Zubik v. Burwell Brief Amicus Curiae

    Nos. 14-1418, 14-1453, 14-1505, 
15-35, 15-105, 15-119, and 15-191

IN THE

u p r tx x x t (JJtfurt #f t \ \ t  p la te s

D a v id  A. Zu b i k , e t  a l .,
Petitioners,

Sy l v ia  B u r w e l l , Se c r e t a r y  o f  H e a l t h  a n d

H u m a n  S e r v ic e s , e t  a l .,________________  Respondents.
Pr ie s t s  f o r  L i f e , e t  a l .,

Petitioners,

D e p a r t m e n t  o f  H e a l t h  a n d  H u m a n  Se r v ic e s , e t  a l .,
Respondents.

(Caption continued on inside cover)

o n  w r it s  o f  c e r t io r a r i  t o  t h e  u n it e d  s t a t e s
COURTS OF APPEALS FOR THE THIRD, FIFTH, 

TENTH, AND DISTRICT OF COLUMBIA CIRCUITS

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES 
UNION, THE LEADERSHIP CONFERENCE ON CIVIL 

AND HUMAN RIGHTS, THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., THE NATIONAL COALITION 

ON BLACK CIVIC PARTICIPATION & THE NATIONAL 
URBAN LEAGUE, IN SUPPORT OF RESPONDENTS

Daniel Mach Brigitte Amiri
Heather L. Weaver Counsel o f  Record
A m e r ic a n  C iv il  Lib e r t ie s Louise Melling

U n io n  F o u n d a t io n Jennifer Lee
915 15th Street, N.W. Steven R. Shapiro
Washington, D.C. 20005 A m e r i c a n  C iv il  L ib e r t ie s  

U n io n  F o u n d a t io n  
125 Broad Street 
New York, NY 10004 
(212) 549-2500 
bamiri@aclu.org

mailto:bamiri@aclu.org


R o m a n  Ca t h o l ic  A r c h b is h o p  o f  W a s h i n g t o n , e t  a l .,

Petitioners,-v.-

Sy l v ia  B u r w e l l , Se c r e t a r y  o f  H e a l t h  a n d  
H u m a n  Se r v ic e s , e t  a l .,

Respondents.

E a s t  T e x a s  B a p t is t  U n iv e r s it y , e t  a l .,

-V .- Petitioners,

Sy l v ia  B u r w e l l , Se c r e t a r y  o f  H e a l t h  a n d  
H u m a n  Se r v ic e s , e t  a l .,

Respondents.

Lit t l e  S is t e r s  o f  t h e  P o o r  H o m e  f o r  t h e  A g e d , 
D e n v e r , C o l o r a d o , e t  a l .,

Petitioners,
—v.—

Sy l v ia  B u r w e l l , Se c r e t a r y  o f  H e a l t h  a n d  
H u m a n  Se r v ic e s , e t  a l .,

Respondents.

So u t h e r n  N a z a r e n e  U n iv e r s it y , e t  a l .

- v .-
Petitioners,

Sy l v ia  B u r w e l l , Se c r e t a r y  o f  H e a l t h  a n d  
H u m a n  Se r v ic e s , e t  a l .,

Respondents.

G e n e v a  C o l l e g e ,
Petitioner,

Sy l v ia  B u r w e l l , Se c r e t a r y  o f  H e a l t h  a n d  
H u m a n  Se r v ic e s , e t  a l .,

Respondents.



TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................... ii
STATEMENT OF INTEREST.......................................1
FACTUAL BACKGROUND...........................................4
SUMMARY OF ARGUMENT....................................... 9
ARGUMENT............................................   13
I. THE HISTORICAL MOVEMENT

TOWARD GREATER EQUALITY FOR 
WOMEN AND RACIAL MINORITIES 
HAS BEEN ACCOMPANIED BY A 
GROWING REJECTION OF RELIGIOUS 
JUSTIFICATIONS FOR DISCRIMINATION
IN THE MARKETPLACE................................... 13
A. Racial Discrimination.................................. 13
B. Gender Discrimination................................21

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

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



TABLE OF AUTHORITIES

CASES

Berea College v. Commonwealth, 94 S.W. 623 
(Ky. 1906), aff’d, 211 U.S. 45 (1908)................. . 15

Boh Jones University v. United States,
461 U.S. 574 (1983)..................................................  18

Bowie v. Birmingham Railway. & Electric Co.,
27 So. 1016 (Ala. 1900).............................................  15

Bradwell v. State, 83 U.S. 130 (1872).......................22
Brown v. Board of Education,

347 U.S. 483 (1954)............................................ 16, 17
Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014)...............................  8, 9, 12, 33
Corporation of the Presiding Bishop of the Church 

of Latter-Day Saints v. Amos, 483 U.S. 327 
(1987)........................................................................... 19

Dole v. Shenandoah Baptist Church,
899 F.2d 1389 (4th Cir. 1990).................................27

EEOC v. Fremont Christian Schools,
781 F.2d 1362 (9th Cir. 1986).................................27

