking Assns., Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (Congress
does not "hide elephants in mouseholes"). The text of RFRA makes no such statement and
the legislative history does not so much as mention for-profit corporations. See Hobby Lobby
 64

Stores, Inc. v. Sebelius, 723 F.3d 1114, 1169 (C.A.10 2013) (Briscoe, C.J., concurring in part
and dissenting in part) (legislative record lacks "any suggestion that Congress foresaw, let
alone intended that, RFRA would cover for-profit corporations"). See also Senators Brief 10-
13 (none of the cases cited in House or Senate Judiciary Committee reports accompanying
RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit
corporations).

The Court notes that for-profit corporations may support charitable causes and use their
funds for religious ends, and therefore questions the distinction between such corporations
and religious nonprofit organizations. See ante, at 2769 - 2772. See also ante, at 2786
(KENNEDY, J., concurring) (criticizing the Government for "distinguishing between
different religious believers-burdening one while accommodating the other-when it may treat
both equally by offering both of them the same accommodation"). 18 Again, the Court forgets
that religious organizations exist to serve a community of believers. For-profit corporations
do not fit that bill. Moreover, history is not on the Court's side. Recognition of the discrete
characters of "ecclesiastical and lay" corporations dates back to Blackstone, see 1 W.
Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this
Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9
Cranch 43, 49, 3 L.Ed. 650 (1815) (describing religious corporations); Trustees of Dartmouth
College, 4 Wheat., at 645 (discussing "eleemosynary" corporations, including those "created
for the promotion of religion"). To reiterate, "for- profit corporations are different from
religious non-profits in that they use labor to make a profit, rather than to perpetuate [the]
religious value[s] [shared by a community of believers]." Gilardi, 733 F.3d, at 1242
(Edwards, J., concurring in part and dissenting in part) (emphasis deleted).

Citing Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), the Court
questions why, if "a sole proprietorship that seeks to make a profit may assert a free-exercise
claim, [Hobby Lobby and Conestoga] can't ... do the same?" Ante, at 2770 (footnote omitted).
See also ante, at 2767 - 2768. But even accepting, arguendo, the premise that unincorporated
business enterprises may gain religious accommodations under the Free Exercise Clause, the
Court's conclusion is unsound. In a sole proprietorship, the business and its owner are one
and the same. By incorporating a business, however, an individual separates herself from the
entity and escapes personal responsibility for the entity's obligations. One might ask why the
separation should hold only when it serves the interest of those who control the corporation.
In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and
Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits.

The Court's determination that RFRA extends to for-profit corporations is bound to have
untoward effects. Although the Court attempts to cabin its language to closely held
corporations, its logic extends to corporations of any size, public or private. 19 Little doubt
that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood-
combined with its other errors in construing RFRA-invites for-profit entities to seek religion-
based exemptions from regulations they deem offensive to their faith.

Even if Hobby Lobby and Conestoga were deemed RFRA "person[s]," to gain an exemption,
they must demonstrate that the contraceptive coverage requirement "substantially burden[s]
[their] exercise of religion." 42 U.S.C. § 2000bb-1(a). Congress no doubt meant the modifier
"substantially" to carry weight. In the original draft of RFRA, the word "burden" appeared
unmodified. The word "substantially" was inserted pursuant to a clarifying amendment
offered by Senators Kennedy and Hatch. See 139 Cong. Rec. 26180. In proposing the
amendment, Senator Kennedy stated that RFRA, in accord with the Court's pre- Smith case
law, "does not require the Government to justify every action that has some effect on
religious exercise." Ibid.
 65

The Court barely pauses to inquire whether any burden imposed by the contraceptive
coverage requirement is substantial. Instead, it rests on the Greens' and Hahns' "belie[f] that
providing the coverage demanded by the HHS regulations is connected to the destruction of
an embryo in a way that is sufficient to make it immoral for them to provide the coverage."
Ante, at 2778. 20 I agree with the Court that the Green and Hahn families' religious
convictions regarding contraception are sincerely held. See Thomas, 450 U.S., at 715, 101
S.Ct. 1425 (courts are not to question where an individual "dr[aws] the line" in defining
which practices run afoul of her religious beliefs). See also 42 U.S.C. §§ 2000bb-1(a),
2000bb-2(4), 2000cc-5(7)(A). 21 But those beliefs, however deeply held, do not suffice to
sustain a RFRA claim. RFRA, properly understood, distinguishes between "factual
allegations that [plaintiffs'] beliefs are sincere and of a religious nature," which a court must
accept as true, and the "legal conclusion ... that [plaintiffs'] religious exercise is substantially
burdened," an inquiry the court must undertake. Kaemmerling v. Lappin, 553 F.3d 669, 679
(C.A.D.C.2008).

That distinction is a facet of the pre- Smith jurisprudence RFRA incorporates. Bowen v. Roy,
476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), is instructive. There, the Court
rejected a free exercise challenge to the Government's use of a Native American child's
Social Security number for purposes of administering benefit programs. Without questioning
the sincerity of the father's religious belief that "use of [his daughter's Social Security]
number may harm [her] spirit," the Court concluded that the Government's internal uses of
that number "place[d] [no] restriction on what [the father] may believe or what he may do."
Id., at 699, 106 S.Ct. 2147 . Recognizing that the father's "religious views may not accept"
the position that the challenged uses concerned only the Government's internal affairs, the
Court explained that "for the adjudication of a constitutional claim, the Constitution, rather
than an individual's religion, must supply the frame of reference." Id., at 700-701, n. 6, 106
S.Ct. 2147. See also Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 104
L.Ed.2d 766 (1989) (distinguishing between, on the one hand, "question[s] [of] the centrality
of particular beliefs or practices to a faith, or the validity of particular litigants'
interpretations of those creeds," and, on the other, "whether the alleged burden imposed [by
the challenged government action] is a substantial one"). Inattentive to this guidance, today's
decision elides entirely the distinction between the sincerity of a challenger's religious belief
and the substantiality of the burden placed on the challenger.

Undertaking the inquiry that the Court forgoes, I would conclude that the connection
between the families' religious objections and the contraceptive coverage requirement is too
attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or
Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on
the companies covered by the requirement to direct money into undifferentiated funds that
finance a wide variety of benefits under comprehensive health plans. Those plans, in order to
comply with the ACA, see supra, at 2788 - 2790, must offer contraceptive coverage without
cost sharing, just as they must cover an array of other preventive services.

Importantly, the decisions whether to claim benefits under the plans are made not by Hobby
Lobby or Conestoga, but by the covered employees and dependents, in consultation with
their health care providers. Should an employee of Hobby Lobby or Conestoga share the
religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the
contraceptives in question. But "[n]o individual decision by an employee and her physician-
be it to use contraception, treat an infection, or have a hip replaced-is in any meaningful
sense [her employer's] decision or action." Grote v. Sebelius, 708 F.3d 850, 865 (C.A.7 2013)
(Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be
"substantia[l]," had in mind a linkage thus interrupted by independent decisionmakers (the
woman and her health counselor) standing between the challenged government action and the
religious exercise claimed to be infringed. Any decision to use contraceptives made by a
woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the
 66

Government, it will be the woman's autonomous choice, informed by the physician she
consults.

Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden
requirement, the Government has shown that the contraceptive coverage for which the ACA
provides furthers compelling interests in public health and women's well being. Those
interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To
recapitulate, the mandated contraception coverage enables women to avoid the health
problems unintended pregnancies may visit on them and their children. See IOM Report 102-
107. The coverage helps safeguard the health of women for whom pregnancy may be
hazardous, even life threatening. See Brief for American College of Obstetricians and
Gynecologists et al. as Amici Curiae 14-15. And the mandate secures benefits wholly
unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.
Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6-7, 15-16; 78 Fed.Reg.
39872 (2013); IOM Report 107.

That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved
contraceptives does not lessen these compelling interests. Notably, the corporations exclude
intrauterine devices (IUDs), devices significantly more effective, and significantly more
expensive than other contraceptive methods. See id., at 105. 22 Moreover, the Court's
reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to
exclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38-39
(counsel for Hobby Lobby acknowledged that his "argument ... would apply just as well if
the employer said 'no contraceptives' " (internal quotation marks added)).

Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its
RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at
2780. 23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month's
full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as
Amici Curiae 16; that almost one-third of women would change their contraceptive method if
costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and
Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Reproductive
Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have
one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, &
Schwarz, The Impact of Out-of-Pocket Expense on IUD Utilization Among Women With
Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60
(recent study found that women who face out-of-pocket IUD costs in excess of $50 were "11-
times less likely to obtain an IUD than women who had to pay less than $50"); Postlethwaite,
Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and
Post-Benefit Change, 76 Contraception 360, 361-362 (2007) (when one health system
eliminated patient cost sharing for IUDs, use of this form of contraception more than
doubled).

Stepping back from its assumption that compelling interests support the contraceptive
coverage requirement, the Court notes that small employers and grandfathered plans are not
subject to the requirement. If there is a compelling interest in contraceptive coverage, the
Court suggests, Congress would not have created these exclusions. See ante, at 2779 - 2780.

