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Supreme Court of the United States No. ______ IN THE Supreme Court of the United States MICHIGAN CATHOLIC CONFERENCE, CATHOLIC FAMILY SERVICES, THE CATHOLIC DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF TENNESSEE, INC., AQUINAS COLLEGE, DOMINICAN SISTERS OF ST. CECILIA CONGREGATION, MARY QUEEN OF ANGELS, INC., CAMP MARYMOUNT, INC., AND ST. MARY VILLA, INC., Petitioners, v. SYLVIA MATHEWS BURWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR WRIT OF CERTIORARI NOEL J. FRANCISCO MATTHEW A. KAIRIS JONES DAY Counsel of Record 51 Louisiana Ave., NW JONES DAY Washington, D.C. 325 John H. McConnell Blvd. 20001-2113 Suite 600 (202) 879-3939 Columbus, OH 43215 [email protected] (614) 469-3939 [email protected] Counsel for Petitioners QUESTION PRESENTED This case presents the question this Court did “not decide” in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2782 & n.39 (2014): Whether, consistent with the Religious Freedom Restoration Act (“RFRA”), the Government can compel a nonprofit religious organization to act in violation of its sincerely held religious beliefs by participating in a regulatory scheme to provide its employees with coverage for abortion- inducing products, contraceptives, and sterilization. ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT Petitioners, who were Plaintiffs below, are Michigan Catholic Conference; Catholic Family Services; the Catholic Diocese of Nashville; Catholic Charities of Tennessee, Inc.; Aquinas College, Nashville, Tennessee; Dominican Sisters of St. Cecilia Congregation; Mary Queen of Angels, Inc.; Camp Marymount, Inc.; and St. Mary Villa, Inc. Aquinas College’s sole member is St. Cecilia Congregation, a Tennessee not-for-profit corporation. No other Petitioners have parent corporations. No publicly held corporation owns any portion of Petitioners, and Petitioners are not subsidiaries or affiliates of any publicly owned corporation. Respondents, who were Defendants below, are Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; the United States Department of Health and Human Services; Thomas E. Perez, in his official capacity as Secretary of the United States Department of Labor; the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of the Treasury; and the United States Department of the Treasury. iii TABLE OF CONTENTS Page QUESTION PRESENTED .......................................... i PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT .......................................... ii TABLE OF AUTHORITIES ..................................... vii PETITION FOR WRIT OF CERTIORARI ................ 1 OPINIONS BELOW ................................................... 1 JURISDICTION ......................................................... 1 STATUTORY PROVISIONS INVOLVED ................. 1 INTRODUCTION ....................................................... 2 STATEMENT OF THE CASE ................................... 4 REASONS FOR GRANTING THE WRIT ............... 11 I. THE SIXTH CIRCUIT’S DECISION CANNOT BE RECONCILED WITH HOBBY LOBBY AND WHEATON ................. 15 II. PETITIONERS WOULD PREVAIL UNDER THE STANDARD SET FORTH IN HOBBY LOBBY AND WHEATON ............ 20 A. The Mandate Substantially Burdens Petitioners’ Exercise of Religion ................ 21 1. Declining to Comply with the Accommodation Is a Protected Exercise of Religion ............................. 22 2. The Mandate Places Substantial Pressure upon Petitioners to Violate Their Religious Beliefs ........... 26 iv TABLE OF CONTENTS (continued) Page B. The Regulations Cannot Survive Strict Scrutiny ............................................ 27 1. The Mandate Does Not Further a Compelling Government Interest ....... 28 2. The Mandate Is Not the Least Restrictive Means of Furthering the Government’s Asserted Interests ............................................... 31 CONCLUSION ......................................................... 36 APPENDIX A: Opinion and Order Denying Motion for Preliminary Injunction, Michigan Catholic Conference v. Sebelius, No. 1:13-cv- 01247 (W.D. Mich. Dec. 27, 2013) ............................ 1a APPENDIX B: Opinion and Order Denying Motion for Preliminary Injunction, Catholic Diocese of Nashville v. Sebelius, No 3:13-cv- 01303 (M.D. Tenn. Dec. 26, 2013) .......................... 30a APPENDIX C: Order Denying Motion for Injunction Pending Appeal, Michigan Catholic Conference v. Sebelius, No. 1:13-cv-01247 (W.D. Mich. Jan. 2, 2014) ....................................... 56a APPENDIX D: Order Denying Motion for Injunction Pending Appeal, Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-01303 (M.D. Tenn. Dec. 27, 2013) ............................................... 