NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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															SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 13–354 and 13–356

															_________________

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al., PETITIONERS

															13–354      v.

															HOBBY LOBBY STORES, INC.,
et al.

															on writ of certiorari to the united states
courtof appeals for the tenth circuit

															and

															CONESTOGA WOOD SPECIALTIES
CORPORATIONet al., PETITIONERS

															13–356      v.

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al.

															on writ of certiorari to the united states
courtof appeals for the third circuit

															[June 30, 2014]

															     Justice Alito
delivered the opinion of the Court.

															     We must decide in these
cases whether the Religious Freedom Restoration Act of 1993 (RFRA),
107Stat. 1488, 42 U. S. C. §2000bb et seq., 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 for-feited 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. There are other ways in which Congress or HHS
could equally ensure that every woman has cost-free access to the
particular contraceptives at issue here and, indeed, to all
FDA-approved contraceptives.

															     In fact, HHS has
already devised and implemented a system that seeks to respect the
religious liberty of religious nonprofit corporations while
ensuring that the employees of these entities have precisely the
same access to all FDA-approved contraceptives as employees of
companies whose owners have no religious objections to providing
such coverage. The employees of these religious nonprofit
corporations still have access to insurance coverage without cost
sharing for all FDA-approved contracep-tives; and according to HHS,
this system imposes no net economic burden on the insurance
companies that are required to provide or secure the coverage.

															     Although HHS has made
this system available to religious nonprofits that have religious
objections to the contraceptive mandate, HHS has provided no reason
why the same system cannot be made available when the owners of
for-profit corporations have similar religious objections. We
therefore conclude that this system constitutes an alternative that
achieves all of the Government’s aims while providing greater
respect for religious liberty. And under RFRA, that conclusion
means that enforcement of the HHS contraceptive mandate against the
objecting parties in these cases is unlawful.

															     As this description of
our reasoning shows, our holding is very specific. We do not hold,
as the principal dissent alleges, that for-profit corporations and
other commercial enterprises can “opt out of any law (saving only
tax laws) they judge incompatible with their sincerely held
religious beliefs.” Post, at 1 (opinion of Ginsburg, J.). Nor do we
hold, as the dissent implies, that such corporations have free rein
to take steps that impose “disadvantages . . . on others”
or that require “the general public [to] pick up the tab.” Post, at
1–2. And we certainly do not hold or suggest that “RFRA demands
accommodation of a for-profit corporation’s religious beliefs no
matter the impact that accommodation may have on . . .
thousands of women employed by Hobby Lobby.” Post, at 2.[ 1 ] The effect of the HHS-created
accommodation on the women employed by Hobby Lobby and the other
companies involved in these cases would be precisely zero. Under
that accommodation, these women would still be entitled to all
FDA-approved contraceptives without cost sharing.

															I

															A

															     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, 494 U. S. 872 (1990) , which largely repudiated the
method of analyzing free-exercise claims that had been used in
cases like Sherbert v. Verner, 374 U. S. 398 (1963), and
Wisconsin v. Yoder, 406 U. S. 205 (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. 374 U. S., at 408–409. 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.
406 U. S., at 210–211, 234–236.

															     In Smith, however, the
Court rejected “the balancing test set forth in Sherbert.” 494
U. S., at 883. 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. 494 U. S., at 875.

															     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.” 494 U. S., at 888. 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, 521 U. S. 507, 514 (1997).

															     Congress responded to
Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward
religion,” Congress found, “may burden religious exercise as surely
as laws intended to interfere with religious exercise.”
42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4).
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.” §2000bb–1(a).[ 2 ] 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.”
§2000bb–1(b).[ 3 ]

															     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,[ 4 ] 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. 521 U. S., at 516–517. 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.” Id., at
533–534. See also id., at 532.

															     Following our decision
in City of Boerne, Congress passed the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 114Stat. 803, 42
U. S. C. §2000cc et seq. 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. See Cutter v. Wilkinson, 544 U. S. 709 –716 (2005).
And, what is most relevant for present purposes, RLUIPA amended
RFRA’s definition of the “exercise of religion.” See §2000bb–2(4)
(importing RLUIPA definition). Before RLUIPA, RFRA’s definition
made reference to the First Amendment. See §2000bb–2(4) (1994 ed.)
(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.”
§2000cc–5(7)(A). 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.” §2000cc–3(g).[ 5 ]

															B

															     At issue in these
cases are HHS regulations promul-gated under the Patient Protection
and Affordable Care Act of 2010 (ACA), 124Stat. 119. 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.” 26 U. S. C. §5000A(f)(2);
§§4980H(a), (c)(2). 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.”
§§4980D(a)–(b). 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. §§4980H(a), (c)(1).

															     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.” 42
U. S. C. §300gg–13(a)(4). 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. Ibid. The HRSA in turn consulted the
Institute of Medicine, a nonprofit group of volunteer advisers, in
determining which preventive services to require. See 77 Fed. Reg.
8725–8726 (2012).

															     In August 2011, based
on the Institute’s recommendations, the HRSA promulgated the
Women’s Preventive Services Guidelines. See id., at 8725–8726, and
n. 1; online at http://hrsa.gov/womensguidelines (all Internet
materials as visited June 26, 2014, and available in Clerk of
Court’s case file). The Guidelines provide that nonexempt employers
are generally required to provide “coverage, without cost sharing”
for “[a]ll Food and Drug Ad-ministration [(FDA)] approved
contraceptive methods, sterilization procedures, and patient
education and counseling.” 77 Fed. Reg. 8725 (internal
quotation marks omitted). 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. See Brief for HHS in No. 13–354, pp.
9–10, n. 4;[ 6 ] FDA, Birth
Control: Medicines to Help You.[ 7 ]

															     HHS also authorized the
HRSA to establish exemptions from the contraceptive mandate for
“religious employers.” 45 CFR §147.131(a). That category
encompasses “churches, their integrated auxiliaries, and
conventions or associ-ations of churches,” as well as “the
exclusively religious activities of any religious order.” See ibid
(citing 26 U. S. C. §§6033(a)(3)(A)(i), (iii)). In its
Guidelines,HRSA exempted these organizations from the requirement
to cover contraceptive services. See
http://hrsa.gov/womensguidelines.

															     In addition, HHS has
effectively exempted certain religious nonprofit organizations,
described under HHS regulations as “eligible organizations,” from
the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg.
39874 (2013). An “eligible organization” means a nonprofit
organization that “holds itself out as a religious organi-zation”
and “opposes providing coverage for some or all of any
contraceptive services required to be covered . . . on
account of religious objections.” 45 CFR §147.131(b). To qualify
for this accommodation, an employer must certify that it is such an
organization.  §147.131(b)(4). When a group-health-insurance
issuer receives notice that one of its clients has invoked this
provision, the issuer must then exclude contraceptive coverage from
the employer’s plan and provide separate payments for contraceptive
services for plan participants without imposing any cost-sharing
requirements on the eligible organization, its insurance plan, or
its employee beneficiaries. §147.131(c).[ 8 ] Al-though this procedure requires the issuer to bear
the cost of these services, HHS has determined that this obligation
will not impose any net expense on issuers because its cost will be
less than or equal to the cost savings resulting from the services.
78 Fed. Reg. 39877.[ 9 ]

															     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. 42 U. S. C. §§18011(a), (e).
And employers with fewer than 50 employees are not required to
provide health insurance at all. 26 U. S. C.
§4980H(c)(2).

															     All told, the
contraceptive mandate “presently does not apply to tens of millions
of people.” 723 F. 3d 1114, 1143 (CA10 2013). 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. Brief for HHS in No. 13–354, at 53; Kaiser Family
Foundation & Health Research & Educational Trust, Employer
Health Benefits, 2013 Annual Survey 43, 221.[ 10 ] The count for employees working for firms
that do not have to provide insurance at all because they employ
fewer than 50 employees is 34 million workers. See The Whitehouse,
Health Reform for Small Businesses: The Affordable Care Act
Increases Choice and Saving Money for Small Businesses 1.[ 11 ]

															II

															A

															     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.”[ 12 ]

															     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.” 917 F. Supp. 2d 394,
402 (ED Pa. 2013). 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.” Ibid. (internal
quotation marks omitted). The company’s “Vision and Values
Statements” affirms that Conestoga endeavors to “ensur[e] a
reasonable profit in [a] manner that reflects [the Hahns’]
Christian heritage.” App. in No. 13–356, p. 94
(complaint).

															     As explained in
Conestoga’s board-adopted “Statement on the Sanctity of Human
Life,” the Hahns believe that “human life begins at conception.”
724 F. 3d 377, 382, and n. 5 (CA3 2013) (internal
quotation marks omitted). 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.” Ibid. (internal quotation marks omitted).
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. Id., at 382.

															     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.[ 13 ] These include two
forms of emergency contraception commonly called “morning after”
pills and two types of intrauterine devices.[ 14 ]

															     In opposing the
requirement to provide coverage for the contraceptives to which
they object, the Hahns argued that “it is immoral and sinful for
[them] to intentionally participate in, pay for, facilitate, or
otherwise support these drugs.” Ibid. The District Court denied a
preliminary injunction, see 917 F. Supp. 2d, at 419, and
the Third Circuit affirmed in a divided opinion, holding that
“for-profit, secular corporations cannot engage in religious
exercise” within the meaning of RFRA or the First Amendment. 724
F. 3d, at 381. The Third Circuit also rejected the claims
brought by the Hahns themselves because it concluded that the HHS
“[m]andate does not impose any requirements on the Hahns” in their
personal capacity. Id., at 389.

															B

															     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. 723 F. 3d, at 1122. 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. Ibid. 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. Ibid. David serves as the CEO of Hobby Lobby, and
his three children serve as the president, vice president, and vice
CEO. See Brief for Respondents in No. 13–354, p. 8.[ 15 ]

															     Hobby Lobby’s statement
of purpose commits the Greens to “[h]onoring the Lord in all [they]
do by operating the company in a manner consistent with Biblical
principles.” App. in No. 13–354, pp. 134–135 (complaint). 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. 723 F. 3d, at
1122. 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. Id., at 1122; App. in
No. 13–354, at 136–137. 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.” Ibid. (internal quotation marks
omitted).

															     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. 723 F. 3d, at 1122.
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. Id., at 1125. 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. Id., at 1124.

															     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.[ 16 ] The
District Court denied a preliminary injunction, see 870 F. Supp. 2d
1278 (WD Okla. 2012), and the plaintiffs appealed, moving for
initial en banc consideration. The Tenth Circuit granted that
motion and reversed in a divided opinion. Contrary to the
conclusion of the Third Circuit, the Tenth Circuit held that the
Greens’ two for-profit businesses are “persons” within the meaning
of RFRA and therefore may bring suit under that law.

															     The court then held
that the corporations had established a likelihood of success on
their RFRA claim. 723 F. 3d, at 1140–1147. The court concluded
that the contraceptive mandate substantially burdened the exercise
of religion by requiring the companies to choose between
“compromis[ing] their religious beliefs” and paying a heavy
fee—either “close to $475 million more in taxes every year” if they
simply refused to provide coverage for the contraceptives at issue,
or “roughly $26 million” annually if they “drop[ped]
health-insurance benefits for all employees.” Id., at 1141.

															     The court next held
that HHS had failed to demonstrate a compelling interest in
enforcing the mandate against the Greens’ businesses and, in the
alternative, that HHS had failed to prove that enforcement of the
mandate was the “least restrictive means” of furthering the
Government’s asserted interests. Id., at 1143–1144 (emphasis
deleted; internal quotation marks omitted). After concluding that
the companies had “demonstrated irreparable harm,” the court
reversed and remanded for the District Court to consider the
remaining factors of the preliminary-injunction test. Id., at
1147.[ 17 ]

															     We granted certiorari.
571 U. S. ___ (2013).

															III

															A

															     RFRA prohibits the
“Government [from] substantially burden[ing] a person’s exercise of
religion even if the burden results from a rule of general
applicability” 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.” 42
U. S. C. §§2000bb–1(a), (b) (emphasis added). 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.

