RFIA- RLUIPA/RFRA — John Inazu

Burwell v. Hobby Lobby Stores, Inc.

573 U.S. 682 (2014)

Justice ALITO delivered the opinion of the Court.

We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA) permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.

Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.

Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years.

In Smith, however, the Court rejected “the balancing test set forth in Sherbert.” Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause.

This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores (1997).

Congress responded to Smith by enacting RFRA. “Laws that are ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work, but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.”

Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” Before RLUIPA, RFRA’s definition made reference to the First Amendment. See RFRA (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”

At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (ACA). ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individual.” And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees.

Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require.

In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.

HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” That category encompasses “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services.

In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.”

In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. And employers with fewer than 50 employees are not required to provide health insurance at all.

All told, the contraceptive mandate “presently does not apply to tens of millions of people.” This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013.

Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages ... shares humanity with those who conceived it.”

Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.

The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.”

As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” The Hahns have accordingly excluded from the group-health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients.

The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA-approved contraceptives that may operate after the fertilization of an egg. These include two forms of emergency contraception commonly called “morning after” pills and two types of intrauterine devices.

David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and-crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. Hobby Lobby is organized as a for-profit corporation under Oklahoma law.

One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Mardel is also organized as a for-profit corporation under Oklahoma law.

Though these two businesses have expanded over the years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO.

Hobby Lobby’s statement of purpose commits the Greens to “honoring the Lord in all they do by operating the company in a manner consistent with Biblical principles.” Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.”

Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed.

The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.

III

The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.

As we noted above, RFRA applies to “a person’s” exercise of religion and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “in determining the meaning of any Act of Congress, unless the context indicates otherwise.”

Under the Dictionary Act, “the word ‘person’ ... includes corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA.

This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.

The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.

Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious “autonomy ... often furthers individual religious freedom as well.” But this principle applies equally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.

HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals. In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.

In any event, the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated—Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles.

HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws.

First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so.

Further, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a for-profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim, but not one member of the Court expressed agreement with that argument.

Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.”

These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.

HHS and the principal dissent express concern about the possibility of disputes among the owners of corporations, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do—disagree about the conduct of business. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure Courts will turn to that structure and the underlying state law in resolving disputes.

For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.

Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. We have little trouble concluding that it does.

As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.

If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.

It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. § 4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.

Although these totals are high, those supporting HHS have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party.

Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business reasons, but also in part because their religious beliefs govern their relations with their employees.

Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers.

The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. Likewise, employers can deduct the cost of providing health insurance, but apparently cannot deduct the amount of the penalty that they must pay if insurance is not provided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.

In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government—that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.

In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs ) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. . . .

Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.

Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” This requires us to “look beyond broadly formulated interests” and to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases.

In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, and HHS tells us that “studies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.”

The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all.

HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.”

We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.”

The least-restrictive-means standard is exceptionally demanding and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases.

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA.

HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. See RLUIPA (“[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.

In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “provide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements ... on the eligible organization, the group health plan, or plan participants or beneficiaries.”

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.

The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none. Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal logistical and administrative obstacles,” because their employers’ insurers would be responsible for providing information and coverage. Ironically, it is the dissent’s approach that would “impede women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” because the dissent would effectively compel religious employers to drop health-insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress contemplated.”

HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.

It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to for-profit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems associated with a national system of taxation. We noted that “the obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” We observed that “the tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.”

Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing tax-payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.

In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.

The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, and with whom Justice BREYER and Justice KAGAN join as to all but Part III–C–1, dissenting.

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

“The 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 Southeastern Pa. v. Casey. Congress acted on that understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases.

The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary. Particular services were to be recommended by the U.S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, however; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health.

While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.” That amendment, Senator Mikulski observed, would have “put the personal opinion of employers and insurers over the practice of medicine.” Rejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.

Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion ... is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.” The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental.

Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.

The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. In sum, with respect to free exercise claims no less than free speech claims, “‘[y]our right to swing your arms ends just where the other man’s nose begins.’”

