The Supreme Court ruled 5-4 in Burwell v. Hobby Lobby Stores that requiring closely held for-profit corporations to pay for insurance coverage for contraception violated the Religious Freedom Restoration Act. The Court found that under RFRA, corporations are protected "persons" and the contraceptive mandate placed a "substantial burden" on the religious exercise of the owners by forcing them to choose between noncompliance penalties or violating their religious beliefs. The dissent argued that for-profit corporations cannot exercise religion and the connection between the mandate and religious beliefs was too attenuated to constitute a substantial burden.

1. 1
Burwell v. Hobby Lobby Stores, Inc.—Corporate, Health Care,
and RFRA Perspectives
Bleckley Inn of Court
October 20, 2014
Table of Contents
I. Procedural History 1
II. Hobby Lobby Opinion Summary 3
III. Amicus Briefs 7
IV. Wheaton College’s Emergency Injunction 10
I. Procedural History
Burwell v. Hobby Lobby Stores, Inc.1 began as two separate cases: Hobby Lobby
Stores, Inc. v. Sebelius2, and Conestoga Wood Specialties Corp. v. Sebelius.3
In September 2012, Hobby Lobby Stores, Inc., filed suit in the United States
District Court for the Western District of Oklahoma, seeking declaratory and injunctive
relief to the contraceptive coverage mandate, arguing that the mandate violated their
statutory and constitutional rights.4 The district court denied Hobby Lobby’s motion for a
preliminary injunction, holding: first, that Hobby Lobby, as a corporation does not have a
protected Free Exercise right; second, that Hobby Lobby had failed to show a likelihood
of success on the merits of their Free Exercise claim; third, that corporations, and thereby
Hobby Lobby, were not “persons” for purposes of the Religious Freedom Restoration Act
(RFRA); and fourth, Hobby Lobby had failed to show a likelihood of success as to the
substantial burden prong of RFRA.5 Hobby Lobby appealed this decision to the Tenth
Circuit, which reversed and remanded the district court’s decision.6
The Tenth Circuit held that RFRA contained no definition of “person,” and so the
controlling authority was the Dictionary Act.7 The Dictionary Act states that, unless the
context indicates otherwise, the word “person” “includes corporations.”8 The Tenth
1 134 S. Ct. 2751 (2014).
2 870 F. Supp. 2d 1278 (W.D. Okla. 2012).
3 917 F. Supp. 2d 394 (E.D. Pa. 2013).
4 Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1283 (W.D. Okla. 2012); see also
Verified Complaint 2012 WL 4009450.
5 Id. at 1297, 1288, 1290, 1291, and 1294.
6 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1121 (10th Cir. 2013).
7 Id. at 1128.
8 Id. at 1129.

2. 2
Circuit did not believe that context indicated anything to the contrary.9 As a result,
RFRA’s protections apply to Hobby Lobby just like they apply to a natural person.10 The
Tenth Circuit held that the mandate was a substantial burden on Hobby Lobby’s a
religious exercise because it forced them to choose among three options: “compromise
their religious beliefs, pay close to $475 million more in taxes every year, or pay roughly
$26 million more in annual taxes and drop health-insurance benefits for all employees.”11
Further, with respect to i preliminary injunctive relief, the Tenth Circuit held that,
because of the “likely violation of RFRA” discussed above, Hobby Lobby’s situation
satisfied the irreparable harm factor.12 Likewise, the Tenth Circuit held that balancing the
equities and looking to the public interest both fell in Hobby Lobby’s favor because
Hobby Lobby would continue to provide sixteen of the twenty approved contraceptives,13
and because “it is always in the public interest to prevent the violation of a party’s
constitutional rights.”14
On December 4, 2012, Conestoga Wood Specialties Corp. filed a complaint in the
United States District Court for the Eastern District of Pennsylvania on the same
grounds.15 The district court denied Conestoga Wood Specialties’s motion for
preliminary injunction.16 The Third Circuit affirmed the lower court’s denial, creating a
conflict between the Third Circuit and the Tenth Circuit.17
On September 19, 2013, Sebelius and Conestoga filed individual petitions in the
United States Supreme Court for a writ of certiorari. The Court granted both writs on
November 26, 2013, and the cases were consolidated.18 On December 5, 2013, counsel
for the petitioners consented to the filing of amicus curiae briefs.19 Amicus briefs were
due on January 28, 2014.20
9 Id.
10 Id. at 1134.
11 Id. at 1141.
12 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir. 2013).
