1. No. 13-354
IN THE
Supreme Court of the United States
BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.
Petitioners,
v.
HOBBY LOBBY STORES, INC., ET AL.
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Federal Circuit
BRIEF FOR SARAH PENNINGTON AS AMICI
CURIAE IN SUPPORT OF THE RESPONDENT
[March 28th, 2016]

2. TABLE OF CONTENTS
SUMMARY OF ARGUMENT………………………… 1
ARGUMENT…………………………………………….. 4
I. For-Profit Organizations merit religious
protection…………………………………….. 4
II. The mandate is a clear and irresponsible
burden………………………………………… 8
III. Conclusion………………………………….. 12

3. 1
SUMMARY OF ARGUMENT
Amici find that corporate size or services does
not remove an operation from its owner, making
government regulation responsible for the potential
affect it may have on religious top-tier employees. The
recent Affordable Care Act (ACA)mandated by the US
Department of Health and Human Services (HSS)
challenges this reality. The ACA requires
contraception coverage and inflicts a $100 fine for
companies that reject the requirement. Hobby Lobby
and Mardel are both owned and operated by members
of the Green family, who identify as Evangelical
Christians. Their beliefs dictate a conflict with
contraceptives. They do not seek to inflict their beliefs
upon their employees, but their own Christian
principles prevents them from willfully agreeing to
provide contraceptives. The ACA contraceptive

4. 2
mandate threatens both the religious rights
and the corporations owned by the Green family,
without necessary legitimacy and therefore making
the mandate unconstitutional.
This brief will make address two main points to
certify the above conclusion. Calling upon the First
Amendment,1 amici will hold that for-profits merit
religious protection. As employees maintain identities
in the workplace, so do employers. No “neutral zone”
exists to rightfully justify the denial of religious
liberty under any label or by any statute. As people
operate other (protected) establishments such as
schools or social programs with religious iconvictions,
businesses can also be a faith-based pursuit.
Furthermore, the mandate is a clear and
1 U.S. Const. amend. I.

5. 3
irresponsible burden. It blatantly violates the liberty
of conscience regardless of intention. By stipulating
the decisions of business owners, it manipulates in
particular faith-holding employers. Neutral only at
face value, the mandate incurs burden in the presence
of an alternative, further reflecting negligence.
Concluding, the government and corporations
share a mutual interest when it comes to providing
healthcare. However, the United States government
is obligated to protect religious freedom and all
religious persons are owed that protection. Amici
knows that the government must, and can, maintain
its responsibility to corporations such as Hobby Lobby
and Mardel while still fulfilling public service
interests.

6. 4
ARGUMENT
I. For-Profit Organizations merit religious
protection.
Corporations are illogically exempted from
religious rights. Corporations become an entity above
a person, losing the individuals who take on top-tier
titles such as owner or employer. Despite their
decision to put a brand or company out into the
economy, owners such as the Greens maintain
personal autonomy that, in any other realm, would be
highly valued. Nevertheless, “covered” by the federal
government, they are stripped of their freedom in the
name of government regulations.
Though titles define their different roles, there
is no true difference between an employer and an
employee that would justify the differentiation of
their rights. Employees are protected from their

7. 5
companies that cover and define their workplace;
however, employers are not protected from the
government that covers and defines their workplace.
The US Equal Employment Opportunities
Commission (EEOC) guarantees religious protection
for individuals in the workplace.2 The EEOC requires
reasonable accommodation regarding religious
practices or beliefs: “In general, an accommodation is
any change in the work environment or in the way
things are customarily done that enables an
individual to perform work and adhere to their beliefs
or practices.” It does not follow that if the United
States government would implement a program to
protect the rights of individuals serving as employees,
2 Code of Federal Regulations, title 29 (20011): Part 1605.
https://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-
2011-title29-vol4-part1605.xml

8. 6
it would fail to protect the rights of individuals serving
as employers.
Each member of the Green family is an
individual person performing corporate work under
the employment of a company, regardless of
ownership. Owning a corporation does subject that
corporation to government regulation, but it does not
conjure a veil that covers individuals and obscures
their citizenship. Commerce is a not a neutral zone in
that individuals enter and leave their rights behind.
The First Amendment reinforces this fact, detailing
no realm of exclusion. As it happens, the First
Amendment strips any jurisdiction the government
might cling to in order to create such a realm -
“Congress shall make no law respecting an

9. 7
establishment of religion, or prohibiting the free
exercise thereof.”3
Establishing individuality in lieu of perceived
corporate cover, it is logical to conclude that, as
Evangelical Christians, faith motivates many factors
of the Green family’s lives. As a minister might wish
to conduct his church in a Godly way, an owner can
wish to conduct his business in a Godly manner. No
religious person is afforded the right to infringe upon
another, but the Greens do not seek to infringe upon
or deprive their employees of free choice. The Greens
simply hope to be able to perform work and
simultaneously adhere to their beliefs. Faith-based
pursuits are not only limited to churches and non-
profits. Faith dictates individual behavior in many
3 U.S. Const. amend. I.