III

Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” In RFRA, Congress “adopted a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal.

RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.”

The legislative history is correspondingly emphatic on RFRA’s aim. (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” In short, the Act reinstates the law as it was prior to Smith, without “creating new rights for any religious practice or for any potential litigant.”

With RFRA’s restorative purpose in mind, I turn to the Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “persons” who “exercise religion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?

Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis.

RFRA’s compelling interest test, as noted, applies to government actions that “substantially burden a person’s exercise of religion.” This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” The Dictionary Act’s definition, however, controls only where “context” does not “indicate otherwise.” Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” Whether a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations.

Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n.

The First Amendment’s free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations. “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter–day Saints v. Amos. The Court’s “special solicitude to the rights of religious organizations,” Hosanna–Tabor Evangelical Lutheran Church and School v. EEOC, however, is just that. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos.

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. The text of RFRA makes no such statement and the legislative history does not so much as mention for-profit corporations.

The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. To reiterate, “for- profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].”

The Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, Hobby Lobby and Conestoga can’t do the same?” But even accepting for the sake of argument the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.

The Court’s determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.

Even if Hobby Lobby and Conestoga were deemed RFRA “persons,” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substantially burdens their exercise of religion.” Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.”

The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belief that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion ... that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake.

Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services.

Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “no individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense her employer’s decision or action.” It is doubtful that Congress, when it specified that burdens must be “substantial,” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.

Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.

That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives.

Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use; and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be.

Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court suggests, Congress would not have created these exclusions.

Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes.

The ACA’s grandfathering provision allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status.

The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect.

After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets.

Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated.

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?

In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.

Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee. Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. In contrast, today’s Court dismisses Lee as a tax case.

But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operate to impose the employer’s religious faith on the employees.” No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.

Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. [The dissent recites prior cases where, on religious grounds, business owners sought exemptions allowing them to refuse to: serve black patrons; hire anyone cohabitating with an individual of the opposite sex to whom they were not related or married; photograph a lesbian couple’s commitment ceremony.] Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine ... the plausibility of a religious claim”?

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases ... would have to be evaluated on its own ... apply[ing] the compelling interest-least restrictive alternative test.” Not much help there for the lower courts bound by today’s decision.

The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” The Court, I fear, has ventured into a minefield by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged... substantially in the exchange of goods or services for money beyond nominal amounts.”

For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.

Holt v. Hobbs

574 U.S. 352 (2015)

Justice ALITO delivered the opinion of the Court.

Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a ½–inch beard in accordance with his religious beliefs. Holt’s objection to shaving his beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition.

Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc. RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment.

Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. In making RFRA applicable to the States and their subdivisions, Congress relied on Section 5 of the Fourteenth Amendment, but in City of Boerne v. Flores, this Court held that RFRA exceeded Congress’ powers under that provision.

Congress responded to City of Boerne by enacting RLUIPA, which applies to the States and their subdivisions. RLUIPA concerns two areas of government activity: Section 2 governs land-use regulation and Section 3—the provision at issue in this case—governs religious exercise by institutionalized persons. Section 3 mirrors RFRA and provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” RLUIPA thus allows prisoners “to seek religious accommodations pursuant to the same standard as set forth in RFRA.” Gonzales v. O Centro Espírita Beneficente Uniõ do Vegetal.

Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined “religious exercise” capaciously to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Congress mandated that this concept “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” See Hobby Lobby.

Holt, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which provides that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs: “Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch.” The policy provides that “[f]ailure to abide by [the Department’s] grooming standards is grounds for disciplinary action.”

Petitioner sought permission to grow a beard and, although he believes that his faith requires him not to trim his beard at all, he proposed a “compromise” under which he would grow only a ½–inch beard. Prison officials denied his request, and the warden told him: “You will abide by [Arkansas Department of Correction] policies and if you choose to disobey, you can suffer the consequences.”

Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation. Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner’s belief.

In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, petitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation. The Department’s grooming policy requires petitioner to shave his beard and thus to “engage in conduct that seriously violates [his] religious beliefs.” If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise.

