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In the Supreme Court of the United States No. XX-XX In the Supreme Court of the United States KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. HOBBY LOBBY STORES, INC., ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI DONALD B. VERRILLI, JR. Solicitor General Counsel of Record STUART F. DELERY Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General JOSEPH R. PALMORE Assistant to the Solicitor General MARK B. STERN ALISA B. KLEIN Attorneys Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTION PRESENTED The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmen- tal interest. 42 U.S.C. 2000bb-1(a) and (b). The ques- tion presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are other- wise entitled by federal law, based on the religious objections of the corporation’s owners. (I) PARTIES TO THE PROCEEDINGS Petitioners are Kathleen Sebelius, Secretary of Health and Human Services; the Department of Health and Human Services; Thomas E. Perez, Secre- tary of Labor; the Department of Labor; Jacob J. Lew, Secretary of the Treasury; and the Department of the Treasury. Respondents are Hobby Lobby Stores, Inc.; Mardel, Inc.; David Green; Barbara Green; Mart Green; Steve Green; and Darsee Lett. (II) TABLE OF CONTENTS Page Opinions below ................................................................................ 1 Jurisdiction ...................................................................................... 2 Statutory provisions involved ....................................................... 2 Statement ......................................................................................... 2 Reasons for granting the petition ............................................... 15 A. RFRA does not allow a for-profit corporation to deny its employees the benefits to which they are otherwise entitled by federal law ............................. 16 B. The court of appeals’ en banc decision presents a question of exceptional importance and directly conflicts with decisions of other circuits ........................ 32 Conclusion ...................................................................................... 36 Appendix A — Court of appeals opinion (June 27, 2013) ...... 1a Appendix B — District court order (Nov. 19, 2012) .......... 167a Appendix C — Statutory provisions .................................... 200a TABLE OF AUTHORITIES Cases: Autocam Corp. v. Sebelius, No. 12-2673, 2013 WL 5182544 (6th Cir. Sept. 17, 2013) ............................... passim Braunfeld v. Brown, 366 U.S. 599 (1961) ............................. 18 Canderm Pharmacal, Ltd. v. Elder Pharm., Inc., 862 F.2d 597 (6th Cir. 1988) ....................................................... 26 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001) ................................................................... 24, 25, 33 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ............................................... 17 Conestoga Wood Specialties Corp. v. HHS, No. 13-1144, 2013 WL 3845365 (3d Cir. July 26, 2013) ......................................................... 16, 24, 25, 32, 33, 34 (III) IV Cases—Continued: Page Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) ...................................................................... 22 Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................. 21 Diva’s Inc. v. City of Bangor, 411 F.3d 30 (1st Cir. 2005) ....................................................................................... 26 Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ............... 24 Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) ...................................................................................... 25 EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), cert. denied, 489 U.S. 1077 (1989) ........... 22 Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990) ......................................................... 13, 17 Erlich v. Glasner, 418 F.2d 226 (9th Cir. 1969) ................... 26 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ................................................ 17 Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) .. 25, 26, 27, 29 Heckler v. Mathews, 465 U.S. 728 (1984) ............................. 30 Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C.), aff ’d sub nom. Seven Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), cert. denied, 133 S. Ct. 63 (2012) ........... 27 Mitchell v. Helms, 530 U.S. 793 (2000) ................................. 23 O’Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012), appeal docketed, No. 12-3357 (8th Cir. Oct. 4, 2012) ....................................................................................... 27 Public Citizen v. Department of Justice, 491 U.S. 440 (1989) ........................................................................................ 6 Roberts v. United State Jaycees, 468 U.S. 609 (1984) ........ 28 Schenley Distillers Corp. v. United States, 326 U.S. 432 (1946) ............................................................................... 24 Sherbert v. Verner, 374 U.S. 398 (1963) ................................ 17 V Cases—Continued: Page Smith Setzer & Sons, Inc. v. South Carolina Pro- curement Review Panel, 20 F.3d 1311 (4th Cir. 1994) ....................................................................................... 26 Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir.), cert. denied, 132 S. Ct. 96 (2011) .............................. 23 The Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065 (10th Cir. 2002) ................................... 26 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ...................................................................................... 21 University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) ..................................................................... 23 United States v. Lee, 455 U.S. 252 (1982)........... 18, 19, 29, 31 Wisconsin v. Yoder, 406 U.S. 205 (1972) .............................. 17 Constitution, statutes and regulations: U.S. Const.: Art. III .......................................................................... 11, 12 Amend. I (Establishment Clause/Free Exercise Clause) ........................................................ 11, 13, 22, 33 Americans with Disabilities Act of 1990, 42 U.S.C. 12113(d)(1) (Supp. V 2011) (§ 103) ...................................... 21 42 U.S.C. 12113(d)(1) (Supp. V 2011) ............................. 21 Anti-Injunction Act, 26 U.S.C. 7421................................ 11, 12 Civil Rights Act of 1964, Tit. VII, Pub. L. No. 88-352, 78 Stat. 253 (42 U.S.C. 2000e et seq.) .......................... 21, 22 42 U.S.C. 2000e-1(a) .......................................................... 21 Dictionary Act (1 U.S.C. 1) ..................................................... 19 VI Statutes and regulations—Continued: Page Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq.: 29 U.S.C. 1185 (Supp. II 1996) .......................................... 2 29 U.S.C. 1185(b) (Supp. IV 1998) .................................... 2 29 U.S.C. 1185d (Supp. V 2011) ......................................... 3 Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029............................ 3 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 .............. 3, 4, 5, 28, 29, 30 26 U.S.C. 4980H (Supp. V 2011) ...................................... 30 26 U.S.C. 4980H(c)(2)(A) (Supp. V 2011) ....................... 31 29 U.S.C. 1185d (Supp. V 2011) ......................................... 3 42 U.S.C. 299b-4(a) (Supp. V 2011) ................................... 4 42 U.S.C. 300gg-13 (Supp. V 2011) ............................. 3, 30 42 U.S.C. 300gg-13(a)(1) (Supp. V 2011) .......................... 4 42 U.S.C. 300gg-13(a)(2) (Supp. V 2011) .......................... 4 42 U.S.C. 300gg-13(a)(3) (Supp. V 2011) .......................... 5 42 U.S.C. 300gg-13(a)(4) (Supp. V 2011) .......................... 5 42 U.S.C. 300gg-22(a)(1) (Supp. V 2011) .......................... 3 42 U.S.C. 300gg-22(a)(2) (Supp. V 2011) .......................... 3 42 U.S.C. 300gg-22(b)(1)(A) (Supp. V 2011) .................... 3 42 U.S.C. 1801 (Supp. V 2011) ......................................... 30 Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. .............................................. passim 42 U.S.C. 2000bb(b)(1) ...................................................... 17 42 U.S.C. 2000bb-1(a) ......................... 10, 16, 17, 20, 23, 26 42 U.S.C. 2000bb-1(b) ..................................... 10, 16, 17, 27 26 U.S.C. 106 (2006 & Supp. V 2011) ...................................... 2 26 U.S.C. 4980D ......................................................................... 3 26 U.S.C. 6033(a)(3)(A)(i) ......................................................... 8 VII Statutes and regulations—Continued: Page 26 U.S.C. 6033(a)(3)(A)(iii)
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