Case: Document: 55 Filed: 04/04/2014 Pages: 22. No UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Transcription

1 No UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNIVERSITY OF NOTRE DAME, Plaintiff-Appellant, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services; THOMAS PEREZ, in his official capacity as Secretary of the U.S. Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of the Treasury; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; U.S. DEPARTMENT OF LABOR; and U.S. DEPARTMENT OF THE TREASURY, Defendants-Appellees, v. JANE DOE 1, JANE DOE 2, and JANE DOE 3, Intervenors-Appellees. Appeal from the United States District Court For the Northern District of Indiana District Court Case No. 3:13-CV-1276 The Honorable Philip P. Simon APPELLANT S PETITION FOR REHEARING EN BANC JONES DAY Matthew A. Kairis (Counsel of record) 325 John H. McConnell Blvd, Suite 600 Columbus, OH (614) ATTORNEY FOR PLAINTIFF-APPELLANT UNIVERSITY OF NOTRE DAME

2 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Pursuant to 7th Cir. R. 26.1, the undersigned makes the following disclosures: 1. The full name of every party that the attorney represents in this case: University of Notre Dame du Lac 2. The names of all law firms whose partners or associates have appeared for the party in this case or are expected to appear for the party in this Court: Jones Day 3. Appellant is a nonprofit corporation and does not have a parent corporation. No publicly held company owns 10% or more of Appellant s stock. Respectfully submitted, this the 4th day of April, By: s/ Matthew A. Kairis Matthew A. Kairis (OH No ) (Counsel of record) JONES DAY 325 John H. McConnell Blvd., Suite 600 P.O. Box Columbus, OH (614) makairis@jonesday.com Counsel for Plaintiff-Appellant University of Notre Dame

3 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii INTRODUCTION AND RULE 35(b) STATEMENT... 1 ARGUMENT... 3 I. THE PANEL MAJORITY S OPINION CONTRADICTS SUPREME COURT PRECEDENT AND THE LAW OF THIS CIRCUIT... 3 II. A. Korte and Supreme Court precedent establish that a substantial burden on religious exercise arises when the Government places substantial pressure on any person to act in violation of a sincere religious belief Exercise of religion Substantial burden... 7 B. In contravention of Korte and Supreme Court precedent, the panel majority erroneously adopted a new legal standard that requires second-guessing of private religious beliefs... 9 THE PANEL MAJORITY S ADOPTION OF AN ERRONEOUS NEW LEGAL STANDARD FOR EVALUATING FREE-EXERCISE CLAIMS IS A MATTER OF EXCEPTIONAL IMPORTANCE CONCLUSION CERTIFICATE OF SERVICE i -

4 TABLE OF AUTHORITIES CASES Page(s) Bowen v. Roy, 476 U.S. 693 (1986) E. Tex. Baptist Univ. v. Sebelius, No. H , 2013 WL (S.D. Tex. Dec. 27, 2013) Employment Div. v. Smith, 494 U.S. 872 (1990)... 5 Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008)... 5 Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013)... passim McCarthy v. Fuller, 714 F.3d 971 (7th Cir. 2013) Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-3489, 2014 WL (N.D. Ga. Mar. 26, 2014) Thomas v. Review Bd. of the Ind. Emp t Sec. Div., 450 U.S. 707 (1981)... passim Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014)... passim STATUTES & REGULATIONS 26 U.S.C. 4980D U.S.C. 4980H U.S.C. 2000bb , U.S.C. 2000bb , 7, U.S.C. 2000cc , 7, C.F.R A C.F.R , 12 - ii -

