Dowell v. Oklahoma City Board of Education Plaintiffs' Proposed Findings of Fact and Conclusions of Law

    Nos. 13-354 & 13-356

IN THE

uprmte (Emtri oi tljp ffinxteb plates

Ka th le e n  Se b e l iu s , et al.,

---V.----

Ho b b y  Lo b b y  St o r e s , In c .,

Petitioners,

Respondents.
Co n e s t o g a  W o o d  Specialties  Co r po r a tio n , et al.,

__v __ Petitioners,

Kathleen  Sebeliu s , et al.,
Respondents.

ON writs of certiorari to the united states 
courts of appeals for the tenth and third circuits

BRIEF AMICI CURIAE OF JULIAN BOND, THE 
AMERICAN CIVIL LIBERTIES UNION, THE ACLU OF 

PENNSYLVANIA, THE ACLU OF OKLAHOMA, THE 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., 

AND THE NATIONAL COALITION ON BLACK CIVIC 
PARTICIPATION, IN SUPPORT OF THE GOVERNMENT

Daniel Mach 
Heather L. Weaver 
American Civil Liberties 

Union Foundation 
915 15th Street, N.W. 
Washington, D.C. 20005

Brigitte Amiri 
Counsel o f Record 

Louise Melling 
Jennifer Lee 
Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500 
bamiri@aclu.org

CCounsel continued on inside cover)

mailto:bamiri@aclu.org


Ryan D. Kiesel 
Brady R. Henderson 
ACLU of Oklahoma 

Foundation 
3000 Paseo Drive 
Oklahoma City, OK 73103

Witold J. Walczak 
ACLU of Pennsylvania 
313 Atwood Street 
Pittsburgh, PA 15213



TABLE OF CONTENTS

TABLE OF AUTHORITIES.........................................ii
STATEMENT OF INTEREST.....................................1
FACTUAL BACKGROUND.........................................3
SUMMARY OF ARGUMENT......................................6
ARGUMENT................................................................10
I. THE HISTORICAL MOVEMENT TOWARD 

GREATER EQUALITY FOR RACIAL 
MINORITIES AND WOMEN HAS BEEN 
ACCOMPANIED BY A GROWING REJECTION 
OF EFFORTS TO JUSTIFY DISCRIMINATION 
IN THE MARKETPLACE ON THE BASIS OF
RELIGION.............................................................. 10
A. Racial Discrimination.....................................10
B. Gender Discrimination...................................19

II. THIS COURT SHOULD NOT ALLOW THE 
COMPANIES HERE TO RESURRECT THE 
DISCREDITED NOTION THAT THEIR 
RELIGIOUS BELIEFS SHOULD TRUMP A LAW 
DESIGNED TO ENSURE EQUAL
PARTICIPATION IN SOCIETY......................... 28

CONCLUSION........................................................... 34

i



TABLE OF AUTHORITIES

CASES

Berea College u. Commonwealth, 94 S.W. 623 
(Ky. 1906), aff’d, 211 U.S. 45 (1908).....................  13

Boh Jones Univ. v. United States,
461 U.S. 574 (1983)................................................  15

Bowie v. Birmingham Ry. & Elec. Co.,
27 So. 1016 (Ala. 1900)........................................... 12

Bradwell v. State,
83 U.S. 130 (1872)............................................ 22, 23

Brown v. Board of Education,
347 U.S. 483 (1954).......................................... 13, 14

Coffey v. State Edue. Fin. Comm’n,
296 F. Supp. 1389 (S.D. Miss. 1969).....................  14

Corp. of the Presiding Bishop of the Church of Latter- 
Day Saints v. Amos, 483 U.S. 327 (1987)............. 17

Cutter v. Wilkinson,
544 U.S. 709 (2005)................................................  27

Dole v. Shenandoah Baptist Church,
899 F.2d 1389 (4th Cir. 1990)............................... 25

EEOC v. Fremont Christian Sch.,
781 F.2d 1362 (9th Cir. 1986)............................... 25

EEOC v. Kamehameha Schs. /Bishop Estate,
990 F.2d 458 (9th Cir. 1993)................................. 26

EEOC v. Pac. Press Pub. Ass’n,
676 F.2d 1272 (9th Cir. 1982).........................  17, 23

EEOC v. Tree of Life Christian Schs.,
751 F. Supp. 700 (S.D. Ohio 1990)........................26

ii



Frontiero v. Richardson,
411 U.S. 677 (1973).......................................... 19, 21

Ganzy v. Allen Christian Sch.,
995 F. Supp. 340 (E.D.N.Y. 1998).........................27

Green v. State,
58 Ala. 190 (Ala. 1877)........................................... 12

Hamilton u. Southland Christian Sch., Inc.,
680 F.3d 1316 (11th Cir. 2012)............................. 26

Hosanna-Tabor Evangelical Lutheran Church and 
Sch. v. EEOC, 132 S. Ct. 694 (2012)..................... 17

Hoyt v. Florida,
368 U.S. 57 (1961)............................................ 22, 32

International Union v. Johnson Controls, Inc.,
499 U.S. 187 (1991)................................................ 25

Kinney v. Commonwealth,
71 Va. 858 (Va. 1878)............................................. 12

Lawrence v. Texas,
539 U.S. 558 (2003)................................................ 33

Loving v. Virginia,
388 U.S. 1 (1967)....................................................  16

Matthews v. Wal-Mart Stores, Inc.,
417 F. App’x 552 (7th Cir. 2011)...........................26

Muller v. Oregon,
208 U.S. 412 (1908)................................................. 22

Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721 (2003)

iii

22, 25, 32



Newman v. Piggie Park Enters., Inc., 256 F. Supp.
941 (D.S.C. 1966), aff’d in relevant part and rev’d 
in part on other grounds, 377 F.2d 433 (4th Cir. 
1967), aff’d and modified on other grounds, 390 
U.S. 400 (1968).......................................................  18

Orr v. Orr,
440 U.S. 268 (1979)................................................24

Peterson v. Hewlett-Packard Co.,
358 F.3d 599 (9th Cir. 2004)................................. 26

Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992)................................................  32

Plessy v. Ferguson,
163 U.S. 537(1896)................................................  13

Scott v. Emerson,
15 Mo. 576 (Mo. 1852)............................................ 11

Scott v. State,
39 Ga. 321 (Ga. 1869).............................................  12

Sherbert v. Verner,
374 U.S. 398 (1963)................................................. 27

Stanton v. Stanton,
421 U.S. 7 (1975)....................................................  23

State ex rel. Hawkins v. Bd. of Control,
83 So.2d 20 (Fla. 1955)........................................... 13

State v. Gibson,
36 Ind. 389 (Ind. 1871)............................................ 12

Swanner v. Anchorage Equal Rights Comm’n,
874 P.2d 274 (Alaska 1994).....................................26

The West Chester & Phila. R.R. v. Miles,
55 Pa. 209 (Pa. 1867).............................................. 12

IV



Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977)..................................................  27

United States v. Lee,
455 U.S. 252 (1982)................................................  27

United States v. Virginia,
518 U.S. 515 (1996)................... ;........................... 24

Vigars v. Valley Christian Ctr.,
805 F. Supp. 802 (N.D. Cal. 1992)........................27

W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943)................................................  28

STATUTES

Title IX, Education Amendments of 1972,
20 U.S.C. § 1681(a)(3).............................................. 23

Patient Protection and Affordable Care Act, Pub. L. 
No. 111-148, sec. 1001, § 2713(a), 124 Stat. 119 
(2010), 42 U.S.C.A. § 300gg-13................................. 3

Women’s Health Amendment, § 2713(a)(4), 124 Stat. 
119..........................................................................3, 4

ADMINISTRATIVE & LEGISLATIVE 
MATERIALS

110 Cong. Rec. 13,207 (1964)
(testimony of Sen. Byrd).................................. 17, 23

155 Cong. Rec. Si 1,979 (daily ed. Nov. 30, 2009) 
(statement of Sen. Mikulski).....................................3

155 Cong. Rec. S12,019 (daily ed. Dec. 1, 2009) 
(statement of Sen. Gillibrand)................................. 4

Tax-Exempt Status of Private Schs.: Hearing Before 
the Subcomm. on Taxation & Debt Mgmt.