13 Id. at 1146.
14 Id. at 1147 (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). The Tenth Circuit
admitted that a RFRA violation was not a constitutionalviolation, but the Tenth Circuit argued that
Congress had given RFRA similar importance by subjecting subsequent legislation to RFRA. Id.
15 Verified Complaint 2012 WL 6192751.
16 Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 400 (E.D. Pa. 2013).
17 Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, 724
F.3d 377, 381 (3d Cir. 2013).
18 Burwell v. Hobby Lobby Stores, Inc., SCOTUSBLOG, http://www.scotusblog.com/case-
files/cases/sebelius-v-hobby-lobby-stores-inc/ (last visited Oct. 6, 2014) and Conestoga Wood Specialties
Corp. v. Secretary of U.S. Dept. of Health and Human Services, SCOTUSBLOG ,
http://www.scotusblog.com/case-files/cases/conestoga-wood-specialties-corp-v-sebelius/ (last visited Oct.
6, 2014). Burwell’s petition is No. 13-356 and Conestoga’s petition number is 13-354. Though filed on the
same day, Conestoga filed their petition first.
19 Burwell v. Hobby Lobby Stores, Inc., SCOTUSBLOG, http://www.scotusblog.com/case-
files/cases/sebelius-v-hobby-lobby-stores-inc/ (last visited Oct. 6, 2014). See infra Amicus Curiae Briefs.
20 Burwell v. Hobby Lobby Stores, Inc., SCOTUSBLOG, http://www.scotusblog.com/case-
files/cases/sebelius-v-hobby-lobby-stores-inc/ (last visited Oct. 6, 2014).

3. 3
The Supreme Court heard oral argument on March 25, 2014.21 Paul D. Clement22
argued on behalf of the private parties (Hobby Lobby and Conestoga Woof Specialties),
and Solicitor General Donald B. Verrilli, Jr., argued on behalf of the federal
government.23 The Supreme Court issued its decision on June 30, 2014, and issued its
judgment on August 1, 2014.24
II. Hobby Lobby Opinion Summary
In Burwell v. Hobby Lobby Stores, Inc., the owners of three closely held for-profit
corporations sued to enjoin the application of the contraceptive coverage requirement of
the Affordable Care Act (ACA), alleging the requirement violated their religious exercise
rights under both the First Amendment’s Free Exercise Clause and the Religious
Freedom Restoration Act (RFRA). The petitioners alleged that it was their sincere
Christian belief that life began at conception, and that it would violate their religion to
facilitate access to contraceptive drugs or devices that operate after conception.
In a 5-4 decision, the Court’s majority expanded protection under RFRA to closely
held corporations and held that such companies should not be required to include
contraceptive coverage in their group health plans to the extent that they objected to
contraceptives based on their religious beliefs. It’s important to note that the Court’s
decision was based on the statutory protections in the RFRA, and that the Court never
addressed the First Amendment claim made by petitioners.
The RFRA states that the “government shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of general applicability, except
as provided in subsection (b).”25 Subsection (b) requires that any substantial burden must
further a compelling governmental interest and use the least restrictive means to achieve
that interest.26
21 Burwell v. Hobby Lobby Stores, Inc., SCOTUSBLOG, http://www.scotusblog.com/case-
files/cases/sebelius-v-hobby-lobby-stores-inc/.Oral arguments occurred before Kathleen Sebelius’s
resignation (last visited Oct. 6, 2014). On April 11, 2014, Kathleen Sebelius announced her resignation as
Secretary of Health and Human Resources, which would take effect upon the confirmation of her
successor.Juliet Eilperin and Amy Goldstein, Kathleen Sebelius to step down as HHS secretary; OMB
directorwill take herplace, THE WASHINGTON POST (April 11, 2014),
http://www.washingtonpost.com/national/health-science/kathleen-sebelius-to-step-down-as-hhs-secretary-
omb-director-will-take-her-place/2014/04/10/f4420d1e-c106-11e3-b574-f8748871856a_story.html.