															     HHS contends that
neither these companies nor their owners can even be heard under
RFRA. According to HHS, the companies cannot sue because they seek
to make a profit for their owners, and the owners cannotbe heard
because the regulations, at least as a formal mat-ter, apply only
to the companies and not to the ownersas individuals. HHS’s
argument would have dramatic consequences.

															     Consider this Court’s
decision in Braunfeld v. Brown, 366 U. S. 599 (1961)
(plurality opinion). In that case, five Orthodox Jewish merchants
who ran small retail businesses in Philadelphia challenged a
Pennsylvania Sunday closing law as a violation of the Free Exercise
Clause. Because of their faith, these merchants closed their shops
on Saturday, and they argued that requiring them to remain shut on
Sunday threatened them with financial ruin. The Court entertained
their claim (although it ruled against them on the merits), and if
a similar claim were raised today under RFRA against a jurisdiction
still subject to the Act (for example, the District of Columbia,
see 42 U. S. C. §2000bb–2(2)), the merchants would be
entitled to be heard. According to HHS, however, if these merchants
chose to incorporate their businesses—with-out in any way changing
the size or nature of their businesses—they would forfeit all RFRA
(and free-exercise) rights. HHS would put these merchants to a
difficult choice: either give up the right to seek judicial
protection of their religious liberty or forgo the benefits,
available to their competitors, of operating as corporations.

															     As we have seen, RFRA
was designed to provide very broad protection for religious
liberty. By enacting RFRA, Congress went far beyond what this Court
has held is constitutionally required.[ 18 ] Is there any reason to think that the Congress
that enacted such sweeping protection put small-business owners to
the choice that HHS suggests? An examination of RFRA’s text, to
which we turn in the next part of this opinion, reveals that
Congress did no such thing.

															     As we will show,
Congress provided protection for people like the Hahns and Greens
by employing a familiar legal fiction: It included corporations
within RFRA’s definition of “persons.” But it is important to keep
in mind that the purpose of this fiction is to provide protection
for human beings. A corporation is simply a form of organization
used by human beings to achieve desired ends. An established body
of law specifies the rights and obligations of the people
(including shareholders, officers, and employees) who are
associated with a corporation in one way or another. When rights,
whether constitutional or statu-tory, are extended to corporations,
the purpose is to protect the rights of these people. For example,
extending Fourth Amendment protection to corporations protects the
privacy interests of employees and others associated with the
company. Protecting corporations from government seizure of their
property without just compensation protects all those who have a
stake in the corporations’ financial well-being. And protecting the
free-exercise rights of corporations like Hobby Lobby, Conestoga,
and Mardel protects the religious liberty of the humans who own and
control those companies.

															     In holding that
Conestoga, as a “secular, for-profit corporation,” lacks RFRA
protection, the Third Circuit wrote as follows:

															“General business corporations do not,
separate and apart from the actions or belief systems of their
individual owners or employees, exercise religion. They do not
pray, worship, observe sacraments or take other
religiously-motivated actions separate and apart from the intention
and direction of their individual actors.” 724 F. 3d, at 385
(emphasis added).

															All of this is true—but quite beside the point.
Corporations, “separate and apart from” the human beings who own,
run, and are employed by them, cannot do anything at all.

															B

															1

															     As we noted above,
RFRA applies to “a person’s” exercise of religion, 42 U. S. C.
§§2000bb–1(a), (b), and RFRA itself does not define the term
“person.” We therefore look to the Dictionary Act, which we must
consult “[i]n determining the meaning of any Act of Congress,
unless the context indicates otherwise.” 1 U. S. C.
§1.

															     Under the Dictionary
Act, “the wor[d] ‘person’ . . . include[s] corporations,
companies, associations, firms, partnerships, societies, and joint
stock companies, as well as individuals.” Ibid.; see FCC v.
AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We
have no doubt that ‘person,’ in a legal setting, often refers to
artificial entities. The Dictionary Act makes that clear”). 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, see Gonzales v. O Centro Espírita Beneficiente União
do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___
(2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes
that a nonprofit corporation can be a “person” within the meaning
of RFRA. See Brief for HHS in No. 13–354, at 17; Reply Brief in No.
13–354, at 7–8.[ 19 ]

															     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.[ 20 ] Cf. Clark v. Martinez, 543 U. S. 371, 378
(2005) (“To give th[e] same words a different meaning for each
category would be to invent a statute rather than interpret
one”).

															2

															     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 reli-gious “autonomy . . . often furthers individual
religious freedom as well.” Post, at 15 (quoting Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in
judgment)). But this principle appliesequally to for-profit
corporations: Furthering their re-ligious freedom also “furthers
individual religious freedom.” In these cases, for example,
allowing Hobby Lobby, Con-estoga, and Mardel to assert RFRA claims
protects the religious liberty of the Greens and the
Hahns.[ 21 ]

															     If the corporate form
is not enough, what about the profit-making objective? In
Braunfeld, 366 U. S. 599 , we entertained the free-exercise
claims of individuals who were attempting to make a profit as
retail merchants, and the Court never even hinted that this
objective precluded their claims. As the Court explained in a later
case, the “exercise of religion” involves “not only belief and
profession but the performance of (or abstention from) physical
acts” that are “engaged in for religious reasons.” Smith,
494 U. S., at 877. Business practices that are compelled
or limited by the tenets of a religious doctrine fall comfortably
within that definition. Thus, a law that “operates so as to make
the practice of . . . religious beliefs more expensive”
in the context of business activities imposes a burden on the
exercise of religion. Braunfeld, supra, at 605; see United States
v. Lee, 455 U. S. 252, 257 (1982) (recognizing that
“compulsory participation in the social security system interferes
with [Amish employers’] free exercise rights”).

															     If, as Braunfeld
recognized, a sole proprietorship that seeks to make a profit may
assert a free-exercise claim,[ 22 ] why can’t Hobby Lobby, Conestoga, and Mardel do the
same?

															     Some lower court judges
have suggested that RFRA does not protect for-profit corporations
because the purpose of such corporations is simply to make
money.[ 23 ] This argument
flies in the face of modern corporate law. “Each American
jurisdiction today either expressly or by implication authorizes
corporations to be formed under its general corporation act for any
lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of
the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis
added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations
§102 (rev. ed. 2010). While it is certainly true that a central
objective of for-profit corporations is to make money, modern
corporate law does not require for-profit corporations to pursue
profit at the expense of everything else, and many do not do so.
For-profit corporations, with ownership approval, support a wide
variety of charitable causes, and it is not at all uncommon for
such corporations to further humanitarian and other altruistic
objectives. Many examples come readily to mind. So long as its
owners agree, a for-profit corporation may take costly
pollution-control and energy-conservation measures that go beyond
what the law requires. A for-profit corporation that operates
facilities in other countries may exceed the requirements of local
law regarding working conditions and benefits. If for-profit
corporations may pursue such worthy objectives, there is no
apparent reason why they may not further religious objectives as
well.

															     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.[ 24 ] 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.[ 25 ]

															     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. 15 Pa. Cons. Stat. §1301 (2001)
(“Corporations may be incorporated under this subpart for any
lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005
(West 2012) (“[E]very corporation, whether profit or not for
profit” may “be incorporated or organized . . . to
conduct or promote any lawful business or purposes”); see also
§1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No.
13–354.

															3

															     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. 42 U. S. C.
§2000bb–2(4) (1994 ed.). 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. See, e.g., Antiterrorism and Effective Death Penalty
Act of 1996, 28 U. S. C. §2254(d)(1) (authorizing habeas
relief from a state-court decision that “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States”).

															     Second, if the original
text of RFRA was not clear enough on this point—and we think it
was—the amendment of RFRA through RLUIPA surely dispels any doubt.
That amendment deleted the prior reference to the First Amendment,
see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating
§2000cc–5), and neither HHS nor the principal dissent can explain
why Congress did this if it wanted to tie RFRA coverage tightly to
the specific holdings of our pre-Smith free-exercise cases.
Moreover, as discussed, the amendment went further, providing that
the exercise of religion “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.” §2000cc–3(g).
It is simply not possible to read these provisions as restricting
the concept of the “exercise of religion” to those practices
specifically addressed in our pre-Smith decisions.

															     Third, 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., 366 U. S. 617 (1961) , 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,[ 26 ] but not one member of the Court expressed
agreement with that argument. The plurality opinion for four
Justices rejected the First Amendment claim on the merits based on
the reasoning in Braunfeld, and reserved decision on the question
whether the corporation had “standing” to raise the claim. See 366
U. S., at 631. The three dissenters, Justices Douglas,
Brennan, and Stewart, found the law unconstitutional as applied to
the corporation and the other challengers and thus implicitly
recognized their right to assert a free-exercise claim. See id., at
642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v.
Maryland, 366 U. S. 420 –579 (1961) (Douglas, J., dissenting
as to related cases including Gallagher). Fi-nally, Justice
Frankfurter’s opinion, which was joined by Justice Harlan, upheld
the Massachusetts law on the merits but did not question or reserve
decision on the issue of the right of the corporation or any of the
other challengers to be heard. See McGowan, 366 U. S., at
521–522. It is quite a stretch to argue that RFRA, a law enacted to
provide very broad protection for religious liberty,left for-profit
corporations unprotected simply because in Gallagher—the only
pre-Smith case in which the issue was raised—a majority of the
Justices did not find it necessary to decide whether the kosher
market’s corporate status barred it from raising a free-exercise
claim.

															     Finally, the
results would be absurd if RFRA merely restored this Court’s
pre-Smith decisions in ossified form and did not allow a plaintiff
to raise a RFRA claim unless that plaintiff fell within a category
of plaintiffs one of whom had brought a free-exercise claim that
this Court entertained in the years before Smith. For example, we
are not aware of any pre-Smith case in which this Court entertained
a free-exercise claim brought by a resident noncitizen. Are such
persons also beyond RFRA’s protective reach simply because the
Court never addressed their rights before Smith?

															     Presumably in
recognition of the weakness of this argument, both HHS and the
principal dissent fall back on the broader contention that the
Nation lacks a tradition of exempting for-profit corporations from
generally applicable laws. By contrast, HHS contends, statutes like
Title VII, 42 U. S. C. §2000e–19(A), expressly exempt
churches and other nonprofit religious institutions but not
for-profit corporations. See Brief for HHS in No. 13–356,
p. 26. In making this argument, however, HHS did not call to
our attention the fact that some federal statutes do exempt
categories of entities that include for-profit corporations from
laws that would otherwise require these entities to engage in
activities to which they object on grounds of conscience. See,
e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).[ 27 ] If Title VII and similar laws show
anything, it isthat Congress speaks with specificity when it
intends a religious accommodation not to extend to
for-profitcorporations.

															4

															     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.” Brief for HHS in No. 13–356, at
30.

															     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.[ 28 ]

															     HHS has also provided
no evidence that the purported problem of determining the sincerity
of an asserted religious belief moved Congress to exclude
for-profit corporations from RFRA’s protection. On the contrary,
the scope of RLUIPA shows that Congress was confident of the
ability of the federal courts to weed out insincere claims. RLUIPA
applies to “institutionalized persons,” a category that consists
primarily of prisoners, and by the time of RLUIPA’s enactment, the
propensity of some prisoners to assert claims of dubious sincerity
was well documented.[ 29 ]
Nevertheless, after our decision in City of Boerne, Congress
enacted RLUIPA to preserve the right of prisoners to raise
religious liberty claims. If Congress thought that the federal
courts were up to the job of dealing with insincere prisoner
claims, there is no reason to believe that Congress limited RFRA’s
reach out of concern for the seem-ingly less difficult task of
doing the same in corporate cases. And if, as HHS seems to concede,
Congress wanted RFRA to apply to nonprofit corporations, see, Reply
Brief in No. 13–354, at 7–8, what reason is there to think that
Congress believed that spotting insincere claims wouldbe tougher in
cases involving for-profits?