III

Since petitioner met his burden of showing that the Department’s grooming policy substantially burdened his exercise of religion, the burden shifted to the Department to show that its refusal to allow petitioner to grow a ½–inch beard “(1) was in furtherance of a compelling governmental interest; and (2) was the least restrictive means of furthering that compelling governmental interest.”

The Department argues that its grooming policy represents the least restrictive means of furthering a “ ‘broadly formulated interest,’” namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “‘more focused’” inquiry and “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened.’” Hobby Lobby. RLUIPA requires us to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants” and “to look to the marginal interest in enforcing” the challenged government action in that particular context. Hobby Lobby. In this case, that means the enforcement of the Department’s policy to prevent petitioner from growing a ½–inch beard.

The Department contends that enforcing this prohibition is the least restrictive means of furthering prison safety and security in two specific ways.

The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards.

We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a ½–inch beard is hard to take seriously. As noted, the Magistrate Judge observed that it was “almost preposterous to think that [petitioner] could hide contraband” in the short beard he had grown at the time of the evidentiary hearing. An item of contraband would have to be very small indeed to be concealed by a ½–inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a ½–inch beard rather than in the longer hair on his head.

RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest. Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a ½–inch beard actually furthers the Department’s interest in rooting out contraband.

Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband. “The least-restrictive-means standard is exceptionally demanding,” and it requires the government to “show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party.” Hobby Lobby. “If a less restrictive means is available for the Government to achieve its goals, the Government must use it.”

The Department failed to establish that it could not satisfy its security concerns by simply searching petitioner’s beard. The Department already searches prisoners’ hair and clothing, and it presumably examines the ¼–inch beards of inmates with dermatological conditions. It has offered no sound reason why hair, clothing, and ¼–inch beards can be searched but ½–inch beards cannot. The Department suggests that requiring guards to search a prisoner’s beard would pose a risk to the physical safety of a guard if a razor or needle was concealed in the beard. But that is no less true for searches of hair, clothing, and ¼–inch beards. And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard. For all these reasons, the Department’s interest in eliminating contraband cannot sustain its refusal to allow petitioner to grow a ½–inch beard.

The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities. The Department tells us that the no-beard policy allows security officers to identify prisoners quickly and accurately. It claims that bearded inmates could shave their beards and change their appearance in order to enter restricted areas within the prison, to escape, and to evade apprehension after escaping.

We agree that prisons have a compelling interest in the quick and reliable identification of prisoners, and we acknowledge that any alteration in a prisoner’s appearance, such as by shaving a beard, might, in the absence of effective countermeasures, have at least some effect on the ability of guards or others to make a quick identification. But even if we assume for present purposes that the Department’s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circumstances present here. The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter. Once that is done, an inmate like petitioner could be allowed to grow a short beard and could be photographed again when the beard reached the ½–inch limit. Prison guards would then have a bearded and clean-shaven photo to use in making identifications. In fact, the Department (like many other States) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during his incarceration.”

In addition to its failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department has not provided an adequate response to two additional arguments that implicate the RLUIPA analysis.

First, the Department has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a ½–inch beard, it permits prisoners with a dermatological condition to grow ¼–inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a ½–inch of hair on their heads. With respect to hair length, the grooming policy provides only that hair must be worn “above the ear” and “no longer in the back than the middle of the nape of the neck.” Hair on the head is a more plausible place to hide contraband than a ½–inch beard—and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah.

In an attempt to demonstrate why its grooming policy is underinclusive in these respects, the Department emphasizes that petitioner’s ½–inch beard is longer than the ¼–inch beard allowed for medical reasons. But the Department has failed to establish (and the District Court did not find) that a ¼–inch difference in beard length poses a meaningful increase in security risk. The Department also asserts that few inmates require beards for medical reasons while many may request beards for religious reasons. But the Department has not argued that denying petitioner an exemption is necessary to further a compelling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” We have rejected a similar argument in analogous contexts and we reject it again today.

Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow ½–inch beards, either for any reason or for religious reasons, but it cannot. “While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.

We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here. Despite this, the courts below deferred to these prison officials’ mere say-so that they could not accommodate petitioner’s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not “assume a plausible, less restrictive alternative would be ineffective.”

We emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security. We highlight three ways in which this is so. First, in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting. Second, if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” Third, even if a claimant’s religious belief is sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.

In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a ½–inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, concurring.

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

Ramirez v. Collier

595 U. S. 411 (2022)

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari.

Pablo Castro worked the night shift at the Times Market convenience store in Corpus Christi, Texas. On July 19, 2004, Castro was outside closing up when Ramirez and an accomplice approached him with a knife. Ramirez stabbed Castro 29 times, searched his pockets, and made off with $1.25. Castro died on the pavement, leaving behind 9 children and 14 grandchildren.

Ramirez fled to Mexico, where he evaded authorities for more than three years. In 2008, he was finally apprehended near the Mexican border. Texas charged Ramirez with murdering Castro in the course of committing or attempting to commit robbery—a capital offense. Ramirez admitted to killing Castro, but denied the robbery that made the murder a capital crime. A jury disagreed, found Ramirez guilty, and sentenced him to death. The Texas Court of Criminal Appeals affirmed Ramirez’s conviction and sentence on direct appeal. Ramirez’s attempts to collaterally attack his conviction in state and federal court also proved unsuccessful.

Texas scheduled Ramirez’s execution for February 2, 2017. Less than a week before that date, Ramirez moved to stay the execution, arguing that his habeas counsel had rendered constitutionally ineffective assistance. The District Court granted a stay, but later rejected Ramirez’s claim. The Fifth Circuit then declined to issue a certificate of appealability. Still, this last-minute litigation had the effect of delaying Ramirez’s execution for several years.

Texas rescheduled Ramirez’s execution for September 9, 2020. Ramirez then asked to have his pastor accompany him into the execution chamber. Prison officials denied the request. They did so because, at the time, Texas’s execution protocol barred all spiritual advisors from entering the chamber. A prior version of the protocol had allowed access for prison chaplains. But Texas employed only Christian and Muslim chaplains. In 2019, when a Buddhist inmate sought to have his spiritual advisor join him in the execution chamber, Texas declined to grant the accommodation. We stayed that execution pending certiorari, unless the State allowed a Buddhist spiritual advisor into the execution chamber. In response, Texas amended its execution protocol to bar all chaplains from entering the execution chamber, so as not to discriminate among religions.

Ramirez filed suit, arguing that Texas’s new execution protocol violated his rights under the First Amendment and RLUIPA. Ramirez’s complaint said that he was a Christian and had received religious guidance from Pastor Dana Moore since 2016. Pastor Moore serves the Second Baptist Church in Corpus Christi, of which Ramirez is a member. Ramirez explained that he wanted his pastor “to be present at the time of his execution to pray with him and provide spiritual comfort and guidance in his final moments.” Ramirez’s complaint focused on prayer and explained that his pastor “need not touch [him] at any time in the execution chamber.”

Texas withdrew Ramirez’s death warrant before there were any further filings. As a result, the parties jointly agreed to dismiss the litigation without prejudice.

On February 5, 2021, Texas informed Ramirez that his new execution date would be September 8, 2021. Ramirez then filed a Step 1 prison grievance requesting that he “be allowed to have his spiritual advisor present in the death chamber.” Texas again denied the request, but later changed course, amending its execution protocol to permit a prisoner’s spiritual advisor to be present in the execution chamber…

Texas’s 2021 Execution Protocol did just that. It allows a prisoner’s spiritual advisor to enter the execution chamber, accompanied by a prison security escort. This accommodation is subject to various procedural requirements. For instance, the prisoner must notify the warden of his choice of spiritual advisor within 30 days of learning his execution date. Additionally, the spiritual advisor must pass a background check and undergo training. And if the spiritual advisor is “disruptive,” he is subject to “immediate removal.” The protocol says nothing about whether a spiritual advisor may pray aloud or touch an inmate for comfort. But Texas had long allowed its own prison chaplains to engage in such activities during executions, and it was against this backdrop that Texas enacted the new policy.