v



Generally of the Comm, on Fin., 96th Cong. 18 
(1979) (statement by Sen. Laxalt)........................15

Health Res. & Servs. Admin., U.S. Dep’t of Health & 
Human Servs., Women’s Preventive Services: 
Required Health Plan Coverage Guidelines, 
available at http://www.hrsa.gov/womensguidelines 
(last visited Jan. 24, 2014).......................................5

U.S. Comm’n on Civil Rights, Discriminatory 
Religious Schs. and Tax Exempt Status (1982).... 14

REGULATIONS & RULES
45 C.F.R. § 147.131(a)....................................................5
45 C.F.R. § 147.131(b)....................................................5
45 C.F.R. § 147.130(b)(1).............................................. 5
77 Fed. Reg. 8725 (Feb. 15, 2012).............................. 6
78 Fed. Reg. 39870 (July 2, 2013).............................. 5
Rev. Rul. 71-447, 1971-2 C.B. 230............................  15

OTHER AUTHORITIES

Armantine M. Smith, The History of the Woman’s 
Suffrage Movement in Louisiana,
62 La. L. Rev. 509 (2002).........................................20

Claudia Goldin & Lawrence F. Katz, The Power of 
the Pill: Oral Contraceptives and Women’s Career 
and Marriage Decisions,
110 J. Pol. Econ. 730 (2002)..................................  31

Convention of Ministers, An Address to Christians 
Throughout the World 8 (1863), available at 
https://archive.org/details/addresstochristiOOphil 
(last visited Jan. 24, 2014)..................................... 11

vi

http://www.hrsa.gov/womensguidelines
https://archive.org/details/addresstochristiOOphil


Guttmacher Institute, A Real-Time Look at the 
Impact of the Recession on Women’s Family 
Planning and Pregnancy Decisions, available at 
http://www.guttmacher.org/pubs/RecessionFP.pdf 
(last visited Jan. 24, 2014).................................... 29

Guttmacher Institute, Fact Sheet: Contraceptive Use 
in the United States (Aug. 2013), available at 
http:// www. guttmacher. or g/pub si fb_contr_use. ht ml 
..........................................................................  30

Guttmacher Institute, Facts on Unintended 
Pregnancy in the United States (Dec. 2013), 
available at http://www.guttmacher.org/pubs/ 
FB-Unintended-Pregnancy-US.html 
(last visited Jan. 24, 2014).................................... 29

Inst, of Med., Clinical Preventive Services for Women: 
Closing the Gaps (July 2011).................................. 4

Jeffrey Peipert et al., Continuation and Satisfaction 
of Reversible Contraception,
117 Obstetrics & Gynecology 1105 (2011).............29

Jeffrey Peipert et al., Preventing Unintended 
Pregnancies by Providing No-Cost Contraception, 
120 Obstetrics & Gynecology 1291 (2012).....  29, 30

John C. Jeffries, Jr. & James E. Ryan, A Political 
History of the Establishment Clause,
100 Mich. L. Rev. 279 (2001).................................  14

Martha J. Bailey, et al., The Opt-in Revolution? 
Contraception and the Gender Gap in Wages 
(Nat’l Bureau of Econ. Research Working Paper 
No. 17922, 2012), available at 
http://www.nber.org/papers/wl7922 
(last visited Jan. 22, 2014)....................................  31

vii

http://www.guttmacher.org/pubs/RecessionFP.pdf
http://www.guttmacher.org/pubs/
http://www.nber.org/papers/wl7922


Note, Segregation Academies and State Action,
82 Yale L. J. 1436 (1973)................................ ....... 14

R. Randall Kelso, Modern Moral Reasoning and 
Emerging Trends in Constitutional and Other 
Rights Decision-Making Around the World, 29 
Quinnipiac L. Rev. 433 (2011).........................  11, 18

Reva B. Siegel, Reasoning from the Body: A 
Historical Perspective on Abortion Regulation and 
Questions of Equal Protection,
44 Stan. L. Rev. 261 (1991)....................................21

Reva B. Siegel, She the People: The Nineteenth 
Amendment, Sex Equality, Federalism, and the 
Family, 115 Harv. L. Rev. 947 (2002)................... 21

Statement about Race at BJU, Bob Jones Univ., 
available at http://www.bju.edu/about/what-we- 
believe/race-statement.php
(last visited Jan. 21, 2014).....................................19

Susan A. Cohen, The Broad Benefits of Investing in 
Sexual and Reproductive Health, 7 The 
Guttmacher Report on Public Policy 5 (2004).....  31

Su-Ying Liang, et al., Women’s Out-of-Pocket 
Expenditures and Dispensing Patterns for Oral 
Contraceptive Pills Between 1996 and 2006,
83 Contraception 528 (2010)................................. 29

viii

http://www.bju.edu/about/what-we-believe/race-statement.php
http://www.bju.edu/about/what-we-believe/race-statement.php


STATEMENT OF INTEREST1

Julian Bond has spent his lifetime seeking 
justice for people of color. He is currently a 
professor, and is Chairman Emeritus of the NAACP. 
Given his life’s work, Mr. Bond is all too aware that 
religion has been used through the decades to 
sanctify slavery, subjugation and segregation. Mr. 
Bond signs this brief because he believes that the 
need to prevent the misuse of religion to promote 
discrimination is as urgent now as ever.

The American Civil Liberties Union (“ACLU”) 
is a nationwide, non-profit, non-partisan 
organization with more than 500,000 members 
dedicated to defending the principles of liberty and 
equality embodied in the Constitution and the 
nation’s civil rights laws. The ACLU has a long 
history of furthering racial justice and women’s 
rights, and an equally long history of defending 
religious liberty. The ACLU also vigorously protects 
reproductive freedom, and has participated in almost 
every critical case concerning reproductive rights to 
reach the Supreme Court. The ACLU of 
Pennsylvania and the ACLU of Oklahoma are 
statewide affiliates of the national ACLU.

1 The parties in 13-356 have filed blanket letters of consent to 
amicus briefs in support of either party or neither party. 
Petitioners in 13-354 have also filed a blanket letter of consent. 
A letter of consent to the filing of this amicus brief from 
Respondents in 13-354 has been lodged with the Clerk of the 
Court. No counsel for a party authored this brief in whole or in 
part, and no person other than amici or their counsel made a 
monetary contribution to the preparation of the submission of 
this brief.

1



The NAACP Legal Defense & Educational 
Fund, Inc. (“LDF”) is a non-profit legal organization 
that, for more than seven decades, has helped 
African Americans secure their civil and 
constitutional rights. Throughout its history, LDF 
has worked to support and provide equal treatment 
and high-quality medical services, care, and 
opportunities to African Americans. E.g., Linton v. 
Comm’r of Health & Env’t, 65 F.3d 508 (6th Cir. 
1995) (preservation of Medicaid-certified hospital 
and nursing home beds to prevent eviction of 
patients in favor of admitting more remunerative 
private-pay individuals); Bryan v. Koch, 627 F.2d 612 
(2d Cir. 1980) (challenge to closure of municipal 
hospital serving inner-city residents); Simkins v. 
Moses H. Cone Mem’l Hosp., 323 F.2d 959 (4th Cir. 
1963) (admission of African-American physician to 
hospital staff); Mussington v. St. Luke’s-Roosevelt 
Hosp. Ctr., 824 F. Supp. 427 (S.D.N.Y. 1993) 
(relocation of services from inner-city branch of 
merged hospital entity); Rackley v. Bd. of Trs. of 
Orangeburg Reg’l Hosp., 238 F. Supp. 512 (E.D.S.C. 
1965) (desegregation of hospital wards); Consent 
Decree, Terry v. Methodist Hosp. of Gary, Nos. H-76- 
373, H-77-154 (N.D. Ind. June 8, 1979) (planned 
relocation of urban hospital services from inner-city 
community). LDF has a substantial interest in this 
case because of its continuing commitment to 
promoting opportunity for African Americans, 
including access to affordable health insurance and 
health care.