5 29 C.F.R A... 4, C.F.R iii -

6 INTRODUCTION AND RULE 35(B) STATEMENT The panel majority s opinion conflicts with the binding precedent of the Supreme Court and the law of this circuit on the exceptionally important question of whether the Government imposes a substantial burden on the exercise of religion when it substantially pressures an organization to act contrary to its sincere religious beliefs. The University of Notre Dame seeks to exercise its religion by hiring third parties to provide health coverage to its students and employees in a manner consistent with its Catholic beliefs. But under regulations promulgated by the Government ( the Mandate ), Notre Dame is forced to abandon that religious practice. Instead, under the threat of ruinous penalties, Notre Dame must sign and submit a religiously objectionable self-certification form, and then maintain a contractual relationship with insurance companies and third party administrators that will provide abortifacients, contraceptives, sterilization, and related counseling to individuals enrolled in Notre Dame s health plans. Those products and services will be provided to Notre Dame s students and employees through the insurance infrastructure Notre Dame is forced to maintain, thus requiring Notre Dame to offer health plans that serve as a conduit for the delivery of the objectionable coverage. As Notre Dame has repeatedly averred, it cannot take these actions without violating its religious beliefs. The resolution of this case thus turns on the answer to a straightforward question: absent interests of the highest order, can the Government force religious organizations to take actions that violate their sincerely held religious - 1 -

7 beliefs? According to the panel majority, the answer to that question is yes. Under the Religious Freedom Restoration Act ( RFRA ) and the prior law of this circuit, however, the correct answer is clearly no. RFRA prohibits the Government from imposing a substantial burden on Notre Dame s exercise of religion without a showing that such a burden is the least restrictive means of advancing a compelling governmental interest. See 42 U.S.C. 2000bb-1. In Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), this Court held that the substantial-burden test under RFRA focuses primarily on the intensity of the coercion applied by the government to act contrary to [religious] beliefs. Id. at 683 (citation omitted). In other words, where sincerity is not in dispute, a court s only task is to assess whether the law at issue put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs. Id. at (quoting Thomas v. Review Bd. of the Ind. Emp t Sec. Div., 450 U.S. 707, 718 (1981)). Applying this standard, this Court held that the Mandate substantially burdened the religious exercise of for-profit corporations because it force[d] [plaintiffs] to do what their religion tells them they must not do. Id. at 685. So too here. Even under the Government s socalled accommodation, the Mandate still forces [Notre Dame] to do what [its] religion [says it] must not do. Id. Just as in Korte, [t]hat qualifies as a substantial burden on religious exercise, properly understood. Id. Instead of applying (or citing) the test articulated above, the panel majority incorrectly held that the Mandate does not substantially burden Notre Dame s religious exercise. Thus, rather than asking whether the pressure - 2 -

8 placed on Notre Dame to violate its beliefs is substantial, the panel majority parsed Notre Dame s religious convictions, ultimately concluding that Notre Dame could comply with the Mandate without violating Catholic doctrine. By focusing on questions of religious doctrine i.e., whether compliance with the Mandate makes Notre Dame complicit in a grave moral wrong, id. at 683 rather than the coercive effect of the governmental pressure on [Notre Dame s] religious practice, id., the panel applied a novel and erroneous version of the substantial burden test, in contravention of the law of this circuit. ARGUMENT I. THE PANEL MAJORITY S OPINION CONTRADICTS SUPREME COURT PRECEDENT AND THE LAW OF THIS CIRCUIT. In Korte v. Sebelius, this Court held that the Mandate substantially burdened the religious exercise of for-profit corporations because it force[d] them to do what their religion tells them they must not do. 735 F.3d at 685. The same is true here. The Government does not dispute that the Mandate requires Notre Dame, on pain of substantial financial penalties, to sign and submit a self-certification form and maintain an insurance relationship with third parties that will provide objectionable coverage to its students and employees. Nor does the Government dispute that Notre Dame has a sincere religious objection to taking those actions. Under this circuit s precedent, that should be the end of the substantial burden analysis. 1 1 The Government did not contest the sincerity of Notre Dame s religious beliefs, and conceded that the Mandate could not satisfy strict scrutiny in light of Korte. Consequently, the only question before the panel was whether the Mandate imposed a substantial burden on Notre Dame s exercise of religion