On June 11, 2021, Ramirez filed the grievance that is at the center of this case. Having successfully petitioned the State to allow his pastor into the execution chamber, he requested that his pastor be permitted to “lay hands” on him and “pray over” him while the execution was taking place.

Ramirez’s grievance explains that it is “part of my faith to have my spiritual advisor lay hands on me anytime I am sick or dying.” Texas denied the grievance on July 2, 2021. It said that spiritual advisors are “not allowed to touch an inmate while inside the execution chamber,” though it did not point to any provision of its execution protocol requiring this result.

Ramirez appealed within the prison system by filing a Step 2 grievance on July 8, 2021. But with less than a month to go until his September 8 execution date, prison officials had still not ruled on that appeal. So on August 10 he filed suit in Federal District Court. Ramirez alleged that the refusal of prison officials to allow Pastor Moore to lay hands on him in the execution chamber violated his rights under RLUIPA and the First Amendment. Ramirez sought preliminary and permanent injunctive relief barring state officials from executing him unless they granted the religious accommodation.

On August 16, 2021, Ramirez’s attorney inquired whether Pastor Moore would be allowed to pray audibly with Ramirez during the execution. Prison officials responded three days later that the pastor would not. So on August 22 Ramirez filed an amended complaint seeking an injunction that would allow Pastor Moore to lay hands on him and pray with him during the execution. . . . Ramirez’s merits brief addresses only RLUIPA, however, so we do not consider any standalone argument under the Free Exercise Clause.

We are also mindful that, while we have had full briefing and oral argument in this Court, the case comes to us in a preliminary posture: The question is whether Ramirez’s execution without the requested participation of his pastor should be halted, pending full consideration of his claims on a complete record. The parties agree that the relief sought is properly characterized as a preliminary injunction. Under such circumstances, the party seeking relief “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

[Chief Justice Roberts’s analysis of whether Ramirez’s grievance filings conformed with the statutory requirements of the Prison Litigation Reform Act of 1995 has been omitted.]

III

Congress enacted RLUIPA, and its sister statute the Religious Freedom Restoration Act of 1993, in the aftermath of our decisions in Employment Division, Department of Human Resources of Oregon v. Smith and City of Boerne v. Flores. Both statutes aim to ensure “greater protection for religious exercise than is available under the First Amendment.”

RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution”—including state prisoners—“even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” A plaintiff bears the initial burden of proving that a prison policy “implicates his religious exercise.” Although RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” a prisoner’s requested accommodation “must be sincerely based on a religious belief and not some other motivation,” The burden on the prisoner’s religious exercise must also be “substantial.” Once a plaintiff makes such a showing, the burden flips and the government must “demonstrate that imposition of the burden on that person” is the least restrictive means of furthering a compelling governmental interest. This allocation of respective burdens applies in the preliminary injunction context.

To begin, we think Ramirez is likely to succeed in proving that his religious requests are “sincerely based on a religious belief.” Ramirez seeks to have his pastor lay hands on him and pray over him during the execution. Both are traditional forms of religious exercise. As Ramirez’s grievance states, “it is part of my faith to have my spiritual advisor lay hands on me anytime I am sick or dying.” Pastor Moore, who has ministered to Ramirez for four years, agrees that prayer accompanied by touch is “a significant part of our faith tradition as Baptists.” And neither the District Court nor the Court of Appeals doubted that Ramirez had a sincere religious basis for his requested accommodations.

Respondents’ argument to the contrary turns in large part on a complaint Ramirez filed in 2020. Ramirez filed the complaint while Texas’s prior execution protocol, which banned all spiritual advisors from the execution chamber, was in place. The complaint sought Pastor Moore’s presence and prayer in the chamber but disclaimed any need for touch. As respondents see things, this shows that Ramirez’s current request for touch is insincere.