															     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. 1 Treatise of the Law of Corporations §14:11.
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. See, e.g., ibid; id., §3:2; Del.
Code Ann., Tit. 8, §351 (2011) (providing that certificate of
incorporation may provide how “the business of the corporation
shall be managed”). 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.[ 30 ]

															IV

															     Because RFRA applies
in these cases, we must next ask whether the HHS contraceptive
mandate “substantially burden[s]” the exercise of religion. 42
U. S. C. §2000bb–1(a). We have little trouble concluding
that it does.

															A

															     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, see Brief for HHS in No. 13–354, at 9,
n. 4, 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. 26
U. S. C. §4980D. 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.

															B

															     Although these totals
are high, amici supporting HHS have suggested that the $2,000
per-employee penalty is actually less than the average cost of
providing health insurance, see Brief for Religious Organizations
22, 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, see United Parcel Service, Inc. v.
Mitchell, 451 U. S. 56 , n. 2 (1981); Bell v. Wolfish,
441 U. S. 520 , n. 13 (1979); Knetsch v. United States,
364 U. S. 361, 370 (1960) , and there are strong reasons to
adhere to that practice in these cases. HHS, which presumably could
have compiled the relevant statistics, has never made this
argument—not in its voluminous briefing or at oral argument in this
Court nor, to our knowledge, in any of the numerous cases in which
the issue now before us has been litigated around the country. As
things now stand, we do not even know what the Government’s
position might be with respect to these amici’s intensely empirical
argument.[ 31 ] For this same
reason, the plaintiffs have never had an opportunity to respond to
this novel claim that—contrary to their longstanding practice and
that of most large employers—they would be better off discarding
their employer insurance plans altogether.

															     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. See App. to Pet. for Cert. in
No. 13–356, p. 11g; App. in No. 13–354, at 139.

															     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. See App.
in No. 13–354, at 153.

															     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. 26 U. S. C. §106(a).
Likewise, employers can deduct the cost of providing health
insurance, see §162(a)(1), but apparently cannot deduct the amount
of the penalty that they must pay if insurance is not pro-vided;
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.[ 32 ]

															     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.

															C

															     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. Brief
for HHS in 13–354, pp. 31–34; post, at 22–23. 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.[ 33 ]
Ibid.

															     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.[ 34 ]
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. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in
many different contexts, we have warned that courts must not
presume to determine . . . the plausibility of a
religious claim”); Hernandez v. Commissioner, 490 U. S. 680,
699 (1989) ; Presbyterian Church in U. S. v. Mary Elizabeth
Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450
(1969) .

															     Moreover, in Thomas v.
Review Bd. of Indiana Employment Security Div., 450 U. S. 707
(1981) , we considered and rejected an argument that is nearly
identical to the one now urged by HHS and the dissent. In Thomas, a
Jehovah’s Witness was initially employed making sheet steel for a
variety of industrial uses, but he was later transferred to a job
making turrets for tanks. Id., at 710. Because he objected on
religious grounds to participating in the manufacture of weapons,
he lost his job and sought unemployment compensation. Ruling
against the em-ployee, the state court had difficulty with the line
thatthe employee drew between work that he found to be con-sistent
with his religious beliefs (helping to manufacture steel that was
used in making weapons) and work that he found morally
objectionable (helping to make the weapons themselves). This Court,
however, held that “it is not for us to say that the line he drew
was an unreasonable one.” Id., at 715.[ 35 ]

															     Similarly, in these
cases, the Hahns and Greens and their companies sincerely believe
that providing the insurance coverage demanded by the HHS
regulations lies on the forbidden side of the line, and it is not
for us to say that their religious beliefs are mistaken or
insubstantial. Instead, our “narrow function . . . in
this context is to determine” whether the line drawn reflects “an
honest conviction,” id., at 716, and there is no dispute that it
does.

															     HHS nevertheless
compares these cases to decisions in which we rejected the argument
that the use of general tax revenue to subsidize the secular
activities of religious institutions violated the Free Exercise
Clause. See Tilton v. Richardson, 403 U. S. 672, 689 (1971)
(plurality); Board of Ed. of Central School Dist. No. 1 v. Allen,
392 U. S. 236 –249 (1968). But in those cases, while the
subsidies were clearly contrary to the challengers’ views on a
secular issue, namely, proper church-state relations, the
challengers never articulated a religious objection to the
subsidies. As we put it in Tilton, they were “unable to identify
any coercion directed at the practice or exercise of their
religious beliefs.” 403 U. S., at 689 (plurality opinion); see
Allen, supra, at 249 (“[A]ppellants have not contended that the New
York law in any way coerces them as individuals in the practice of
their religion”). Here, in contrast, the plaintiffs do assert that
funding the specific contraceptive methods at issue violates their
religious beliefs, and HHS does not question their sincerity.
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.

															V

															     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.” 42
U. S. C. §2000bb–1(b).

															A

															     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.” Brief for HHS in No. 13–354,
at 46, 49. 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.” O’Centro, 546
U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to
“loo[k] beyond broadly formulated interests” and to “scrutiniz[e]
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. O
Centro, supra, at 431.

															     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. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief
for HHS in No. 13–356, at 10, 48. Under our cases, women (and men)
have a constitutional right to obtain contraceptives, see Griswold
v. Connecticut, 381 U. S. 479 –486 (1965), and HHS tells us
that “[s]tudies have demonstrated that even moderate copayments for
preventive services can deter patients from receiving those
services.” Brief for HHS in No. 13–354, at 50 (internal quotation
marks omitted).

															     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.” 75 Fed. Reg. 34540 (2010). But the contraceptive
mandate is expressly excluded from this subset. Ibid.

															     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.” §2000bb–1(b)(2).

															B

															     The
least-restrictive-means standard is exceptionally demanding, see
City of Boerne, 521 U. S., at 532, 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. See
§§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that
application of [a substantial] burden to the person . . .
is the least restrictive means of furthering [a] compelling
governmental interest” (emphasis added)).

															     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, see
§2000bb–1(b)(2), that this is not a viable alternative. HHS has not
provided any estimate of the average cost per employee of providing
access tothese contraceptives, two of which, according to the FDA,
are designed primarily for emergency use. See Birth Control:
Medicines to Help You, online at
http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm.
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. According to one of the
Congressional Budget Office’s most recent forecasts, ACA’s
insurance-coverage provisions will cost the Federal Government more
than $1.3 trillion through the next decade. See CBO, Updated
Estimates of the Effects of the Insurance Coverage Provisions of
the Affordable Care Act, April 2014, p. 2.[ 36 ] If, as HHS tells us, providing all women
with cost-free access to all FDA-approved methods of contraception
is a Government interest of the highest order, it is hard to
understand HHS’s argument that it cannot be required under RFRA to
pay anything in order to achieve this important goal.

															     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.” Brief
for HHS in 13–354, at 15.[ 37 ] 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. Cf. §2000cc–3(c) (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. See supra, at 9–10, and nn. 8–9. Under
that accommodation, the organization can self-certify that it
opposes providing coverage for particular contraceptive services.
See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4),
(b). If the organization makes such a certification, the
organization’s insurance issuer or third-party administrator must
“[e]xpressly exclude contraceptive coverage from the group health
insurance coverage provided in connection with the group health
plan” and “[p]rovide 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.” 45 CFR
§147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).[ 38 ]

															     We do not decide today
whether an approach of this type complies with RFRA for purposes of
all religious claims.[ 39 ] 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.[ 40 ]

															     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.[ 41 ]  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,”
post, at 28 (internal quotation marks omitted), because their
employers’ insurers would be responsible for providing information
and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR
§§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach
that would “[i]mped[e] 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,’ ” post, at
28, 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.” Ibid.

															C

															     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.[ 42 ] 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. See post, at 32–33. 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 “[t]he obligation to pay the
social security tax initially is not fundamentally different from
the obligation to pay income taxes.” 455 U. S., at 260. 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.” Ibid. We observed that “[t]he 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.” Ibid.; see O Centro, 546 U. S., at 435.

															     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. Recognizingexemptions 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.” Post, at 23. 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.” 45 CFR §147.131(c)(2)(ii). 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.[ 43 ]

															     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. See post, at 32–35. In making
this plea, the dissent reiterates a point made forcefully by the
Court in Smith. 494 U. S., at 888–889 (applying the Sherbert
test to all free-exercise claims “would open the prospect of
constitutionally required religious exemptions from civic
obligations of almost every conceivable kind”). 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
forstriking sensible balances between religious liberty and
competing prior governmental interests.” 42 U. S. C.
§2000bb(a)(5). 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.

															     The judgment of the
Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third
Circuit in No. 13–356 is reversed, and that case is remanded for
further proceedings consistent with this opinion.