Federal statutes often include exemptions for small employers, and such provisions have
never been held to undermine the interests served by these statutes. See, e.g., Family and
Medical Leave Act of 1993, 29 U.S.C. § 2611(4)(A)(i) (applicable to employers with 50 or
more employees); Age Discrimination in Employment Act of 1967, 29 U.S.C. § 630(b)
(originally exempting employers with fewer than 50 employees, 81 Stat. 605, the statute now
governs employers with 20 or more employees); Americans With Disabilities Act, 42 U.S.C.
 67

§ 12111(5)(A) (applicable to employers with 15 or more employees); Title VII, 42 U.S.C. §

2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y
& H Corp., 546 U.S. 500, 505, n. 2, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), the statute
now governs employers with 15 or more employees).

The ACA's grandfathering provision, 42 U.S.C. § 18011, allows a phasing-in period for
compliance with a number of the Act's requirements (not just the contraceptive coverage or
other preventive services provisions). Once specified changes are made, grandfathered status
ceases. See 45 CFR § 147.140(g). Hobby Lobby's own situation is illustrative. By the time
this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by
the District Court, Hobby Lobby's counsel explained that the "grandfathering requirements
mean that you can't make a whole menu of changes to your plan that involve things like the
amount of co-pays, the amount of co-insurance, deductibles, that sort of thing." App. in No.
13-354, pp. 39-40. Counsel acknowledged that, "just because of economic realities, our plan
has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time." Id., at
40.24 The percentage of employees in grandfathered plans is steadily declining, having
dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation &
Health Research & Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far
from ranking as a categorical exemption, the grandfathering provision is "temporary,
intended to be a means for gradually transitioning employers into mandatory coverage."
Gilardi, 733 F.3d, at 1241 (Edwards, J., concurring in part and dissenting in part).

The Court ultimately acknowledges a critical point: RFRA's application " must take adequate
account of the burdens a requested accommodation may impose on nonbeneficiaries." Ante,
at 2781, n. 37 (quoting Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S.Ct. 2113, 161 L.Ed.2d
1020 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows a
religion-based exemption when the accommodation would be harmful to others-here, the
very persons the contraceptive coverage requirement was designed to protect. Cf. supra, at
2790 - 2791; Prince v. Massachusetts, 321 U.S. 158, 177, 64 S.Ct. 438, 88 L.Ed. 645 (1944)
(Jackson, J., dissenting) ("[The] limitations which of necessity bound religious freedom ...
begin to operate whenever activities begin to affect or collide with liberties of others or of
the public.").

After assuming the existence of compelling government interests, the Court holds that the
contraceptive coverage requirement fails to satisfy RFRA's least restrictive means test. But
the Government has shown that there is no less restrictive, equally effective means that
would both (1) satisfy the challengers' religious objections to providing insurance coverage
for certain contraceptives (which they believe cause abortions); and (2) carry out the
objective of the ACA's contraceptive coverage requirement, to ensure that women employees
receive, at no cost to them, the preventive care needed to safeguard their health and well
being. A "least restrictive means" cannot require employees to relinquish benefits accorded
them by federal law in order to ensure that their commercial employers can adhere
unreservedly to their religious tenets. See supra, at 2790 - 2791, 2801. 25

Then let the government pay (rather than the employees who do not share their employer's
faith), the Court suggests. "The most straightforward [alternative]," the Court asserts, "would
be for the Government to assume the cost of providing ... contraceptives ... to any women
who are unable to obtain them under their health-insurance policies due to their employers'
religious objections." Ante, at 2780. The ACA, however, requires coverage of preventive
services through the existing employer-based system of health insurance "so that
[employees] face minimal logistical and administrative obstacles." 78 Fed.Reg. 39888.
Impeding women's receipt of benefits "by requiring them to take steps to learn about, and to
sign up for, a new [government funded and administered] health benefit" was scarcely what
Congress contemplated. Ibid. Moreover, Title X of the Public Health Service Act, 42 U.S.C.
 68

§ 300 et seq., "is the nation's only dedicated source of federal funding for safety net family
planning services." Brief for National Health Law Program et al. as Amici Curiae 23. "Safety
net programs like Title X are not designed to absorb the unmet needs of ... insured
individuals." Id., at 24. Note, too, that Congress declined to write into law the preferential
treatment Hobby Lobby and Conestoga describe as a less restrictive alternative. See supra, at
2789.

And where is the stopping point to the "let the government pay" alternative? Suppose an
employer's sincerely held religious belief is offended by health coverage of vaccines, or
paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor,
471 U.S. 290, 303, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985), or according women equal pay
for substantially similar work, see Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392
(C.A.4 1990)? Does it rank as a less restrictive alternative to require the government to
provide the money or benefit to which the employer has a religion-based objection? 26
Because the Court cannot easily answer that question, it proposes something else: Extension
to commercial enterprises of the accommodation already afforded to nonprofit religion-based
organizations. See ante, at 2759 - 2760, 2763 - 2764, 2781 - 2783. "At a minimum,"
according to the Court, such an approach would not "impinge on [Hobby Lobby's and
Conestoga's] religious belief." Ante, at 2782. I have already discussed the "special solicitude"

generally accorded nonprofit religion-based organizations that exist to serve a community of

believers, solicitude never before accorded to commercial enterprises comprising employees
of diverse faiths. See supra, at 2794 - 2796.

Ultimately, the Court hedges on its proposal to align for-profit enterprises with nonprofit
religion-based organizations. "We do not decide today whether [the] approach [the opinion
advances] complies with RFRA for purposes of all religious claims." Ante, at 2782. Counsel
for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-
proposed alternative was acceptable, 27 counsel responded: "We haven't been offered that
accommodation, so we haven't had to decide what kind of objection, if any, we would make
to that." Tr. of Oral Arg. 86-87.

Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to
which the corporation objects) on their own, a tax credit would qualify as a less restrictive
alternative. See Brief for Petitioners in No. 13-356, p. 64. A tax credit, of course, is one
variety of "let the government pay." In addition to departing from the existing employer-
based system of health insurance, Conestoga's alternative would require a woman to reach
into her own pocket in the first instance, and it would do nothing for the woman too poor to
be aided by a tax credit.

In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care
for women furnished through employer-based health plans, none of the proffered alternatives
would satisfactorily serve the compelling interests to which Congress responded.

IV

Among the pathmarking pre- Smith decisions RFRA preserved is United States v. Lee, 455
U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). Lee, a sole proprietor engaged in farming
and carpentry, was a member of the Old Order Amish. He sincerely believed that
withholding Social Security taxes from his employees or paying the employer's share of such
taxes would violate the Amish faith. This Court held that, although the obligations imposed
by the Social Security system conflicted with Lee's religious beliefs, the burden was not
unconstitutional. Id., at 260-261, 102 S.Ct. 1051. See also id., at 258, 102 S.Ct. 1051
(recognizing the important governmental interest in providing a "nationwide ...
comprehensive insurance system with a variety of benefits available to all participants, with
costs shared by employers and employees"). 28 The Government urges that Lee should control
 69

the challenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No.
13-356, p. 18. In contrast, today's Court dismisses Lee as a tax case. See ante, at 2783 -
2784. Indeed, it was a tax case and the Court in Lee homed in on "[t]he difficulty in
attempting to accommodate religious beliefs in the area of taxation." 455 U.S., at 259, 102
S.Ct. 1051.

But the Lee Court made two key points one cannot confine to tax cases. "When followers of
a particular sect enter into commercial activity as a matter of choice," the Court observed,
"the limits they accept on their own conduct as a matter of conscience and faith are not to be
superimposed on statutory schemes which are binding on others in that activity." Id., at 261,
102 S.Ct. 1051. The statutory scheme of employer-based comprehensive health coverage
involved in these cases is surely binding on others engaged in the same trade or business as
the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized
in Lee that allowing a religion-based exemption to a commercial employer would "operat[e]
to impose the employer's religious faith on the employees." Ibid. 29 No doubt the Greens and
Hahns and all who share their beliefs may decline to acquire for themselves the
contraceptives in question. But that choice may not be imposed on employees who hold other
beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive
employees of the preventive care available to workers at the shop next door, 30 at least in the
absence of directions from the Legislature or Administration to do so.

Why should decisions of this order be made by Congress or the regulatory authority, and not
this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises
seeking exemptions from generally applicable laws on the basis of their religious beliefs.
See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F.Supp. 941, 945 (D.S.C.1966)
(owner of restaurant chain refused to serve black patrons based on his religious beliefs
opposing racial integration), aff'd in relevant part and rev'd in part on other grounds, 377
F.2d 433 (C.A.4 1967), aff'd and modified on other grounds, 390 U.S. 400, 88 S.Ct. 964, 19
L.Ed.2d 1263 (1968); In re Minnesota ex rel. McClure, 370 N.W.2d 844, 847 (Minn.1985)
(born-again Christians who owned closely held, for-profit health clubs believed that the
Bible proscribed hiring or retaining an "individua[l] living with but not married to a person
of the opposite sex," "a young, single woman working without her father's consent or a
married woman working without her husband's consent," and any person "antagonistic to the
Bible," including "fornicators and homosexuals" (internal quotation marks omitted)), appeal
dismissed, 478 U.S. 1015, 106 S.Ct. 3315, 92 L.Ed.2d 730 (1986); Elane Photography, LLC
v. Willock, 2013-NMSC-040, --- N.M. ----, 309 P.3d 53 (for-profit photography business
owned by a husband and wife refused to photograph a lesbian couple's commitment
ceremony based on the religious beliefs of the company's owners), cert. denied, 572 U.S. ----,
134 S.Ct. 1787, 188 L.Ed.2d 757 (2014). Would RFRA require exemptions in cases of this
ilk? And if not, how does the Court divine which religious beliefs are worthy of
accommodation, and which are not? Isn't the Court disarmed from making such a judgment
given its recognition that "courts must not presume to determine ... the plausibility of a
religious claim"? Ante, at 2778.