10. 8
places, including occupation and therefore further
verifying that corporations do not exist detached from
their owners in neutral, dispassionate zones.
II. The mandate is a clear and irresponsible
burden.
Religiously neutral laws serve the purpose of
protecting religion, evening the application of the law
to curb the potential for discrimination. If the ACA
mandate met the standards of a religiously neutral
law, its constitutionality would stand. However, the
mandate fails to meet the conditions exacted by the
Religion Freedom Restoration Act (RFRA),4 making it
burdensome, negligent, and unconstitutional.
4 An Act to protect the free exercise of religion. Public Law 103-
141. 107 U.S. Statutes at Large 1488 (1993).

11. 9
The violation incurred by the mandate is clear.
Contraception is a religiously sensitive topic, debated
by the broad world of faith as well as those beyond it.
Evangelical Christians like the Greens, among
many other groups, do not support the use of
contraceptives and obligating them to provide
contraceptives obviously violates their liberty of
conscious. The mandate manipulates them by way of
potential fines that would damage business, forcing
the question - do individuals like the Green family
sacrifice their economic livelihood or their religious
convictions? This choice does not represent the
freedom guaranteed by democracy.
There is a compelling interest in the provision
of affordable healthcare and, subsequently,
contraceptives. Amici does not refute this and holds
that certain laws and policies are of necessity

12. 10
regardless of burden. However, RFRA requires more
than a compelling interest to justify such federal
infringement and the burdens enacted by the ACA are
subject to the same strict scrutiny.
Alongside a compelling interest, RFRA requires
that federal measures such as ACA are constructed to
be “the least restrictive means of furthering that
compelling interest.”5 Churches and non-profits can
be exempted from the contraceptive mandate and
accommodation has been made to guarantee that,
despite their exemption, employees can still access
birth control through their insurance provider. This
route would suffice to serve any other institution that
looked to exempt from the contraceptive mandate -
5 An Act to protect the free exercise of religion. Public Law 103-
141. 107 U.S. Statutes at Large 1488 (1993):

13. 11
meaning that the burden imposed on corporations
who hold conflict with contraceptives is unnecessary.
Corporations, by the same accommodation applied to
churches and non-profits, could exempt without
affecting the purpose of the ACA.
Thoughthe burden imposed by the ACA is with
good intention, the presence of an alternative makes
the mandate negligent. Despite representing a strong
compelling interest, the ACA has not pursued a
certified path that would altogether alleviate the
burden while still accomplishing the purpose
intended. Denying this alternative to a group that
amici has proved to possess religious rights puts the
ACA in violation of the “least restrictive” condition,
both illuminating the negligence of the ACA and
eliminating the constitutionality of its burden.

14. 12
III. Conclusion
Healthcare represents a mutual interest between
corporations and the federal government. As the
government is obligated to protect the welfare of its
citizens, corporations are obligated to the individuals
who serve as their employees. However, those
individuals employed as corporates have no protection
and no apparent obligation to accommodate their
rights. The EEOC mandates religious accommodation
for all individuals to enable the performance of their
respective work,6 but corporates are shuffled into an
unconstitutional “neutral zone.” A dissenting voice
might object on the grounds of a slippery slope -
enabling religious exemption in the corporate arena
6 Code of Federal Regulations, title 29 (20011): Part 1605.
https://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-
2011-title29-vol4-part1605.xml

15. 13
paves the way for abuse. Giving the excuse of conflicts
with religious conviction, corporations could refuse
the most compelling government interests. The
response to this fear of uncontrollable accommodation
is the reality of uncontrollable authority. Exemptions
as they stand
now are subject to strict scrutiny. Furthermore,
mandates such as the ACA retain the potential to
impose their burdens so long as they meet the
conditions outlined in RFRA.7 There is no federal
power loss in this situation, only the potential for the
federal government to gain the authority to legally
discriminate. Rejecting the religious rights of
corporations disempowers the First Amendment and
7 An Act to protect the free exercise of religion. Public Law 103-
141. 107 U.S. Statutes at Large 1488 (1993).

16. 14
allows for the creation of neutral zones that alienates
citizens from their rights.8
Within that obligation to protect the welfare of
its citizens, the government is obligated to protect
establishments of religion and the practice thereof.
RFRA represents that protection by way of
limitation.9 The government maintains the power to
regulate, but it must meet certain conditions in order
to justify religious burden. Enforcing the
contraceptive mandate upon corporations assumes
jurisdiction and not only denies the First Amendment,
but fails to meet the standards put in place by
RFRA.10,11 On these grounds, amici conclude that the
8 U.S. Const. amend. I.
9 An Act to protect the free exercise of religion. Public Law 103-
141. 107 U.S. Statutes at Large 1488 (1993).
10 U.S. Const. amend. I.
11 An Act to protect the free exercise of religion. Public Law 103-
141. 107 U.S. Statutes at Large 1488 (1993).

17. 15
ACA contraceptive mandate is wholly
unconstitutional.