9 The panel majority reached a different conclusion only by disregarding the standard established in Korte and improperly discounting Notre Dame s undisputed religious belief that it must not do what the Mandate requires. In doing so, the panel majority seized on the applicability of the Government s socalled accommodation for non-profit religious organizations, which was not directly at issue in Korte. The accommodation purports to relieve Notre Dame of the obligation to pay for the objectionable insurance coverage, but it must nonetheless identify and contract with a third party willing to provide the mandated coverage, amend its plan documents through the self-certification to designate that party to provide the coverage, and then maintain a plan that will serve as the conduit for the delivery of those products and services. 26 C.F.R A; 29 C.F.R A; id ; 45 C.F.R ; Appellant s Br. at But as Korte makes clear, that difference is irrelevant to the substantial burden inquiry, which looks not to the nature of the actions the plaintiff must take, but rather to the intensity of the coercion the Government has placed on the plaintiff to take those actions. Korte, 735 F.3d at 683. As there is no dispute that Notre Dame sincerely believes that compliance with the Mandate, even under the accommodation, makes it complicit in a grave moral wrong, id. at 685, Korte required the panel to limit its analysis to an assessment of the pressure the Government has placed on Notre Dame to take the actions detailed above. By choosing instead to secondguess Notre Dame s religious judgment, the panel majority disregarded not only Korte, but also contradicted binding Supreme Court precedent

10 A. Korte and Supreme Court precedent establish that a substantial burden on religious exercise arises when the Government places substantial pressure on any person to act in violation of a sincere religious belief. Under the law of this circuit and the binding precedent of the Supreme Court, a substantial burden on religious exercise arises whenever the government put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs. Korte, 735 F.3d at 682 (quoting Thomas, 450 U.S. at 718). Where, as here, a religious claimant s sincerity is not in dispute, the test for a substantial burden involves a straightforward, two-part inquiry: a court must (1) identify the exercise of religion at issue, and (2) determine whether the government has placed substantial pressure on the plaintiff to forgo that religious exercise. Id. at ; Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008) (applying this two-part test under RLUIPA, RFRA s sister statute). 1. Exercise of religion The exercise of religion includes the performance of (or abstention from) physical acts that are motivated by religious belief. Employment Div. v. Smith, 494 U.S. 872, 877 (1990). Significantly, RFRA protects any exercise of religion, whether or not compelled by, or central to, a system of religious belief. Korte, 735 F.3d at 682 (quoting 42 U.S.C. 2000cc-5(7)(A)); see also 42 U.S.C. 2000bb-2(4). This definition is undeniably very broad, so the term exercise of religion should be understood in a generous sense. Korte, 735 F.3d at 674. A court s inquiry into the religious exercise at issue is necessarily limited. The law does not permit the court to resolve religious questions or decide whether the claimant s understanding of his faith is mistaken. Id. at

11 After all, as the Supreme Court has repeatedly admonished, it is not within the judicial function to determine whether a belief or practice is in accord with a particular faith. Thomas, 450 U.S. at 716. Courts must therefore accept a plaintiff s description of its religious exercise, regardless of whether the court, or the Government, finds the beliefs animating that exercise to be acceptable, logical, consistent, or comprehensible. Id. at 714. To that end, [i]t is enough that the claimant has an honest conviction that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion. Korte, 735 F.3d at 683 (quoting Thomas, 450 U.S. at 716). Here, the Government does not dispute that, like the plaintiffs in Korte, Notre Dame has an honest conviction that taking the actions required by the Mandate conflicts with [its] religio[us beliefs]. Id. Notre Dame exercises its religion by providing health coverage to its students and employees in a manner consistent with its Catholic beliefs. Toward that end, Notre Dame seeks to hire insurance companies and third party administrators that will provide coverage to Notre Dame s students and employees, without covering abortifacients, contraception, sterilization, and related counseling. As a corollary, Notre Dame s religious principles require it to refrain from taking certain actions that will entangle it in the provision of the objectionable coverage. For example, Notre Dame believes that signing and submitting the self-certification under the Mandate impermissibly entangles it with a prohibited practice. Notre Dame also believes that it may not hire, or maintain a contractual relationship with, any insurance company or third party - 6 -