EEOC v. Pacific Press Publishing Ass 'n,
676 F.2d 1272 (9th Cir. 1982)................................. 19

EEOC v. Tree of Life Christian Schools,
751 F. Supp. 700 (S.D. Ohio 1990).......................... 27

Forziano v. Independant Group Home Living 
Program, No. 13-cv-0370, 2014 WL 1277912 
(E.D.N.Y. Mar. 26, 2014)...........................................28

Frontiero v. Richardson, 411 U.S. 677 (1973).... 21, 23

ii



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

Green u. State, 58 Ala. 190 (Ala. 1877)..................... 15
Hamilton v. Southland Christian School, Inc.,

680 F.3d 1316 (11th Cir. 2012).............................. 27
Hosanna-Tabor Evangelical Lutheran Church & 

School v. EEOC, 132 S. Ct. 694 (2012).................  19
Hoyt v. Florida, 368 U.S. 57 (1961).....................24, 30
International Union v. Johnson Controls, Inc.,

499 U.S. 187 (1991).................................................. 26
Kinney v. Commonwealth, 71 Va. 858 (Va. 1878).... 15
Lawrence v. Texas, 539 U.S. 558 (2003).................... 31
Loving v. Virginia, 388 U.S. 1 (1967)...................18-19
Matthews v. Wal-Mart Stores, Inc.,

417 F. App’x 552 (7th Cir. 2011)............................ 28
Muller v. Oregon, 208 U.S. 412 (1908)......................24
Nevada Department of Human Resources v. Hibbs, 

538 U.S. 721 (2003).....................................  23, 26, 30
Newman v. Piggie Park Enterprises., 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)..................................................  20

Obergefell v. Hodges, 135 S. Ct. 2594 (2016)........... 10
Orr v. Orr, 440 U.S. 268 (1979).................................. 25
Peterson v. Hewlett-Packard Co.,

358 F.3d 599 (9th Cir. 2004) ...

iii

28



Planned Parenthood o f Southeastern Pennsylvania 
v. Casey, 505 U.S. 833 (1992)................................ 30

Plessy v. Ferguson, 163 U.S. 537 (1896).................... 16
Scott v. Emerson, 15 Mo. 576 (Mo. 1852)............... 14
Scott v. State, 39 Ga. 321 (Ga. 1869).........................  14
Stanton v. Stanton, 421 U.S. 7 (1975)..................... . 25
State ex rel. Hawkins v. Bd. of Control,

83 So. 2d 20 (Fla. 1955)............................................ 16
State v. Gibson, 36 Ind. 389 (Ind. 1871)....................15
Swanner v. Anchorage Equal Rights Commission,

874 P.2d 274 (Alaska 1994)..................................... 28
The West Chester & Philadelphia Railroad v. Miles,

55 Pa. 209 (Pa. 1867)............................................. . 15
United States v. Virginia, 518 U.S. 515 (1996)........26
Vigars v. Valley Christian Center,

805 F. Supp. 802 (N.D. Cal. 1992)....................... . 27

STATUTES

Title IX, Education Amendments of 1972,
20U.S.C. § 1681(a)(3)............................................... 24

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.........4

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

ADMINISTRATIVE & LEGISLATIVE
MATERIALS

155 Cong. Rec. S ll,979 (daily ed. Nov. 30, 2009)..... 4

IV



5155 Cong. Rec. S 12,019 (daily ed. Dec. 1, 2009).....
Centers for Medicare and Medicaid Services Form 

No. CMS-10459: Coverage of Certain Preventive 
Services under the Affordable Care Act (2015)..... 7

Health Resources & Services Administration., U.S. 
Departmentof Health & Human Services., Women’s
Preventive Services: Required Health Plan 
Coverage Guidelines, http://www.hrsa.gov/ 
womensguidelines.........................................................6

Tax-Exempt Status of Private Schs.: Hearing Before 
the Subcommittee on Taxation & Debt Management 
Generally of the Committee on Finance, 96th Cong. 
18 (1979) (statement by Sen. Laxalt)...................... 17

U.S. Commission on Civil Rights, Discriminatory 
Religious Schools and Tax Exempt Status 
(1982)..........................................................................  17

REGULATIONS
26 C.F.R. § 54.9815-2713A............................................ 8
26 C.F.R. § 54.9815-2713A(a)........................................ 7
26 C.F.R. § 54.9815-2713A(a)(3)...................................7
26 C.F.R. § 54.9815-2713A(b)........................................7
26 C.F.R. § 54.9815-2713A(c)........................................ 7
26 C.F.R. § 54.9815-2713A(d)........................................ 7
45 C.F.R. § 147.130(b)(1)................................................6
45 C.F.R. § 147.131(a)..................................................... 7
77 Fed. Reg. 8725 (Feb. 15, 2012)................................. 7

v

http://www.hrsa.gov/


OTHER AUTHORITIES

Armantine M. Smith, The History of the Woman’s 
Suffrage Movement in Louisiana,
62 La. L. Rev. 509 (2002)...................................... 22

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)....................................  30

Colleen McNicholas et al., The Contraceptive 
CHOICE Project Round Up, 57 Clinical Obstetrics 
& Gynecology 635 (Dec. 2014).................................32