Would the exemption the Court holds RFRA demands for employers with religiously
grounded objections to the use of certain contraceptives extend to employers with religiously
grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants
(Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and
pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian
Scientists, among others)? 31 According to counsel for Hobby Lobby, "each one of these
cases ... would have to be evaluated on its own ... apply [ing] the compelling interest-least
restrictive alternative test." Tr. of Oral Arg. 6. Not much help there for the lower courts
bound by today's decision.
 70

The Court, however, sees nothing to worry about. Today's cases, the Court concludes, are
"concerned solely with the contraceptive mandate. Our decision should not be understood to
hold that an insurance-coverage mandate must necessarily fall if it conflicts with an
employer's religious beliefs. Other coverage requirements, such as immunizations, may be
supported by different interests (for example, the need to combat the spread of infectious
diseases) and may involve different arguments about the least restrictive means of providing
them." Ante, at 2783. But the Court has assumed, for RFRA purposes, that the interest in
women's health and well being is compelling and has come up with no means adequate to
serve that interest, the one motivating Congress to adopt the Women's Health Amendment.

There is an overriding interest, I believe, in keeping the courts "out of the business of
evaluating the relative merits of differing religious claims," Lee, 455 U.S., at 263, n. 2, 102
S.Ct. 1051 (Stevens, J., concurring in judgment), or the sincerity with which an asserted
religious belief is held. Indeed, approving some religious claims while deeming others
unworthy of accommodation could be "perceived as favoring one religion over another," the
very "risk the Establishment Clause was designed to preclude." Ibid. The Court, I fear, has
ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F.3d 723, 730 (C.A.9 2010)
(O'Scannlain, J., concurring), by its immoderate reading of RFRA. I would confine religious
exemptions under that Act to organizations formed "for a religious purpose," "engage[d]
primarily in carrying out that religious purpose," and not "engaged ...

substantially in the exchange of goods or services for money beyond nominal amounts." See
id., at 748 (Kleinfeld, J., concurring).

***

For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth
Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.

Justice BREYER and Justice KAGAN, dissenting.

We agree with Justice GINSBURG that the plaintiffs' challenge to the contraceptive coverage
requirement fails on the merits. We need not and do not decide whether either for-profit
corporations or their owners may bring claims under the Religious Freedom Restoration Act
of 1993. Accordingly, we join all but Part III-C-1 of Justice GINSBURG's dissenting
opinion.
*
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
1.
See also post, at 2790 ("The exemption sought by Hobby Lobby and Conestoga ... would deny [their employees] access to contraceptive coverage that
the ACA would otherwise secure")
2.
The Act defines "government" to include any "department" or "agency" of the United States. § 2000bb-2(1).
3.
In City of Boerne v. Flores, 521 U.S., 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), we wrote that RFRA's "least restrictive means requirement was not
used in the pre- Smith jurisprudence RFRA purported to codify." Id., at 509, 117 S.Ct. 2157. On this understanding of our pre- Smith cases, RFRA did
more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available
under those decisions.
4.
See, e.g.,Hankins v. Lyght, 441 F.3d 96, 108 (C.A.2 2006); Guam v. Guerrero, 290 F.3d 1210, 1220 (C.A.9 2002).
5.
The principal dissent appears to contend that this rule of construction should apply only when defining the "exercise of religion" in an RLUIPA case,
but not in a RFRA case. See post, at 2792, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase "exercise of religion," as it
appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means "religious exercis[e] as defined in
[RLUIPA]." 42 U.S.C. § 2000bb-2(4). It necessarily follows that the "exercise of religion" under RFRA must be given the same broad meaning that
applies under RLUIPA.
6.
We will use "Brief for HHS" to refer to the Brief for Petitioners in No. 13-354 and the Brief for Respondents in No. 13-356. The federal parties are the
Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments.
7.
Online at http:// www. fda. gov/ forconsumers/ byaudience/ forwomen/ free publications/ ucm 313215. htm. The owners of the companies involved in
these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define
pregnancy as beginning at implantation, see, e.g., 62 Fed.Reg. 8611 (1997); 45 CFR § 46.202(f) (2013), do not so classify them.
8.
In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must "provide or
arrange payments for contraceptive services" for the organization's employees without imposing any cost-sharing requirements on the eligible
organization, its insurance plan, or its employee beneficiaries. 78 Fed.Reg. 39893 (to be codified in 26 CFR § 54.9815-2713A(b)(2)). The regulations
establish a mechanism for these third-party administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to
participate in the federally facilitated exchanges. See 78 Fed.Reg. 39893 (to be codified in 26 CFR § 54.9815-2713A (b)(3)). HHS believes that these fee
reductions will not materially affect funding of the exchanges because "payments for contraceptive services will represent only a small portion of total
[exchange] user fees." 78 Fed.Reg. 39882.
9.
In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible
organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather
 71

than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U.S. ----, 134 S.Ct. 1022, 187 L.Ed.2d 867
(2014).
10.
While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the
contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out.
11.
Online at http:// www. whitehouse. gov/ files/ documents/ health_ reform_ for_ small_ businesses. pdf.
12.
Mennonite Church USA, Statement on Abortion, online at http:// www. mennoniteusa. org/ resource- center/ resources/ statements- and- resolutions/
statement- on- abortion/.
13.
The Hahns and Conestoga also claimed that the contraceptive mandate violates the Fifth Amendment and the Administrative Procedure Act, 5 U.S.C. §
553, but those claims are not before us.
14.
See, e.g., WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http:// www. webmd. com/ sex/ birth- control/ news/
20100813/ new- morning- after- pill- ella- wins- fda- approval.
15.
The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723 F.3d 1114, 1122
(C.A.10 2013). The family provided that the trust would also be governed according to their religious principles. Ibid.
16.
They also raised a claim under the Administrative Procedure Act, 5 U.S.C. § 553.
17.
Given its RFRA ruling, the court declined to address the plaintiffs' free-exercise claim or the question whether the Greens could bring RFRA claims as
individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F.3d, at 1156 (Gorsuch, J.,
concurring); id., at 1184 (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary
injunction, see id., at 1156 (Gorsuch, J., concurring).
18.
As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was required by our
pre- Smith decisions. Although the author of the principal dissent joined the Court's opinion in City of Boerne, she now claims that the statement was
incorrect. Post, at 2793. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no
reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-
Smith cases. See infra, at 2771 - 2774.
19.
Cf. Brief for Federal Petitioners in O Centro, O.T. 2004, No. 04-1084, p. II (stating that the organizational respondent was "a New Mexico
Corporation"); Brief for Federal Respondent in Hosanna-Tabor, O.T. 2011, No. 10-553, p. 3 (stating that the petitioner was an "ecclesiastical
corporation").
20.
Not only does the Government concede that the term "persons" in RFRA includes nonprofit corporations, it goes further and appears to concede that
the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13-354,
at 28, 40.
21.
Although the principal dissent seems to think that Justice Brennan's statement in Amos provides a ground for holding that for-profit corporations may
not assert free-exercise claims, that was not Justice Brennan's view. See Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617, 642, 81
S.Ct. 1122, 6 L.Ed.2d 536 (1961) (dissenting opinion); infra, at 2772 - 2773.
22.
It is revealing that the principal dissent cannot even bring itself to acknowledge that Braunfeld was correct in entertaining the merchants' claims. See
post, at 2797 (dismissing the relevance of Braunfeld in part because "[t]he free exercise claim asserted there was promptly rejected on the merits").
23.
See, e.g., 724 F.3d, at 385 ("We do not see how a for-profit, 'artificial being,' ... that was created to make money" could exercise religion); Grote v.
Sebelius, 708 F.3d 850, 857 (C.A.7 2013) (Rovner, J. dissenting) ("So far as it appears, the mission of Grote Industries, like that of any other for-profit,
secular business, is to make money in the commercial sphere"); Autocam Corp. v. Sebelius, 730 F.3d 618, 626 (C.A.7 2013) ("Congress did not intend to
include corporations primarily organized for secular, profit-seeking purposes as 'persons' under RFRA"); see also 723 F.3d, at 1171-1172 (Briscoe, C.J.,
dissenting) ("[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law" and "it is
undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers").
The principal dissent makes a similar point, stating that "[f]or-profit corporations are different from religious nonprofits in that they use labor to make a
profit, rather than to perpetuate the religious values shared by a community of believers." Post, at 2797 (internal quotation marks omitted). The first half
of this statement is a tautology; for-profit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the
second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek "to
perpetuate the religious values shared," in these cases, by their owners. Conestoga's Vision and Values Statement declares that the company is dedicated
to operating "in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business." App. in No. 13-356, p. 94.
Similarly, Hobby Lobby's statement of purpose proclaims that the company "is committed to ... Honoring the Lord in all we do by operating ... in a
manner consistent with Biblical principles." App. in No. 13-354, p. 135. The dissent also believes that history is not on our side because even Blackstone
recognized the distinction between "ecclesiastical and lay" corporations. Post, at 2796. What Blackstone illustrates, however, is that dating back to 1765,
there was no sharp divide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed "lay" corporations
might serve "the promotion of piety." 1 W. Blackstone, Commentaries on the Law of England 458-459 (1765). And whatever may have been the case at
the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows for-profit corporations
to "perpetuat[e] religious values."
24.
See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which "advance[s] its charitable
goals" while operating as a for-profit corporation to be able to "invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and
tap Google's innovative technology and workforce" (internal quotation marks and alterations omitted)); cf. 26 CFR § 1.501(c)(3)-1(c)(3).
25.
See Benefit Corp Information Center, online at http:// www. benefitcorp. net/ state- by- state- legislative- status; e.g.,Va.Code Ann. §§ 13.1-787, 13.1-
626, 13.1-782 (Lexis 2011) ("A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit," and "may identify
one or more specific public benefits that it is the purpose of the benefit corporation to create.... This purpose is in addition to [the purpose of engaging in
any lawful business]." " 'Specific public benefit' means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or
educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation...."); S.C. Code Ann. §§ 33-38-
300 (2012 Cum. Supp.), 33-3-101 (2006), 33-38-130 (2012 Cum. Supp.) (similar).
26.
See Brief for Appellants in Gallagher, O.T. 1960 No. 11, pp. 16, 28-31 (arguing that corporation "has no 'religious belief' or 'religious liberty,' and had
no standing in court to assert that its free exercise of religion was impaired").
27.
The principal dissent points out that "the exemption codified in § 238n(a) was not enacted until three years after RFRA's passage." Post, at 2795, n. 15.
The dissent takes this to mean that RFRA did not, in fact, "ope[n] all statutory schemes to religion-based challenges by for-profit corporations" because
if it had "there would be no need for a statute-specific, post-RFRA exemption of this sort." Ibid.
This argument fails to recognize that the protection provided by § 238n(a) differs significantly from the protection provided by RFRA. Section 238n(a)
flatly prohibits discrimination against a covered healthcare facility for refusing to engage in certain activities related to abortion. If a covered healthcare
facility challenged such discrimination under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things,
that there was a less restrictive means of achieving any compelling government interest.
In addition, the dissent's argument proves too much. Section 238n(a) applies evenly to "any health care entity"-whether it is a religious nonprofit entity
or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if § 238n(a) were redundant as applied to for-profit
corporations, it would be equally redundant as applied to nonprofits.
28.
To qualify for RFRA's protection, an asserted belief must be "sincere"; a corporation's pretextual assertion of a religious belief in order to obtain an
exemption for financial reasons would fail. Cf., e.g., United States v. Quaintance, 608 F.3d 717, 718-719 (C.A.10 2010).
29.
See, e.g.,Ochs v. Thalacker, 90 F.3d 293, 296 (C.A.8 1996); Green v. White, 525 F.Supp. 81, 83-84 (E.D.Mo.1981); Abate v. Walton, 1996 WL 5320,
*5 (C.A.9, Jan. 5, 1996); Winters v. State, 549 N.W.2d 819-820 (Iowa 1996).
 72