The National Coalition on Black Civic 
Participation (“The National Coalition”) has been 
actively engaged in social justice movements on the 
national, state and local level through our coalition-

2



based campaigns and organizing networks for nearly 
four decades. The National Coalition is dedicated to 
the empowerment of women and girls and black 
youth, particularly Black males through its Black 
Women’s Roundtable and Black Youth Vote! 
networks, leadership development, and civic 
engagement programs. The National Coalition 
believes that utilizing the judicial system to protect 
individuals right to worship, and to express their 
religious beliefs, and protecting reproductive 
freedoms are key to the organization achieving its 
empowerment goals now and in the future.

FACTUAL BACKGROUND

The Affordable Care Act requires that health 
insurance plans cover certain preventive services 
without cost-sharing. Patient Protection and 
Affordable Care Act, Pub. L. No. 111-148, sec. 1001, § 
2713(a), 124 Stat. 119, 131-32 (2010) (codified at 42 
U.S.C.A. § 300gg-13). The preventive services
coverage requirement did not initially include many 
preventive services unique to women, prompting 
passage of the Women’s Health Amendment 
(“WHA”). Id. § 2713(a)(4), 124 Stat. at 131. In 
passing the WHA, Senator Mikulski noted, “jojften 
those things unique to women have not been 
included in health care reform. Today we guarantee 
it and we assure it and we make it affordable by 
dealing with copayments and deductibles . . . .” 155 
Cong. Rec. Sll,979, Sll,988 (daily ed. Nov. 30, 2009) 
(statement of Sen. Mikulski); see also id. at Sll.987 
(noting that the ACA did not cover key preventive 
services for women). In particular, with the WHA, 
Congress intended to address gender disparities in

3



out-of-pocket health care costs, which stem in large 
part from reproductive health care:

Not only do we [women] pay more for 
the coverage we seek for the same age 
and the same coverage as men do, but in 
general women of childbearing age 
spend 68 percent more in out-of-pocket 
health care costs than men. . . . This 
fundamental inequity in the current 
system is dangerous and discriminatory 
and we must act. The prevention section 
of the bill before us must be amended so 
coverage of preventive services takes 
into account the unique health care 
needs of women throughout their 
lifespan.

155 Cong. Rec. S12.019, S12,027 (daily ed. Dec. 1, 
2009) (statement of Sen. Gillibrand).

To implement the WHA, the U.S. Department 
of Health and Human Services (“HHS”) looked to the 
Institute of Medicine (“IOM”), an independent, 
nonprofit organization, to recommend services that 
should be covered. IOM recommended that the 
covered preventive services include, among other 
things, the full range of Food and Drug 
Administration (“FDA”) approved contraceptives. 
Inst, of Med., Clinical Preventive Services for Women: 
Closing the Gaps 109-10 (July 2011). In making the 
recommendation, the IOM noted that “[d]espite 
increases in private health insurance coverage of 
contraception since the 1990s, many women do not 
have insurance coverage or are in health plans in 
which copayments for visits and for prescriptions 
have increased in recent years.” Id. at 109. These

4



cost barriers are aggravated by the fact that women 
“typically earn less than men and 
disproportionately have low incomes.” Id. at 19.

The federal government adopted IOM’s 
recommendations and enacted regulations that 
require non-grandfathered plans covered by the ACA 
to provide health care coverage without cost-sharing 
for “[a] 11 Food and Drug Administration approved 
contraceptive methods, sterilization procedures, and 
patient education and counseling for all women with 
reproductive capacity.” See 45 C.F.R. § 147.130(b)(1); 
Health Res. & Servs. Admin., U.S. Dep’t of Health & 
Human Servs., Women’s Preventive Services: 
Required Health Plan Coverage Guidelines, available 
at http://www.hrsa.gov/ womensguidelines (last 
visited Jan. 24, 2014).2

In announcing the rule, the federal 
government emphasized the importance of the rule 
not only to equalize women’s health care costs, but to 
ensure women have the ability to be equal 
participants in society. As it noted, the inability of 
women to access contraception

places women in the workforce at a 
disadvantage compared to their male co­
workers. Researchers have shown that 
access to contraception improves the 
social and economic status of women.

2 The regulations authorize an exemption for the group health 
plan of a “religious employer,” 45 C.F.R. § 147.131(a), and an 
accommodation for the group health plans of religious nonprofit 
organizations that have religious objections to providing 
coverage for all or some contraception, 45 C.F.R. § 147.131(b); 
78 Fed. Reg. 39870 (July 2, 2013). Neither the accommodation 
nor the exemption is at issue in this case.

5

http://www.hrsa.gov/


Contraceptive coverage, by reducing the 
number of unintended and potentially 
unhealthy pregnancies, furthers the 
goal of eliminating this disparity by 
allowing women to achieve equal status 
as healthy and productive members of 
the job force . . . .  The [federal 
government] aim[s] to reduce these 
disparities by providing women broad 
access to preventive services, including 
contraceptive services.

77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (footnote
omitted).

SUMMARY OF ARGUMENT

Amici support the government’s argument 
that the contraception rule does not violate the 
religious exercise rights of the businesses before the 
Court, whether those rights arise under the Religious 
Freedom Restoration Act (“RFRA”) or the Free 
Exercise Clause. Amici do not repeat those 
arguments here. Instead, we submit this brief to 
highlight an important lesson of history: as our 
society has moved towards greater equality for racial 
minorities and women, it has been less willing to 
accept religion as a justification for discrimination in 
the marketplace, and properly so.

Religion is a powerful force that shapes 
individual lives and influences community values. 
Like other belief systems, it has been used at 
different times and in different places to support 
change and to oppose it, to promote equality and to 
justify inequality. Our constitutional structure 
recognizes the importance of religion by protecting

6



its free exercise, a commitment to religious tolerance 
and pluralism that was reinforced by Congress when 
it enacted RFRA. Public debate can be and often is 
enhanced by those whose participation in that debate 
is informed by their faith. But once that debate is 
resolved through the democratic process, those who 
disagree with that resolution on religious grounds 
are no more entitled to an exemption from anti- 
discrimination laws governing commercial activity of 
the sort involved here than those who dissent on 
other ideological grounds. That is because the 
elimination of discrimination — in the marketplace 
and outside the realm of constitutionally protected 
associations, religious or otherwise -  has long been 
recognized as a state interest of the highest order. 
That is what is at stake in this case given that the 
contraception rule addresses a vestige of gender 
discrimination.

Religious leaders, of course, have often led the 
movement against discrimination. To choose one 
obvious example, Dr. Martin Luther King, Jr. was a 
minister whose faith informed and inspired his social 
justice work. But it is also true that religion has 
frequently played the opposite role in our nation’s 
history, invoked by those who sought to perpetuate 
discrimination based on race or gender, whether by 
opposing changing standards or seeking an 
exemption to new legal norms. We do not recount 
that history to suggest that the invocation of 
religious beliefs to justify the most odious forms of 
racial discrimination is equivalent to religious 
opposition to contraception. Rather, we provide this 
history because it demonstrates that the issues in 
this case are not new.

7



Slavery was once defended on religious 
grounds. So were Jim Crow laws. Even the courts 
embraced religion to justify continued segregation. A 
civil war, followed by decades of protest and 
advocacy, eventually led to change. The change was 
met with resistance, including resistance motivated 
by religious beliefs. Congress and the courts faced 
calls for exemptions to enable those objecting for 
reasons of faith to avoid compliance with evolving 
standards in employment, education, marriage 
recognition, and public accommodation. The courts 
rejected these claims, recognizing the vital state 
interest in ending discrimination in these public 
arenas and embracing a vision of equality that did 
not sanction piecemeal exemptions.