12 administrator that will provide its students or employees with the coverage it finds objectionable. As long as Notre Dame s insurance company or third party administrator is providing the objectionable coverage, even the ordinary steps necessary to maintain the contractual relationship including paying premiums, enrolling students, or providing administrative paperwork entangle Notre Dame in the provision of that coverage. Appellant s Br. at Again, any attempt to distinguish this case from Korte on the basis of the so-called accommodation is wholly unavailing because RFRA protects any exercise of religion, 42 U.S.C. 2000bb-2(4), 2000cc-5(7)(A) (emphasis added). As Korte makes clear, the precise nature of the religious exercise at issue is irrelevant to the substantial burden analysis. 735 F.3d at A court s only task at this stage is to determine whether the asserted exercise whatever that may be is sincere and religious before proceeding to assess the coercive effect of the governmental pressure on the adherent s religious practice. Id. at 683. Thus, it is immaterial that the plaintiffs in Korte exercised their religion by refusing to purchase the required contraception coverage, id. at 668, while Notre Dame exercises its religion by refusing to take the actions required under the Mandate s accommodation. What matters is that in this case, as in Korte, [t]he contraception mandate forces [Notre Dame] to do what [its] religion [says it] must not do. Id. at Substantial burden In Korte, this Court followed the Supreme Court in holding that a substantial burden is substantial pressure on an adherent to modify his - 7 -

13 behavior and to violate his beliefs. 735 F.3d at 682 (quoting Thomas, 450 U.S. at 718). In evaluating the substantiality of the burden, the court evaluates the coercive effect of the governmental pressure on the adherent s religious practice. Korte, 735 F.3d at 683. Here, the Mandate plainly imposes a substantial burden on Notre Dame s religious exercise because failure to comply will subject Notre Dame to potentially fatal fines of $100 a day per affected beneficiary. See 26 U.S.C. 4980D(b). Dropping health coverage altogether is not an option for several reasons. First, doing so would subject Notre Dame to a fine of $2,000 per year, per full-time employee after the first thirty employees. See id. 4980H(a), (c). Next, Notre Dame s provision of health coverage is itself an exercise of religion, motivated by the Catholic social teaching that health care is among those basic rights which flow from the sanctity and dignity of human life. Finally, dropping health coverage would have ruinous practical consequences, placing Notre Dame at a severe competitive disadvantage in its ability to recruit students and employees. These penalties, involving potentially millions of dollars in fines and other negative consequences, clearly impose the type of pressure that qualifies as a substantial burden. Appellant s Br. at 29-31; Reply Br. at In short, the Government has put Notre Dame to a stark choice: violate its religious beliefs or suffer crippling penalties. This is the exact choice, and the exact penalties, that this Court found imposed a substantial burden in Korte. Just as in Korte, the federal government has placed enormous pressure on [Notre Dame] to violate [its] religious beliefs and conform to [the - 8 -

14 Government s] regulatory mandate. Refusing to comply means ruinous fines, essentially forcing [Notre Dame] to choose between [onerous penalties] and following the moral teachings of [its] faith. 735 F.3d at In such circumstances, there can be little doubt that the contraception mandate imposes a substantial burden on [Notre Dame s] religious exercise. Id. at 683. B. In contravention of Korte and Supreme Court precedent, the panel majority erroneously adopted a new legal standard that requires second-guessing of private religious beliefs. Instead of applying the well-established substantial burden test set forth in Korte and Thomas, the panel majority applied a new and different test that cannot be reconciled with those decisions. Rather than asking whether the Government placed substantial pressure on Notre Dame to act contrary to its religious beliefs (or even citing that standard), the panel majority purport[ed] to resolve the religious question underlying th[is] case[]: Does [complying with the Mandate] impermissibly assist the commission of a wrongful act in violation of the moral doctrines of the Catholic Church? Korte, 735 F.3d at 685. The panel majority s answer was no, but as Korte makes clear, [n]o civil authority can decide that question. Id. The panel majority s fundamental error lies in its disregard of Korte s admonition to focus[] primarily on the intensity of the coercion applied by the government to act contrary to [religious] beliefs, id. at 683 (citation omitted), and choosing instead to evaluate the nature of the religious exercise at issue. For example, rather than (a) accepting Notre Dame s undisputed assertion that self-certification would violate its religious beliefs and then (b) asking whether - 9 -