President Barack Obama nominated Sylvia Burwell as Sebelius’s replacement, and the United States
Senate confirmed the nomination by a 78 to 17 vote.Amy Goldstein, Senate confirms Sylvia Mathews
Burwell as new secretary of HHS, THE WASHINGTON POST (June 5, 2014),
http://www.washingtonpost.com/national/health-science/senate-poised-to-confirm-burwell-as-new-
secretary-of-hhs/2014/06/05/bbd79400-ec06-11e3-9f5c-9075d5508f0a_story.html. As a result, in the case
of Hobby Lobby Stores, Inc., the petitioner’s name changed from Kathleen Sebelius to Sylvia Burwell.
Hobby Lobby and Conestoga were consolidated into a single case: Burwell v. Hobby Lobby Stores, Inc.
22 Clement was the United States Solicitor General from 2004 to 2008.
23 BURWELL v. HOBBY LOBBY STORES, The Oyez Project at IIT Chicago-Kent College of Law,
http://www.oyez.org/cases/2010-2019/2013/2013_13_354 (last visited October 6, 2014).
24 Id.
25 42 U.S.C. § 2000bb-1.
26 42 U.S.C. § 2000bb-1(b).

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The Court’s decision involved a three-prong test under the RFRA. First, the Court
analyzed whether the RFRA even applied to for-profit corporations such as the
petitioners in this case. Secondly, after deciding that RFRA’s protections would apply to
petitioners, the Court analyzed whether the contraceptive mandate under ACA
substantially burdened petitioners’ exercise of religion. Lastly, after deciding that the
contraceptive mandate did substantially burden petitioners’ exercise of religion, the Court
analyzed whether the interest in providing access to contraceptives is a compelling
government interest, and whether ACA’s contraceptive mandate is the least restrictive
means of furthering that interest.
A. Defining Person and Exercise of Religion
The RFRA’s language indicates that in order to raise a claim under the statute, “a
person’s exercise of religion” must be affected. However, Congress never defined the
term “person” for purposes of the act. In its decision, the Court noted the absence of a
statutory definition of “person” under the RFRA and consequently relied on the
Dictionary Act to ascertain the meaning of the term.27 In one of the most significant
points of the decision, the Court declared that closely held corporations are “persons”
eligible for protection under the RFRA.
The majority opinion rejected the assertion that businesses organized as
corporations are divested of RFRA’s protections. In addition, the Court reasoned that the
RFRA was enacted to provide broad protection for religious liberty and, without a
specifically applicable definition provided in the RFRA, explained that the definition of
person was not limited by for-profit status.28 The majority cited previous cases in which
the Court had recognized claims involving the exercise of religion of individuals who
owned for profit businesses as sole proprietorships29 and nonprofit corporations.30
The Dissent emphasized that the corporations involved in this case could not
“exercise…religion.”31 The Dissent argued that religious corporations could be
distinguished from for-profit corporations because “for-profit corporations…use labor to
make a profit, rather than to perpetuate the religious values shared by a community of
believers.”32 Nevertheless, the majority held that the Court’s precedent indicated that
27 See 1 U.S.C § 1. The Dictionary act defines person to “include corporations, companies,
associations,firms, partnerships,societies,and joint stockcompanies, as well as individuals.”
28 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 20 (2014) (“No known understanding of the term
“person” includes some but not all corporations. The term “person” sometimes encompasses artificial
persons…, 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.”).
29 See Braunfeld v. Brown, 36 U.S. 599 (1961).
30 See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.
327 (1987); Church of the Lukumi Babalu Aye, Inc v. Hialeah, 508 U.S. 520 (1993); Gonzales v. o Centro
Espiritita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006); Hosanna-TaborEvangelical Lutheran
Church and School v. EEOC, 132 S.Ct. 694 (2012).