Convention of Ministers, An Address to Christians 
Throughout the World (1863).................................. 14

Guttmacher Institute, A Real-Time Look at the 
Impact of the Recession on Women’s Family 
Planning and Pregnancy Decisions (Sept. 2009).. 31

Guttmacher Institute, Fact Sheet: Contraceptive Use 
in the United States (Aug. 2013)............................ 32

Guttmacher Institute, Unintended Pregnancy in the 
United States (July 2015)........................................ 31

H.S. Pomeroy, The Ethics o f Marriage (1888).........23
Institute of Medicine, Clinical Preventive Services for 

Women: Closing the Gaps (July 2011).... ................5
Jeffrey Peipert et al., Continuation and Satisfaction 

of Reversible Contraception, 117 Obstetrics & 
Gynecology 1105 (2011).......................... .................  32

Jeffrey Peipert et al., Preventing Unintended 
Pregnancies by Providing No-Cost Contraception, 
120 Obstetrics & Gynecology 1291 (2012).......31-32

vi



John C. Jeffries, Jr. & James E. Ryan, A Political 
History o f the Establishment Clause,
100 Mich. L. Rev. 279 (2001)...................................  17

Kevin Outterson, Tragedy and Remedy: Reparations 
for Disparities in Black Health,
9 DePaul J. Health Care L. 735 (2005).................. 16

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)......................................29-30

Note, Segregation Academies and State Action,
82 Yale L.J. 1436 (1973)........................................... 17

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)..................... 14, 20

Rev. Justin D. Fulton, Women vs. Ballot, in The True 
Woman: A Series of Discourses: To Which Is 
Added Woman vs. Ballot (1869)........................22-23

Reva B. Siegel, Reasoning from the Body: A  
Historical Perspective on Abortion Regulation and 
Questions of Equal Protection,
44 Stan. L. Rev. 261 (1991).....................................  23

Reva B. Siegel, She the People: The Nineteenth 
Amendment, Sex Equality, Federalism, and the 
Family, 115 Harv. L. Rev. 947 (2002).................... 22

Sidney D. Watson, Race, Ethnicity and Quality of 
Care: Inequalities and Incentives,
27 Am. J.L. & Med. 203 (2001)..............................  16

Statement about Race at BJU, Bob Jones Univ.
(2016)..........................................................................21

vii



Susan A. Cohen, The Broad Benefits o f Investing in
Sexual and Reproductive Health, 7 The 
Guttmacher Report on Pub. Poly 5 (2004)...........29

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)................    31

The Leadership Conference Education Fund,
Striking a Balance: Advancing Civil and Human 
Rights While Preserving Religious Liberty (Jan. 
2016)............................................................. ...............28

Tom Howell, Jr., Catholic Hospitals are OK with 
Obama Contraception Mandate, Protections,
Wash. Times, July 9, 2013........................................28

viii



STATEMENT OF INTEREST1
The American Civil Liberties Union (“ACLU”) 

is a nationwide, nonprofit, nonpartisan organization 
with nearly 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 Leadership Conference on Civil and 
Human Rights (“The Leadership Conference”) is a 
coalition of more than 200 national organizations 
committed to the protection of civil and human rights 
in the United States. It is the nation’s oldest, largest, 
and most diverse civil and human rights coalition. 
The Leadership Conference was founded in 1950 by 
three legendary leaders of the civil rights 
movements—A. Philip Randolph of the Brotherhood 
of Sleeping Car Porters; Roy Wilkins of the 
NAACP; and Arnold Aronson of the National 
Jewish Community Relations Advisory Council. 
Its member organizations represent people of all 
races, ethnicities, religious ideologies and sexual 
orientations. The Leadership Conference works to 
build an America that is inclusive and as good as 
its ideals, and to that end believes that the

1 The parties have filed blanket letters of consent to amicus 
briefs in support of either party or neither party. 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 or submission of this brief.

1



core values of religious freedom and legal 
and social equality are not incompatible; rather, 
this nation must stand united in ensuring religious 
liberty while continuing to work together 
to dismantle institutionalized discrimination.

The NAACP Legal Defense & Educational 
Fund, Inc. (“LDF”) is a nonprofit 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. o f 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 also worked on a variety of 
cases challenging religious justifications for 
discrimination in public accommodations or services. 
See, e.g., Gifford v. McCarthy, 23 N.Y.S.3d 422

2



(N.Y. App. Div. 2016). LDF has a substantial interest 
in this case because of its continuing commitment to 
promoting equal opportunity for African Americans, 
including access to affordable health insurance and 
health care.

The National Coalition on Black Civic 
Participation has been actively engaged in social 
justice movements on the national, state, and local 
level through our coalition-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 
protecting individuals’ right to worship, and to 
express their religious beliefs, and protecting 
reproductive freedoms, are key to the organization’s 
empowerment goals.