															It is so ordered. Notes 1 See also , at 8 (“The
exemption sought by Hobby Lobby and Conestoga . . . would
deny [their employees] access to contraceptive coverage that the
ACA would otherwise secure”) 2 The Act defines
“government” to include any “department” or“agency” of the United
States. §2000bb–2(1). 3 In v. , 521 U. S.,
507 (1997), we wrote that RFRA’s “least restrictive means
requirement was not used in the pre-jurisprudence RFRA purported to
codify.” , at 509. On this understanding of our pre- cases, RFRA
did more than merely restore the balancing test used in the line of
cases; it provided even broader protection for religious liberty
than was available under those decisions. 4 See, , v., 441 F. 3d
96, 108 (CA2 2006); v., 290 F. 3d 1210, 1220 (CA9
2002). 5 The principal dissent
appears to contend that this rule of construction should apply only
when defining the “exercise of religion” in an RLUIPA case, but not
in a RFRA case. See , at 11, n. 10. That argument is plainly
wrong. Under this rule of construction, the phrase “exercise of
religion,” as it appears in RLUIPA, must be interpreted broadly,
and RFRA states that the same phrase, as used in RFRA, means
“religious exercis[e] as defined in [RLUIPA].” –2(4). It
necessarily follows that the “exercise of religion” under RFRA must
be given the same broad meaning that applies under
RLUIPA. 6 We will use “Brief for
HHS” to refer to the Brief for Petitioners in No. 13–354 and
the Brief for Respondents in No. 13–356. The federal parties are
the Departments of HHS, Treasury, and Labor, and the Secretaries of
those Departments. 7 Online at
http://www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htm.
The owners of the companies involved in these cases and others who
believe that life begins at conception regard these four methods as
causing abortions, but federal regulations, which define pregnancy
as beginning at implantation, see, ., 62 Fed. Reg. 8611 (1997);
45 CFR §46.202(f) (2013), do not so classify
them. 8 In the case of
self-insured religious organizations entitled to the accommodation,
the third-party administrator of the organization must “provide or
arrange payments for contraceptive services” for the organization’s
employees without imposing any cost-sharing requirements on the
eligible organization, its insurance plan, or its employee
beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR
§54.9815–2713A(b)(2)). The regulations establish a mechanism for
these third-party administrators to be compensated for their
expenses by obtaining a reduction in the fee paid by insurers to
participate in the federally facilitated exchanges. See 78 Fed.
Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS
believes that these fee reductions will not materially affect
funding of the exchanges because “payments for contraceptive
services will represent only a small portion of total [exchange]
user fees.” 78 Fed. Reg. 39882. 9 In a separate challenge
to this framework for religious nonprofit organizations, the Court
recently ordered that, pending appeal, the eligible organizations
be permitted to opt out of the contraceptive mandate by providing
written notification of their objections to the Secretary of HHS,
rather than to their insurance issuers or third-party
administrators. See v. , 571 U. S. ___ (2014). 10 While
the Government predicts that this number will decline over time,
the total number of Americans working for employers to whom the
contraceptive mandate does not apply is still substantial, and
there is no legal requirement that grandfathered plans ever be
phased out. 11 Online at
http : / / www . whitehouse . gov / files / documents / health _reform_for_small_businesses.pdf. 12 Mennonite Church USA, Statement on
Abortion, online
athttp://www.mennoniteusa.org /resource-center/resources /statements -and-resolutions/statement-on-abortion/. 13 The
Hahns and Conestoga also claimed that the contraceptive mandate
violates the and the Administrative Procedure Act, , but those
claims are not before us. 14 See,
, WebMD Health News, New Morning-After Pill Ella Wins FDA Approval,
online at
http://www.webmd.com/sex/birth-control/news/20100813/new-morning-after-pill-ella-wins-fda-approval. 15 The
Greens operate Hobby Lobby and Mardel through a management trust,
of which each member of the family serves as trustee. 723
F. 3d 1114, 1122 (CA10 2013). The family provided that the
trust would also be governed according to their religious
principles. 16 They
also raised a claim under the Administrative Procedure Act,
. 17 Given
its RFRA ruling, the court declined to address the plaintiffs’
free-exercise claim or the question whether the Greens could bring
RFRA claims as individual owners of Hobby Lobby and Mardel. Four
judges, however, concluded that the Greens could do so, see 723
F. 3d, at 1156 (Gorsuch, J., concurring); , at 1184 (Matheson,
J., concurring in part and dissenting in part), and three of those
judges would have granted plaintiffs a preliminary injunction, see
, at 1156 (Gorsuch, J., concurring). 18 As
discussed, n. 3, , in we stated that RFRA, by imposing a
least-restrictive-means test, went beyond what was required by our
pre-decisions. Although the author of the principal dissent joined
the Court’s opinion in , she now claims that the statement was
incorrect. , at 12. For present purposes, it is unnecessary to
adjudicate this dispute. Even if RFRA simply restored the status
quo ante, there is no reason to believe, as HHS and the dissent
seem to suggest, that the law was meant to be limited to situations
that fall squarely within the holdings of pre- cases. See , at
25–28. 19 Cf.
Brief for Federal Petitioners in , O. T. 2004, No. 04–1084, p.
II (stating that the organizational respondent was “a New Mexico
Corporation”); Brief for Federal Respondent in , O. T. 2011,
No. 10–553, p. 3 (stating that the petitioner was an
“ecclesiastical corporation”). 20 Not
only does the Government concede that the term “persons” in RFRA
includes nonprofit corporations, it goes further and appears to
concede that the term might also encompass other artificial
entities, namely, general partnerships and unincorporated
associations. See Brief for HHS in No. 13–354, at 28,
40. 21 Although the principal dissent seems
to think that Justice Brennan’s statement in provides a ground for
holding that for-profit corporations may not assert free-exercise
claims, that was not Justice Brennan’s view. See v., (dissenting
opinion); , at 26–27. 22 It is
revealing that the principal dissent cannot even bring itself to
acknowledge that was correct in entertaining the merchants’ claims.
See at 19 (dismissing the relevance of in part because “[t]he free
exercise claim asserted there was promptly rejected on the
merits”). 23 See,
., 724 F. 3d, at 385 (“We do not see how a for-profit,
‘artificial being,’ . . . that was created to make money”
could exercise religion); v., 708 F. 3d 850, 857 (CA7 2013)
(Rovner, J. dissenting) (“So far as it appears, the mission of
Grote Industries, like that of any other for-profit, secular
business, is to make money in the commercial sphere”); v., 730
F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include
corporations primarily organized for secular, profit-seeking
purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at
1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific
purpose for which [a corporation] is created matters greatly to how
it will be categorized and treated under the law” and “it is
undisputed that Hobby Lobby and Mardel are for-profit corporations
focused on selling merchandise to consumers”). 24 See,
, M. Sanders, Joint Ventures Involving Tax-Exempt
Organizations 555 (4th ed. 2013) (describing Google.org, which
“advance[s] its charitable goals” while operating as a for-profit
corporation to be able to “invest in for-profit endeavors, lobby
for policies that support its philanthropic goals, and tap Google’s
innovative technology and workforce” (internal quotation marks and
alterations omitted)); cf. 26 CFR
§1.501(c)(3)–1(c)(3). 25 See
Benefit Corp Information Center, online at
http://www.benefitcorp.net/state-by-state-legislative-status; , Va.
Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit
corporation shall have as one of its purposes the purpose of
creating a general public benefit,” and “may identify one or more
specific public benefits that it is the purpose of the benefit
corporation to create. . . . This purpose is in
addition to [the purpose of engaging in any lawful business].”
“ ‘Specific public benefit’ means a benefit that serves one or
more public welfare, religious, charitable, scientific, literary,
or educational purposes, or other purpose or benefit beyond the
strict interest of the shareholders of the benefit
corporation . . . .”); S. C. Code Ann.
§§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012
Cum. Supp.) (similar). 26 See
Brief for Appellants in , O. T. 1960 No. 11, pp. 16,
28–31 (arguing that corporation “has no ‘religious belief’ or
‘religious liberty,’ and had no standing in court to assert that
its free exercise of religion was impaired”). 27 The
principal dissent points out that “the exemption codified in
§238n(a) was not enacted until three years after RFRA’s passage.” ,
at 16, n. 15. The dissent takes this to mean that RFRA did
not, in fact, “ope[n] all statutory schemes to religion-based
challenges by for-profit corporations” because if it had “there
would be no need for a statute-specific, post-RFRA exemption of
this sort.” . 28 To
qualify for RFRA’s protection, an asserted belief must be
“sincere”; a corporation’s pretextual assertion of a religious
belief in order to obtain an exemption for financial reasons would
fail. Cf., ., v. , 608 F. 3d 717, 718–719 (CA10 2010). 29 See,
, v. , 90 F. 3d 293, 296 (CA8 1996); v., 525 F. Supp. 81,
83–84 (ED Mo. 1981);v. , 1996 WL 5320, *5 (CA9, Jan. 5,
1996);v., 549 N. W. 2d 819–820 (Iowa 1996). 30 The
principal dissent attaches significance to the fact that the
“Senate voted down [a] 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.” , at 6. The dissent would evidently glean from that
vote an intent by the Senate to prohibit for-profit corporate
employers from refusing to offer contraceptive coverage for
religious reasons, regardless of whether the contraceptive mandate
could pass muster under RFRA’s standards. But that is not the only
plausible inference from the failed amendment—or even the most
likely. For one thing, the text of the amendment was “written so
broadly that it would allow any employer to deny any health service
to any American for virtually any reason—.” 158 Cong. Rec. S1165
(Mar. 1, 2012) (emphasis added). Moreover, the amendment would have
authorized a blanket exemption for religious or moral objectors; it
would not have subjected religious-based objections to the judicial
scrutiny called for by RFRA, in which a court must consider not
only the burden of a requirement on religious adherents, but also
the government’s interest and how narrowly tailored the requirement
is. It is thus perfectly reasonable to believe that the amendment
was voted down because it extended more broadly than the
pre-existing protections of RFRA. And in any event, even if a
rejected amendment to a bill could be relevant in other contexts,
it surely cannot be relevant here, because any “Federal statutory
law adopted after November 16, 1993 is subject to [RFRA] unless
such law such application by reference to [RFRA].” –3(b) (emphasis
added). It is not plausible to find such an explicit reference in
the meager legislative history on which the dissent
relies. 31 Indeed, one of HHS’s stated reasons
for establishing the religious accommodation was to “encourag[e]
eligible organizations to to offer health coverage.” 78 Fed. Reg.
39882 (2013) (emphasis added). 32 Attempting to compensate for dropped
insurance by raising wages would also present administrative
difficulties. In order to provide full compensation for employees,
the companies would have to calculate the value to employees of the
convenience of retaining their employer-provided coverage and thus
being spared the task of attempting to find and sign up for a
comparable plan on an exchange. And because some but not all of the
companies’ employees may qualify for subsidies on an exchange, it
would be nearly impossible to calculate a salary increase that
would accurately restore the status quo ante for all
employees. 33 This
argument is not easy to square with the position taken by HHS in
providing exemptions from the contraceptive mandate for religious
employers, such as churches, that have the very same religious
objections as the Hahns and Greens and their companies. The
connection between what these religious employers would be required
to do if not exempted (provide insurance coverage for particular
contraceptives) and the ultimate event that they find morally wrong
(destruction of an embryo) is exactly the same. Nevertheless, as
discussed, HHS and the Labor and Treasury Departments authorized
the exemption from the contraceptive mandate of group health plans
of certain religious employers, and later expanded the exemption to
include certain nonprofit organizations with religious objections
to contraceptive coverage. 78 Fed. Reg. 39871. When this was done,
the Government made clear that its objective was to “protec[t]”
these religious objectors “from having to contract, arrange, pay,
or refer for such coverage.” . Those exemptions would be hard to
understand if the plaintiffs’ objections here were not
substantial. 34 See,
., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern
Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as
Man: The Science and Art of Ethics 353, 355 (1949) (“The general
principles governing cooperation” in wrongdoing—., “physical
activity (or its omission) by which a person assists in the evil
act of another who is the principal agent”—“present troublesome
difficulties in application”); 1 H. Davis, Moral and Pastoral
Theology 341 (1935) (Cooperation occurs “when A helps B to
accomplish an external act by an act that is not sinful, and
without approving of what B does”). 35 The
principal dissent makes no effort to reconcile its view about the
substantial-burden requirement with our decision in . 36 Online at
http://cbo.gov/publication/45231. 37 In a
related argument, HHS appears to maintain that a plaintiff cannot
prevail on a RFRA claim that seeks an exemption from a legal
obligation requiring the plaintiff to confer benefits on third
parties. Nothing in the text of RFRA or its basic purposes supports
giving the Government an entirely free hand to impose burdens on
religious exercise so long as those burdens confer a benefit on
other individuals. It is certainly true that in applying RFRA
“courts must take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries.” v., (applying
RLUIPA). That consideration will often inform the analysis of the
Government’s compelling interest and the availability of a less
restrictive means of advancing that interest. But it could not
reasonably be maintained that any burden on religious exercise, no
matter how onerous and no matter how readily the government
interest could be achieved through alternative means, is
permissible under RFRA so long as the relevant legal obligation
requires the religious adherent to confer a benefit on third
parties. Otherwise, for example, the Government could decide that
all supermarkets must sell alcohol for the convenience of customers
(and thereby exclude Muslims with religious objections from owning
supermarkets), or it could decide that all restaurants must remain
open on Saturdays to give employees an opportunity to earn tips
(and thereby exclude Jews with religious objections from owning
restaurants). By framing any Government regulation as benefiting a
third party, the Government could turn all regulations into
entitlements to which nobody could object on religious grounds,
rendering RFRA meaningless. In any event, our decision in these
cases need not result in any detrimental effect on any third party.
As we explain, see , at 43–44, the Government can readily arrange
for other methods of providing contraceptives, without cost
sharing, to employees who are unable to obtain them under their
health-insurance plans due to their employers’ religious
objections. 38 HHS
has concluded that insurers that insure eligible employers opting
out of the contraceptive mandate and that are required to pay for
contraceptive coverage under the accommodation will not experience
an increase in costs because the “costs of providing contraceptive
coverage are balanced by cost savings from lower pregnancy-related
costs and from improvements in women’s health.” 78 Fed. Reg. 39877.
With respect to self-insured plans, the regulations establish a
mechanism for the eligible employers’ third-party administrators to
obtain a compensating reduction in the fee paid by insurers to
participate in the federally facilitated exchanges. HHS believes
that this system will not have a material effect on the funding of
the exchanges because the “payments for contraceptive services will
represent only a small portion of total [federally facilitated
exchange] user fees.” at 39882; see 26 CFR
§54.9815–2713A(b)(3). 39 See
n. 9, . 40 The
principal dissent faults us for being “noncommital” in refusing to
decide a case that is not before us here. , at 30.The less
re-strictive approach we describe accommodates the religious
beliefs as-serted in these cases, and that is the only question we
are permittedto address. 41 In
the principal dissent’s view, the Government has not had a fair
opportunity to address this accommodation, , at 30. n. 27, but the
Government itself apparently believes that when it “provides an
exception to a general rule for secular reasons (or for only
certain religious reasons), [it] must explain why extending a
comparable exception to a specific plaintiff for religious reasons
would undermine its compelling interests.” Brief for the United
States as in v., No. 13–6827, p. 10, now pending before
the Court. 42 Cf.
42 U. S. C. §1396s (Federal “program for
distribution of pediatric vaccines” for some uninsured and
underinsured children). 43 HHS
highlights certain statements in the opinion in that it regards as
supporting its position in these cases. In particular, HHS notes
the statement that “[w]hen followers of a particular sect enter
into commercial activity as a matter of choice, the limits they
accept on their own conduct as a matter of conscience and faith are
not to be superimposed on the statutory schemes which are binding
on others in that activity.” 455 U. S., at 261. was a free
exercise, not a RFRA, case, and the statement to which HHS points,
if taken at face value, is squarely inconsistent with the plain
meaning of RFRA. Under RFRA, when followers of a particular
religion choose to enter into commercial activity, the Government
does not have a free hand in imposing obligations that
substantially burden their exercise of religion. Rather, the
Government can impose such a burden only if the strict RFRA test is
met. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 13–354 and 13–356

															_________________

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al., PETITIONERS

															13–354      v.