31 Hobby Lobby at 14. (Ginsburg, J., dissenting).
32 Dissent at 18-19.

5. 5
neither for-profit status nor corporate status are prohibitive factors in the analysis of an
organization’s rights under the RFRA.33
The Dissent was highly critical of this point stating “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.”34
B. Substantial Burden Analysis
After determining that RFRA’s protections would apply, the court examined the
merits of petitioners’ RFRA claim. The Court held that requiring owners of companies to
arrange for “health insurance that covers methods of birth control that…may result in the
destruction of an embryo” means that the “mandate demands that they engage in conduct
that seriously violates their religious beliefs.”35
In addition, the Court focused on the penalties petitioners would face under ACA,
should petitioners refuse to comply with the mandate. If petitioners continued to provide
their preferred health coverage without including the mandated contraceptive coverage,
they would face non-compliance penalties ranging from $40K per day to $1.3 million per
day.36 On the other hand, if petitioners stopped providing any insurance coverage to
avoid covering contraceptives, they would risk paying a different penalty under ACA,
which would range from $800K per year to $26 million per year.37 The Court
characterized such penalties as “surely substantial.”38
The Dissent criticized the majority’s assessment as equating a sincere religious
objection with a substantial burden. The Dissent reasoned that simply because a
government mandate conflicts with a person’s religious belief, the mandate is not
necessarily a substantial burden.39
Furthermore, the Dissent explained that the relationship between the belief and
the burden must be linked in order to identify the requisite substantial burden. The dissent
stated that “the connection between the families’ religious objections and the
contraceptive coverage requirement is too attenuated to rank as substantial.”40
Furthermore, it stated that the ACA requirement carried no command that petitioners
purchase or provide the contraceptives they find objectionable. The Dissent emphasized
that the decision whether to claim benefits under the plans is not made by the petitioners,
33 Hobby Lobby at 20-25.
34 Dissent at 19.
35 Hobby Lobby at 32.
36 Hobby Lobby at 32 (“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.”).
37 Hobby Lobby at 32-33. Under ACA, if companies stop providing insurance coverage altogether,
the companies could face penalties of $2,000 a year per employee.
38 Hobby Lobby at 32.
39 Dissent at 21-22.
40 Dissent at 22.

6. 6
but by the covered employees and their dependents in consultation with their health care
providers.41
The Dissent argued that the “linkage” between the burden imposed by the
government’s mandate and the religious beliefs offended by the mandate would be
“interrupted by independent decisionmakers (the woman and her health counselor)” in a
manner that would undermine characterization of the burden imposed by the government
as “substantial.”42
C. Compelling Government Interest
The majority’s analysis of the government’s interest in requiring contraceptive
coverage appeared skeptical, but ultimately assumed that the government’s interest was
sufficiently compelling.43 The majority’s skepticism was based on: 1) its belief that the
government’s justifications – public health and gender equality – were too broadly
defined. The majority explained that RFRA required a “more focused” inquiry.44 And 2)
the fact that the ACA provided nonreligious exemptions to other businesses from having
to provide their employees coverage (e.g., grandfathered plans, employers with fewer
than 50 employees).45 Nevertheless, the majority conceded the compelling interest prong
of the RFRA analysis with little discussion.
The Dissent addressed the government’s compelling interest in greater detail,
responding to the majority’s concern about other exemptions undermining the
government’s alleged interest by citing a number of other federal laws that include
exemptions for small employers without undermining the statutory interests.46
D. Least Restrictive Means
Although the majority conceded with little discussion the government’s
compelling interest position, the majority rejected the government’s argument that it
lacked other means to ensure availability of contraceptive coverage without burdening
petitioners’ religious exercise. The Court noted a few alternatives it considered “less
restrictive.”47
First, the majority suggested that “the most straightforward way…would be for
the Government to assume the cost of providing” coverage to women whose employers
object to providing coverage.48 Second, the majority noted the availability of the
accommodations already established for nonprofit employers with religious objections.49
Though the Court cited the accommodation as one potential less restrictive alternative, it