15 the Mandate substantially pressured Notre Dame to take that action, the panel majority reasoned that self-certification could not be a substantial burden because [t]he form is two pages long, and [s]igning the form and mailing it... could have taken no more than five minutes. Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th Cir. 2014). It added that while Notre Dame may believe signing [its] name and mailing the signed form to two addresses constitutes a substantial burden, substantiality... is for the court to decide. Id. at 558. While substantiality is indeed a legal question for a court to decide, Korte makes clear that a court s inquiry is limited to the substantiality of the pressure the Government imposes on the plaintiff to violate his beliefs. Korte, 735 F.3d at 682. There is no independent requirement that the act in question involve substantial physical exertion; to the contrary, RFRA broadly protects any exercise of religion. Id. at 674 (quoting 42 U.S.C. 2000cc-5(7)(A), 2000bb-2(4)). The reason for this approach is obvious: what may be no big deal to a court may be a very big deal to a believer. 2 Courts have no competence to determine whether a particular action violates a plaintiff s religious beliefs: instead, they must accept a plaintiff s honest conviction that 2 Indeed, requirements that some might find administrative can nonetheless impose a substantial burden. Notre Dame, 743 F.3d at 566 (Flaum, J., dissenting) (noting that in Bowen v. Roy, 476 U.S. 693 (1986), five justices... expressed the view that the plaintiffs were entitled to an exemption from an analogous administrative requirement that they submit a form containing their daughter s social security number (citation omitted))

16 what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion. Id. at 683 (quoting Thomas, 450 U.S. at 716). Despite Korte s clear command, the panel majority chose to conduct a lengthy analysis of whether Notre Dame was correct in its assertion that the actions it must take to comply with the accommodation would make[] the university an accomplice in the provision of contraception, in violation of Catholic doctrine. Notre Dame, 743 F.3d at 554. The answer to that question, however, turns on an assessment of Catholic moral principles regarding the permissible degree of entanglement with wrongdoing; such question[s] of religious conscience are plainly for Notre Dame, not a court, to decide. Korte, 735 F.3d at 685. Here, Notre Dame has determined that taking the actions required by the accommodation make it complicit in a grave moral wrong and undermine [its] ability to give witness to the moral teachings of the Catholic Church, thereby creating scandal. Id. at 683. Thus, for the panel majority to assert that the accommodation allows Notre Dame to wash[] its hands of any involvement in contraceptive coverage, Notre Dame, 743 F.3d at 557, is to simply disagree[] with Notre Dame s religious judgment to the contrary. McCarthy v. Fuller, 714 F.3d 971, 978 (7th Cir. 2013). [T]he federal judiciary has no authority to entertain [that] argument. Id. The panel majority s claim that it is [f]ederal law, not the religious organization s signing and mailing the [self-certification] form, which requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services does not alter this analysis. Id. at