The National Urban League is a historic 
civil rights organization dedicated to economic 
empowerment in historically underserved urban 
communities. Founded in 1910 and headquartered in 
New York City, the National Urban League improves 
the lives of more than two million people annually 
through direct service programs, including education, 
employment training and placement, housing, and 
health, which are implemented locally by more than 
90 National Urban League affiliates in 300 
communities across 36 states and the District of 
Columbia. The National Urban League works 
to provide the guarantee of civil rights for the 
underserved in America. Recognizing that economic

3



empowerment in underserved communities is 
inextricably linked to the reduction of racial health 
disparities in America, the organization has 
established the goal that by 2025 every American has 
access to quality and affordable health care solutions.

FACTUAL BACKGROUND

The Affordable Care Act requires health 
insurance plans to cover certain preventive services 
without cost-sharing. Patient Protection and 
Affordable Care Act (“ACA”), 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 Women’s 
Health Amendment (“WHA”) was adopted during 
debate over the ACA to ensure that the list of covered 
services would include preventive services unique to 
women. Id. § 2713(a)(4), 124 Stat. at 131. In passing 
the WHA, Senator Mikulski noted, “ [o]ften 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. 
S i 1,979, SI 1,988 (daily ed. Nov. 30, 2009); see also 
id. at S i 1,987 (noting that the ACA as initially 
drafted did not cover key preventive services for 
women). In particular, the WHA was intended to 
address gender disparities in out-of-pocket health 
care costs, which stem in large part from 
reproductive health care. As Senator Gillibrand 
explained:

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

4



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).

Recognizing the importance of preventive 
services for both men and women, Congress then 
delegated the responsibility for developing a list of 
preventive services covered by the ACA to the 
Department of Health and Human Services (“HHS”). 
HHS, in turn, asked 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 
contraceptives approved by the Food and Drug 
Administration (“FDA”). Inst, of Med., Clinical 
Preventive Services for Women: Closing the Gaps 109- 
10 (July 2011). In making this recommendation, IOM 
noted that “ [djespite 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. It further noted that these cost barriers 
are aggravated by the fact that women “typically

5



earn less than men and . , . disproportionately have 
low incomes.” Id. at 19.

Adopting IOM’s recommendations, HHS 
promulgated regulations that require non- 
grandfathered plans covered by the ACA to provide 
health care coverage without cost-sharing for 
“ [a]ll Food and Drug Administration approved 
contraceptive methods, sterilization procedures, and 
patient education and counseling for all women with 
reproductive capacity,” commonly referred to as the 
“contraceptive requirement.” 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, 
http://www.hrsa.gov/womensguidelines (last visited 
Feb. 9, 2016).

In announcing the regulations, HHS 
emphasized the importance of including 
contraception in the designated list of preventive 
services, not only to equalize women’s health care 
costs but also to help women become equal 
participants in society. The inability of women to 
access contraception, HHS noted,

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. 
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

6

http://www.hrsa.gov/womensguidelines


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).

The federal government also developed an 
“accommodation” for religiously affiliated nonprofit 
organizations that have religious objections to 
covering contraception.2 Under this accommodation, 
eligible employers who object on religious grounds 
can fill out a one-page form to opt out of providing 
coverage “for some or all of any contraceptive items 
or services required to be covered.” 26 C.F.R. 
§ 54.9815-2713A(a); Ctrs. for Medicare & Medicaid 
Servs. Form No. CMS-10459: Coverage of Certain 
Preventive Services under the Affordable Care Act 
(2015). This form can be sent to either the insurance 
company or the federal government. 26 C.F.R. 
§ 54.9815-2713A(a)(3). The insurance company then 
administers and pays for those contraceptive 
services, including by communicating with the 
employees about the coverage.3 Id. § 54.9815- 
2713A(c)-(d).

2 In addition, the regulations authorize an exemption for the 
group health plan of a “religious employer,” 45 C.F.R. 
§ 147.131(a), which is not challenged in this case.

3 Employers that self-insure must provide their third party 
administrators with a copy of the self-certification form. 26 
C.F.R. § 54.9815-2713A(b). The third party administrator will 
similarly notify the organization’s employees that it will be 
providing payments for contraceptive services. Id. § 54.9815- 
2713A(d). The rule explicitly prohibits the third party

7



In response to this Court’s decision in Burwell 
v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), 
the accommodation for religiously affiliated nonprofit 
organizations was recently extended to “closely held” 
for-profit companies. Indeed, the majority in Hobby 
Lobby relied on this accommodation in finding that 
the original contraception rule violated the Religious 
Freedom Restoration Act (“RFRA”) as applied to 
closely held for-profit companies:

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. . . . We therefore conclude that 
this system constitutes an alternative that 
achieves all of the Government’s aims 
while providing greater respect for 
religious liberty. . . . 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.

administrator from “imposing a premium, fee, or other charge, 
or any portion thereof, directly or indirectly on” the 
organizations or their employees for the separate contraception 
payments. Id. § 54.9815-2713A.

8



134 S. Ct. at 2759-60; see also id. at 2786 (the 
“accommodation equally furthers the Government’s 
interest but does not impinge on the plaintiffs’ 
religious beliefs”) (Kennedy, J., concurring). The 
employers in the instant cases challenge the very 
accommodation that this Court relied on in Hobby 
Lobby.