30.
The principal dissent attaches significance to the fact that the "Senate voted down [a] so-called 'conscience amendment,' which would have enabled
any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions." Post, at 2789. The dissent would
evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for
religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA's standards. But that is not the only plausible
inference from the failed amendment-or even the most likely. For one thing, the text of the amendment was "written so broadly that it would allow any
employer to deny any health service to any American for virtually any reason- not just for religious objections." 158 Cong. Rec. S1165 (Mar. 1, 2012)
(emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected
religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious
adherents, but also the government's interest and how narrowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment
was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill
could be relevant in other contexts, it surely cannot be relevant here, because any "Federal statutory law adopted after November 16, 1993 is subject to
[RFRA] unless such law explicitly excludes such application by reference to [RFRA]." 42 U.S.C. § 2000bb-3(b) (emphasis added). It is not plausible to
find such an explicit reference in the meager legislative history on which the dissent relies.
31.
Indeed, one of HHS's stated reasons for establishing the religious accommodation was to "encourag[e] eligible organizations to continue to offer health
coverage." 78 Fed.Reg. 39882 (2013) (emphasis added).
32.
Attempting to compensate for dropped insurance by raising wages would also present administrative difficulties. In order to provide full compensation
for employees, the companies would have to calculate the value to employees of the convenience of retaining their employer-provided coverage and thus
being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies' employees
may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante
for all employees.
33.
This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers,
such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The connection between what these
religious employers would be required to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they
find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized
the exemption from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain
nonprofit organizations with religious objections to contraceptive coverage. 78 Fed.Reg. 39871. When this was done, the Government made clear that its
objective was to "protec[t]" these religious objectors "from having to contract, arrange, pay, or refer for such coverage." Ibid. Those exemptions would
be hard to understand if the plaintiffs' objections here were not substantial.
34.
See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203-228 (A. O'Hear ed. 2004); T. Higgins, Man as Man:
The Science and Art of Ethics 353, 355 (1949) ("The general principles governing cooperation" in wrongdoing- i.e., "physical activity (or its omission)
by which a person assists in the evil act of another who is the principal agent"-"present troublesome difficulties in application"); 1 H. Davis, Moral and
Pastoral Theology 341 (1935) (Cooperation occurs "when A helps B to accomplish an external act by an act that is not sinful, and without approving of
what B does").
35.
The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas.
36.
Online at http:// cbo. gov/ publication/ 45231.
37.
In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation
requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely
free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying
RFRA "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." Cutter v. Wilkinson, 544 U.S.
709, 720, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (applying RLUIPA). That consideration will often inform the analysis of the Government's
compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasonably be maintained that any burden
on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is
permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for
example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with
religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity
to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third
party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless. In
any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 2781 - 2782, the
Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under
their health-insurance plans due to their employers' religious objections.
38.
HHS has concluded that insurers that insure eligible employers opting out of the contraceptive mandate and that are required to pay for contraceptive
coverage under the accommodation will not experience an increase in costs because the "costs of providing contraceptive coverage are balanced by cost
savings from lower pregnancy-related costs and from improvements in women's health." 78 Fed.Reg. 39877. With respect to self-insured plans, the
regulations establish a mechanism for the eligible employers' third-party administrators to obtain a compensating reduction in the fee paid by insurers to
participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because
the "payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees." Id., at 39882; see 26 CFR
§ 54.9815-2713A(b)(3).
39.
See n. 9, supra.
40.
The principal dissent faults us for being "noncommital" in refusing to decide a case that is not before us here. Post, at 2803. The less restrictive
approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.
41.
In the principal dissent's view, the Government has not had a fair opportunity to address this accommodation, post, at 2803, n. 27, but the Government
itself apparently believes that when it "provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain
why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests." Brief for the United States
as Amicus Curiae in Holt v. Hobbs, No. 13-6827, p. 10, now pending before the Court.
42.
Cf. 42 U.S.C. § 1396s (Federal "program for distribution of pediatric vaccines" for some uninsured and underinsured children).
43.
HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement
that "[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity." 455 U.S., at 261, 102 S.Ct.
1051.Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain
meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free
hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict
RFRA test is met.
1.
The Court insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommodation, currently
limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 2759 - 2760. With that accommodation extended, the
Court asserts, "women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing." Ante, at 2760. In the
end, however, the Court is not so sure. In stark contrast to the Court's initial emphasis on this accommodation, it ultimately declines to decide whether
the highlighted accommodation is even lawful. See ante, at 2782 ("We do not decide today whether an approach of this type complies with RFRA....").
2.
See 42 U.S.C. § 300gg-13(a)(1)-(3) (group health plans must provide coverage, without cost sharing, for (1) certain "evidence-based items or services"
recommended by the U.S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control
 73