															HOBBY LOBBY STORES, INC.,
et al.

															on writ of certiorari to the united states
courtof appeals for the tenth circuit

															and

															CONESTOGA WOOD SPECIALTIES
CORPORATIONet al., PETITIONERS

															13–356      v.

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al.

															on writ of certiorari to the united states
courtof appeals for the third circuit

															[June 30, 2014]

															     Justice Kennedy,
concurring.

															     It seems to me
appropriate, in joining the Court’s opinion, to add these few
remarks. At the outset it should be said that the Court’s opinion
does not have the breadth and sweep ascribed to it by the
respectful and powerful dissent. The Court and the dissent disagree
on the proper interpretation of the Religious Freedom and
Restoration Act of 1993 (RFRA), but do agree on the purpose of that
statute. 42 U. S. C. §2000bb et seq. It is to ensure
that interests in religious freedom are protected. Ante, at 5–6;
post, at 8–9 (Ginsburg, J., dissenting).

															     In our constitutional
tradition, freedom means that all persons have the right to believe
or strive to believe in a divine creator and a divine law. For
those who choose this course, free exercise is essential in
preserving their own dignity and in striving for a self-definition
shaped by their religious precepts. Free exercise in this sense
implicates more than just freedom of belief. See Cantwell v.
Connecticut, 310 U. S. 296, 303 (1940) . It means, too, the rightto
express those beliefs and to establish one’s religious(or
nonreligious) self-definition in the political, civic, and economic
life of our larger community. But in a complex society and an era
of pervasive governmental regulation, defining the proper realm for
free exercise can be difficult. In these cases the plaintiffs deem
it necessary to exercise their religious beliefs within the context
of their own closely held, for-profit corporations. They claim
protection under RFRA, the federal statute discussed with care and
in detail in the Court’s opinion.

															     As the Court notes,
under our precedents, RFRA imposes a “ ‘stringent
test.’ ” Ante, at 6 (quoting City of Boerne v. Flores, 521
U. S. 507, 533 (1997) ). The Government must demonstrate that
the application of a substantial burden to a person’s exercise of
religion “(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” §2000bb–1(b).

															     As to RFRA’s first
requirement, the Department of Health and Human Services (HHS)
makes the case that the mandate serves the Government’s compelling
interest in providing insurance coverage that is necessary to
protect the health of female employees, coverage that is
significantly more costly than for a male employee. Ante, at 39;
see, e.g., Brief for HHS in No. 13–354, pp. 14–15. There are many
medical conditions for which pregnancy is contraindicated. See,
e.g., id., at 47. It is important to confirm that a premise of the
Court’s opinion is its assumption that the HHS regulation here at
issue furthers a legitimate and compelling interest in the health
of female employees. Ante, at 40.

															     But the Government has
not made the second showing required by RFRA, that the means it
uses to regulate is the least restrictive way to further its
interest. As the Court’s opinion explains, the record in these
casesshows that there is an existing, recognized, workable, and
already-implemented framework to provide coverage. That framework
is one that HHS has itself devised, that the plaintiffs have not
criticized with a specific objection that has been considered in
detail by the courts in this litigation, and that is less
restrictive than the means challenged by the plaintiffs in these
cases. Ante, at 9–10, and n. 9, 43–44.

															     The means the
Government chose is the imposition of a direct mandate on the
employers in these cases. Ante, at 8–9. But in other instances the
Government has allowed the same contraception coverage in issue
here to be provided to employees of nonprofit religious
organizations, as an accommodation to the religious objections of
those entities. See ante, at 9–10, and n. 9, 43–44. The
accommodation works by requiring insurance companies to cover,
without cost sharing, contraception coverage for female employees
who wish it. That accommodation equally furthers the Government’s
interest but does not impinge on the plaintiffs’ religious beliefs.
See ante, at 44.

															     On this record and as
explained by the Court, the Government has not met its burden of
showing that it cannot accommodate the plaintiffs’ similar
religious objections under this established framework. RFRA is
inconsis-tent with the insistence of an agency such as HHS on
distinguishing between different religious believers—bur-dening one
while accommodating the other—when itmay treat both equally by
offering both of them the same accommodation.

															     The parties who were
the plaintiffs in the District Courts argue that the Government
could pay for the methods that are found objectionable. Brief for
Respondents in No. 13–354, p. 58. In discussing this alternative,
the Court does not address whether the proper response to a
legitimate claim for freedom in the health care arena is for the
Government to create an additional program. Ante, at 41–43. The
Court properly does not resolve whether one freedom should be
protected by creating incentives for additional government
constraints. In these cases, it is the Court’s understanding that
an accommodation may be made to the employers without imposition of
a whole new program or burden on the Government. As the Court makes
clear, this is not a case where it can be established that it is
difficult to accommodate the government’s interest, and in fact the
mechanism for doing so is already in place. Ante, at 43–44.

															     “[T]he American
community is today, as it long has been, a rich mosaic of religious
faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014)
(Kagan, J., dissenting) (slip op., at 15). Among the reasons the
United States is so open, so tolerant, and so free is that no
person may be restricted or demeaned by government in exercising
his or her religion. Yet neither may that same exercise unduly
restrict other persons, such as employees, in protecting their own
interests, interests the law deems compelling. In these cases the
means to reconcile those two priorities are at hand in the existing
accommodation the Government has designed, identified, and used for
circumstances closely parallel to those presented here. RFRA
requires the Government to use this less restrictive means. As the
Court explains, this existing model, designed precisely for this
problem, might well suffice to distinguish the instant cases from
many others in which it is more difficult and expensive to
accommodate a governmental program to countless religious claims
based on an alleged statutory right of free exercise. Ante, at
45–46.

															     For these reasons and
others put forth by the Court, I join its opinion. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 13–354 and 13–356

															_________________

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al., PETITIONERS

															13–354      v.

															HOBBY LOBBY STORES, INC.,
et al.

															on writ of certiorari to the united states
courtof appeals for the tenth circuit

															and

															CONESTOGA WOOD SPECIALTIES
CORPORATIONet al., PETITIONERS

															13–356      v.

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al.

															on writ of certiorari to the united states
courtof appeals for the third circuit

															[June 30, 2014]

															     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. See
ante, at 16–49. Compelling governmental interests in uniform
compliance with the law, and disadvantages that religion-based
opt-outs impose on others, hold no sway, the Court decides, at
least when there is a “less restrictive alternative.” And such an
alternative, the Court suggests, there always will be whenever, in
lieu of tolling an enterprise claiming a religion-based exemption,
the government, i.e., the general public, can pick up the tab. See
ante, at 41–43.[ 1 ]

															     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. See infra, at 6–8. Instead, the Court holds
that Congress, in the Religious Freedom Restoration Act of 1993
(RFRA), 42 U. S. C. §2000bb et seq., 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.

															I

															     “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, 505 U. S. 833, 856 (1992) . 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.

															A

															     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.[ 2 ] 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, how-ever; 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.

															     Women paid
significantly more than men for preventive care, the amendment’s
proponents noted; in fact, cost barriers operated to block many
women from obtaining needed care at all. See, e.g., id., at 29070
(statement of Sen. Feinstein) (“Women of childbearing age spend 68
percent more in out-of-pocket health care costs than men.”); id.,
at 29302 (statement of Sen. Mikulski) (“copayments are [often] so
high that [women] avoid getting [preventive and screening services]
in the first place”). And increased access to contraceptive
services, the sponsors comprehended, would yield important public
health gains. See, e.g., id., at 29768 (statement of Sen. Durbin)
(“This bill will expand health insurance coverage to the vast
majority of [the 17 million women of reproductive age in the United
States who are uninsured] . . . . This expanded
access will reduce unintended pregnancies.”).

															     As altered by the
Women’s Health Amendment’s passage, the ACA requires new insurance
plans to include coverage without cost sharing of “such additional
preventive care and screenings . . . as provided for in
comprehensive guidelines supported by the Health Resources and
Services Administration [(HRSA)],” a unit of HHS. 42
U. S. C. §300gg–13(a)(4). Thus charged, the HRSA
developed recommendations in consultation with the Institute of
Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).[ 3 ] The IOM convened a group of independent
experts, including “specialists in disease prevention [and] women’s
health”; those experts prepared a report evaluating the efficacy of
a number of preventive services. IOM, Clinical Prevention Services
for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report).
Consistent with the findings of “[n]umerous health professional
associations” and other organizations, the IOM experts determined
that preventive coverage should include the “full range” of
FDA-approved contraceptive methods. Id., at 10. See also id., at
102–110.

															     In making that
recommendation, the IOM’s report expressed concerns similar to
those voiced by congres-sional proponents of the Women’s Health
Amendment. The report noted the disproportionate burden women
carried for comprehensive health services and the adverse health
consequences of excluding contraception from preventive care
available to employees without cost sharing. See, e.g., id., at 19
(“[W]omen are consistently more likely than men to report a wide
range of cost-related barriers to receiving . . . medical
tests and treatments and to filling prescriptions for themselves
and their families.”); id., at 103–104, 107 (pregnancy may be
contraindicated forwomen with certain medical conditions, for
example, some congenital heart diseases, pulmonary hypertension,
and Marfan syndrome, and contraceptives may be used to reduce risk
of endometrial cancer, among other serious medical conditions);
id., at 103 (women with unintended pregnancies are more likely to
experience depression and anxiety, and their children face
“increased odds of preterm birth and low birth weight”).

															     In line with the IOM’s
suggestions, the HRSA adopted guidelines recommending coverage of
“[a]ll [FDA-]approved contraceptive methods, sterilization
procedures, and patient education and counseling for all women with
reproductive capacity.”[ 4 ]
Thereafter, HHS, the Department of Labor, and the Department of
Treasury promulgated regulations requiring group health plans to
include coverage of the contraceptive services recommended in the
HRSA guidelines, subject to certain exceptions, described infra, at
25–27.[ 5 ] This opinion refers
to these regulations as the contraceptive coverage requirement.

															B

															     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.” 158
Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1,
2012) (debate and vote).[ 6 ]
That amendment, Senator Mikulski observed, would have “pu[t] the
personal opinion of employers and insurers over the practice of
medicine.” Id., at S1127 (Feb. 29, 2012). 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.

															II

															     Any First Amendment
Free Exercise Clause claim Hobby Lobby or Conestoga[ 7 ] might assert is foreclosed by this Court’s
decision in Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990) . In Smith, two members of the
Native American Church were dismissed from their jobs and denied
unemployment benefits because they ingested peyote at, and as an
essential element of, a religious ceremony. Oregon law forbade the
consumption of peyote, and this Court, relying on that prohibition,
rejected the employees’ claim that the denial of unemployment
benefits violated their free exercise rights. 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.” Id., at 878; see id., at
878–879 (“an individ-ual’s religious beliefs [do not] excuse him
from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate”). The ACA’s contraceptive
coverage requirement applies generally, it is “otherwise valid,” it
trains on women’s well being, not on the exerciseof religion, and
any effect it has on such exercise isincidental.