17 554. Even assuming the panel majority was correct, it is left to Notre Dame, not a court, to decide whether the actions required under the accommodation violate its religious beliefs. See supra at 5 6, As Judge Flaum noted in dissent, Notre Dame s objection is based not on principles of legal causation but of religious faith. Notre Dame, 743 F.3d at 566 (Flaum, J., dissenting). But in any event, the panel majority s understanding of the regulatory scheme is mistaken. Unless Notre Dame submits the required self-certification, the Government cannot require Notre Dame s third party administrator to provide the objectionable coverage to the University s employees. 3 Indeed, the Government has conceded as much on numerous occasions. 4 In other words, contrary to the panel majority s assertion, Notre Dame s self-certification and the group health plans [it] put[s] into place are necessary to [its] employees [and students ] obtaining the free access to the contraceptives that [Notre 3 Far from forfeiting this argument, 743 F.3d at 555, Notre Dame made this point at length in its briefs. See Appellant s Br. at 8-11, 14-15, 17, 25-26, 33-34; Reply Br. at 7-9. It is also evident from the face of the regulations themselves. E.g., 29 C.F.R (stating that the self-certification serves as a designation of the third party administrator as the plan administrator for contraceptive services and is an instrument under which [the objecting organization s] plan is operated ); id A(b)(2) (permitting a third party administrator to provide coverage only [i]f [it] receives a copy of the self-certification and agrees to enter into or remain in a contractual relationship with the objector). 4 E.g., Tr. of Hr g at 12-13, Roman Catholic Archbishop of Wash. v. Sebelius, No (D.D.C. Nov. 22, 2013) ( THE COURT: But [a third party administrator s] duty to [provide the mandated coverage] only arises by virtue of the fact that he has a contract with the religious organizations? [THE GOVERNMENT]: Yes. They become a plan administrator and are required to make these payments by virtue of the fact that they receive the self-certification form from the employer. )

18 Dame] find[s] religiously abhorrent. E. Tex. Baptist Univ. v. Sebelius, No. H , 2013 WL , at *22 (S.D. Tex. Dec. 27, 2013) (emphasis added). 5 For similar reasons, the panel majority was wrong to dismiss Notre Dame s undisputed assertion that it would violate its beliefs to offer and maintain a health plan that serves as a conduit for the delivery of objectionable coverage. Notre Dame, 743 F.3d at 557. After incorrectly claiming that Notre Dame s counsel conceded at oral argument that the University would have no problem if its students sent a letter to the University s insurance company, 6 which would then provide the objectionable coverage to them by virtue of their enrollment in Notre Dame s plan, the panel majority stated that Notre Dame s religious objection appeared illogical because [w]e can t see how [the hypothetical arrangement] would make [its] health plan less of a conduit for 5 The panel majority s claim that the accommodation exempt[s] Notre Dame from the Mandate also reflects a fundamental misunderstanding of the regulatory scheme. Notre Dame, 743 F.3d at 557. Contrary to the panel majority s decision, the accommodation does not place Notre Dame in the same position that [this court] allowed the company owners in the Korte case to occupy. Id. at 558. If it did, Notre Dame would not have filed suit. Indeed, the very reason Notre Dame filed this action was to be placed in the same position that the for-profit plaintiffs in Korte occupy. Unlike those plaintiffs, Notre Dame is forced to take numerous actions it finds religiously objectionable under the accommodation. Supra at 1, 5 7. The fact that it need not provide contraceptive coverage directly is beside the point. The Government cannot relieve a substantial burden on religious exercise by offering an alternative that also requires claimants to act contrary to their beliefs. 6 As counsel explained at oral argument, Notre Dame would have no objection to a system in which its employees or students themselves coordinated with an independent insurer to provide coverage that would not involve Notre Dame. Oral Argument at 1:31:00-1:32:31, University of Notre Dame v. Sebelius, No (7th Cir. Feb. 12, 2014), available at Notre Dame has consistently objected to offering or maintaining health plans that serve as conduits for contraceptives