and Prevention; and (3) "with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the
comprehensive guidelines supported by the Health Resources and Services Administration").
3.
The IOM is an arm of the National Academy of Sciences, an organization Congress established "for the explicit purpose of furnishing advice to the
Government." Public Citizen v. Department of Justice, 491 U.S. 440, 460, n. 11, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (internal quotation marks
omitted).
4.
HRSA, HHS, Women's Preventive Services Guidelines, available at http:// www. hrsa. gov/ womens guidelines/ (all Internet materials as visited June
27, 2014, and available in Clerk of Court's case file), reprinted in App. to Brief for Petitioners in No. 13-354, pp. 43-44a. See also 77 Fed.Reg. 8725-
8726 (2012).
6.
Separating moral convictions from religious beliefs would be of questionable legitimacy. See Welsh v. United States, 398 U.S. 333, 357-358, 90 S.Ct.
1792, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in result).
7.
As the Court explains, see ante, at 2764 - 2767, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business
(Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business
(the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga.
8.
See Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ("This case, of course, is not one in which any harm to the physical or
mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred."); Estate of Thornton v.
Caldor, Inc., 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985) (invalidating state statute requiring employers to accommodate an employee's
Sabbath observance where that statute failed to take into account the burden such an accommodation would impose on the employer or other employees).
Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq.,the Court has cautioned
that "adequate account" must be taken of "the burdens a requested accommodation may impose on nonbeneficiaries." Cutter v. Wilkinson, 544 U.S. 709,
720, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005); see id., at 722, 125 S.Ct. 2113 ("an accommodation must be measured so that it does not override other
significant interests"). A balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote
accommodation to religious beliefs and practices.
9.
Under Sherbert and Yoder, the Court "requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling
state interest and by means narrowly tailored to achieve that interest." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 894,
110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (O'Connor, J., concurring in judgment).
10.
RLUIPA, the Court notes, includes a provision directing that "[t]his chapter [ i.e., RLUIPA] shall be construed in favor of a broad protection of
religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution." 42 U.S.C. § 2000cc-3(g); see ante, at 2761 - 2762,
2772. RFRA incorporates RLUIPA's definition of "exercise of religion," as RLUIPA does, but contains no omnibus rule of construction governing the
statute in its entirety.
11.
The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that "least restrictive means ... was not
used [pre- Smith ]." Ante, at 2767, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson's sage comment: "I see no reason why I
should be consciously wrong today because I was unconsciously wrong yesterday." Massachusetts v. United States, 333 U.S. 611, 639-640, 68 S.Ct. 747,
92 L.Ed. 968 (1948) (dissenting opinion).
12.
As earlier explained, see supra, at 2791 - 2792, RLUIPA's amendment of the definition of "exercise of religion" does not bear the weight the Court
places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than "religious assembl[ies] or institution[s]." 42
U.S.C. § 2000cc(a)(1). But cf. ante, at 2772. That law applies to land-use regulation. § 2000cc(a)(1). To permit commercial enterprises to challenge
zoning and other land-use regulations under RLUIPA would "dramatically expand the statute's reach" and deeply intrude on local prerogatives, contrary
to Congress' intent. Brief for National League of Cities et al. as Amici Curiae 26.
13.
The Court regards Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961), as "suggest [ing] ...
that for-profit corporations possess [free-exercise] rights." Ante, at 2772 - 2773. See also ante, at 2769, n. 21. The suggestion is barely there. True, one
of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were
human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.
Accordingly, the plurality stated it could pretermit the question "whether appellees ha[d] standing" because Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct.
1144, 6 L.Ed.2d 563 (1961), which upheld a similar closing law, was fatal to their claim on the merits. 366 U.S., at 631, 81 S.Ct. 1122.
14.
See, e.g.,Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ----, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012); Gonzales v. O
Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006); Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378, 110 S.Ct. 688, 107
L.Ed.2d 796 (1990).
15.
Typically, Congress has accorded to organizations religious in character religion-based exemptions from statutes of general application. E.g., 42
U.S.C. § 2000e-1(a) (Title VII exemption from prohibition against employment discrimination based on religion for "a religious corporation, association,
educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying
on ... of its activities"); 42 U.S.C. § 12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that
RFRA enlarges these exemptions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor
does the Court suggest otherwise. Cf. ante, at 2773.
The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U.S.C. §§ 300a-7(b)(2) and 238n(a), and infers from them
that "Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations," ante, at 2774. The Court's
inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante,
at 2773, n. 27 ("the protection provided by § 238n(a) differs significantly from the protection provided by RFRA"). Notably, the Court does not assert
that these exemptions have in fact been afforded to for-profit corporations. See § 238n(c) ("health care entity" covered by exemption is a term defined to
include "an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions"); Tozzi,
Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal
Studies 269, 296, n. 133 (2009) ("Catholic physicians, but not necessarily hospitals, ... may be able to invoke [§ 238n(a) ]...."); cf. S. 137, 113th Cong.,
1st Sess. (2013) (as introduced) (Abortion Non-Discrimination Act of 2013, which would amend the definition of "health care entity" in § 238n to
include "hospital[s]," "health insurance plan[s]," and other health care facilities). These provisions are revealing in a way that detracts from one of the
Court's main arguments. They show that Congress is not content to rest on the Dictionary Act when it wishes to ensure that particular entities are among
those eligible for a religious accommodation.
Moreover, the exemption codified in § 238n(a) was not enacted until three years after RFRA's passage. See Omnibus Consolidated Rescissions and
Appropriations Act of 1996, § 515, 110 Stat. 1321-245. If, as the Court believes, RFRA opened all statutory schemes to religion-based challenges by for-
profit corporations, there would be no need for a statute-specific, post-RFRA exemption of this sort.
16.
That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly "addressed their [free-
exercise] rights before Smith." Ante, at 2773. Continuing with the Court's example, resident aliens, unlike corporations, are flesh-and-blood individuals
who plainly count as persons sheltered by the First Amendment, see United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d
222 (1990) (citing Bridges v. Wixon, 326 U.S. 135, 148, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945)), and a fortiori, RFRA.
17.
I part ways with Justice KENNEDY on the context relevant here. He sees it as the employers' "exercise [of] their religious beliefs within the context of
their own closely held, for-profit corporations." Ante, at 2785 (concurring opinion). See also ante, at 2782 - 2783 (opinion of the Court) (similarly
concentrating on religious faith of employers without reference to the different beliefs and liberty interests of employees). I see as the relevant context
the employers' asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe
to their employers' religious beliefs.
 74

18.
According to the Court, the Government "concedes" that "nonprofit corporation[s]" are protected by RFRA. Ante, at 2768. See also ante, at 2769,
2771, 2774. That is not an accurate description of the Government's position, which encompasses only "churches," " religious institutions," and "
religious non-profits." Brief for Respondents in No. 13-356, p. 28 (emphasis added). See also Reply Brief in No. 13-354, p. 8 ("RFRA incorporates the
longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accommodations under generally
applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.").
19.
The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the
public. No need to speculate on that, the Court says, for "it seems unlikely" that large corporations "will often assert RFRA claims." Ante, at 2774.
Perhaps so, but as Hobby Lobby's case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different
faiths, whose ownership is not diffuse. "Closely held" is not synonymous with "small." Hobby Lobby is hardly the only enterprise of sizable scale that is
family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees,
and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons. See Forbes, America's Largest Private
Companies 2013, available at http:// www. forbes. com/ largest- private- companies/.
Nor does the Court offer any instruction on how to resolve the disputes that may crop up among corporate owners over religious values and
accommodations. The Court is satisfied that "[s]tate corporate law provides a ready means for resolving any conflicts," ante, at 2775, but the authorities
cited in support of that proposition are hardly helpful. See Del.Code Ann., Tit. 8, § 351 (2011) (certificates of incorporation may specify how the
business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations § 3:2 (3d ed. 2010) (section entitled "Selecting the state of
incorporation"); id., § 14:11 (observing that "[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures
nor courts have provided satisfactory solutions"). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based
intracorporate controversy to resolve the disagreement, given this Court's instruction that "courts have no business addressing [whether an asserted
religious belief] is substantial," ante, at 2778?
20.
The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health
insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an
argument. See ante, at 2775 - 2777. The Court overlooks, however, that it is not the Government's obligation to prove that an asserted burden is
insubstantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantiality of the alleged burden.
21.
The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent "tell the plaintiffs that their beliefs are flawed." Ante, at
2778. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must
decide is not "the plausibility of a religious claim," ante, at 2778 (internal quotation marks omitted), but whether accommodating that claim risks
depriving others of rights accorded them by the laws of the United States. See supra, at 2790 - 2791; infra, at 2801.
22.
IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and
insertion procedure are taken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC)
Use in Adolescents, 52 J. Adolescent Health S59, S60 (2013). See also Winner et al., Effectiveness of Long-Acting Reversible Contraception, 366 New
Eng. J. Medicine 1998, 1999 (2012).
23.
Although the Court's opinion makes this assumption grudgingly, see ante, at 2779 - 2780, one Member of the majority recognizes, without reservation,
that "the [contraceptive coverage] mandate serves the Government's compelling interest in providing insurance coverage that is necessary to protect the
health of female employees." Ante, at 2785 - 2786 (opinion of KENNEDY, J.).
24.
Hobby Lobby's amicus National Religious Broadcasters similarly states that, "[g]iven the nature of employers' needs to meet changing economic and
staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the 'grandfather' exclusion is de minimis and transitory at
best." Brief for National Religious Broadcasters as Amicus Curiae in No. 13-354, p. 28.
25.
As the Court made clear in Cutter, the government's license to grant religion-based exemptions from generally applicable laws is constrained by the
Establishment Clause. 544 U.S., at 720-722, 125 S.Ct. 2113. "[W]e are a cosmopolitan nation made up of people of almost every conceivable religious
preference," Braunfeld, 366 U.S., at 606, 81 S.Ct. 1144, a "rich mosaic of religious faiths," Town of Greece v. Galloway, 572 U.S. ----, ----, 134 S.Ct.
1811, 1849, 188 L.Ed.2d 835 (2014) (KAGAN, J., dissenting). Consequently, one person's right to free exercise must be kept in harmony with the rights
of her fellow citizens, and "some religious practices [must] yield to the common good." United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 71
L.Ed.2d 127 (1982).
26.
Cf. Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (in context of First Amendment Speech
Clause challenge to a content-based speech restriction, courts must determine "whether the challenged regulation is the least restrictive means among
available, effective alternatives" (emphasis added)).
27.
On brief, Hobby Lobby and Conestoga barely addressed the extension solution, which would bracket commercial enterprises with nonprofit religion-
based organizations for religious accommodations purposes. The hesitation is understandable, for challenges to the adequacy of the accommodation
accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the Aged v. Sebelius, --- F.Supp.2d ----,
2013 WL 6839900 (D.Colo., Dec. 27, 2013), injunction pending appeal granted, 571 U.S. ----, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014). At another point
in today's decision, the Court refuses to consider an argument neither "raised below [nor] advanced in this Court by any party," giving Hobby Lobby and
Conestoga "[no] opportunity to respond to [that] novel claim." Ante, at 2776. Yet the Court is content to decide this case (and this case only) on the
ground that HHS could make an accommodation never suggested in the parties' presentations. RFRA cannot sensibly be read to "requir[e] the
government to ... refute each and every conceivable alternative regulation," United States v. Wilgus, 638 F.3d 1274, 1289 (C.A.10 2011), especially
where the alternative on which the Court seizes was not pressed by any challenger.
28.
As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religion-based
exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability.
29.
Congress amended the Social Security Act in response to Lee. The amended statute permits Amish sole proprietors and partnerships (but not Amish-
owned corporations) to obtain an exemption from the obligation to pay Social Security taxes only for employees who are co-religionists and who
likewise seek an exemption and agree to give up their Social Security benefits. See 26 U.S.C. § 3127(a)(2), (b)(1). Thus, employers with sincere
religious beliefs have no right to a religion-based exemption that would deprive employees of Social Security benefits without the employee's consent-an
exemption analogous to the one Hobby Lobby and Conestoga seek here.
30.
Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 299, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (disallowing religion-based
exemption that "would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their
competitors").