The story of women’s emerging equality 
follows a similar pattern. Women have been 
celebrated as mothers while long denied rights and 
opportunities on the premise that the home was their 
proper domain. Religious beliefs were invoked to 
justify restrictions on women’s roles, including in 
suffrage, employment, and access to birth control, 
and later inspired legislation purportedly to “protect” 
women, including their reproductive capacities. The 
last century brought great changes, with women -  
and men -  increasingly able to opt for parenthood 
and caregiving, as well as to participate in an ever 
greater array of educational and career 
opportunities. Many factors contributed to this 
change, including laws prohibiting discrimination 
and protecting women’s ability to control their 
reproductive capacity. These measures, like those for 
racial equality, were met with resistance, including 
calls based on religion to avoid compliance with 
evolving legal standards. Again, as with race,

8



Congress and the courts held firm to the vision 
embodied in newly passed anti-discrimination 
measures.

This history offers some guidance to this Court 
as it analyzes the currently claimed right to religious 
exercise and exemption. The contraception rule 
addresses a remaining vestige of sex discrimination: 
the disparities in the cost of health care as between 
women and men, the longstanding exclusion of 
services needed only by women from health care 
coverage, and the need for women to have 
meaningful access to all forms of contraception if 
they are to control unintended pregnancies and thus 
enjoy greater equality in society. As this Court has 
recognized, women’s ability to control their 
reproductive capacities is essential to women’s 
participation in society. Contraception is not simply 
a pill or a device; it is a tool, like education, essential 
to women’s equality. Without access to contraception, 
women’s ability to complete an education, to hold a 
job, to advance in their careers, to care for their 
existing children, or to aspire to a higher place, 
whatever that may be, is compromised. The 
contraception rule makes access to contraception, 
including the most effective methods, meaningful, 
and thus takes a giant and long overdue step to level 
the playing field.

In other contexts, calls for religious 
exemptions from laws advancing women’s equality -  
be they to pay women less or deny employment to 
women who violate traditional social norms -  have 
been rejected. The result should be the same here. 
Those who own a business do not forfeit their right to 
object to the contraception rule on religious grounds,

9



but their personal religious objection does not give 
the businesses they own license to disregard the law.

ARGUMENT

I. THE HISTORICAL MOVEMENT 
TOWARD GREATER EQUALITY FOR 
RACIAL MINORITIES AND WOMEN HAS 
BEEN ACCOMPANIED BY A GROWING 
REJECTION OF EFFORTS TO JUSTIFY 
DISCRIMINATION IN THE
MARKETPLACE ON THE BASIS OF 
RELIGION.

A. Racial Discrimination

There was a time in our nation’s history when 
religion was used to justify slavery, Jim Crow laws, 
and bans on interracial marriage. God and “Divine 
Providence” were invoked to justify segregation, 
overwhelming secular and religious calls for equality 
and humanity for decades. Eventually our laws 
changed, and those who continued to believe in racial 
discrimination on religious grounds were nonetheless 
required to obey the nation’s anti-discrimination 
laws. Although, as previously noted, the history of 
religious justification for slavery, racial 
discrimination, and racial segregation are different 
in many ways from the instant request for a religious 
exemption, the lessons derived from that experience 
are instructive.

At the beginning of our country’s history, 
religious beliefs were invoked by some to justify the 
most fundamental inequalities. Indeed, slavery itself 
was often defended in the name of faith. The 
Missouri Supreme Court, in rejecting Dred Scott’s

10



claim for freedom, noted that the introduction of 
slavery was perhaps “the providence of God” to 
rescue an “unhappy race” from Africa and place them 
in “civilized nations.” Scott v. Emerson, 15 Mo. 576, 
587 (Mo. 1852). Jefferson Davis, President of the 
Confederate States of America, proclaimed that 
slavery was sanctioned by “the Bible, in both 
Testaments, from Genesis to Revelation.” R. Randall 
Kelso, Modern Moral Reasoning and Emerging 
Trends in Constitutional and Other Rights Decision- 
Making Around the World, 29 Quinnipiac L. Rev. 
433, 437 (2011) (citation and quotations omitted). 
Christian pastors and leaders declared: “We regard 
abolitionism as an interference with the plans of 
Divine Providence.” Convention of Ministers, 
An Address to Christians Throughout the World 
8 (1863), available at https://archive.org/details/
addresstochristiOOphil (last visited Jan. 24, 2014).

Religion was also invoked, including by the 
courts, to justify anti-miscegenation laws. For 
example, in upholding the criminal conviction of an 
African-American woman for cohabitating with a 
white man, the Georgia Supreme Court held that no 
law of the State could

attempt to enforce, moral or social 
equality between the different races or 
citizens of the State. Such equality does 
not in fact exist, and never can. The 
God of nature made it otherwise, and no 
human law can produce it, and no 
human tribunal can enforce it. There 
are gradations and classes throughout 
the universe. From the tallest arch 
angel in Heaven, down to the meanest

11

https://archive.org/details/


reptile on earth, moral and social 
inequalities exist, and must continue to 
exist through all eternity.

Scott v. State, 39 Ga. 321, 326 (Ga. 1869). In 
upholding the criminal conviction of an interracial 
couple for violation of Virginia’s anti-miscegenation 
law, the Virginia Supreme Court reasoned that, 
based on “the Almighty,” the two races should be 
kept “distinct and separate, and that connections and 
alliances so unnatural that God and nature seem to 
forbid them, should be prohibited by positive law and 
be subject to no evasion.” Kinney v. Commonwealth, 
71 Va. 858, 869 (Va. 1878); see also Green v. State, 58 
Ala. 190, 195 (Ala. 1877) (upholding conviction for 
interracial marriage, reasoning God “has made the 
two races distinct”); State v. Gibson, 36 Ind. 389, 405 
(Ind. 1871) (declaring right “to follow the law of races 
established by the Creator himself’ to uphold 
constitutionality of conviction of a black man who 
married a white woman).

Similar justifications were accepted by courts 
to sustain segregation. In 1867, Mary E. Miles defied 
railroad rules by refusing to take a seat in the 
“colored” section of the train car. She brought suit 
against the railroad for physically ejecting her from 
the train. A jury awarded Ms. Miles five dollars. 
The Supreme Court of Pennsylvania reversed, 
relying in part on the fact that “the Creator” made 
two distinct races, which “God has made . . . 
dissimilar,” and “the order of Divine Providence” that 
dictates that the races should not mix. The West 
Chester & Phila. R.R. v. Miles, 55 Pa. 209, 213 (Pa. 
1867); see also Bowie v. Birmingham Ry. & Elec. Co., 
27 So. 1016, 1018-19 (Ala. 1900) (looking to

12



reasoning from Miles to affirm judgment for railroad 
that forcibly ejected African-American woman from 
the “whites only” section of rail car). In 1906, the 
Kentucky Supreme Court affirmed the enforcement 
of a law that prohibiting whites and blacks from 
attending the same school, noting that the separation 
of the races was “divinely ordered.” Berea College v. 
Commonwealth, 94 S.W. 623, 626 (Ky. 1906), aff’d, 
211 U.S. 45 (1908).

These arguments in favor of racial segregation 
slowly lost currency, but not without resistance. The 
turning point in our country’s history was marked by 
two events. The first was this Court’s decision in 
Brown v. Board of Education, 347 U.S. 483 (1954), 
which repudiated the “separate but equal” doctrine 
established in Plessy v. Ferguson, 163 U.S. 537 
(1896), and held unconstitutional racial segregation 
in public schools. The second was Congress’ passage 
of the Civil Rights Act of 1964, which prohibited 
discrimination in public schools, employment, and 
public accommodations. Those leading the movement 
for racial equality included men and women of faith. 
And those resisting that change included those with 
religious beliefs opposed to integration.

The resistance, both religiously based and 
other, was most profound in the context of education. 
Members of the Florida Supreme Court invoked 
religion to justify resistance to integration in the 
schools, noting that “when God created man, he 
allotted each race to his own continent according to 
color, Europe to the white man, Asia to the yellow 
man, Africa to the black man, and America to the red 
man.” State ex rel. Hawkins v. Bd. of Control, 83 
So.2d 20, 28 (Fla. 1955) (concurring opinion). Indeed,

13



they went so far as to characterize Brown as advising 
“that God’s plan was in error and must be reversed.” 
Id.