41 Dissent at 22-23.
42 Dissent at 23.
43 Hobby Lobby at 39-40.
44 Id. at 39
45 Id. at 40.
46 Dissent at 23-27.
47 Hobby Lobby at 40-41.
48 Id. at 41.
49 Id. at 43-44.

7. 7
explicitly noted that it was not determining its sufficiency under RFRA for the purpose of
any other legal challenge.50
The Dissent scathingly questioned the extent to which the majority would allow
employers with religious objections to government mandates to avoid compliance:
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 employer has
a religion-based objection?51
The majority responded to the dissent’s concern by saying that its decision should not be
interpreted to mean that insurance coverage mandates generally cannot be upheld if the
conflict with an employer’s religious belief; that its decision reached only to the
contraceptive coverage requirement.52 The majority explained that other coverage
requirements, such as immunizations, may be supported by different interests and may
involve different arguments about the least restrictive means of providing them.
III. Amicus Briefs
In Burwell v. Hobby Lobby,53 amici curiae, commonly known as “friends of the
court,” filed 84 amicus briefs. Over 50 briefs were submitted in support of Hobby Lobby
-- a three-to-one margin favoring the family-owned craft chain.
The briefs were filed by practitioners, leading scholars, members of Congress, and
prominent religious leaders. Of the 59 briefs filed in support of the Green family, the
owners of Hobby Lobby, there were: 107 joined members of Congress from both
Republican and Democratic parties; 21 states; doctor’s and women’s organizations; and
diverse religious groups including the Rabbinical Council of America, The Church of
Jesus Christ of Latter-day Saints, and the Coalition of Christian Colleges and
Universities. Of the 23 briefs filed in support of the government, there were: 16 States;
100 joined Democratic Senators and Representatives; Womens’ organizations; and
secular support groups. These statistics evidence the diverse coalition of groups
represented in amicus briefs filed in this controversial and dividing case.54
Many of the amicus briefs filed by members of Congress, and on behalf of the
states, focused largely on RFRA and its potential application, stating “[t]he federal
50 Id. at 44.
51 Dissent at 29.
52 Hobby Lobby at 45-49.
53 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).
54 The number of briefs filed for and against adds up to 82 briefs. There were two other briefs that
were filed that did not support any party.

8. 8
government cannot grant special favor to the secular over the religious,”55 and “RFRA
protects those engaged in commercial activity.”56 Religious groups tended to focus on
emphasizing their own freedoms, stating,“[i]f...the Government’s position in these cases
is approved by this Court, observances of American Jews may be significantly
curtailed.”57 Women’s groups tended to focus on the government’s alleged
misunderstanding of women’s positions, noting that “[w]omen are not a monolithic class
of self-interested voters who universally value free abortion drugs more than religious
freedom and limited government,”58 and “[t]he Mandate threatens religious freedom and
purposes a reductionist and harmful understanding of women’s freedom.”59 Both the
rationale behind the amicus curiae briefs and the interests represented in each brief
widely varied, providing the Supreme Court a broad spectrum of positions when
considering the issues presented.
A. Amicus Procedure
Amicus practice—the role, rules, and requirements—depends upon the court in
which the brief is filed. While amicus briefs are filed in many cases at the state and
federal levels, amicus practice is most prevalent in the U.S. Supreme Court.60 Generally,
leave of court is necessary to file an amicus brief in state court, and can be obtained by
motion or application to the court.61 Conversely, in both the Georgia Supreme Court and
the Georgia Court of Appeals, amicus curiae briefs may be filed without leave of court.62
In either court, the amicus brief must include the identity and interest of the person on
whose behalf the brief is filed, and must be limited to those issues properly raised by the
parties.63 None of the rules in Georgia impose any particular time constraints, or further
guidelines or recommendations on the filing of amicus curiae briefs.64 There are no rules
enumerated in Georgia Trial Court Rules pertaining to the filing of amicus briefs,
assumedly because the practice of amicus briefs is predominantly seen in federal and
state appellate courts.
55 Brief of U.S. Senators Ted Cruz, John Cornyn, Mike Lee, and David Vitter as Amicus Curiae, p.3,
Sebeliusv. Hobby Lobby Stores, Inc., 2014 WL 356645 (2014).