SUMMARY OF ARGUMENT

The government argues that the Religious 
Freedom Restoration Act does not require any 
further accommodation of Petitioners’ religious 
beliefs and does not mandate any further dilution of 
the rights of employees who seek access to the 
contraceptive coverage benefit guaranteed by law. 
Amici agree, and we do not repeat those arguments 
here. Instead, we submit this brief to highlight an 
important lesson of history: As our society has moved 
toward greater equality for racial minorities and 
women, it has increasingly and properly rejected the 
idea that religion can be used as a justification 
for discrimination in the marketplace. Petitioners’ 
challenge to the accommodation should likewise be 
rejected.

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 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 its free 
exercise, and a full range of statutes and regulations 
reinforce our collective commitment to religious 
tolerance and pluralism. This Court in Hobby Lobby 
understood the accommodation that is being

9



challenged in this case as a reflection of that 
commitment. Critically, however, the accommodation 
also recognizes that access to contraceptive care is an 
important means of ending discrimination against 
women in the workplace, and that the elimination of 
such discrimination in the marketplace is a 
compelling state interest.

The struggle to overcome discrimination while 
respecting religious liberty is a recurring challenge in 
our nation’s history. By recounting that history in 
this brief, we do not question Petitioners’ religious 
faith or suggest that the historical invocation of 
religion to justify the most odious forms of racial 
discrimination is equivalent to the religious claims 
that Petitioners have raised here. But that is not the 
test and should not be the legal measuring rod. 
As this Court recently observed in Obergefell v. 
Hodges, religious objections to anti-discrimination 
laws are often “based on decent and honorable 
religious or philosophical premises, and neither they 
nor their beliefs are disparaged here. But when that 
sincere, personal opposition becomes enacted law and 
public policy, the necessary consequence is to put the 
imprimatur of the State itself on an exclusion that 
soon demeans or stigmatizes those whose own liberty 
is then denied.” 135 S. Ct. 2594, 2602 (2016).

Religious leaders -  like Dr. Martin Luther 
King, Jr. — have often led the movement against 
discrimination. Throughout our history, however, 
religion has also been used to defend discriminatory 
practices, to oppose evolving notions of equality, and

10



to seek broad exemptions to new legal norms. We 
can and should learn from that experience.4

From the early years of the Republic, religious 
beliefs were used to justify racial subordination, 
including the forced enslavement of Africans. 
Far too often, moreover, those views found support 
in judicial decisions upholding racial segregation 
and anti-miscegenation laws. Even as the nation’s 
standards evolved to prohibit racial discrimination 
in employment, education, marriage, and public 
accommodations, religious arguments continued 
to be used to fuel resistance to progress. 
In particular, Congress and the courts faced repeated 
calls for religious exemptions to non-discrimination 
standards. But, by the middle of the twentieth 
century, those calls were rejected by both the Courts 
and Congress. Instead, the country came to recognize 
the vital state interest in ending racial 
discrimination in public arenas and in embracing a 
vision of equality that does not sanction piecemeal 
application of the law.

The story of women’s emerging equality 
follows a similar pattern. Religious beliefs were 
invoked to justify restrictions on women’s roles, 
including in suffrage, employment, and access to 
birth control. Later, religion inspired legislation 
purportedly designed to “protect” women, including 
their reproductive capacities. As attitudes changed, 
laws were enacted prohibiting discrimination and 
protecting women’s ability to control their

4 This brief focuses on efforts to justify discrimination against 
racial minorities and women on religious grounds, but other 
disadvantaged and marginalized groups have shared similar 
experiences. See 27 n .l l , infra.

11



reproductive capacity. These measures, like those 
designed to promote racial equality, were met with 
resistance, including religiously motivated requests 
to avoid compliance with evolving legal standards. 
And, as with race, Congress and the courts have held 
firm to the vision embodied in newly passed anti- 
discrimination measures.

The contraception rule addresses a remaining 
vestige of sex discrimination. As this Court has 
recognized, women’s ability to control their 
reproductive capacities is essential to their 
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 a career, to care for children, or to 
aspire to a higher place, whatever that may be, may 
be significantly compromised. By making access to 
contraception meaningful for many women, the 
contraception rule takes a giant and long overdue 
step to level the playing field.

Petitioners ask to be wholly exempt from the 
contraception rule, arguing that their faith prohibits 
them from asking for the accommodation, and that 
the government should be prohibited from requiring 
the insurance company to provide separate coverage 
to their employees. Hobby Lobby does not support 
this position, and Hobby Lobby’s reasoning is 
irreconcilable with what Petitioners now seek. 
Employers do not forfeit their individual right to 
oppose contraceptives on religious grounds, but a 
personal religious objection is not a license to 
disregard the law.