Ramirez responds that the 2020 complaint was inaccurate, and that he would have amended it had the litigation continued. The litigation, however, did not proceed, because the parties jointly agreed to dismiss the suit without prejudice less than a week after it was filed. Ramirez’s specific statement in his prior complaint is certainly probative on the issue of sincerity; evolving litigation positions may suggest a prisoner’s goal is delay rather than sincere religious exercise. Under the facts of this case, however, we do not think the prior complaint—dismissed without prejudice and by agreement one week after it was filed—outweighs the ample evidence that Ramirez’s beliefs are sincere. Respondents do not dispute that any burden their policy imposes on Ramirez’s religious exercise is substantial.

Because Ramirez is likely to succeed in showing that Texas’s policy substantially burdens his exercise of religion, respondents must prove that their refusal to accommodate the exercise both (1) furthers “a compelling governmental interest,” and (2) is the “least restrictive means of furthering that compelling governmental interest.” Under RLUIPA, the government cannot discharge this burden by pointing to “broadly formulated interests.” It must instead “demonstrate that the compelling interest test is satisfied through application of the challenged law to the particular claimant whose sincere exercise of religion is being substantially burdened.”

Here, the government has not shown that it is likely to carry that burden.

As for audible prayer, there is a rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding of our Nation. For example, at Newgate Prison—one of London’s most notorious jails—an Anglican priest would stand and pray with the condemned in their final moments. By the early 1700s, that practice had evolved to permit prisoners to be “attended by a minister, or even a priest, of their own communion.” Prayer at the time of execution was also commonplace in the American Colonies. And during the Revolutionary War, General George Washington ordered that “prisoners under sentence of death” “be attended with such Chaplains, as they choose”—including at the time of their execution. These chaplains often spoke and prayed with the condemned during their final moments.

A tradition of such prayer continued throughout our Nation’s history. When, for example, the Federal Government executed four members of the conspiracy that led to the assassination of President Abraham Lincoln, the prisoners were accompanied by clergy of various denominations. These “spiritual advisers” ministered to the condemned, and three spoke public prayers shortly before the prisoners were hanged. And in the aftermath of World War II, the United States Army even permitted Nazi war criminals facing execution to be accompanied by a chaplain, who “spoke” prayers on the gallows in the moments before death.

The practice continues today. In 2020 and 2021, the Federal Bureau of Prisons allowed religious advisors to speak or pray audibly with inmates during at least six federal executions. What’s more, Texas itself appears to have long allowed prison chaplains to pray with inmates in the execution chamber, deciding to prohibit such prayer only in the last several years.

Despite this long history, prison officials now insist that a categorical ban on audible prayer in the execution chamber is the least restrictive means of furthering two compelling governmental interests.

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate’s condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency. We do not doubt that prison officials have a compelling interest in monitoring an execution and responding effectively during any potential emergency. And we recognize that audible prayer could present a more serious risk of interference during the delicate process of lethal injection than during the method of execution (hanging) that was used in most of the historical examples we have cited. But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests.

Indeed, respondents offer only a conclusory defense of the policy’s tailoring. They acknowledge that both the Federal Government and Alabama have recently permitted audible prayer or speech in the execution chamber, but then assert that, “under the circumstances in Texas’s chamber, allowing speech during the execution is not feasible.” Respondents do not explain why. Nor do they explore any relevant differences between Texas’s execution chamber or process and those of other jurisdictions. Instead, they ask that we simply defer to their determination. That is not enough under RLUIPA. Nor is there a basis for deference, given that Texas has “historically and routinely allowed prison chaplains to audibly pray” with the condemned during executions, a fact Texas does not dispute.

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” They note that such statements might cause further trauma to the victim’s family or otherwise interfere with the execution. We agree that the government has a compelling interest in preventing disruptions of any sort and maintaining solemnity and decorum in the execution chamber. But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear. Respondents’ argument thus comes down to conjecture regarding what a hypothetical spiritual advisor might do in some future case. “Such speculation is insufficient to satisfy” respondents’ burden, and fails to engage in the sort of case-by-case analysis that RLUIPA requires.