In the years following this Court’s enforcement 
of Brown, the number of private, segregated schools -  
many of which were Christian -  expanded 
exponentially and white students left the public 
schools in droves. See Note, Segregation Academies 
and State Action, 82 Yale L. J. 1436, 1437-40 (1973). 
In one Mississippi county, within two months of a 
desegregation order, three private schools opened 
and the number of white pupils in public school in 
first through fourth grade dropped from 771 to 28. 
See Coffey v. State Educ. Fin. Comm’n, 296 F. Supp. 
1389, 1391 n.7 (S.D. Miss. 1969); see also U.S. 
Comm’n on Civil Rights, Discriminatory Religious 
Schs. and Tax Exempt Status 1, 4-5 (1982)
(recounting the massive withdrawal of white 
students from public schools after Brown, and a 
proliferation of private schools, many associated with 
churches). The schools were often open about their 
motives. For example, Brother Floyd Simmons, who 
founded the Elliston Baptist Academy in Memphis, 
said, “I would never have dreamed of starting a 
school, hadn’t it been for busing.” John C. Jeffries, 
Jr. & James E. Ryan, A Political History of the 
Establishment Clause, 100 Mich. L. Rev. 279, 334 
(2001).

In response, the Treasury Department issued 
a ruling declaring that racially segregated schools 
would not be eligible for tax-exempt status. The 
Treasury Department’s ruling reflected the changing 
of the tides:

14



Developments of recent decades and 
recent years reflect a Federal policy 
against racial discrimination which 
extends to racial discrimination in 
education. . . . Therefore, a school not 
having a racially nondiscriminatory 
policy as to students is not ‘charitable’ . .

[and] does not qualify as an 
organization exempt from Federal 
income tax.

Rev. Rul. 71-447, 1971-2 C.B. 230.3 Attempts by the 
IRS to enforce the Treasury Department’s rule met 
resistance in the courts. Most notably, Bob Jones 
University brought suit after the IRS revoked the 
University’s tax exempt status based on its policy of 
first refusing to admit African-American students 
altogether, and subsequently refusing to admit 
students engaged in or advocating interracial 
relationships. Bob Jones Univ. v. United States, 461 
U.S. 574 (1983). The sponsors of Bob Jones 
University “genuinely believe [d] that the Bible 
forbids interracial dating and marriage.” Id. at 580. 
Bob Jones’s lesser-known co-plaintiff, Goldsboro 
Christian Schools, operated a school from 
kindergarten through high school and refused to

3 Subsequent efforts by the IRS to adopt guidelines for 
assessing whether private schools were not discriminatory, and 
thus eligible for tax exempt status, met with resistance. At a 
hearing, for example, Senators expressed concern about the 
impact on religious schools, emphasizing that the issue 
“involve[d] the rights of two groups of minorities.” See Tax- 
Exempt Status of Private Schs.: Hearing Before the Subcomm. 
on Taxation & Debt Mgmt. Generally of the Comm, on Fin., 96th 
Cong. 18, 21 (1979) (statement by Sen. Laxalt).

15



admit black students. According to its interpretation 
of the Bible, “ [c]ultural or biological mixing of the 
races [was] regarded as a violation of God’s 
command.” Id. at 583 n.6. Both schools sued under 
the Free Exercise Clause, arguing that the rule could 
not constitutionally apply to schools engaged in 
racial discrimination based on sincerely held 
religious beliefs. This Court rejected the schools’ 
claims, holding that the government’s interest in 
eradicating racial discrimination in education 
outweighed any burdens on their religious beliefs. 
Id. at 602-04.

Progress toward racial equality was not 
limited to schools. The anti-miscegenation laws fell, 
although again the path was not a smooth one. The 
trial court in Loving v. Virginia adhered to the 
reasoning of earlier decades: “‘Almighty God created 
the races white, black, yellow, malay and red, and he 
placed them on separate continents. And but for the 
interference with his arrangement there would be no 
cause for such marriages. The fact that he separated 
the races shows that he did not intend for the races 
to mix.’” 388 U.S. 1, 3 (1967) (quoting trial court). 
But in the 1960s, unlike in the 1870s, this reasoning 
did not hold, and this Court struck Virginia’s anti­
miscegenation law. Id. at 2.

The Civil Rights Act of 1964 also faced 
objections based on religion, but they were ultimately 
rejected. During the Act’s passage, for example, 
Senator Robert Byrd articulated some of these 
arguments, including reciting Leviticus 19:19, which 
discusses the need to keep cattle separate from other 
animals, to argue that “God’s statutes . . . recognize 
the natural order of the separateness of things.” 110

16



Cong. Rec. 13,207 (1964).4 And the House passed a 
broad exemption to exclude religiously affiliated 
employers entirely from the proscriptions of the Act. 
See EEOC v. Pac. Press Pub. Ass’n, 676 F.2d 1272, 
1276 (9th Cir. 1982) (recounting legislative history of 
Civil Rights Act of 1964). However, the law as 
enacted permitted no employment discrimination 
based on race; it only authorized religiously affiliated 
employers to discriminate on the basis of religion. 
Id. Later efforts to pass a blanket exemption for 
religiously affiliated employers again failed. Id. at 
1277.5

Resistance to the 1964 Civil Rights Act based 
on religion did not stop with its passage. The owner 
of a barbeque chain who was sued for refusing to 
serve blacks defended the lawsuit by claiming that 
serving blacks violated his religious beliefs. The 
court rejected the restaurant owner’s defense, 
holding that the owner

4 Byrd also noted that “[t]he American Council of Christian 
Churches, representing 15 denominational groups with a total 
of more than 20 million members wired President Johnson” 
protesting the civil rights bill. Id. at 13,209. His expression of 
the religious arguments against the bill was only part of the 
story, of course; religious arguments were also advanced in 
favor of the bill. See, e.g., id. (recognizing the 4,000 clerical and 
lay representatives at the interfaith rally at the Nation’s 
Capital in support of the bill).

5 The Act, while barring race discrimination by religiously 
affiliated entities, respects the workings of houses of worship 
and also permits discrimination in favor of co-religionists in 
certain religiously affiliated institutions and positions. See 
Corp. of the Presiding Bishop of the Church of Latter-Day Saints 
v. Amos, 483 U.S. 327 (1987); cf. Hosanna-Tabor Evangelical 
Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694 (2012) 
(recognizing ministerial exception).

17



has a constitutional right to espouse the 
religious beliefs of his own choosing, 
however, he does not have the absolute 
right to exercise and practice such 
beliefs in utter disregard of the clear 
constitutional rights of other citizens.
This court refuses to lend credence or 
support to his position that he has a 
constitutional right to refuse to serve 
members of the Negro race in his 
business establishments upon the 
ground that to do so would violate his 
sacred religious beliefs.

Newman v. Piggie Park Enters., Inc., 256 F. Supp. 
941, 945 (D.S.C. 1966), aff’d in relevant part and 
rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 
1967), aff’d and modified on other grounds, 390 U.S. 
400 (1968).

Thus, throughout our country’s history, the 
argument that religious beliefs should trump 
measures designed to eradicate racial discrimination 
-  whether in toto or piecemeal — has slowly lost its 
standing. Once having achieved a commitment to 
end discrimination in education, employment, and 
public accommodations, society, through the courts 
and Congress, has refused to grant religious 
exemptions. And resistance to these measures has 
steadily waned. In fact, “no major religious or 
secular tradition today attempts to defend the 
practices of the past supporting slavery, segregation, 
[or] anti-miscegenation laws.” R. Randall Kelso, 
Modern Moral Reasoning, supra, at 439. Reflecting 
this evolution, Bob Jones University has apologized

18



for its prior discriminatory policies, stating that by 
previously subscribing to a

segregationist ethos . . .  we failed to 
accurately represent the Lord and to 
fulfill the commandment to love others 
as ourselves. For these failures we are 
profoundly sorry. Though no known 
antagonism toward minorities or 
expressions of racism on a personal 
level have ever been tolerated on our 
campus, we allowed institutional 
policies to remain in place that were 
racially hurtful.