12



ARGUMENT

I. THE HISTORICAL MOVEMENT 
TOWARD GREATER EQUALITY FOR 
WOMEN AND RACIAL MINORITIES HAS 
BEEN ACCOMPANIED BY A GROWING 
REJECTION OF RELIGIOUS JUSTI­
FICATIONS FOR DISCRIMINATION IN 
THE MARKETPLACE.
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 validate segregation, 
and, for decades, these arguments trumped secular 
and religious calls for equality and humanity. 
Eventually, due to evolving societal attitudes and the 
steadfast efforts of civil rights advocates, systems of 
enslavement and segregation were dismantled, and 
those who clung to religious justifications for racial 
discrimination were nonetheless required to obey the 
nation’s anti-discrimination laws. Although 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.

Early in our country’s history, religious beliefs 
were invoked to justify the most fundamental of 
inequalities. Indeed, slavery itself was often 
defended in the name of faith. The Missouri Supreme 
Court, in rejecting Dred Scott’s claim for freedom, 
suggested that slavery was “the providence of God” to 
rescue an “unhappy race” from Africa and place them

13



in “civilized nations.” Scott u. 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), 
https://archive.org/details/addresstochristiOOphil 
(last visited Feb. 9, 2016).

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.

Scott u. 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

14

https://archive.org/details/addresstochristiOOphil


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 order of Divine Providence” 
that dictates that the races should not mix. The West 
Chester & Phila. R.R. u. Miles, 55 Pa. 209, 213 (Pa. 
1867); see also Bowie v. Birmingham Ry. & Elec. Co., 
27 So. 1016, 1018-19 (Ala. 1900) (looking to 
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 prohibiting whites and blacks from 
attending the same school, noting that the separation 
of the races was “divinely ordered.” Berea College u. 
Commonwealth, 94 S.W. 623, 626 (Ky. 1906), aff’d, 
211 U.S. 45 (1908).5

5 Religious justifications for segregation also had a direct impact 
on the availability and quality of health care for African

15



These religious 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 declared racial segregation in 
public schools to be unconstitutional. The second was 
Congress’s passage of the Civil Rights Act of 1964, 
which prohibited discrimination in public schools, 
employment, and public accommodations.

The resistance to the movement for racial 
equality, both religiously based and other, was 
particularly intense 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 u. Bd. o f Control, 83 So. 
2d 20, 28 (Fla. 1955) (concurring opinion). Indeed, 
they went so far as to characterize Brown as advising

Americans. See, e.g., Sidney D. Watson, Race, Ethnicity and 
Quality of Care: Inequalities and Incentives, 27 Am. J.L. & Med. 
203, 211 (2001) (“Historically, most hospitals were ‘white only.’ 
The few hospitals that admitted Blacks strictly limited their 
numbers [and] segregated [the facilities and equipment]”); 
Kevin Outterson, Tragedy and Remedy: Reparations for 
Disparities in Black Health, 9 DePaul J. Health Care L. 735, 
757 (2005) (“Many hospitals were not available to Blacks in the 
first half of the twentieth century.”).

16



“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, often Christian, 
segregated schools 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). 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.6 
Attempts by the IRS to enforce the Treasury

6 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).

17



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 first on its policy of refusing to admit African- 
American students, and subsequently on its policy of 
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 
admit African-American students. According to its 
interpretation of the Bible, “ [cjultural 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 religious beliefs. Id. at 
602-04.

Progress toward racial equality was not 
limited to schools. Although the anti-miscegenation 
laws eventually fell, the path to that rightful 
conclusion 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

18



shows that he did not intend for the races to mix.’” 
388 U.S. 1, 3 (1967) (quoting trial court). But this 
Court expressly rejected the trial court’s reasoning 
and declared Virginia’s anti-miscegenation law 
unconstitutional. Id. at 2.

The Civil Rights Act of 1964 also faced 
objections based on religion, all of which were 
ultimately rejected. Most notably, the House 
exempted religiously affiliated employers entirely 
from the proscriptions of the Act. See EEOC v. Pac. 
Press Pub. Assn, 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 1277.7

Religious resistance to the 1964 Civil Rights 
Act did not stop with its passage. The owner of a 
barbeque chain who was sued in 1964 for refusing to 
serve blacks responded by claiming that serving 
black people violated his religious beliefs. The court 
rejected the restaurant owner’s defense, holding that 
the owner

7 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 & Sch. v. EEOC, 132 S. Ct. 694 (2012) 
(recognizing ministerial exception).

19



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.

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).

Since the middle of the twentieth century, the 
argument that religious beliefs trump measures 
designed to eradicate racial discrimination -  whether 
in toto or piecemeal — has slowly lost its force. 
As courts shifted to a wholesale rejection of religious 
justifications for racial discrimination and societal 
attitudes evolved, religious arguments were no 
longer offered in mainstream society to defend racial 
segregation and subordination. 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 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

20



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 RJU, Bob Jones Univ., 
http ://www .bj u. edu / about/what-we-believe/r ace- 
statement.php (last visited Feb. 9, 2016). Although 
there are many differences in the discrimination 
described above and the contraception rule, this 
history highlights the hazards of recognizing a 
religious exemption to a federal anti-discrimination 
measure 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).8 Efforts to 
advance women’s equality, like those furthering 
other 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.”

8 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 
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. 411 U.S. at 685.