56 Brief of Senators Orrin G. Hatch, Daniel R. Coats, Thad Cochran, Mike Crapo, Charles Grassley, James
M. Inhofe, John McCain, Mitch McConnell, Rob Portman, Pat Roberts & Richard Shelby, and
Representatives Bob Goodlatte, Chris Smith, Lamar Smith & Frank Wolf as Amicus Curiae, p. 2, Sebelius
v. Hobby Lobby Stores, Inc., 2014 WL 333886 (2014). These were the original congressionalRFRA
signers.
57 Brief of the National Jewish Commission on law and Public Affairs (COLPA) as Amicus Curiae,
et al., Sebeliusv. Hobby Lobby Stores, Inc., 2014 WL 343186 (2014).
58 Brief of Women’s Public Policy Groups and a Coalition of Female State Legislative and
Executive Branch Officials in Support of Nongovernment Parties as Amicus Curiae, p. 3, Sebelius v. Hobby
Lobby Stores, Inc., 2014 WL 507166 (2014).
59 Brief of Women Speak for Themselves as Amicus Curiae, Sebelius v. Hobby Lobby Stores, Inc.,
2014 WL 316714 (2014).
60 Reagan W. Simpson, How to Be a Good Friend of the Court:Strategic Use of Amicus Briefs, 28
SPG. BRIEF 38, 39 (1999).
61 Id.
62 Ga. S. Ct. R. 23; Ga. Ct. App. R. 26.
63 Id.
64 Id.

9. 9
In the United States Supreme Court and federal district courts, only the United
States or its officer or agency or a state may file an amicus brief without the consent of
the parties or leave of court. Any other amicus curiae may file a brief only by leave of
court or if the brief states that all parties have consented to its filing.65 The rules for the
Eleventh Circuit and the Supreme Court are summarized below:
In the 11th Circuit, the motions for leave and amicus briefs must:66
 Comply with Federal Rules of Appellate Procedure 27;67
 Comply with the 11th Circuit Rules 27-1;68
 Include a Certificate of Interested Persons and Corporate Disclosure
Statement as described in Federal Rules of Appellate Procedure 26.1 and
the accompanying circuit rules;69
 Identify the party or parties supported and indicate whether the brief
supports affirmance or reversal on the cover;70
 Comply with all requirements in Federal Rules of Appellate Procedure
29(c);71 and
 Contain items the following items set forth in Eleventh Circuit Rule 28-
1:72
o (a) Cover Page;
o (b) Certificate of Interested Persons and Corporate Disclosure
Statement;
o (d) Table of Contents;
o (e) Table of Citations;
o (h) Statement of Issues;
o (j) Summary of Arguments;
o (k) Argument and Citations of Authority;
o (l) Conclusion;
o (m) Certificate of Compliance; and
o (n) Certificate of Service.73
In the Supreme Court, the motions for leave and amicus briefs must:74
 Be prepared as required by Rule 33.175 and as one document with the brief
sought to be filed;76
65 Fed. R. App. P. 29
66 GA R CTA11 Rule 29-1; GA R CTA11 Rule 29-2.
67 Fed. R. App. P. 27 – Motions.
68 CTA11 Rule 27-1 – Motions.
69 Fed. R. App. P. 26.1 – Corporate Disclosure Statement.
70 Fed. R. App. P. 29.
71 Id. Contents and Form.
72 CTA11 Rule 28-1 – Briefs – Contents.
73 See also United States Court of Appeals Eleventh Circuit Memorandum, April 1, 2014, available
at http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/RulesAPR14.pdf .
74 U.S. Sup. Ct. R. 37.
75 U.S. Sup. Ct. R. 33.1 – Document Preparation: Booklet Format; 8 ½ by 11-inch Paper Format.
76 Id.

10. 10
 Be submitted within the time allowed for filing an amicus curiae brief;77
 Indicate the party or parties who have withheld consent and state the
nature of the movant’s interest;78
 Identify the party supported or indicate whether it suggests affirmance or
reversal on the cover;79
 Be accompanied by proof of service as required by Rule 29 and shall
comply with the applicable provisions of Rules 21, 24, 33.1;80
 Not exceed 1,500 words;81
 Indicate whether counsel for a party authored the brief in whole or in part
and whether such counsel or a party made a monetary contribution
intended to fund the preparation or submission of the brief, and shall
identify every person other than the amicus curiae, its members, or its
counsel, who made such a monetary contribution.82
“Amicus curiae” is commonly known as “friend of the court.” In order to be a
successful “friend,” the briefs should always focus on implications of a decision that the
court may not have considered and legal arguments not advanced by others. As
demonstrated in the many amicus briefs filed in Hobby Lobby, the briefs should be
honest, accurate, and have the intention to truly aid the court in making its decision.