What’s more, there appear to be less restrictive ways to handle any concerns. Prison officials could impose reasonable restrictions on audible prayer in the execution chamber—such as limiting the volume of any prayer so that medical officials can monitor an inmate’s condition, requiring silence during critical points in the execution process, allowing a spiritual advisor to speak only with the inmate, and subjecting advisors to immediate removal for failure to comply with any rule. Prison officials could also require spiritual advisors to sign penalty-backed pledges agreeing to abide by all such limitations.

Given the current record, respondents have not shown that a total ban on audible prayer is the least restrictive means of furthering their asserted interests.

Respondents’ categorical ban on religious touch in the execution chamber fares no better. They point to three governmental interests they say are compelling: security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma to the victim’s family members. All three goals are commendable. But again, respondents fail to show that a categorical ban on touch is the least restrictive means of accomplishing any of them.

Respondents say that allowing a spiritual advisor to touch an inmate would place the advisor in harm’s way because the inmate might escape his restraints, smuggle in a weapon, or become violent. They also contend that if a spiritual advisor were close enough to touch an inmate, he might tamper with the prisoner’s restraints or yank out an IV line. We agree that prisons have compelling interests in both protecting those attending an execution and preventing them from interfering with it (though if an inmate smuggling a weapon into the execution chamber is a serious prospect, the prison has broader issues than those considered here). Even so, Texas’s categorical ban on religious touch is not the least restrictive means of furthering such interests.

Under Texas’s current protocol, spiritual advisors stand just three feet from the gurney in the execution chamber. A security escort is posted nearby, ready to intervene if anything goes awry. We do not see how letting the spiritual advisor stand slightly closer, reach out his arm, and touch a part of the prisoner’s body well away from the site of any IV line would meaningfully increase risk. And that is all Ramirez requests here.

Respondents next argue that allowing the pastor to touch Ramirez in the execution chamber might lead to preventable suffering. The theory is that Pastor Moore might accidentally jostle, pinch, or otherwise interfere with an IV line, and that this in turn might affect the administration of the execution drugs in a way that results in greater pain or suffering. We think that preventing accidental interference with the prison’s IV lines is a compelling governmental interest. But we also think it is one reasonably addressed by means short of banning all touch in the execution chamber.

For example, Texas could allow touch on a part of the body away from IV lines, such as a prisoner’s lower leg. That seems to have been the practice of many prison chaplains during past Texas executions. Additionally, Texas could require Ramirez’s pastor to stand in a location that gives the medical team an unobstructed view of the IV lines, allowing them to watch for problems and quickly respond. Texas could also restrict the time period during which touching is permitted to minimize risk during critical points in the execution process, such as the insertion of the IV line. Finally, Texas could require that the pastor undergo training so that he understands the importance of staying away from IV lines and taking whatever other precautions are necessary to avoid problems in the chamber.

Texas does nothing to rebut these obvious alternatives, instead suggesting that it is Ramirez’s burden to “identify any less restrictive means.” That gets things backward. Once a plaintiff has made out his initial case under RLUIPA, it is the government that must show its policy “is the least restrictive means of furthering [a] compelling governmental interest.”

Finally, respondents say that allowing certain forms of religious touch might further traumatize a victim’s family members who are present as witnesses, reminding them that their loved one received no such solace. As we have already noted, maintaining solemnity and decorum in the execution chamber is a compelling governmental interest. But here what is at issue is allowing Pastor Moore to respectfully touch Ramirez’s foot or lower leg inside the execution chamber. Respondents do not contend that this particular act will result in trauma. Instead, their real concern seems to be with other, potentially more problematic requests down the line. RLUIPA, however, requires that courts take cases one at a time, considering only “the particular claimant whose sincere exercise of religion is being substantially burdened.” As a result, respondents’ final argument is unavailing.

We conclude that Ramirez is likely to prevail on his claim that Texas’s categorical ban on religious touch in the execution chamber is inconsistent with his rights under RLUIPA.