See Statement about Race at BJU, Bob Jones Univ., 
available at http://www.bju.edu/about/what-we- 
believe/race-statement.php (last visited Jan. 21, 
2014). Although there are many differences between 
the racially biased religious justifications described 
above, and the proposed exemption now before the 
Court, this experience establishes that close scrutiny 
is required where, as here, the Court considers a 
religious exemption to a federal anti-discrimination 
statute that promotes a compelling governmental 
interest in equality and opportunity.

B. Gender Discrimination

The path to achieving women’s equality has 
followed a course similar to the struggle for racial 
equality. See Frontiero v. Richardson, 411 U.S. 677, 
684-88 (1973) (chronicling the long history of sex 
discrimination in the United States).6 Efforts to

6 The Court in Frontiero noted that “throughout much of the 
19th century the position of women in our society was, in many 
respects, comparable to that of blacks under the pre-Civil War

19

http://www.bju.edu/about/what-we-believe/race-statement.php
http://www.bju.edu/about/what-we-believe/race-statement.php


advance women’s equality, like those furthering civil 
rights, were supported -  and thwarted -  in the name 
of religion. Those who invoked God and faith as 
justification for slavery and segregation also invoked 
God and faith to limit women’s roles. One champion 
of slavery in the antebellum South, George Fitzhugh, 
plainly stated that God gave white men dominion 
over “slaves, wives, and children.” Armantine M. 
Smith, The History of the Woman’s Suffrage 
Movement in Louisiana, 62 La. L. Rev. 509, 511 
(2002).

Religious arguments were invoked to limit 
women’s roles in society. And in this context, as with 
race, they initially were embraced by courts. For 
example, this Court held that the State of Illinois 
could prohibit women from practicing law, and in his 
famous concurrence, Justice Bradley opined that:

The constitution of the family
organization, which is founded in the 
divine ordinance, as well as in the 
nature of things, indicates the domestic 
sphere as that which properly belongs to 
the domain and functions of
womanhood. . . . The paramount destiny 
and mission of woman are to fulfill the 
noble and benign offices of wife and 
mother. This is the law of the Creator.

Bradwell v. State, 83 U.S. 130, 141 (1872) (Bradley, 
J., concurring).

slave codes,” emphasizing that women, like slaves, could not 
“hold office, serve on juries, or bring suit in their own names,” 
and that married women traditionally could not own property 
or even be legal guardians of their children. Id. at 685.

20



This vision of women — as destined for the role 
of wife and mother -  featured in opposition to 
suffrage. A prominent antisuffragist, Reverend 
Justin D. Fulton, proclaimed: ‘“It is patent to every 
one that this attempt to secure the ballot for woman 
is a revolt against the position and sphere assigned 
to woman by God himself.”’ Reva B. Siegel, She the 
People: The Nineteenth Amendment, Sex Equality, 
Federalism, and the Family, 115 Harv. L. Rev. 947, 
981 n.96 (2002) (quoting Rev. Justin D. Fulton, 
Women vs. Ballot, in The True Woman: A Series of 
Discourses: To Which Is Added Woman vs. Ballot 3, 5 
(1869)); see also id. at 978 (quoting Rep. Caples at 
the California Constitutional Convention in 1878-79 
as saying of women’s suffrage: “It attacks the 
integrity of the family; it attacks the eternal degrees 
[sic] of God Almighty; it denies and repudiates the 
obligations of motherhood.”) (internal citation and 
quotations omitted). And in this same period, the 
first laws against contraception were enacted, so as 
to address what was characterized as “physiological 
sin.” Reva B. Siegel, Reasoning from the Body: A 
Historical Perspective on Abortion Regulation and 
Questions of Equal Protection, 44 Stan. L. Rev. 261, 
292 (1991) (quoting H.S. Pomeroy, The Ethics of 
Marriage 97 (1888)); see also id. at 293 (quoting 
physician in lecture opposed to interruption of 
intercourse: “She sins because she shirks those 
responsibilities for which she was created.”).

Even as times changed, and women began 
entering the workforce in greater numbers, they 
were constrained by the longstanding and religiously 
imbued vision of women as mothers and wives. As 
this Court recognized in Frontiero, “[a]s a result of 
notions such as [those articulated in Justice

21



Bradley’s concurrence in Bradwell], our statute books 
gradually became laden with gross, stereotyped 
distinctions between the sexes.” 411 U.S. at 685.7 
Those statutes were often upheld by this Court. For 
example, in Muller u. Oregon, this Court upheld 
workday limitations for women because “woman’s 
physical structure and the performance of maternal 
functions place her at a disadvantage in the struggle 
for subsistence . . . .  [H]ealthy mothers are essential 
to vigorous offspring, [and therefore] the physical 
well-being of woman becomes an object of public 
interest and care in order to preserve the strength 
and vigor of the race.” 208 U.S. 412, 421 (1908); see 
also Hoyt v. Florida, 368 U.S. 57, 62 (1961) (holding 
women should be exempt from mandatory jury duty 
service because they are “still regarded as the center 
of home and family life”).

But just as with the movement for racial 
justice, society progressed, and gradually our country 
started recognizing women’s ability to pursue goals 
other than, or in addition to, becoming wives and 
mothers. Indeed, the passage of the Civil Rights Act 
of 1964 was a gain not just for racial equality but

Concomitant with a restricted vision of women’s roles were 
constraints on the roles of men. In the idealized role, men were 
heads of households, the wage earners, and the actors in the 
polity. They were not caretakers, for example. See, e.g., Nev. 
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003) 
(recognizing that the historic “[sjtereotypes about women’s 
domestic roles are reinforced by parallel stereotypes presuming 
a lack of domestic responsibilities for men”). And, for both 
sexes, the visions were idealized, but not dominant in real lives, 
particularly the lives of the working poor, where women as well 
as men labored outside the home.

22



also for gender equality: Title VII of the Act barred 
discrimination based on sex, as well as race, in the 
workplace. This protection, like that for race, passed 
in the face of religious objection and without the 
broad exemption proposed to permit continued 
employment discrimination based on sex by 
religiously affiliated organizations. See 110 Cong. 
Rec. 13,207-08 (1964) (testimony of Sen. Byrd) 
(noting that the parable of the laborers in Matthew 
20:1-15 demonstrates that Christ did not condemn 
the householder who practiced discrimination when 
paying employees who worked in his vineyards); see 
also Pac. Press Pub. Ass’n, 676 F.2d at 1276 
(discussing legislative history of Civil Rights Act of 
1964).8

Slowly the courts too began dismantling the 
notion espoused by Justice Bradley in Bradwell that, 
based on divine ordinance and the law of the Creator, 
women should be confined to roles as wives and 
mothers. For example, this Court held 
unconstitutional a state law that treated girls’ and 
boys’ age of majority differently for the purposes of 
calculating child support, rejecting the state’s 
argument that girls do not need support for as long 
as boys because they will marry quickly and will not 
need a secondary education. Stanton v. Stanton, 421 
U.S. 7 (1975). This Court reasoned:

No longer is the female destined solely
for the home and the rearing of the

8 But see Title IX, Education Amendments of 1972, 20 U.S.C. § 
1681(a)(3) (providing an exemption for “an educational 
institution which is controlled by a religious organization if the 
application of [Title IX] would not be consistent with the 
religious tenets of such organization”).

23



family, and only the male for the 
marketplace and the world of ideas. 
Women’s activities and responsibilities 
are increasing and expanding. 
Coeducation is a fact, not a rarity. The 
presence of women in business, in the 
professions, in government and, indeed, 
in all walks of life where education is a 
desirable, if not always a necessary, 
antecedent is apparent and a proper 
subject of judicial notice.

Id. at 14-15 (internal citation omitted); see also Orr v. 
Orr, 440 U.S. 268, 279 n.9 (1979) (holding
unconstitutional law that allowed alimony from 
husbands but not wives, as law was “part and parcel 
of a larger statutory scheme which invidiously 
discriminated against women, removing them from 
the world of work and property and ‘compensating’ 
them by making their designated place ‘secure’”). 
When striking a ban on the admission of women to 
the Virginia Military Institute, the Court noted:

“Inherent differences” between men and 
women . . . remain cause for celebration, 
but not for denigration of the members 
of either sex or for artificial constraints 
on an individual’s opportunity. Sex
classifications . . . may not be used, as 
they once were . . .  to create or 
perpetuate the legal, social, and
economic inferiority of women.