IV. Wheaton College’s Emergency Injunction
The Supreme Court granted Wheaton College’s application for an emergency
injunction—to be exempted from part of the Affordable Care Act’s regulations providing
contraception coverage—on July 3, 2014, just days after the Supreme Court issued its
ruling on the Hobby Lobby case.83 Justice Sotomayor dissented in the granting of the
injunction, and Justices Ginsburg and Kagan joined in the almost-15 page dissent.84
The order itself provides for an injunction in favor of Wheaton College—a
nonprofit, Christian liberal arts graduate school85—as well as laying out the framework
77 The time allowed for a filing an amicus brief will depend on what stage the proceedings are at; See
supra for time provisions.
78 U.S. Sup. Ct. R. 37.
79 Id.
80 Id.
81 Id.
82 Id. The disclosure shall be made in the first footnote on the first page of text.
83 Birth Control Order DeependsDivide Among Justices, Adam Liptak, THE NEW YORK TIMES (July
3, 2014), http://www.nytimes.com/2014/07/04/us/politics/supreme-court-order-suspends-contraception-
rule-for-christian-college.html?_r=0. See supra Procedural History.
84 Id. For a short discussion on where Justice Breyer fell on the vote, compare Justice Breyer and
Wheaton College v. Burwell, Gregory Curfman, HARVARD LAW PETRIE-FLOM CENTER BILL OF HEALTH,
http://blogs.law.harvard.edu/billofhealth/2014/07/08/justice-breyer-and-wheaton-college-v-burwell/ (last
visited Oct. 8, 2014) with Where was Justice Breyer in the Wheaton College fight?, Tom Goldstein,
SCOTUSBLOG, http://www.scotusblog.com/2014/07/where-was-justice-breyer-in-the-wheaton-college-
fight/ (last visited Oct. 8, 2014). The decision was unsigned,with Justice Scalia agreeing in the result.
85 About Wheaton, WHEATON COLLEGE,http://wheaton.edu/About-Wheaton (last visited Oct. 8,
2014) (“[A]cademically rigorous, four-year Christian liberal arts college and graduate school, [which]
seek[s] to honorJesus Christ with mind, soul, body,and strength.”).

11. 11
for other, nonprofit religious organizations.86 The order specifically enjoins Burwell
“from enforcing against [an] applicant the challenged provisions of the Patient Protection
and Affordable Care Act . . . pending final disposition of appellate review.”87 To qualify,
an applicant must inform in writing the Secretary of Health and Human Services,
currently Sylvia Burwell, of three conditions: 1) that the applicant is a nonprofit
organization, 2) that the applicant “holds itself out as religious,” 3) the applicant has
religious objections in providing health coverage for contraception.88 Furthermore, the
applicant is not required to use the EBSA Form 700, does not have to send copies to
health insurance issuers, and need not send copies to third-party administrators.89 As a
result, nonprofit organizations are able to streamline the process for contraception
coverage exemptions, under the terms of the injunction.