															     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.[ 8 ]

															     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. See
Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.
4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any
decision in which . . . [the U. S. Supreme Court]
has exempted a religious objector from the operation of a neutral,
generally applicable law despite the recognition that the requested
exemption would detrimentally affect the rights of third
parties.”). 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.’ ” Chafee,
Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957
(1919).

															III

															A

															     Lacking a tenable
claim under the Free Exercise Clause, Hobby Lobby and Conestoga
rely on RFRA, a statute instructing that “[g]overnment 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.”
42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress
“adopt[ed] a statutory rule comparable to the constitutional rule
rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União
do Vegetal, 546 U. S. 418, 424 (2006) .

															     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, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406
U. S. 205 (1972) and to guarantee its application in all cases
where free exercise of religion is substantially burdened.”
§2000bb(b)(1).[ 9 ] See also
§2000bb(a)(5) (“[T]he compelling interest test as set forth in
prior Federal court rulings isa workable test for striking sensible
balances between religious liberty and competing prior governmental
in-terests.”); ante, at 48 (agreeing that the pre-Smith compelling
interest test is “workable” and “strike[s] sensible balances”).

															     The legislative history
is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep.
No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s
purpose was “only to overturn the Supreme Court’s decision in
Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec.
26178 (1993) (statement of Sen. Kennedy) (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.” Senate Report 8. See also
H. R. Rep. No. 103–88, pp. 6–7 (1993) (hereinafter House
Report) (same). In short, the Act reinstates the law as it was
prior to Smith, without “creat[ing] . . . new rights for
any religious practice or for any potential litigant.” 139 Cong.
Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate
purpose, it is hardly surprising that RFRA’s enactment in 1993
provoked little controversy. See Brief for Senator Murray
et al. as Amici Curiae 8 (hereinafter Senators Brief )
(RFRA was approved by a 97-to-3 vote in the Senate and a voice vote
in the House of Representatives).

															B

															     Despite these
authoritative indications, the Court sees RFRA as a bold initiative
departing from, rather than restoring, pre-Smith jurisprudence. See
ante, at 6, n. 3, 7, 17, 25–27. To support its conception of
RFRA as a measure detached from this Court’s decisions, one that
sets a new course, the Court points first to the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 42
U. S. C. §2000cc et seq., which altered RFRA’s
definition of the term “exercise of religion.” RFRA, as originally
enacted, defined that term to mean “the exercise of religion under
the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.).
See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now
includes “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” §2000bb–2(4) (2012 ed.)
(cross-referencing §2000cc–5). That definitional change, according
to the Court, reflects “an obvious effort to effect a complete
separation from First Amendment case law.” Ante, at 7.

															     The Court’s reading is
not plausible. RLUIPA’s alteration clarifies that courts should not
question the centrality of a particular religious exercise. But the
amendment in no way suggests that Congress meant to expand the
class of entities qualified to mount religious accommodation
claims, nor does it relieve courts of the obligation to inquire
whether a government action substantially burdens a religious
exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009)
(Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters,
in changing the definition of ‘exercise of religion,’ wanted to
broaden the scope of the kinds of practices protected by RFRA, not
increase the universe of individuals protected by RFRA.”);
H. R. Rep. No. 106–219, p. 30 (1999). See also Gilardi v.
United States Dept. of Health and Human Servs., 733 F. 3d
1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no
helpful definition of ‘exercise of religion.’ ”); Henderson v.
Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The [RLUIPA]
amendments did not alter RFRA’s basic prohibition that the
‘[g]overnment shall not substantially burden a person’s exercise of
religion.’ ”).[ 10 ]

															     Next, the Court
highlights RFRA’s requirement that the government, if its action
substantially burdens a person’s religious observance, must
demonstrate that it chose the least restrictive means for
furthering a compelling interest. “[B]y imposing a
least-restrictive-means test,” the Court suggests, RFRA “went
beyond what was required by our pre-Smith decisions.” Ante, at 17,
n. 18 (citing City of Boerne v. Flores, 521 U. S. 507
(1997) ). See also ante, at 6, n. 3. But as RFRA’s statements
of purpose and legislative history make clear, Congress intended
only to restore, not to scrap or alter, the balancing test as this
Court had applied it pre-Smith. See supra, at 8–9. See also Senate
Report 9 (RFRA’s “compelling interest test generally should not be
construed more stringently or more leniently than it was prior to
Smith.”); House Report 7 (same).

															     The Congress that
passed RFRA correctly read this Court’s pre-Smith case law as
including within the “compelling interest test” a “least
restrictive means” requirement. See, e.g., Senate Report 5 (“Where
[a substantial] burden is placed upon the free exercise of
religion, the Court ruled [in Sherbert], the Government must
demonstrate that it is the least restrictive means to achieve a
compelling governmental interest.”). And the view that the
pre-Smith test included a “least restrictive means” requirement had
been aired in testimony before the Senate Judiciary Committee by
experts on religious freedom. See, e.g., Hearing on S. 2969 before
the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79
(1993) (statement of Prof. Douglas Laycock).

															     Our decision in City of
Boerne, it is true, states that the least restrictive means
requirement “was not used in the pre-Smith jurisprudence RFRA
purported to codify.” See ante, at 6, n. 3, 17, n. 18. As
just indicated, however, that statement does not accurately convey
the Court’s pre-Smith jurisprudence. See Sherbert, 374 U. S.,
at 407 (“[I]t would plainly be incumbent upon the [government] to
demonstrate that no alternative forms of regulation would combat
[the problem] without infringing First Amendment rights.”); Thomas
v. Review Bd. of Indiana Employment Security Div., 450 U. S.
707, 718 (1981) (“The state may justify an inroad on religious
liberty by showing that it is the least restrictive means of
achieving some compelling state interest.”). See also Berg, The New
Attacks on Religious Freedom Legislation and Why They Are Wrong, 21
Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court
erroneously said that the least restrictive means test ‘was not
used in the pre-Smith jurisprudence.’ ”).[ 11 ]

															C

															     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 “person[s]” 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.

															1

															     RFRA’s compelling
interest test, as noted, see supra, at 8, applies to government
actions that “substantially burden a person’s exercise of
religion.” 42 U. S. C. §2000bb–1(a) (emphasis added).
This reference, the Court submits, incorporates the definition of
“person” found in the Dictionary Act, 1 U. S. C. §1,
which extends to “corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals.” See ante, at 19–20. The Dictionary Act’s definition,
however, controls only where “context” does not “indicat[e]
otherwise.” §1. Here, context does so indicate. RFRA speaks of “a
person’s exercise of religion.” 42 U. S. C. §2000bb–1(a)
(emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).[ 12 ] Whether a corporation qualifies
as a “person” capable of exercis-ing religion is an inquiry one
cannot answer without reference to the “full body” of pre-Smith
“free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. 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.[ 13 ] 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.” Trustees of Dartmouth
College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations,
Justice Stevens more recently reminded, “have no consciences, no
beliefs, no feelings, no thoughts, no desires.” Citizens United v.
Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion
concurring in part and dissenting in part).

															     The First Amendment’s
free exercise protections, the Court has indeed recognized, shelter
churches and other nonprofit religion-based organizations.[ 14 ] “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, 483 U. S. 327, 342 (1987)
(Brennan, J., concurring in judgment). The Court’s “special
solicitude to the rights of religious organizations,” Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___,
___ (2012) (slip op., at 14), how-ever, is just that. No such
solicitude is traditional for com-mercial organizations.[ 15 ] Indeed, until today, religious
exemptions had never been extended to any entity operating in “the
commercial, profit-making world.” Amos, 483 U. S., at
337.[ 16 ]

															     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. See 42
U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans
World Airlines, Inc. v. Hardison, 432 U. S. 63 –81 (1977)
(Title VII requires reasonable accommodation of an employee’s
religious exercise, but such accommodation must not come “at the
expense of other[ employees]”). 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.[ 17 ] 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. See Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 468 (2001)
(Congress does not “hide elephants in mouseholes”). The text of
RFRA makes no such statement and the legislative history does not
so much as mention for-profit corporations. See Hobby Lobby Stores,
Inc. v. Sebelius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe,
C. J., concurring in part and dissenting in part) (legislative
record lacks “any suggestion that Congress foresaw, let alone
intended that, RFRA would cover for-profit corporations”). See also
Senators Brief 10–13 (none of thecases cited in House or Senate
Judiciary Committeereports accompanying RFRA, or mentioned during
floor speeches, recognized the free exercise rights of 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.
See ante, at 20–25. See also ante, at 3 (Kennedy, J., concurring)
(criticizing the Government for “distinguishing between different
religious believers—burdening one while accommodating the
other—when it may treat both equally by offering both of them the
same accommodation”).[ 18 ]
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, see 1 W. Blackstone,
Commentaries on the Laws of England 458 (1765), and was reiterated
by this Court centuries before the enactment of the Internal
Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815)
(describing religious corporations); Trustees of Dartmouth College,
4 Wheat., at 645 (discussing “eleemosynary” corporations, including
those “created for the promotion of religion”). 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].”
Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part
and dissenting in part) (emphasis deleted).

															     Citing Braunfeld v.
Brown, 366 U. S. 599 (1961) , 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?” Ante, at 22 (footnote omitted). See
also ante, at 16–17. But even accepting, arguendo, 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. In any event,
Braunfeld is hardly impressive authority for the entitlement Hobby
Lobby and Conestoga seek. The free exercise claim asserted there
was promptly rejected on the merits.

															     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.[ 19 ] Little doubt that RFRA claims will
proliferate, for the Court’s expansive notion of corporate
personhood—combined with its other errorsin construing RFRA—invites
for-profit entities to seek religion-based exemptions from
regulations they deem offensive to their faith.

															2

															     Even if Hobby Lobby
and Conestoga were deemed RFRA “person[s],” to gain an exemption,
they must demonstrate that the contraceptive coverage requirement
“substan-tially burden[s] [their] exercise of religion.” 42
U. S. C. §2000bb–1(a). 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. See 139 Cong. Rec. 26180. 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.” Ibid.

															     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’ “belie[f ] 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.” Ante, at 36.[ 20 ]
I agree with the Court that the Green and Hahn families’ religious
convictions regarding contraception are sincerely held. See Thomas,
450 U. S., at 715 (courts are not to question where an
individual “dr[aws] the line” in defining which practices run afoul
of her religious beliefs). See also 42 U. S. C.
§§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).[ 21 ] 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. Kaemmerling v. Lappin, 553
F. 3d 669, 679 (CADC 2008).

															     That distinction is a
facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v.
Roy, 476 U. S. 693 (1986) , is instructive. There, the Court
rejected a free exercise challenge to the Government’s use of a
Native American child’s Social Security number for purposes of
administering benefit programs. Without questioning the sincerity
of the father’s religious belief that “use of [his daughter’s
Social Security] number may harm [her] spirit,” the Court concluded
that the Government’s internaluses of that number “place[d] [no]
restriction on what [the father] may believe or what he may do.”
Id., at 699. Recognizing that the father’s “religious views may not
accept” the position that the challenged uses concerned only the
Government’s internal affairs, the Court explained that “for the
adjudication of a constitutional claim, the Constitution, rather
than an individual’s religion, must supply the frame of reference.”
Id., at 700–701, n. 6. See also Hernandez v. Commissioner, 490
U. S. 680, 699 (1989) (distinguishing between, on the one
hand, “question[s] [of] the centrality of particular beliefs or
practices to a faith, or the validity of particular litigants’
interpretations of those creeds,” and, on the other, “whether the
alleged burden imposed [by the challenged government action] is a
substantial one”). Inattentive to this guidance, today’s decision
elides entirely the distinction between the sincerity of a
challenger’s religious belief and the substantiality of the burden
placed on the challenger.