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n

 75

Supreme Court of the United States

138 S. Ct. 1719, 201 L. Ed. 2d 35
No. 16–111.
2018-06-04
Kristen K. Waggoner, Scottsdale, AZ, for Petitioners.

Noel J. Francisco, Solicitor General, for the United States as amicus curiae, by special leave
of the Court, supporting the petitioners.

Frederick R. Yarger, Denver, CO, for the State Respondent.

David D. Cole, Washington, DC, for the Private Respondents.

David A. Cortman, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, Nicolle
H. Martin, Lakewood, CO, Kristen K. Waggoner, Jeremy D. Tedesco, James A. Campbell,
Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, AZ, for Petitioners.

Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Office of the
Colorado Attorney General, Denver, CO, Vincent E. Morscher, Deputy Attorney General,
Glenn E. Roper, Deputy Solicitor General, Stacy L. Worthington, Senior Assistant Attorney
General, Grant T. Sullivan, Assistant Solicitor General, for Respondent Colorado Civil
Rights Commission.

Mark Silverstein, Sara R. Neel, American Civil Liberties Union Foundation of Colorado,
Paula Greisen, King & Greisen, LLC, Denver, CO, Ria Tabacco Mar, James D. Esseks,
Leslie Cooper, Rachel Wainer Apter, Louise Melling, Rose A. Saxe, Lee Rowland, American
Civil Liberties Union Foundation, New York, NY, David D. Cole, Amanda W. Shanor,
Daniel Mach, American Civil Liberties Union Foundation, Washington, DC, for Respondents
Charlie Craig and David Mullins.

Justice KENNEDY delivered the opinion of the Court.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make

inquiries about ordering a cake for their wedding reception. The shop's owner told the couple
that he would not create a cake for their wedding because of his religious opposition to same-
sex marriages-marriages the State of Colorado itself did not recognize at that time. The
couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on
the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act.

The Commission determined that the shop's actions violated the Act and ruled in the couple's
favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court
now must decide whether the Commission's order violated the Constitution.

The case presents difficult questions as to the proper reconciliation of at least two principles.
The first is the authority of a State and its governmental entities to protect the rights and
dignity of gay persons who are, or wish to be, married but who face discrimination when
they seek goods or services. The second is the right of all persons to exercise fundamental
freedoms under the First Amendment, as applied to the States through the Fourteenth
Amendment.

The freedoms asserted here are both the freedom of speech and the free exercise of religion.
The free speech aspect of this case is difficult, for few persons who have seen a beautiful
wedding cake might have thought of its creation as an exercise of protected speech. This is
an instructive example, however, of the proposition that the application of constitutional
freedoms in new contexts can deepen our understanding of their meaning.
 76

One of the difficulties in this case is that the parties disagree as to the extent of the baker's
refusal to provide service. If a baker refused to design a special cake with words or images
celebrating the marriage-for instance, a cake showing words with religious meaning-that
might be different from a refusal to sell any cake at all. In defining whether a baker's creation
can be protected, these details might make a difference.

The same difficulties arise in determining whether a baker has a valid free exercise claim. A
baker's refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal
to put certain religious words or decorations on the cake, or even a refusal to sell a cake that
has been baked for the public generally but includes certain religious words or symbols on it
are just three examples of possibilities that seem all but endless.

Whatever the confluence of speech and free exercise principles might be in some cases, the
Colorado Civil Rights Commission's consideration of this case was inconsistent with the
State's obligation of religious neutrality. The reason and motive for the baker's refusal were
based on his sincere religious beliefs and convictions. The Court's precedents make clear that
the baker, in his capacity as the owner of a business serving the public, might have his right
to the free exercise of religion limited by generally applicable laws. Still, the delicate
question of when the free exercise of his religion must yield to an otherwise valid exercise of
state power needed to be determined in an adjudication in which religious hostility on the
part of the State itself would not be a factor in the balance the State sought to reach. That
requirement, however, was not met here. When the Colorado Civil Rights Commission
considered this case, it did not do so with the religious neutrality that the Constitution
requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future
controversy involving facts similar to these, the Commission's actions here violated the Free
Exercise Clause; and its order must be set aside.

Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The

shop offers a variety of baked goods, ranging from everyday cookies and brownies to
elaborate custom-designed cakes for birthday parties, weddings, and other events.

Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is
a devout Christian. He has explained that his "main goal in life is to be obedient to" Jesus
Christ and Christ's "teachings in all aspects of his life." App. 148. And he seeks to "honor
God through his work at Masterpiece Cakeshop." Ibid. One of Phillips' religious beliefs is
that "God's intention for marriage from the beginning of history is that it is and should be the
union of one man and one woman." Id., at 149. To Phillips, creating a wedding cake for a
same-sex wedding would be equivalent to participating in a celebration that is contrary to his
own most deeply held beliefs.

Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of
2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize
same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to
host a reception for their family and friends in Denver. To prepare for their celebration,
Craig and Mullins visited the shop and told Phillips that they were interested in ordering a
cake for "our wedding." Id., at 152 (emphasis deleted). They did not mention the design of
the cake they envisioned.

Phillips informed the couple that he does not "create" wedding cakes for same-sex weddings.
Ibid. He explained, "I'll make your birthday cakes, shower cakes, sell you cookies and
 77

brownies, I just don't make cakes for same sex weddings." Ibid . The couple left the shop
without further discussion.

The following day, Craig's mother, who had accompanied the couple to the cakeshop and
been present for their interaction with Phillips, telephoned to ask Phillips why he had
declined to serve her son. Phillips explained that he does not create wedding cakes for same-
sex weddings because of his religious opposition to same-sex marriage, and also because
Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained
his belief that "to create a wedding cake for an event that celebrates something that directly
goes against the teachings of the Bible, would have been a personal endorsement and
participation in the ceremony and relationship that they were entering into." Ibid . (emphasis
deleted).

For most of its history, Colorado has prohibited discrimination in places of public
accommodation. In 1885, less than a decade after Colorado achieved statehood, the General
Assembly passed "An Act to Protect All Citizens in Their Civil Rights," which guaranteed
"full and equal enjoyment" of certain public facilities to "all citizens," "regardless of race,
color or previous condition of servitude." 1885 Colo. Sess. Laws pp. 132-133. A decade
later, the General Assembly expanded the requirement to apply to "all other places of public
accommodation." 1895 Colo. Sess. Laws ch. 61, p. 139.

Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state's tradition of
prohibiting discrimination in places of public accommodation. Amended in 2007 and 2008 to
prohibit discrimination on the basis of sexual orientation as well as other protected
characteristics, CADA in relevant part provides as follows:

"It is a discriminatory practice and unlawful for a person, directly or indirectly, to

refuse, withhold from, or deny to an individual or a group, because of disability,
race, creed, color, sex, sexual orientation, marital status, national origin, or
ancestry, the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of a place of public accommodation." Colo. Rev.
Stat. § 24-34-601(2)(a) (2017).

The Act defines "public accommodation" broadly to include any "place of business engaged
in any sales to the public and any place offering services ... to the public," but excludes "a
church, synagogue, mosque, or other place that is principally used for religious purposes." §
24-34-601(1).

CADA establishes an administrative system for the resolution of discrimination claims.