Our conclusion that Ramirez is likely to prevail on the merits of his RLUIPA claims does not end the matter. As noted earlier, he must also show “that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

We think these factors also favor an injunction. Ramirez is likely to suffer irreparable harm in the absence of injunctive relief because he will be unable to engage in protected religious exercise in the final moments of his life. Compensation paid to his estate would not remedy this harm, which is spiritual rather than pecuniary.

Additionally, the balance of equities and public interest tilt in Ramirez’s favor. Ramirez “does not seek an open-ended stay of execution.” Rather, he requests a tailored injunction requiring that Texas permit audible prayer and religious touch during his execution. By passing RLUIPA, Congress determined that prisoners like Ramirez have a strong interest in avoiding substantial burdens on their religious exercise, even while confined. At the same time, “both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Given these respective interests, a tailored injunction of the sort Ramirez seeks—rather than a stay of execution—will be the proper form of equitable relief when a prisoner raises a RLUIPA claim in the execution context. Because it is possible to accommodate Ramirez’s sincere religious beliefs without delaying or impeding his execution, we conclude that the balance of equities and the public interest favor his requested relief.

Respondents argue that Ramirez has engaged in inequitable conduct. As they see it, this should bar the equitable relief that Ramirez seeks.

We agree that a party’s inequitable conduct can make equitable relief inappropriate. When a party seeking equitable relief “has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him.” These well-worn principles of equity apply in capital cases just as in all others. Thus, late-breaking changes in position, last-minute claims arising from long-known facts, and other “attempt[s] at manipulation” can provide a sound basis for denying equitable relief in capital cases.

Here, however, the record does not support the conclusion that Ramirez engaged in such misconduct. Respondents argue that Ramirez inequitably delayed this litigation by filing suit just four weeks before his scheduled execution. But this is not a case in which a litigant “slept upon his rights.” To the contrary, Ramirez had sought to vindicate his rights for months. He first learned that prison officials would not allow his pastor to lay hands on him in the execution chamber on June 8, 2021. That was a break from Texas’s longstanding practice. Ramirez filed a Step 1 grievance requesting both prayer and religious touch just three days later. When that grievance was rejected, he quickly filed a Step 2 grievance. Yet respondents failed to issue a final decision until August 16, 2021—39 days after Ramirez had filed his Step 2 grievance, and just a few weeks before the scheduled execution. To be sure, prison officials issued their decision within the 40 days allowed by Texas’s grievance policy. But respondents can hardly complain about the inequities of delay when their own actions were a significant contributing factor.

As we have explained, the resolution of RLUIPA claims in the prisoner context requires a case-specific consideration of the particular circumstances and claims. At the same time, timely resolution of such claims could be facilitated if States were to adopt policies anticipating and addressing issues likely to arise. Doing so would assist both prison officials responsible for carrying out executions and prisoners preparing to confront the end of life according to their religious beliefs.

The first step would be to specify reasonable rules on the time for prisoners to request religious accommodations, and for prison officials to respond. States could also adopt streamlined procedures for claims involving requests like those at issue in this case, so that these potentially complicated matters can be litigated at all levels well in advance of any scheduled execution. If spiritual advisors are to be admitted into the execution chamber, it would also seem reasonable to require some training on procedures, including any restrictions on their movements or conduct. When a spiritual advisor would enter and must leave could be spelled out. If the advisor is to touch the prisoner, the State might also specify where and for how long. And, as noted, if audible prayer is to occur, a variety of considerations might be set forth in advance to avoid disruption. It may also be reasonable to document the advisor’s advance agreement to comply with any restrictions.

If States adopt clear rules in advance, it should be the rare case that requires last-minute resort to the federal courts. If such cases do arise and a court determines that relief is appropriate under RLUIPA, the proper remedy is an injunction ordering the accommodation, not a stay of the execution. This approach balances the State’s interest in carrying out capital sentences without delay and the prisoner’s interest in religious exercise.

***

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[JUSTICE THOMAS’s dissent omitted]