United States v. Virginia, 518 U.S. 515, 533-34 
(1996) (internal citations omitted).

24



The Court has also dismantled notions that 
women could be barred from certain jobs because of 
their reproductive capacity, International Union u. 
Johnson Controls, Inc., 499 U.S. 187 (1991), and 
affirmed legislation that addresses “the fault-line 
between work and family -  precisely where sex-based 
overgeneralization has been and remains strongest,” 
Hihbs, 538 U.S. at 738. The courts and Congress 
have thus recognized that “denial or curtailment of 
women’s employment opportunities has been 
traceable directly to the pervasive presumption that 
women are mothers first, and workers second.” Id. at 
736 (internal citations and quotations omitted).

As with race, this progress has been tested, 
including by religious liberty defenses to the 
enforcement of anti-discrimination measures. 
Religious schools resisted notions that women must 
receive compensation equal to men, invoking their 
belief that the “Bible clearly teaches that the 
husband is the head of the house, head of the wife, 
head of the family.” Dole v. Shenandoah Baptist 
Church, 899 F.2d 1389, 1392 (4th Cir. 1990). The 
courts rejected the claim, emphasizing a state 
interest of the “highest order” in remedying the 
outmoded belief that men should be paid more than 
women because of their role in society. Id. at 1398 
(citations and quotations omitted); see also EEOC v. 
Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 
1986) (rejecting religious school’s argument that it 
was entitled to offer unequal benefits to female 
employees based on a similar “head of household”

25



religious tenet); EEOC v. Tree of Life Christian Schs., 
751 F. Supp. 700 (S.D. Ohio 1990) (same).9

The outer bounds of measures designed to 
protect against gender discrimination continue to be 
tested in the name of religious beliefs. In more 
recent cases, religious employers have essentially 
claimed that their religious beliefs entitle them to 
violate Title VII’s prohibition on sex discrimination, 
but courts have limited such arguments. See, e.g., 
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 
1316, 1320 (11th Cir. 2012) (reversing summary 
judgment for religious school that claimed a religious 
right, based on its opposition to premarital sex, to 
fire teacher for becoming pregnant outside of 9

9 Courts considering forms of discrimination other than race or 
sex have also rejected religious beliefs as a defense to such 
measures. See Swanner v. Anchorage Equal Rights Comm’n, 
874 P.2d 274 (Alaska 1994) (rejecting free exercise and RFRA 
defenses in case involving housing discrimination based on 
marital status); EEOC v. Kamehameha Schs. /Bishop Estate, 
990 F.2d 458 (9th Cir. 1993) (rejecting secular school’s 
argument that the court should allow it to discriminate based 
on religion like religiously affiliated employers); Peterson v. 
Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004) (holding that 
company was not required to accommodate religious beliefs of 
employee under Title VII by allowing him to display anti-gay 
posters in his cubicle because “an employer need not 
accommodate an employee’s religious beliefs if doing so would 
result in discrimination against his co-workers”); Matthews v. 
Wal-Mart Stores, Inc., 417 F. App’x 552 (7th Cir. 2011) 
(rejecting employee’s claim that she was fired for her religious 
beliefs rather than violating the company’s policy against 
harassing co-workers after she made religiously based 
comments against homosexuality to other employees); see also 
Br. of Amici Curiae Lambda Legal Defense and Education 
Fund, Inc., et al. in Support of the Government.

26



marriage, holding that the school seemed “more 
concerned about her pregnancy and her request to 
take maternity leave than about her admission that 
she had premarital sex”); Ganzy v. Allen Christian 
Sch., 995 F. Supp. 340, 350 (E.D.N.Y. 1998) (holding 
that a religious school could not rely on its religious 
opposition to premarital sex as a pretext for 
pregnancy discrimination, noting that “it remains 
fundamental that religious motives may not be a 
mask for sex discrimination in the workplace”); 
Vigars v. Valley Christian Ctr., 805 F. Supp. 802, 
808-10 (N.D. Cal. 1992) (rejecting free exercise 
challenge to Title VII by religious school that fired 
librarian for becoming pregnant outside of marriage, 
and noting that the school may have discriminated 
based on sex because “only women can ever be fired 
for being pregnant without benefit of marriage”).10

10 Even outside the context of anti-discrimination measures, 
this Court has generally refused to allow claims of religious 
liberty to prevail if third parties would be harmed. See United 
States v. Lee, 455 U.S. 252, 261 (1982) (refusing to grant 
religious exemption to social security tax collection because it 
would “operate 0 to impose the employer’s religious faith on the 
employees”); Trans World Airlines, Inc. v. Hardison, 432 U.S. 
63, 81 (1977) (holding that it would be an undue hardship to 
accommodate an employee who asked for his Sabbath off 
because doing so would violate the union contract rights of 
other employees with respect to shift preferences based on 
seniority). Even in cases where this Court has exempted 
claimants from complying with laws that substantially burden 
their religious exercise, the Court has been careful to note that 
such exemptions did not harm others. See, e.g., Sherbert v. 
Verner, 374 U.S. 398, 409 (1963) (granting religious exemption 
to unemployment benefits law but noting that “the recognition 
of the appellant’s right to unemployment benefits under the 
state statute [does not] serve to abridge any other person’s 
religious liberties”); cf. Cutter v. Wilkinson, 544 U.S. 709, 720

27



II. THIS COURT SHOULD NOT ALLOW THE 
COMPANIES HERE TO RESURRECT 
THE DISCREDITED NOTION THAT 
THEIR RELIGIOUS BELIEFS SHOULD 
TRUMP A LAW DESIGNED TO ENSURE 
EQUAL PARTICIPATION IN SOCIETY.

The contraception rule stands in line with 
Title VII and other anti-discrimination measures as 
one further step to address a vestige of gender 
discrimination. And like those laws, the rule is being 
resisted. The companies before this Court argue that 
they are entitled to violate the rule based on the 
owners’ religious beliefs.11 It is a familiar argument 
and, like similar arguments in the past, should be 
rejected.

(2005) (“Properly applying RLUIPA, courts must take adequate 
account of the burdens a requested accommodation may impose 
on nonbeneficiaries.”); W. Va. State Bd. of Educ. v. Barnette, 319 
U.S. 624, 630 (1943) (in excusing students from reciting the 
Pledge of Allegiance for religious reasons, noting that “the 
refusal of these persons to participate in the ceremony does not 
interfere with or deny rights of others to do so”). See also Br. 
for Amici Curiae Church-State Scholars in Support of the 
Government.

11 Although the owners of the companies in this case have 
religious objections to the rule, it does not mean that all people 
of faith similarly object to the rule. See, e.g., Tom Howell, Jr., 
Catholic Hospitals are OK with Obama Contraception Mandate, 
Protections, The Washington Times, July 19, 2013, available at 
http://www.washingtontimes.eom/blog/inside-politics/2013/jul/9/ 
report-catholic-hospital-ok-contraception-mandate/ (last visited 
Jan. 24, 2014); see also Br. of Faith Groups as Amici Curiae 
Supporting the Government.