Complaints of discrimination in violation of CADA are addressed in the first instance by the
Colorado Civil Rights Division. The Division investigates each claim; and if it finds
probable cause that CADA has been violated, it will refer the matter to the Colorado Civil
Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing
before a state Administrative Law Judge (ALJ), who will hear evidence and argument before
issuing a written decision. See §§ 24-34-306, 24-4-105(14). The decision of the ALJ may be
appealed to the full Commission, a seven-member appointed body. The Commission holds a
public hearing and deliberative session before voting on the case. If the Commission
determines that the evidence proves a CADA violation, it may impose remedial measures as
provided by statute. See § 24-34-306(9). Available remedies include, among other things,
orders to cease-and-desist a discriminatory policy, to file regular compliance reports with the
Commission, and "to take affirmative action, including the posting of notices setting forth
the substantive rights of the public." § 24-34-605. Colorado law does not permit the
Commission to assess money damages or fines. §§ 24-34-306(9), 24-34-605.
 78

Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and
Phillips in September 2012, shortly after the couple's visit to the shop. App. 31. The
complaint alleged that Craig and Mullins had been denied "full and equal service" at the
bakery because of their sexual orientation, id., at 35, 48, and that it was Phillips' "standard
business practice" not to provide cakes for same-sex weddings, id., at 43.

The Civil Rights Division opened an investigation. The investigator found that "on multiple
occasions," Phillips "turned away potential customers on the basis of their sexual orientation,
stating that he could not create a cake for a same-sex wedding ceremony or reception"
because his religious beliefs prohibited it and because the potential customers "were doing
something illegal" at that time. Id., at 76. The investigation found that Phillips had declined
to sell custom wedding cakes to about six other same-sex couples on this basis. Id., at 72.
The investigator also recounted that, according to affidavits submitted by Craig and Mullins,
Phillips' shop had refused to sell cupcakes to a lesbian couple for their commitment
celebration because the shop "had a policy of not selling baked goods to same-sex couples
for this type of event." Id., at 73. Based on these findings, the Division found probable cause
that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69.

The Commission found it proper to conduct a formal hearing, and it sent the case to a State
ALJ. Finding no dispute as to material facts, the ALJ entertained cross-motions for summary
judgment and ruled in the couple's favor. The ALJ first rejected Phillips' argument that
declining to make or create a wedding cake for Craig and Mullins did not violate Colorado
law. It was undisputed that the shop is subject to state public accommodations laws. And the
ALJ determined that Phillips' actions constituted prohibited discrimination on the basis of
sexual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to
Pet. for Cert. 68a-72a.

Phillips raised two constitutional claims before the ALJ. He first asserted that applying
CADA in a way that would require him to create a cake for a same-sex wedding would
violate his First Amendment right to free speech by compelling him to exercise his artistic
talents to express a message with which he disagreed. The ALJ rejected the contention that
preparing a wedding cake is a form of protected speech and did not agree that creating Craig
and Mullins' cake would force Phillips to adhere to "an ideological point of view." Id., at
75a. Applying CADA to the facts at hand, in the ALJ's view, did not interfere with Phillips'
freedom of speech.

Phillips also contended that requiring him to create cakes for same-sex weddings would
violate his right to the free exercise of religion, also protected by the First Amendment.
Citing this Court's precedent in Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the ALJ determined that
CADA is a "valid and neutral law of general applicability" and therefore that applying it to
Phillips in this case did not violate the Free Exercise Clause. Id ., at 879, 110 S.Ct. 1595 ;
App. to Pet. for Cert. 82a-83a. The ALJ thus ruled against Phillips and the cakeshop and in
favor of Craig and Mullins on both constitutional claims.

The Commission affirmed the ALJ's decision in full. Id., at 57a. The Commission ordered
Phillips to "cease and desist from discriminating against ... same-sex couples by refusing to
sell them wedding cakes or any product [they] would sell to heterosexual couples." Ibid. It
also ordered additional remedial measures, including "comprehensive staff training on the
Public Accommodations section" of CADA "and changes to any and all company policies to
comply with ... this Order." Id., at 58a. The Commission additionally required Phillips to
prepare "quarterly compliance reports" for a period of two years documenting "the number of
patrons denied service" and why, along with "a statement describing the remedial actions
taken." Ibid.
 79

Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission's legal
determinations and remedial order. The court rejected the argument that the "Commission's
order unconstitutionally compels" Phillips and the shop "to convey a celebratory message
about same sex marriage." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015).
The court also rejected the argument that the Commission's order violated the Free Exercise
Clause. Relying on this Court's precedent in Smith, supra, at 879, 110 S.Ct. 1595, the court
stated that the Free Exercise Clause "does not relieve an individual of the obligation to
comply with a valid and neutral law of general applicability" on the ground that following
the law would interfere with religious practice or belief. 370 P.3d, at 289. The court
concluded that requiring Phillips to comply with the statute did not violate his free exercise
rights. The Colorado Supreme Court declined to hear the case.

Phillips sought review here, and this Court granted certiorari. 582 U.S. ----, 137 S.Ct. 2290,
198 L.Ed.2d 723 (2017). He now renews his claims under the Free Speech and Free Exercise
Clauses of the First Amendment.

II

Our society has come to the recognition that gay persons and gay couples cannot be treated
as social outcasts or as inferior in dignity and worth. For that reason the laws and the
Constitution can, and in some instances must, protect them in the exercise of their civil
rights. The exercise of their freedom on terms equal to others must be given great weight and
respect by the courts. At the same time, the religious and philosophical objections to gay
marriage are protected views and in some instances protected forms of expression. As this
Court observed in Obergefell v. Hodges, 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609
(2015), "[t]he First Amendment ensures that religious organizations and persons are given
proper protection as they seek to teach the principles that are so fulfilling and so central to
their lives and faiths." Id., at ----, 135 S.Ct., at 2607. Nevertheless, while those religious and
philosophical objections are protected, it is a general rule that such objections do not allow
business owners and other actors in the economy and in society to deny protected persons
equal access to goods and services under a neutral and generally applicable public
accommodations law. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5,
88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam ); see also Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d
487 (1995) ("Provisions like these are well within the State's usual power to enact when a
legislature has reason to believe that a given group is the target of discrimination, and they
do not, as a general matter, violate the First or Fourteenth Amendments").

When it comes to weddings, it can be assumed that a member of the clergy who objects to
gay marriage on moral and religious grounds could not be compelled to perform the
ceremony without denial of his or her right to the free exercise of religion. This refusal
would be well understood in our constitutional order as an exercise of religion, an exercise
that gay persons could recognize and accept without serious diminishment to their own
dignity and worth. Yet if that exception were not confined, then a long list of persons who
provide goods and services for marriages and weddings might refuse to do so for gay
persons, thus resulting in a community-wide stigma inconsistent with the history and
dynamics of civil rights laws that ensure equal access to goods, services, and public
accommodations.

It is unexceptional that Colorado law can protect gay persons, just as it can protect other
classes of individuals, in acquiring whatever products and services they choose on the same
terms and conditions as are offered to other members of the public. And there are no doubt
innumerable goods and services that no one could argue implicate the First Amendment.
Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay
 80

weddings, that would be a different matter and the State would have a strong case under this
Court's precedents that this would be a denial of goods and services that went beyond any
protected rights of a baker who offers goods and services to the general public and is subject
to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral
Arg. 4-7, 10.

Phillips claims, however, that a narrower issue is presented. He argues that he had to use his
artistic skills to make an expressive statement, a wedding endorsement in his own voice and
of his own creation. As Phillips would see the case, this contention has a significant First
Amendment speech component and implicates his deep and sincere religious beliefs. In this
context the baker likely found it difficult to find a line where the customers' rights to goods
and services became a demand for him to exercise the right of his own personal expression
for their message, a message he could not express in a way consistent with his religious
beliefs.

Phillips' dilemma was particularly understandable given the background of legal principles
and administration of the law in Colorado at that time. His decision and his actions leading to
the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize
the validity of gay marriages performed in its own State. See Colo. Const., Art. II, § 31
(2012); 370 P.3d, at 277. At the time of the events in question, this Court had not issued its
decisions either in United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808
(2013), or Obergefell . Since the State itself did not allow those marriages to be performed in
Colorado, there is some force to the argument that the baker was not unreasonable in
deeming it lawful to decline to take an action that he understood to be an expression of
support for their validity when that expression was contrary to his sincerely held religious
beliefs, at least insofar as his refusal was limited to refusing to create and express a message
in support of gay marriage, even one planned to take place in another State.

At the time, state law also afforded storekeepers some latitude to decline to create specific
messages the storekeeper considered offensive. Indeed, while enforcement proceedings
against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this
proposition in cases involving other bakers' creation of cakes, concluding on at least three
occasions that a baker acted lawfully in declining to create cakes with decorations that
demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X
(Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015);
Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). *

There were, to be sure, responses to these arguments that the State could make when it
contended for a different result in seeking the enforcement of its generally applicable state
regulations of businesses that serve the public. And any decision in favor of the baker would
have to be sufficiently constrained, lest all purveyors of goods and services who object to
gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no
goods or services will be sold if they will be used for gay marriages," something that would
impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral
and respectful consideration of his claims in all the circumstances of the case.

The neutral and respectful consideration to which Phillips was entitled was compromised
here, however. The Civil Rights Commission's treatment of his case has some elements of a
clear and impermissible hostility toward the sincere religious beliefs that motivated his
objection.