21



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, these arguments were initially 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).

This vision of women — as divinely destined for 
the role of wife and mother -  was a prominent 
argument against suffrage. A leading 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

22



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). It was in this same 
time period that the first laws against contraception 
were enacted to address what was characterized as 
“physiological sin.” Reva B. Siegel, Reasoning from 
the Body: A Historical Perspective on Abortion 
Regulation and Questions o f 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 
Bradley’s concurrence in Bradwell], our statute books 
gradually became laden with gross, stereotyped 
distinctions between the sexes.” 411 U.S. at 685.9

9 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 “[s]tereotypes about women’s 
domestic roles are reinforced by parallel stereotypes presuming 
a lack of domestic responsibilities for men”). And, for both

23



Those statutes were often upheld by this Court. For 
example, in Muller v. Oregon, this Court upheld 
workday limitations for women because “healthy 
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 u. 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 like society’s views of race evolved, 
society’s views of women progressed, and gradually 
women’s ability to pursue goals other than, or 
in addition to, becoming wives and mothers 
was recognized. Indeed, the passage of the Civil 
Rights Act of 1964 was a step forward for race 
and gender equality because Title VII of the Act 
barred discrimination based on sex and race in 
the workplace. The protection against gender 
discrimination, like that for race, passed in the face 
of religious objection and without the proposed 
exemption that sought to permit religiously affiliated 
organizations to engage in gender-based employment 
discrimination.10

sexes, these visions were idealized, and unrealistic for many 
households, particularly those of the working poor, where 
women as well as men labored outside the home.

10 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”).

24



Slowly the courts, too, began dismantling the 
notion that divine ordinance and the law of the 
Creator requires women to be confined to roles as 
wives and mothers. For example, this Court held 
a state law that treated girls’ and boys’ age of 
majority differently for the purposes of calculating 
child support unconstitutional, 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 
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 u. 
Orr, 440 U.S. 268, 279 n.9 (1979) (holding
unconstitutional law that allowed alimony from 
husbands but not wives, as “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’”). 
Additionally, when striking a ban on the admission

25



of women to the Virginia Military Institute, this 
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).

The Court has also dismantled notions that 
women could be barred from certain jobs because of 
their reproductive capacity, International Union v. 
Johnson Controls, Inc., 499 U.S. 187 (1991), and has 
affirmed legislation that addresses “the fault-line 
between work and family -  precisely where sex-based 
overgeneralization has been and remains strongest,” 
Hibbs, 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 by 
religious liberty defenses to the enforcement of anti- 
discrimination measures. Religious schools resisted 
the notion that women and men must receive equal 
compensation by invoking the belief that the “Bible 
clearly teaches that the husband is the head of the 
house, head of the wife, head of the family.” Dole u.

26



Shenandoah Baptist Church, 899 F.2d 1389, 1392 
(4th Cir. 1990). The courts rejected this 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) (same); EEOC v. Tree 
of Life Christian Schs., 751 F. Supp. 700 (S.D. Ohio 
1990) (same).

Even today, laws and policies designed to 
protect against gender discrimination continue to 
face challenges in the name of religious belief, but 
courts have limited such arguments. See, e.g., 
Hamilton u. 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 
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) (same).11

11 Attempts to use religion to discriminate are not limited to 
race and sex. See, e.g., The Leadership Conference Education 
Fund, Striking a Balance: Advancing Civil and Human Rights

27



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

The contraception rule, like Title VII and other 
anti-discrimination measures, is an effort to address 
the vestiges of gender discrimination. And like those 
other anti-discrimination laws, this rule is being 
resisted in the name of religion.12 The employers 
before this Court argue that they are entitled to 
evade the mandates of the law based on their 
religious beliefs. As discussed supra, the argument 
that religious belief justifies discrimination, the

While Preserving Religious Liberty (Jan. 2016), 
http://civihrightsdocs.info/pdf/reports/2016/religious-liberty- 
report-WEB.pdf. For example, religion has been invoked in an 
attempt to justify discrimination based on marital status, see 
Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 
(Alaska 1994), and discrimination based on sexual orientation, 
see, e.g., Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 
2004); Matthews v. Wal-Mart Stores, Inc., 417 F. App’x 552 (7th 
Cir. 2011); Br. of Amici Curiae Lambda Legal Defense and 
Education Fund, Inc. in Supp. of Respondent. It is also a 
concern for people with disabilities, who have historically faced 
limitations from religiously affiliated group homes, including 
the refusal to allow them to live with romantic partners, even if 
married. See Forziano v. Indep. Grp. Home Living Program, 
No. 13-cv-0370, 2014 WL 1277912 (E.D.N.Y. Mar. 26, 2014).

12 Although the employers in this case have religious objections 
to the rule, not all people of faith share their objection. See, e.g., 
Tom Howell, Jr., Catholic Hospitals are OK with Obama 
Contraception Mandate, Protections, Wash. Times, July 9, 2013, 
http://www.washingtontimes.eom/blog/inside-politics/2013/jul/9/ 
report-catholic-hospital-ok-contraception-mandate/ (last visited 
Feb. 9, 2016).