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The contraception rule is an essential step to 
further equal opportunities for women. At the most 
fundamental level, the rule ensures women will have 
meaningful access to contraception. Indeed, nothing 
evidences the importance of the rule more clearly 
than the following fact: Today, approximately half of 
pregnancies are unintended. Guttmacher Institute, 
Facts on Unintended Pregnancy in the United States 
(Dec. 2013), available at http://www.guttmacher.org/ 
pubs/FB-Unintended-Pregnancy-US.html (last
visited Jan. 24, 2014). Several facts underlie this 
statistic: Many women are unable to afford
contraception — even with insurance — because of 
high co-pays or deductibles, see generally, Su-Ying 
Liang, et al., Women’s Out-of-Pocket Expenditures 
and Dispensing Patterns for Oral Contraceptive Pills 
Between 1996 and 2006, 83 Contraception 528, 531 
(2010); others cannot afford to use contraception 
consistently, see Guttmacher Institute, A Real-Time 
Look at the Impact of the Recession on Women’s 
Family Planning and Pregnancy Decisions, available 
at http://www.guttmacher.org/pubs/RecessionFP.pdf 
(last visited Jan. 24, 2014); and costs drive women to 
less expensive and less effective methods, see Jeffrey 
Peipert et al., Continuation and Satisfaction of 
Reversible Contraception, 117 Obstetrics &
Gynecology 1105, 1105-06 (2011) (reporting that 
many women do not choose long-lasting
contraceptive methods, such as intrauterine devices 
(“IUDs”), in part because of the high upfront cost).12

12 Moreover, long-acting methods of contraception, like IUDs, 
are particularly effective because there is less room for human 
error, unlike, for example, oral contraceptive pills. See id. at 
1111-12 (noting that the majority of unintended pregnancies

29

http://www.guttmacher.org/
http://www.guttmacher.org/pubs/RecessionFP.pdf


A rule that makes all FDA-approved methods 
available to women, without a copay or deductible, 
lifts these barriers. A study in St. Louis, which 
essentially simulated the conditions of the rule, 
illustrates its impact: Physicians provided counseling 
and offered nearly 10,000 women contraception, of 
their choosing, free of cost. Jeffrey Peipert et al., 
Preventing Unintended Pregnancies by Providing No- 
Cost Contraception, 120 Obstetrics & Gynecology 
1291 (2012). In this setting, 75% of the participants 
opted for a long-acting reversible contraceptive 
method, with 58% choosing an IUD. Compare id. at 
1293, with Guttmacher Institute, Fact Sheet: 
Contraceptive Use in the United States (Aug. 2013), 
available at http://www.guttmacher.org/pubs/ 
fb_contr_use.html (last visited Jan. 24, 
2014)(showing less than 6% of all contraceptive users 
have IUDs as their method). As a result, among 
women in the study, the unintended pregnancy rate 
plummeted. Indeed, the researchers estimate that 
changes in contraceptive policy simulating their 
project “would prevent as many as 62-78% of 
abortions performed annually in the United States.” 
Peipert et al., Preventing Unintended Pregnancies, 
supra, at 1296.13

result from “incorrect or inconsistent” contraception use, but 
IUDs are not “user-dependent” and thus are highly effective).
13 Notably, the companies seeking an exemption in the cases 
before this Court object to providing IUDs -  the method most 
often selected by women when given full information and 
opportunity, and when cost barriers are removed -  and methods 
to prevent pregnancy after contraceptive failure. They would 
thus deny women meaningful access to the full range of 
contraception that can radically change women’s lives.

30

http://www.guttmacher.org/pubs/


In giving women effective access to the tools to 
control their reproduction, the rule has the promise 
to transform women’s lives, including enabling 
women to decide whether and when to become a 
parent, and allowing women to make educational 
and employment choices that benefit themselves and 
their families.14 “Women who can successfully delay 
a first birth and plan the subsequent timing and 
spacing of their children are more likely than others 
to enter or stay in school and to have more 
opportunities for employment and for full social or 
political participation in their community.” Susan A. 
Cohen, The Broad Benefits of Investing in Sexual and 
Reproductive Health, 7 The Guttmacher Report on 
Public Policy 5, 6 (2004). The availability of the oral 
contraceptive pill alone is associated with a 20% 
increase in women’s college enrollment; roughly one- 
third of the total wage gains for women born from the 
mid-1940s to early 1950s; and a sharp increase in the 
percentage of women lawyers, judges, doctors, 
dentists, architects, economists, and engineers. See 
Martha J. Bailey, et al., The Opt-in Revolution? 
Contraception and the Gender Gap in Wages, 19, 26 
(Nat’l Bureau of Econ. Research Working Paper No. 
17922, 2012), available at http://www.nber.org/
papers/wl7922 (last visited Jan. 22, 2014); Claudia 
Goldin & Lawrence F. Katz, The Power of the Pill: 
Oral Contraceptives and Women’s Career and 
Marriage Decisions, 110 J. Pol. Econ. 730, 749 (2002).

14 Moreover, as the Government and other amici argue, the rule 
is also important to protect women’s health. This is particularly 
true for women of color who disproportionately suffer from 
health conditions that can be aggravated by pregnancy. See Br. 
of Nat’l Health Law Program, et al., as Amici Curiae in Support 
of the Government.

31

http://www.nber.org/


As this Court has recognized, “[t]he 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 
ofSe. Pa. v. Casey, 505 U.S. 833, 856 (1992).

Moreover, the contraception rule contributes 
to the dismantling of outmoded sex stereotypes, 
including those predicated on religion, because, as 
made plain above, contraception offers women the 
tools to decide whether and when to become mothers. 
The rule therefore remedies the notion, long 
endorsed by society, that “a woman is, and should 
remain the ‘center of home and family life.”’ Hibhs, 
538 U.S. at 729 (quoting Hoyt, 368 U.S. at 62). It 
reinforces the fundamental premise underlying 
access to contraception, namely that society no longer 
demands that women’s place is either to accept 
pregnancy or to refrain from nonprocreative sex. As 
this Court has so eloquently stated, “these sacrifices 
[to become a mother] have from the beginning of the 
human race been endured by women with a pride 
that ennobles her in the eyes of others . . . [but they] 
cannot alone be grounds for the State to insist she 
make the sacrifice.” Casey, 505 U.S. at 852.

The contraception rule changes women’s 
status in one other fundamental respect. Health care 
plans that cover preventive care that men need, but 
not that which women need, send the message that 
women are second-class citizens, and that they are 
not employees equally valued by the employer. Plans 
that cover care that men need, but exclude 
contraception, suggest that pregnancy is solely a 
woman’s problem. And an exemption countenancing 
a religious objection to contraception, or to many of

32



the most effective methods, suggests that religious 
objections are more important than women’s equality 
in our society. For all these reasons, contraception is 
more than a service, device, or type of medicine. 
Meaningful access to birth control is an essential 
element of women’s constitutionally protected 
liberty. See Lawrence v. Texas, 539 U.S. 558, 567 
(2003) (recognizing that sodomy laws do not simply 
regulate sex but infringe on the liberty rights of gays 
and lesbians).

This Court should reject the companies’ 
attempt to resurrect the long-discredited notion that 
they are entitled to discriminate against their female 
employees because of the owners’ religious beliefs. 
Although the business owners are certainly entitled 
to their religious beliefs, the companies are not 
permitted to invoke those beliefs to discriminate 
against their female employees. Just as the
companies’ owners would not be able to use religion 
to hire only men, or refuse to pay their female 
employees equally, they should not be allowed to use 
religion to violate a contraception rule that is 
designed to promote gender equality. In rejecting the 
companies’ arguments, this Court will not be 
breaking new ground, but instead will be following a 
well-established path. See supra Sections I and II. 
Although our country has made great progress 
toward achieving women’s equality, more work is 
needed, and the contraception rule is a crucial next 
step forward.

33



CONCLUSION

The Court should affirm the judgment in 
Conestoga Wood Specialties Corp. v. Sebelius, No. 13- 
356, and reverse in Sebelius v. Hobby Lobby Stores, 
Inc., No. 13-354.

Respectfully Submitted,

Brigitte Amiri 
Counsel of Record 

Louise Melling 
Jennifer Lee 
Steven R. Shapiro 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500 
bamiri@aclu.org
Daniel Mach 
Heather L. Weaver 
American Civil Liberties 

Union Foundation 
915 15th Street, N.W. 
Washington, D.C. 20005
Witold J. Walczak 
ACLU of Pennsylvania 
313 Atwood Street 
Pittsburgh, PA 15213

34

mailto:bamiri@aclu.org


Ryan D. Kiesel 
Brady R. Henderson 
ACLU of Oklahoma 

Foundation 
3000 Paseo Drive 
Oklahoma City, OK 73103

35



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