That hostility surfaced at the Commission's formal, public hearings, as shown by the record.
On May 30, 2014, the seven-member Commission convened publicly to consider Phillips'

*5
45 CFR § 147.130(a)(1)(iv) (2013) (HHS); 29 CFR § 2590.715-2713(a)(1)(iv) (2013) (Labor); 26 CFR § 54.9815-2713(a)(1)(iv) (2013) (Treasury).
 81

case. At several points during its meeting, commissioners endorsed the view that religious
beliefs cannot legitimately be carried into the public sphere or commercial domain, implying
that religious beliefs and persons are less than fully welcome in Colorado's business
community. One commissioner suggested that Phillips can believe "what he wants to
believe," but cannot act on his religious beliefs "if he decides to do business in the state." Tr.
23. A few moments later, the commissioner restated the same position: "[I]f a businessman
wants to do business in the state and he's got an issue with the-the law's impacting his
personal belief system, he needs to look at being able to compromise." Id ., at 30. Standing
alone, these statements are susceptible of different interpretations. On the one hand, they
might mean simply that a business cannot refuse to provide services based on sexual
orientation, regardless of the proprietor's personal views. On the other hand, they might be
seen as inappropriate and dismissive comments showing lack of due consideration for
Phillips' free exercise rights and the dilemma he faced. In view of the comments that
followed, the latter seems the more likely.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and
on the record. On this occasion another commissioner made specific reference to the
previous meeting's discussion but said far more to disparage Phillips' beliefs. The
commissioner stated:

"I would also like to reiterate what we said in the hearing or the last meeting.
Freedom of religion and religion has been used to justify all kinds of discrimination
throughout history, whether it be slavery, whether it be the holocaust, whether it be-
I mean, we-we can list hundreds of situations where freedom of religion has been
used to justify discrimination. And to me it is one of the most despicable pieces of
rhetoric that people can use to-to use their religion to hurt others." Tr. 11-12.

To describe a man's faith as "one of the most despicable pieces of rhetoric that people can
use" is to disparage his religion in at least two distinct ways: by describing it as despicable,
and also by characterizing it as merely rhetorical-something insubstantial and even insincere.
The commissioner even went so far as to compare Phillips' invocation of his sincerely held
religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for
a Commission charged with the solemn responsibility of fair and neutral enforcement of
Colorado's antidiscrimination law-a law that protects against discrimination on the basis of
religion as well as sexual orientation.

The record shows no objection to these comments from other commissioners. And the later
state-court ruling reviewing the Commission's decision did not mention those comments,
much less express concern with their content. Nor were the comments by the commissioners
disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the
conclusion that these statements cast doubt on the fairness and impartiality of the
Commission's adjudication of Phillips' case. Members of the Court have disagreed on the
question whether statements made by lawmakers may properly be taken into account in
determining whether a law intentionally discriminates on the basis of religion. See Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-542, 113 S.Ct. 2217, 124 L.Ed.2d
472 (1993) ; id., at 558, 113 S.Ct. 2217 (Scalia, J., concurring in part and concurring in
judgment). In this case, however, the remarks were made in a very different context-by an
adjudicatory body deciding a particular case.

Another indication of hostility is the difference in treatment between Phillips' case and the
cases of other bakers who objected to a requested cake on the basis of conscience and
prevailed before the Commission.

As noted above, on at least three other occasions the Civil Rights Division considered the
refusal of bakers to create cakes with images that conveyed disapproval of same-sex
 82

marriage, along with religious text. Each time, the Division found that the baker acted
lawfully in refusing service. It made these determinations because, in the words of the
Division, the requested cake included "wording and images [the baker] deemed derogatory,"
Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured "language and images [the
baker] deemed hateful," Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or
displayed a message the baker "deemed as discriminatory, Jack v. Azucar Bakery, Charge
No. P20140069X, at 4.

The treatment of the conscience-based objections at issue in these three cases contrasts with
the Commission's treatment of Phillips' objection. The Commission ruled against Phillips in
part on the theory that any message the requested wedding cake would carry would be
attributed to the customer, not to the baker. Yet the Division did not address this point in any
of the other cases with respect to the cakes depicting anti-gay marriage symbolism.
Additionally, the Division found no violation of CADA in the other cases in part because
each bakery was willing to sell other products, including those depicting Christian themes, to
the prospective customers. But the Commission dismissed Phillips' willingness to sell
"birthday cakes, shower cakes, [and] cookies and brownies," App. 152, to gay and lesbian
customers as irrelevant. The treatment of the other cases and Phillips' case could reasonably
be interpreted as being inconsistent as to the question of whether speech is involved, quite
apart from whether the cases should ultimately be distinguished. In short, the Commission's
consideration of Phillips' religious objection did not accord with its treatment of these other
objections.

Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment
reflected hostility on the part of the Commission toward his beliefs. He argued that the
Commission had treated the other bakers' conscience-based objections as legitimate, but
treated his as illegitimate-thus sitting in judgment of his religious beliefs themselves. The
Court of Appeals addressed the disparity only in passing and relegated its complete analysis
of the issue to a footnote. There, the court stated that "[t]his case is distinguishable from the
Colorado Civil Rights Division's recent findings that [the other bakeries] in Denver did not
discriminate against a Christian patron on the basis of his creed" when they refused to create
the requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there was no
impermissible discrimination because "the Division found that the bakeries ... refuse[d] the
patron's request ... because of the offensive nature of the requested message." Ibid.

A principled rationale for the difference in treatment of these two instances cannot be based
on the government's own assessment of offensiveness. Just as "no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed.
1628 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to
prescribe what shall be offensive. See Matal v. Tam, 582 U.S. ----, ---- - ----, 137 S.Ct. 1744,
1762-1764, 198 L.Ed.2d 366 (2017) (opinion of ALITO, J.). The Colorado court's attempt to
account for the difference in treatment elevates one view of what is offensive over another
and itself sends a signal of official disapproval of Phillips' religious beliefs. The court's
footnote does not, therefore, answer the baker's concern that the State's practice was to
disfavor the religious basis of his objection.

For the reasons just described, the Commission's treatment of Phillips' case violated the
State's duty under the First Amendment not to base laws or regulations on hostility to a
religion or religious viewpoint.

In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to
respect the Constitution's guarantee of free exercise, cannot impose regulations that are
hostile to the religious beliefs of affected citizens and cannot act in a manner that passes
 83

judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free
Exercise Clause bars even "subtle departures from neutrality" on matters of religion. Id., at
534, 113 S.Ct. 2217. Here, that means the Commission was obliged under the Free Exercise
Clause to proceed in a manner neutral toward and tolerant of Phillips' religious beliefs. The
Constitution "commits government itself to religious tolerance, and upon even slight
suspicion that proposals for state intervention stem from animosity to religion or distrust of
its practices, all officials must pause to remember their own high duty to the Constitution and
to the rights it secures." Id ., at 547, 113 S.Ct. 2217.

Factors relevant to the assessment of governmental neutrality include "the historical

background of the decision under challenge, the specific series of events leading to the
enactment or official policy in question, and the legislative or administrative history,
including contemporaneous statements made by members of the decisionmaking body." Id .,
at 540, 113 S.Ct. 2217. In view of these factors the record here demonstrates that the
Commission's consideration of Phillips' case was neither tolerant nor respectful of Phillips'
religious beliefs. The Commission gave "every appearance," id ., at 545, 113 S.Ct. 2217, of
adjudicating Phillips' religious objection based on a negative normative "evaluation of the
particular justification" for his objection and the religious grounds for it. Id ., at 537, 113
S.Ct. 2217. It hardly requires restating that government has no role in deciding or even
suggesting whether the religious ground for Phillips' conscience-based objection is legitimate
or illegitimate. On these facts, the Court must draw the inference that Phillips' religious
objection was not considered with the neutrality that the Free Exercise Clause requires.

While the issues here are difficult to resolve, it must be concluded that the State's interest
could have been weighed against Phillips' sincere religious objections in a way consistent
with the requisite religious neutrality that must be strictly observed. The official expressions
of hostility to religion in some of the commissioners' comments-comments that were not
disavowed at the Commission or by the State at any point in the proceedings that led to
affirmance of the order-were inconsistent with what the Free Exercise Clause requires. The
Commission's disparate consideration of Phillips' case compared to the cases of the other
bakers suggests the same. For these reasons, the order must be set aside.

III

The Commission's hostility was inconsistent with the First Amendment's guarantee that our
laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral
decisionmaker who would give full and fair consideration to his religious objection as he
sought to assert it in all of the circumstances in which this case was presented, considered,
and decided. In this case the adjudication concerned a context that may well be different
going forward in the respects noted above. However later cases raising these or similar
concerns are resolved in the future, for these reasons the rulings of the Commission and of
the state court that enforced the Commission's order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the
courts, all in the context of recognizing that these disputes must be resolved with tolerance,
without undue disrespect to sincere religious beliefs, and without subjecting gay persons to
indignities when they seek goods and services in an open market.

The judgment of the Colorado Court of Appeals is reversed.

It is so ordered.

[…]
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Acknowledgments
Some materials included in this export came from the
following casebooks.