															     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, see supra, at 3–6, 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 Cones-toga, 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 “[n]o
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.” Grote v.
Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J.,
dissenting). It is doubtful that Congress, when it specified that
burdens must be “substantia[l],” 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 wo-man’s autonomous choice, informed by the physician she
consults.

															3

															     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. See IOM Report 102–107. The
coverage helps safeguard the health of women for whom pregnancy may
be hazardous, even life threatening. See Brief for American College
of Obstetricians and Gynecologists et al. as Amici Curiae
14–15. And the mandate secures benefits wholly unrelated to
pregnancy, preventing certain cancers, menstrual disorders, and
pelvic pain. Brief for Ovarian Cancer National Alliance et al.
as Amici Curiae 4, 6–7, 15–16; 78 Fed. Reg. 39872 (2013); IOM
Report 107.

															     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. See id., at 105.[ 22 ] 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.
See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged
that his “argument . . . would apply just as well if the
employer said ‘no contraceptives’ ” (internal quotation marks
added)).

															     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. See ante, at 40.[ 23 ] 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, Brief for Guttmacher Institute et al. as
Amici Curiae 16; 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, United States, 2004, 40 Perspectives on
Sexual & Reproductive Health 94, 98 (2008); and that only
one-fourth of women who request an IUD actually have one inserted
after finding out how expensive it would be, Gariepy, Simon, Patel,
Creinin, & Schwarz, The Impact of Out-of-Pocket Expense on IUD
Utilization Among Women With Private Insurance, 84 Contraception
e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study
found that women who face out-of-pocket IUD costs in excess of $50
were “11-times less likely to obtain an IUD than women who had to
pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear,
& Petitti, A Comparison of Contraceptive Procurement Pre- and
Post-Benefit Change, 76 Contraception 360, 361–362 (2007) (when one
health system eliminated patient cost sharing for IUDs, use of this
form of contraception more than doubled).

															     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. See
ante, at 39–40.

															     Federal statutes often
include exemptions for small employers, and such provisions have
never been held to undermine the interests served by these
statutes. See, e.g., Family and Medical Leave Act of 1993, 29 U. S.
C. §2611(4)(A)(i) (applicable to employers with 50 or more
employees); Age Discrimination in Employment Act of 1967, 29 U. S.
C. §630(b) (originally exempting employers with fewer than 50
employees, 81Stat. 605, the statute now governs employers with 20
or more employees); Americans With Disabilities Act, 42
U. S. C. §12111(5)(A) (applicable to employers with 15 or
more employees); Title VII, 42 U. S. C. §2000e(b)
(originally exempting employers with fewer than 25 employees, see
Arbaugh v. Y & H Corp., 546 U. S. 500 ,
n. 2 (2006), the statute now governs employers with 15 or more
employees).

															     The ACA’s
grandfathering provision, 42 U. S. C. §18011, 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. See 45 CFR §147.140(g). Hobby Lobby’s
own situation is illustrative. By the time this litigation
commenced, Hobby Lobby did not have grandfathered status. Asked why
by the District Court, Hobby Lobby’s counsel explained that the
“grandfathering requirements mean that you can’t make a whole menu
of changes to your plan that involve things like the amount of
co-pays, the amount of co-insurance, deductibles, that sort of
thing.” App. in No. 13–354, pp. 39–40. Counsel acknowledged that,
“just because of economic realities, our plan has to shift over
time. I mean, insurance plans, as everyone knows, shif[t] over
time.” Id., at 40.[ 24 ] The
percentage of employees in grandfathered plans is steadily
declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in
2013. Kaiser Family Foundation & Health Research & Educ.
Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far
from ranking as a categorical exemption, the grandfathering
provision is “temporary, intended to be a means for gradually
transitioning employers into mandatory coverage.” Gilardi, 733
F. 3d, at 1241 (Edwards, J., concurring in part and dissenting
in part).

															     The Court ultimately
acknowledges a critical point: RFRA’s application “must take
adequate account of the burdens a requested accommodation may
impose on nonbeneficiaries.” Ante, at 42, n. 37 (quoting
Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) ; emphasis
added). 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. Cf. supra, at 7–8; Prince v.
Massachusetts, 321 U. S. 158, 177 (1944) (Jackson, J.,
dissenting) (“[The] limitations which of necessity bound religious
freedom . . . begin to operate whenever activities begin
to affect or collide with liberties of others or of the
public.”).

															4

															     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. See supra, at 7–8,
27.[ 25 ]

															     Then let the government
pay (rather than the employees who do not share their employer’s
faith), the Court suggests. “The most straightforward
[alternative],” the Court asserts, “would be for the Government to
assume the cost of providing . . . contraceptives
. . . to any women who are unable to obtain them under
their health-insurance policies due to their employers’ religious
objections.” Ante, at 41. 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.” 78 Fed. Reg. 39888. 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. Ibid. More-over, Title X of the Public Health Service
Act, 42 U. S. C. §300 et seq., “is the nation’s only
dedicated source of federal funding for safety net family planning
services.” Brieffor National Health Law Program et al. as
Amici Curiae 23. “Safety net programs like Title X are not designed
to absorb the unmet needs of . . . insured individuals.”
Id., at 24. Note, too, that Congress declined to write into law the
preferential treatment Hobby Lobby and Conestoga describe as a less
restrictive alternative. See supra, at 6.

															     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, see Tony and
Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290,
303 (1985) , or according women equal pay for substantially similar
work, see Dole v. Shenandoah Baptist Church, 899 F. 2d 1389,
1392 (CA4 1990)? Does it rank as a less restrictive alternative to
require the government to provide the money or benefit to which the
employer hasa religion-based objection?[ 26 ] Because the Court cannot easily answer that
question, it proposes something else: Extension to commercial
enterprises of the accommodation already afforded to nonprofit
religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a
minimum,” according to the Court, such an approach would not
“impinge on [Hobby Lobby’s and Conestoga’s] religious belief.”
Ante, at 44. I have already discussed the “special solicitude”
generally accorded nonprofit religion-based organizations that
exist to serve a community of believers, solicitude never before
accorded to commercial enterprises comprising employees of diverse
faiths. See supra, at 14–17.

															     Ultimately, the Court
hedges on its proposal to align for-profit enterprises with
nonprofit religion-based organizations. “We do not decide today
whether [the] approach [the opinion advances] complies with RFRA
for purposes of all religious claims.” Ante, at 44. Counsel for
Hobby Lobby was similarly noncommittal. Asked at oral argument
whether the Court-proposed alternative was acceptable,[ 27 ] counsel responded: “We haven’t
been offered that accommodation, so we haven’t had to decide what
kind of objection, if any, we would make to that.” Tr. of Oral Arg.
86–87.

															     Conestoga suggests
that, if its employees had to acquire and pay for the
contraceptives (to which the corporation objects) on their own, a
tax credit would qualify as a less restrictive alternative. See
Brief for Petitioners in No. 13–356, p. 64. A tax credit, of
course, is one variety of “let the government pay.” In addition to
departing from the existing employer-based system of health
insurance, Conestoga’s alternative would require a woman to reach
into her own pocket in the first instance, and it would do nothing
for the woman too poor to be aided by a tax credit.

															     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.

															IV

															     Among the pathmarking
pre-Smith decisions RFRA preserved is United States v. Lee, 455
U. S. 252 (1982) . 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. Id., at 260–261. See
also id., at 258 (recognizing the important governmental interest
in providing a “nationwide . . . comprehensive insurance
system with a variety of benefits available to all participants,
with costs shared by employers and employees”).[ 28 ] The Government urges that Lee should
control the challenges brought by Hobby Lobby and Conestoga. See
Brief for Respondents in No. 13–356, p. 18. In contrast,
today’s Court dismisses Lee as a tax case. See ante, at 46–47.
Indeed, it was a tax case and the Court in Lee homed in on “[t]he
difficulty in attempting to accommodate religious beliefs in the
area of taxation.” 455 U. S., at 259.

															     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.” Id., at 261. 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 “operat[e] to impose the employer’s
religious faith on the employees.” Ibid.[ 29 ] 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,[ 30 ] 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. See, e.g., Newman v.
Piggie Park Enterprises, Inc., 256 F. Supp. 941, 945 (SC 1966)
(owner of restaurant chain refused to serve black patrons based on
his religious beliefs opposing racial integration), aff’d in
relevant part and rev’d in part on other grounds, 377 F. 2d
433 (CA4 1967), aff’d and modified on other grounds, 390 U. S.
400 (1968) ; In re Minnesota ex rel. McClure, 370 N. W. 2d
844, 847 (Minn. 1985) (born-again Christians who owned closely
held, for-profit health clubs believed that the Bible proscribed
hiring or retaining an “individua[l] living with but not married to
a person of the opposite sex,” “a young, single woman working
without her father’s consent or a married woman working without her
husband’s consent,” and any person “antagonistic to the Bible,”
including “fornicators and homosexuals” (internal quotation marks
omitted)), appeal dismissed, 478 U. S. 1015 (1986) ; Elane
Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309
P. 3d 53 (for-profit photography business owned by a husband
and wife refused to photograph a lesbian couple’s commitment
ceremony based on the religious beliefs of the company’s owners),
cert. denied, 572 U. S. ___ (2014). 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”? Ante, at
37.

															     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)?[ 31 ] 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.” Tr. of
Oral Arg. 6. 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.”
Ante, at 46. 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,
455 U. S., at 263, n. 2 (Stevens, J., concurring in
judgment), 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.” Ibid. The Court, I fear, has ventured
into a minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d
723, 730 (CA9 2010) (O’Scannlain, J., concurring), 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.” See id., at 748
(Kleinfeld, J., concurring).