58a APPENDIX E: Amended Order Granting Injunction Pending Appeal, Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir. Jan. 3, 2014) ............................................................ 59a v TABLE OF CONTENTS (continued) Page APPENDIX F: Amended Order Granting Injunction Pending Appeal, Catholic Diocese of Nashville v. Sebelius, No. 13-6640 (6th Cir. Jan. 3, 2014) ............................................................ 73a APPENDIX G: Merits Opinion, Michigan Catholic Conference v. Burwell, Nos. 13-2723 & 13-6640 (6th Cir. June 11, 2014) ........................ 89a APPENDIX H: Order Denying Petition for En Banc Review, Michigan Catholic Conference v. Burwell, Nos. 13-2723 & 13-6640 (6th Cir. Sept. 16, 2014) ...................................................... 137a APPENDIX I: Complaint, Michigan Catholic Conference v. Sebelius, No. 1:13-cv-01247 (W.D. Mich. Nov. 14, 2013) .................................. 139a APPENDIX J: Complaint, Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-01303 (M.D. Tenn. Nov. 22, 2013) ............................................. 205a APPENDIX K: Declaration of Paul A. Long ....... 291a APPENDIX L: Declaration of Most Rev. Michael Byrnes, S.T.D. ......................................... 301a APPENDIX M: U.S. Conference of Catholic Bishops, Ethical & Religious Directives for Catholic Health Care Services (Nov. 17, 2009) ... 311a APPENDIX N: Statutory Provisions Involved 42 U.S.C. § 2000bb-1 .......................................... 362a 42 U.S.C. § 2000bb-2 .......................................... 362a 42 U.S.C. § 2000cc-5 .......................................... 363a 42 U.S.C. § 300gg-13 .......................................... 365a 26 U.S.C. § 4980D .............................................. 365a vi TABLE OF CONTENTS (continued) Page 26 U.S.C. § 4980H .............................................. 371a 26 C.F.R. § 54.9815-2713 ................................... 377a 26 C.F.R. § 54.9815-2713A ................................ 378a 26 C.F.R. § 54.9815-2713AT .............................. 384a 29 C.F.R. § 2590.3-16 ......................................... 389a 29 C.F.R. § 2590.715-2713 ................................. 391a 29 C.F.R. § 2590.715-2713A .............................. 397a 45 C.F.R. § 147.130 ............................................ 405a 45 C.F.R. § 147.131 ............................................ 411a vii TABLE OF AUTHORITIES Page(s) CASES Archdiocese of St. Louis v. Burwell, No. 4:13-CV-2300, 2014 WL 2945859 (E.D. Mo. June 30, 2014) ...................................... 13 Ave Maria Found. v. Sebelius, 991 F. Supp. 2d 957 (E.D. Mich. 2014) ..................................................................... 14 Ave Maria Sch. of Law v. Burwell, No. 2:13-cv-795, 2014 WL 5471054 (M.D. Fla. Oct 28, 2014) ....................................... 13 Ave Maria Univ. v. Burwell, No. 2:13-cv-630, 2014 WL 5471048 (M.D. Fla. Oct. 28, 2014) ...................................... 13 Bowen v. Roy, 476 U.S. 693 (1986) ........................................ 17, 19 Brandt v. Burwell, No. 14-CV-0681, 2014 WL 2808910 (W.D. Pa. June 20, 2014) ..................................... 13 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) .................................... 29, 31 Catholic Benefits Ass’n v. Sebelius, No. CIV-14-240-R, 2014 WL 2522357 (W.D. Okla. June 4, 2014) .................................... 13 viii TABLE OF AUTHORITIES (continued) Page(s) Catholic Diocese of Beaumont v. Sebelius, 10 F. Supp. 3d 725 (E.D. Tex. 2014) .................... 14 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .............................................. 29 Colo. Christian Univ. v. Sebelius, No. 13-CV-02105, 2014 WL 2804038 (D. Colo. June 20, 2014) ....................................... 13 Diocese of Cheyenne v. Burwell, No. 14-8040, 2014 U.S. App. LEXIS 12686 (10th Cir. June 30, 2014) .......................... 13 Diocese of Fort Wayne-S. Bend v. Sebelius, 988 F. Supp. 2d 958 (N.D. Ind. 2013) .................. 14 Dobson v. Sebelius, No. 13-cv-03326, 2014 WL 1571967 (D. Colo. Apr. 17, 2014) ........................................ 14 Dordt Coll. v. Sebelius, 22 F. Supp. 3d 934 (N.D. Iowa 2014) ................... 13 Dunn v. Blumstein, 405 U.S. 330 (1972) .............................................. 31 E. Tex. Baptist Univ. v. Sebelius, 988 F. Supp. 2d 743 (S.D. Tex. 2013) ............ 14, 19 ix TABLE OF AUTHORITIES (continued) Page(s) Eternal Word Television Network, Inc. v. Sec’y U.S. Dept. of Health & Human Servs. (“EWTN”),
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