19 the objectionable coverage than the accommodation does. Id. Even assuming (erroneously) that Notre Dame had made such a concession, the panel was bound to accept Notre Dame s religious objection, regardless of whether it found that objection to be acceptable, logical, consistent, or comprehensible. Thomas, 450 U.S. at 714. Once a religious claimant dr[aws] a line regarding an objectionable action it is not for [a court] to say that the line he drew was an unreasonable one. Id. at 715. In short, under the well-established test of Korte and Thomas, the panel majority should have accepted Notre Dame s honest and undisputed assertion that it has a religious objection to taking the actions necessary to comply with the accommodation. 7 By refusing to accept that assertion, and instead engaging in a protracted quarrel with Notre Dame s description of its own religious beliefs, the panel majority strayed well beyond the proper realm of legal inquiry and purport[ed] to resolve the religious question underlying [this] case[]. Korte, 735 F.3d at The panel majority was also mistaken to suggest that granting Notre Dame an exemption would mean that a court must award an exemption to a pacifist who objects to his exemption from the military draft on the ground that the military will draft[] another person in his place. Notre Dame, 743 F.3d at 556. First, assuming an individual asserted such a belief, a court would still have to evaluate that individual s sincerity, and then proceed to apply strict scrutiny before any exemption could be awarded. See 42 U.S.C. 2000bb-1. Moreover, that hypothetical is far afield from the present case because the regulatory scheme here does not offer Notre Dame an exemption. Supra note 5. Rather, after Notre Dame submits the self-certification, it must actively maintain a health plan that serves as the pipeline by which objectionable coverage will be delivered to its students and employees. Exempting Notre Dame would not prevent the Government from achieving its goal of providing contraceptive coverage; it would simply prevent the Government from forcing Notre Dame to participate in the effort by using its health plans as conduits

20 II. THE PANEL MAJORITY S ADOPTION OF AN ERRONEOUS NEW LEGAL STANDARD FOR EVALUATING FREE-EXERCISE CLAIMS IS A MATTER OF EXCEPTIONAL IMPORTANCE. The panel majority s erroneous new legal standard implicates a matter of exceptional importance because it casts secular courts in the untenable and unconstitutional role of arbiters of religious doctrine. In doing so, it creates fundamental uncertainty as to this Court s standard for deciding RFRA or RLUIPA claims. 8 In addition, the Mandate itself is an ongoing source of national controversy, with countless religious non-profit organizations in this circuit waiting to see whether they will be forced to violate their conscience to comply with the Government s regulatory scheme. Illustrating the importance of the issue and the seriousness of Notre Dame s legal claims, nineteen courts, including the Supreme Court, have already enjoined the accommodation. See Appellant s Br. at 2 n.2; see also Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-3489, 2014 WL , at *33 (N.D. Ga. Mar. 26, 2014). Indeed, this is the only case in the country where application of the Mandate to a non-profit plaintiff has not been enjoined. See id. CONCLUSION For the forgoing reasons, Notre Dame requests rehearing en banc. 8 For example, if presented with a challenge to a law requiring an Orthodox Jew to flip a light switch on the Sabbath, would this Court evaluate the pressure placed on the plaintiff to take that action under Korte, or would it assess whether the action itself was cumbersome under Notre Dame? Notre Dame, 743 F.3d at 558. The same could be said of a law requiring a Quaker to swear, rather than affirm, the veracity of his testimony or a regulation forcing a Catholic to sign a declaration disclaiming any loyalty to the Pope

21 Respectfully submitted, this the 4th day of April, By: s/ Matthew A. Kairis Matthew A. Kairis (OH No ) (Counsel of record) JONES DAY 325 John H. McConnell Blvd., Suite 600 P.O. Box Columbus, OH (614) Counsel for Plaintiff-Appellant University of Notre Dame

22 CERTIFICATE OF SERVICE I hereby certify that, on April 4, 2014, I electronically filed a true and correct copy of the foregoing using the CM/ECF system, which will send notification of such filing to all counsel of record. By: s/ Matthew A. Kairis Matthew A. Kairis (OH No ) (Counsel of record) JONES DAY 325 John H. McConnell Blvd., Suite 600 P.O. Box Columbus, OH (614) Counsel for Plaintiff-Appellant University of Notre Dame