															*  *  *

															     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. Notes 1 The Court insists it has
held none of these things, for another less restrictive alternative
is at hand: extending an existing accommodation, currently limited
to religious nonprofit organizations, to encompass commercial
enterprises. See at 3–4. With that accommodation extended, the
Court asserts, “women would still be entitled to all [Food and Drug
Administration]-approved contraceptives without cost sharing.” at
4. In the end, however, the Court is not so sure. In stark contrast
to the Court’s initial emphasis on this accommodation, it
ultimately declines to decide whether the highlighted accommodation
is even lawful. See at 44 (“We do not decide today whether an
approach of this type complies with RFRA
. . . .”). 2 See –13(a)(1)–(3) (group
health plans must provide coverage, without cost sharing, for (1)
certain “evidence-based items or services” recommended by the
U. S. Preventive Services Task Force; (2) immunizations
recommended by an advisory committee of the Centers for Disease
Control and Prevention; and (3) “with respect to infants, children,
and adolescents, evidence-informed preventive care and screenings
provided for in the comprehensive guidelines supported by the
Health Resources and Services Administration”). 3 The IOM is an arm of the
National Academy of Sciences, an organization Congress established
“for the explicit purpose of furnishing advice to the Government.”
v. , , n. 11 (1989) (internal quotation marks
omitted). 4 HRSA, HHS, Women’s
Preventive Services Guidelines, available at
http://www.hrsa.gov/womensguidelines/ (all Internet materials as
visited June 27, 2014, and available in Clerk of Court’s case
file), reprinted in App. to Brief for Petitioners in No. 13–354,
pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012). 5 45 CFR §147.130(a)(1)(iv)
(2013) (HHS); 29 CFR §2590.715–2713(a)(1)(iv) (2013) (Labor); 26
CFR §54.9815–2713(a)(1)(iv) (2013) (Treasury). 6 Separating moral
convictions from religious beliefs would be of questionable
legitimacy. See v. , –358 (1970) (Harlan, J., concurring in
result). 7 As the Court explains,
see at 11–16, these cases arise from two separate lawsuits, one
filed by Hobby Lobby, its affiliated business (Mardel), and the
family that operates these businesses (the Greens); the other filed
by Conestoga and the family that owns and controls that business
(the Hahns). Unless otherwise specified, this opinion refers to the
respective groups of plaintiffs as Hobby Lobby and
Conestoga. 8 See v. , (“This case, of
course, is not one in which any harm to the physical or mental
health of the child or to the public safety, peace, order, or
welfare has been demonstrated or may be properly inferred.”); v. ,
(invalidating state statute requiring employers to accommodate an
employee’s Sabbath observance where that statute failed to take
into account the burden such an accommodation would impose on the
employer or other employees). Notably, in construing the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the
Court has cautioned that “adequate account” must be taken of “the
burdens a requested accommodation may impose on nonbeneficiaries.”
v. , ; see at 722 (“an accommodation must be measured so that it
does not override other significant interests”). A balanced
approach is all the more in order when the Free Exercise Clause
itself is at stake, not a statute designed to promote accommodation
to religious beliefs and practices. 9 Under and , the Court
“requir[ed] the government to justify any substantial burden on
religiously motivated conduct by a compelling state interest and by
means narrowly tailored to achieve that interest.” v. , (O’Connor,
J., concurring injudgment). 10 RLUIPA, the Court notes, includes a
provision directing that “[t]his chapter [, RLUIPA] shall be
construed in favor of a broad protection of religious exercise, to
the maximum extent permitted by the terms of [the Act] and the
Constitution.” –3(g); see at 6–7, 26. RFRA incorporates RLUIPA’s
definition of “exercise of religion,” as RLUIPA does, but contains
no omnibus rule of construction governing the statute in its
entirety. 11 The
Court points out that I joined the majority opinion in and did not
then question the statement that “least restrictive means
. . . was not used [pre-].” at 17, n. 18. Concerning
that observation, I remind my colleagues of Justice Jackson’s sage
comment: “I see no reason why I should be consciously wrong today
because I was unconsciously wrong yesterday.” v. , –640 (1948)
(dissenting opinion). 12 As
earlier explained, see at 10–11, RLUIPA’s amendment of the
definition of “exercise of religion” does not bear the weight the
Court places on it. Moreover, it is passing strange to attribute to
RLUIPA any purpose to cover entities other than “religious
assembl[ies] or institution[s].” . But cf. at 26. That law applies
to land-use regulation. §2000cc(a)(1). To permit commercial
enterprises to challenge zoning and other land-use regulations
under RLUIPA would “dramatically expand the statute’s reach” and
deeply intrude on local prerogatives, contrary to Congress’ intent.
Brief for National League of Cities et al. as 26. 13 The
Court regards v., , as “suggest[ing] . . . that
for-profit corporations possess [free-exercise] rights.” at 26–27.
See also at 21, n. 21. The suggestion is barely there. True,
one of the five challengers to the Sunday closing law assailed in
was a corporation owned by four Orthodox Jews. The other
challengers were human individuals, not artificial, law-created
entities, so there was no need to determine whether the corporation
could institute the litigation. Accordingly, the plurality stated
it could pretermit the question “whether appellees ha[d] standing”
because v. , , which upheld a similar closing law, was fatal to
their claim on the merits. 366 U. S., at 631. 14 See,
v. , 565 U. S. ___ (2012); v. , ; v. , ; v. , . 15 Typically, Congress has accorded to
organizations religious in character religion-based exemptions from
statutes of general application. –1(a) (Title VII exemption from
prohibition against employment discrimination based on religion for
“a religious corporation, association, educational institution, or
society with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on
. . . of its activities”); (parallel exemption in
Americans With Disabilities Act of 1990). It can scarcely be
maintained that RFRA enlarges these exemptions to allow Hobby Lobby
and Conestoga to hire only persons who share the religious beliefs
of the Greens or Hahns. Nor does the Court suggest otherwise. Cf.
at 28. 16 That
is not to say that a category of plaintiffs, such as resident
aliens, may bring RFRA claims only if this Court expressly
“addressed their [free-exercise] rights before .” at 27. Continuing
with the Court’s example, resident aliens, unlike corporations, are
flesh-and-blood individuals who plainly count as persons sheltered
by the , see v. , (citing v. , ), and , RFRA. 17 I
part ways with on the context relevant here. He sees it as the
employers’ “exercise [of] their religious beliefs within the
context of their own closely held, for-profit corporations.” at 2
(concurring opinion). See also at 45–46 (opinion of the Court)
(similarly concentrating on religious faith of employers without
reference to the different beliefs and liberty interests of
employees). I see as the relevant context the employers’ asserted
right to exercise religion within a nationwide program designed to
protect against health hazards employees who do not subscribe to
their employers’ religious beliefs. 18 According to the Court, the
Government “concedes” that “nonprofit corporation[s]” are protected
by RFRA. at 19. See also at 20, 24, 30. That is not an accurate
description of the Government’s position, which encompasses only
“churches,” “ institutions,” and “ non-profits.” Brief for
Respondents in No. 13–356, p. 28 (emphasis added). See also
Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the
longstanding and common-sense distinction between religious
organizations, which sometimes have been accorded accommodations
under generally applicable laws in recognition of their accepted
religious character, and for-profit corporations organized to do
business in the commercial world.”). 19 The
Court does not even begin to explain how one might go about
ascertaining the religious scruples of a corporation where shares
are sold to the public. No need to speculate on that, the Court
says, for “it seems unlikely” that large corporations “will often
assert RFRA claims.” at 29. Perhaps so, but as Hobby Lobby’s case
demonstrates, such claims are indeed pursued by large corporations,
employing thousands of persons of different faiths, whose ownership
is not diffuse. “Closely held” is not synonymous with “small.”
Hobby Lobby is hardly the only enterprise of sizable scale that is
family owned or closely held. For example, the family-owned candy
giant Mars, Inc., takes in $33 billion in revenues and has some
72,000 employees, and closely held Cargill, Inc., takes in more
than $136 billion in reve-nues and employs some 140,000 persons.
See Forbes, America’s Largest Private Companies 2013, available at
http://www.forbes.com/largest-private-companies/. 20 The
Court dismisses the argument, advanced by some , that the
$2,000-per-employee tax charged to certain employers that fail to
provide health insurance is less than the average cost of offering
health insurance, noting that the Government has not provided the
statistics that could support such an argument. See at 32–34. The
Court overlooks, however, that it is not the Government’s
obligation to prove that an asserted burden is substantial.
Instead, it is incumbent upon plaintiffs to demonstrate, in support
of a RFRA claim, the substantial-ity of the alleged
burden. 21 The
Court levels a criticism that is as wrongheaded as can be. In no
way does the dissent “tell the plaintiffs that their beliefs are
flawed.” at 37. Right or wrong in this domain is a judgment no
Member of this Court, or any civil court, is authorized or equipped
to make. What the Court must decide is not “the plausibility of a
religious claim,” at 37 (internal quotation marks omitted), but
whether accommodating that claim risks depriving others of rights
accorded them by the laws of the United States. See at 7–8; , at
27. 22 IUDs,
which are among the most reliable forms of contraception, generally
cost women more than $1,000 when the expenses of the office visit
and insertion procedure are taken into account. See Eisenberg,
McNicholas, & Peipert, Cost as a Barrier to Long-Acting
Reversible Contraceptive (LARC) Use in Adolescents, 52 J.
Adolescent Health S59, S60 (2013). See also Winner et al.,
Effectiveness of Long-Acting Reversible Contraception, 366 New Eng.
J. Medicine 1998, 1999 (2012). 23 Although the Court’s opinion makes
this assumption grudgingly, see at 39–40, one Member of the
majority recognizes, without reservation, that “the [contraceptive
coverage] mandate serves the Government’s compelling interest in
providing insurance coverage that is necessary to protect the
health of female employees.” at 2 (opinion of , J.). 24 Hobby
Lobby’s National Religious Broadcasters similarly states that,
“[g]iven the nature of employers’ needs to meet changing economic
and staffing circumstances, and to adjust insurance coverage
accordingly, the actual benefit of the ‘grandfather’ exclusion is
and transitory at best.” Brief for National Religious Broadcasters
as in No. 13–354, p. 28. 25 As
the Court made clear in , the government’s license to grant
religion-based exemptions from generally applicable laws is
constrained by the Establishment Clause. 544 U. S., at
720–722. “[W]e are a cosmopolitan nation made up of people of
almost every conceivable religious preference,” , 366 U. S.,
at 606, a “rich mosaic of religious faiths,” v. , 572 U. S.
___, ___ (2014) (, J., dissenting) (slip op., at 15). Consequently,
one person’s right to free exercise must be kept in harmony with
the rights of her fellow citizens, and “some religious practices
[must] yield to the common good.” v. , . 26 Cf.
v. , (in context of Speech Clause challenge to a content-based
speech restriction, courts must determine “whether the challenged
regulation is the least restrictive means among , effective
alternatives” (emphasis added)). 27 On
brief, Hobby Lobby and Conestoga barely addressed the extension
solution, which would bracket commercial enterprises with nonprofit
religion-based organizations for religious accommodations purposes.
The hesitation is understandable, for challenges to the adequacy of
the accommodation accorded religious nonprofit organizations are
currently . See, v. , ___ F. Supp. 2d ___, 2013 WL
6839900 (Colo., Dec. 27, 2013), injunction pending appeal granted,
571 U. S. ___ (2014). At another point in today’s decision,
the Court refuses to consider an argument neither “raised below
[nor] advanced in this Court by any party,” giving Hobby Lobby and
Conestoga “[no] opportunity to respond to [that] novel claim.” at
33. Yet the Court is content to decide this case (and this case
only) on the ground that HHS could make an accommodation never
suggested in the parties’ presentations. RFRA cannot sensibly be
read to “requir[e] the government to . . . refute each
and every conceivable alternative regulation,” v. , 638 F. 3d
1274, 1289 (CA10 2011), especially where the alternative on which
the Court seizes was not pressed by any challenger. 28 As a
sole proprietor, Lee was subject to personal liability for
violating the law of general application he opposed. His claim to a
religion-based exemption would have been even thinner had he
conducted his business as a corporation, thus avoiding personal
liability. 29 Congress amended the Social Security
Act in response to . The amended statute permits Amish sole
proprietors and partnerships (but not Amish-owned corporations) to
obtain an exemption from the obligation to pay Social Security
taxes only for employees who are co-religionists and who likewise
seek an exemption and agree to give up their Social Security
benefits. See , (b)(1). Thus, employers with sincere religious
beliefs have no right to a religion-based exemption that would
deprive employees of Social Security benefits without the
employee’s consent—an exemption analogous to the one Hobby Lobby
and Conestoga seek here. 30 Cf.
v. , (disallowing religion-based exemption that “would undoubtedly
give [the commercial enterprise seeking the exemption] and similar
organizations an advantage over their competitors”). 31 Religious objections to immunization
programs are not hypothetical. See v. , ___ F. Supp. 2d
___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise
challenges to New York’s vaccination practices); Liberty Counsel,
Compulsory Vaccinations Threaten Religious Freedom (2007),
available at
http://www.lc.org/media/9980/attachments/memo_vaccination.pdf. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 13–354 and 13–356

															_________________

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al., PETITIONERS

															13–354      v.

															HOBBY LOBBY STORES, INC.,
et al.

															on writ of certiorari to the united states
courtof appeals for the tenth circuit

															and

															CONESTOGA WOOD SPECIALTIES
CORPORATIONet al., PETITIONERS

															13–356      v.

															SYLVIA BURWELL, SECRETARY OF HEALTHAND
HUMAN SERVICES, et al.

															on writ of certiorari to the united states
courtof appeals for the third circuit

															[June 30, 2014]

															     Justice Breyer and
Justice Kagan, dissenting.

															     We agree with Justice
Ginsburg that the plaintiffs’ challenge to the contraceptive
coverage requirement fails on the merits. We need not and do not
decide whether either for-profit corporations or their owners may
bring claims under the Religious Freedom Restoration Act of 1993.
Accordingly, we join all but Part III–C–1 of Justice Ginsburg’s
dissenting opinion.