28

http://civihrightsdocs.info/pdf/reports/2016/religious-liberty-report-WEB.pdf
http://civihrightsdocs.info/pdf/reports/2016/religious-liberty-report-WEB.pdf
http://www.washingtontimes.eom/blog/inside-politics/2013/jul/9/


denial of rights, or the relinquishment of benefits is 
an old, discredited theory that should, once again, be 
rejected.

The contraception rule has, and will continue 
to, transform women’s lives, by enabling women to 
decide if and when to become a parent and allowing 
women to make educational and employment choices 
that benefit themselves and their families.13 
“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 Guttmacher Rep. on Pub. 
Pol’y 5, 6 (2004). The availability of the oral 
contraceptive pill alone is associated with roughly 
one-third of the total wage gains for women born 
from the mid-1940s to early 1950s; a 20% increase in 
women’s college enrollment; 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), http://www.nber.org/ papers/wl7922 
(last visited Feb. 9, 2016); Claudia Goldin &

13 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 Amici Curiae Nat’l Health Law Program in Supp. of 
Respondent.

29

http://www.nber.org/


Lawrence F. Katz, The Power of the Pill: Oral 
Contraceptives and Women’s Career and Marriage 
Decisions, 110 J. Pol. Econ. 730, 749 (2002). As this 
Court has recognized, “ [tjhe 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 Se. 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 
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.’” Hibbs, 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 either accept pregnancy or 
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 woman 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 women need, send the message that women 
are second-class citizens, and that they are not 
employees equally valued by the employer.

30



For 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). An exemption countenancing a religious 
objection to contraception suggests that religious 
objections are more important than women’s equality 
in our society.

The contraception rule is thus an essential 
step to further equal opportunities for women. 
Nothing evidences the importance of the rule more 
clearly than the following fact: Today, approximately 
half of pregnancies are unintended. Guttmacher 
Institute, Unintended Pregnancy in the United States 
(July 2015), available at http://www.guttmacher.org/ 
pubs/FB-Unintended-Pregnancy-US.html. 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 (2011); 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 5 (Sept. 2009), 
http://www.guttmacher.org/pubs/RecessionFP.pdf; 
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,

31

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


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).14

The contraception rule lifts these barriers, 
with the promise of increased opportunity for women. 
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 (Oct. 2015), 
http://www.guttmacher.org/pubs/fb_contr_use.html 
(showing approximately 10% of all contraceptive 
users have IUDs as their method). As a result, 
among women in the study, the unintended 
pregnancy rate plummeted, and the abortion rate 
was less than half the regional and national rates. 
Colleen McNicholas et al., The Contraceptive 
CHOICE Project Round Up, 57 Clinical Obstetrics & 
Gynecology 635 (Dec. 2014). See also Br. of Amici

14 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 
result from “incorrect or inconsistent” contraception use, but 
IUDs are not “user-dependent” and thus are highly effective).

32

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


Curiae the Guttmacher Institute in Supp. of the 
Gov’t.

For all of these reasons, the contraception rule 
furthers the government’s compelling interest in 
ensuring women’s equality. Indeed, this Court in 
Hobby Lobby recognized the importance of “ensuring 
that the employees of these [objecting] 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.” 134 S. Ct. at 2759-60.

This Court held that the accommodation now 
being challenged in these cases was a least 
restrictive alternative to fulfilling the government’s 
compelling interests. It did so specifically noting that 
“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.” Id. The same cannot be said in this case.

If this Court accepts the employers’ arguments 
here, the employees would undisputedly not have 
“precisely the same access” to contraceptives as 
employees of employers who have no religious 
objection to covering contraception. Instead, the 
Court would be allowing the employers to deprive 
their employees of a benefit guaranteed by law, 
namely, contraception coverage from their health 
insurance company. The government’s compelling 
interests will be completely undermined because, 
as the government and other amici explain in detail, 
there is no other way to further the government’s 
compelling interest in ensuring seamless contra­
ception coverage for women. See Br. of Amici Curiae 
Health Policy Experts in Supp. of Respondents.

33



Given the absence of feasible alternatives to 
the contraception rule, a decision upholding the rule 
in this case will not be breaking new ground, but 
instead will be following a well-established path. 
Although our country has made great progress 
toward achieving women’s equality, more work is 
needed, and the contraception rule is a crucial step 
forward.

CONCLUSION
The Court should affirm the judgments below.

Respectfully Submitted,

Brigitte Amiri 
Counsel o f Record 

Louise Melling 
Jennifer Lee 
Steven R. Shapiro 
A m e r i c a n  C iv il  L ib e r t ie s  

U n io n  F o u n d a t io n  
125 Broad Street 
New York, NY 10004 
(212) 549-2500 
bamiri@aclu.org

Daniel Mach 
Heather L. Weaver 
A m e r ic a n  C iv il  L ib e r t ie s  

U n io n  F o u n d a t io n  
915 15th Street, N.W. 
Washington, D.C. 20005

Dated: February 16, 2016

34

mailto:bamiri@aclu.org


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