Importantly, the injunction made clear that the order has no bearing on Wheaton
College’s employees and students obtaining free contraceptives from the applicant’s
health insurance issuer and third-party administrator.90 Indeed, the Court emphasizes that
the government may rely on the written notice of an applicant’s status in order to provide
other means of supplying “full contraceptive coverage under the Act.”91
Justice Sotomayor’s dissent argues that the interlocutory injunction via the All
Writs Act is inappropriate in this case. This type of injunction is only appropriate “where
‘the legal rights at issue are indisputably clear,’” which no one would “credibly claim” in
regards to Wheaton College in this case.92 To prove her point of the legal rights being
anything but indisputably clear, Justice Sotomayor returns to the Religious Freedom
Restoration Act (RFRA) test at issue in Hobby Lobby. She briefly discusses the
government’s compelling interest in the matter, as the Hobby Lobby decision already
assumed that the government’s interest was compelling. 93 Instead, Justice Sotomayor
largely focuses an argument that the injunction majority is now enjoining enforcement of
the least restrictive means of achieving the interest, which had formed the basis of the
Hobby Lobby decision.94
86 On Application for Injunction, 573 U.S. 1 (2014).
87 Id.
88 Id.
89 Id. The EBSA Form 700 is a Department of Labor form which“may be used to certify that the
health coverage established . . . by the organization . . . qualifies for an accommodation with respect to the
federal requirement to cover certain contraceptive services without cost sharing.”
http://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf.
90 On Application for Injunction, 573 U.S. 1 (2014).
91 Id. at 2 (“Nothing in this order precludes the Government from relying on this notice, to the extent
it considers it necessary,to facilitate the provision of full contraceptive coverage underthe Act.”).
92 Injunction, 573 U.S. at 4 (citing Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1303
(1993) (Rehnquist, C.J., in chambers)).
93 Id. at 12-13.
94 Id. at 9 (“Wheaton’s RFRA claim plainly does not satisfy our demanding standard for the
extraordinary relief it seeks.”). Justice Sotomayor, looking at the merits, goes further than ‘indisputably
clear,’ and she argues “Wheaton’s claim is likely to fail underany standard.” Id.

12. 12
In order for RFRA to even apply, Wheaton College must show a substantial
burden on its exercise of religion.95 Wheaton argues that filling out the Form 700 is an
impermissible burden on Wheaton’s free exercise. It is a violation of RFRA, because
such action makes Wheaton complicit in providing contraceptives by shifting the
obligation to a third-party.96 Justice Sotomayor argues that this misappropriates the
“trigger” for the change in obligation of providing contraception.97 The completion of
Form 700 does not act as the trigger for contraceptive coverage; the federal law is the
trigger.98 According to Justice Sotomayor, the shift in the contraceptive coverage
obligation is a result of the law, not a result of opting out.99
Justice Sotomayor then turns to the RFRA test itself, and she looks to the Court’s
recent decision in Burwell v. Hobby Lobby Stores, Inc. Based upon Justice Sotomayor’s
reading of the Hobby Lobby majority’s application of the RFRA test, the Form 700
religious exemption is “the least restrictive means of furthering the Government’s
compelling interests in public health and women’s well-being,” while at the same time
protecting religious interests.100 According to Justice Sotomayor, the religious
accommodation was the least restrictive means for accomplishing the compelling interest.
The majority now wants to enjoin it.101 Pointing out the contradiction of relying on the
religious accommodation for a “least restrictive means”, only to disallow that same
accommodation one week later, she wrote that “[t]hose who are bound by our decisions
usually believe they can take us at our word. Not so today.”102
95 Id. at 4. (“[B]locking the operation of a duly enacted law and regulations, in a case in which the
courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have
declined requests forsimilar injunctive relief.).
96 Id. at 3.
97 Id. at 3.
98 Id. The law requires “some entity [to] provide contraceptive coverage.”
99 Injunction, 573 U.S. at 10-11. Justice Sotomayor appeals to a Seventh Circuit analogy in her
argument that the complicity theory is not legally sound.The analogy itself appeals to a pacifist Quaker
who is a conscientious objectorto a draft, who is informed that by not being drafted, another person will
have to take his or her place. See id. at 11-12.
100 Id. The majority opinion, in fact, held that the exemption was a less restrictive means, but not
necessarily the least restrictive. It is Justice Kennedy’s concurrence which holds the latter. Compare supra
Opinion-Majority with supra Opinion- Justice Kennedy’s Concurrence.
101 Id.
102 Id. (“After expressly relying on the availability of the religious-nonprofit accommodation to hold
that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit
corporations,the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.. . .
Those who are bound by our decisions usually believe they can take us at our word. Not so today”)
(citation omitted).