BECKWITH ELEC. CO. v. SEBELIUS

Reporter 2013 U.S. 11th Cir. Briefs LEXIS 478 * BECKWITH ELEC. CO. v. SEBELIUS No. 13-13879 United States Court of Appeals for the Eleventh Circuit November 27, 2013 BECKWITH ELECTRIC CO., INC. AND THOMAS R. BECKWITH, Plaintiffs-Appellees, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al., Defendants-Appellants. Type: Brief Prior History: On Appeal from the United States District Court for the Middle District of Florida (Case No. 8:13-cv-0648). Counsel [*1] PAMELA JO BONDI, ATTORNEY GENERAL, Allen Winsor (FBN 016295), Solicitor General, Leah A. Sevi (FBN 87283), Deputy Solicitor General, Blaine H. Winship (FBN 0356913), Special Counsel, Office of the Attorney General, Tallahassee, FL. Title BRIEF OF THE STATE OF FLORIDA AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS- APPELLEES AND AFFIRMANCE Text CERTIFICATE OF INTERESTED PERSONS Pursuant to Fed. R. App. P. 26.1 and 11th Cir. Rule 26.1-1, counsel for Amicus Curiae the State of Florida certify that to the best of their knowledge, except for the additional amici curiae and their counsel below, the Certificates in Appellants' and Appellees' Briefs represent a complete list of the persons and entities that have or may have an interest in the outcome of this case: Abolfazli, Leila Allen, Kimberely K. American College of Nurse-Midwives American College of Obstetricians and Gynecologists American Medical Women's Association American Society for Emergency Contraception

2013 U.S. 11th Cir. Briefs LEXIS 478, *1 Page 2 of 10 American Society for Reproductive Medicine Anti-Defamation League Association of Reproductive Health Professionals Besinque, Kathleen Black Women's Health Imperative Blasdell, [*2] Jennifer Borchelt, Gretchen Catholics for Choice Central Conference of American Rabbis Coalition of American Nuns Downing, Don Ellsworth, Jessica L. Feminist Majority Foundation Furlow, Andrew S. Greenberger, Marcia D. Hadassah Hertzog, Erin Estey Hindu American Foundation Interfaith Alliance Foundation Kisloff, Michelle Martin, Emily J. MergerWatch Project of Community Catalyst National Association of Nurse Practitioners in Women's Health National Council of Jewish Women National Organization for Women (NOW) Foundation National Women's Health Network Pahmer, Michele L.

2013 U.S. 11th Cir. Briefs LEXIS 478, *2 Page 3 of 10 Piller, B. Robert Religious Coalition for Reproductive Choice Sevi, Leah A. Society for Adolescent Health and Medicine Society of Family Planning Sood, Dr. Anil K. The Women's Zionist Organization of America, Inc. Trussell, James Unitarian Universalist Association Unitarian Universalist Women's Federation Union for Reform Judaism Waxman, Judith G. Winsor, Allen Women of Reform Judaism Wood, Susan IDENTITY AND INTEREST OF AMICUS CURIAE The Attorney General is the chief legal officer of the State of Florida and is charged with representing the State's interests in both state and federal courts. The Attorney General, on behalf of the State of Florida, submits this amicus brief to advocate Florida's substantial interest in protecting the religious freedoms of its residents. 1 Plaintiffs-Appellees are Florida citizens. Florida law zealously protects religious liberties. Florida's Constitution guarantees that "[t]here shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof." Fla. Const. art. I, 3. Its statutes provide that "[t]he government shall not substantially burden a person's exercise of religion," with exceptions similar to those under the federal Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb [*4] et seq. ("RFRA"). Compare 761.03, Fla. Stat., with42 U.S.C. 2000bb-1. Under Florida law, government may neither "compel[] the religious adherent to engage in conduct that his religion forbids [n]or forbid[] him to engage in conduct that his religion requires." Warner v. City of Boca Raton, 887 So. 2d 1023, 1033 (Fla. 2004). 1 In accordance with Fed. R. App. P. 29(a), the State of Florida "may file an amicus curiae brief without the consent of the parties or leave of court."

2013 U.S. 11th Cir. Briefs LEXIS 478, *4 Page 4 of 10 In addition, Florida seeks to foster a robust business climate. Diverse businesses and jobs are the foundation of a strong economy. Without protections for religious freedom, the HHS Mandate would force Beckwith Electric Co. and other closely-held Florida businesses-together responsible for employing numerous Floridians-to either close or operate in a manner that contradicts their owners' religious faiths on threat of draconian fines. To avoid this harm to Florida's business environment, Florida requests that this Court not misinterpret RFRA to substantially burden family-owned enterprises that, although for-profit, follow religious tenets in their decision-making. Not only would Floridians face substantial economic and religious harms if this Court reversed the district court's decision, reversal [*5] would also impinge upon a traditional area of state regulation. States, not the federal government, are tasked with overseeing the purposes for which a corporation may act. Florida believes that a for-profit company need not act only to maximize profits. Rather, Florida encourages corporations to act with a "conscience." Florida seeks to ensure that its corporate policies are not thwarted by a misapplication of federal law. Because Florida citizens' freedom to exercise their religious liberty-both in how they conduct their personal lives and their businesses-is very much at stake here, Florida has an interest in participating in this case as amicus curiae. STATEMENT OF THE ISSUE Whether the district court abused its discretion in granting a preliminary injunction in favor of Plaintiffs. SUMMARY OF ARGUMENT The practice of one's religion does not stop when that person leaves his home or house of prayer. A sincere religious practice can pervade all aspects of life: how to act, how to dress, what to eat, and how to conduct oneself in employment. For a religious business owner, that includes operating his business. The HHS Mandate, however, forces religious [*6] owners of closely-held corporations to choose between abandoning their faith or paying hefty-and potentially ruinous-fines. Owning a business should not require abandoning one's values. RFRA protects against the Mandate's Damoclean choice. Contrary to the federal government's contention, RFRA reaches more than individuals and nonprofit religious associations. As multiple circuit courts have found, there is no reason to distinguish between for-profit and nonprofit corporations for application of RFRA's religious protections. All corporations, regardless of their pecuniary interests, operate through human actors and reflect those actors' beliefs. Put plainly, RFRA also protects for-profit corporations that wish to operate in accordance with religious tenets. Florida corporate law is consistent with a proper construction of RFRA. Florida law encourages for-profit corporations to look beyond maximizing profit and act with a "conscience." That includes pursuing religious purposes, whether through charitable activity or corporate policy. Because corporate policy is a matter of state law, the federal government should not be

2013 U.S. 11th Cir. Briefs LEXIS 478, *6 Page 5 of 10 permitted to deprive forprofit Florida corporations of the right [*7] to act in accordance with their "corporate conscience" and religious values. The only way the federal government may impose such a substantial burden on Florida's corporations, and the corporations of other states within this Circuit, is if the federal government can demonstrate a compelling need. Given the number of exceptions that exist to application of the HHS Mandate and the availability of less restrictive alternatives, there is no such compelling need. ARGUMENT I. RFRA Encompasses For-Profit Corporations. RFRA provides 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 test of strict scrutiny is satisfied. 42 U.S.C. 2000bb-l(a) (emphasis added). RFRA uses "person," not "natural person" or "individual." The term "person," without qualification, includes for-profit, secular corporations. 1 U.S.C. 1 (unless "the context indicates otherwise," use of the word "person" in congressional acts "include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, [*8] as well as individuals."). RFRA's plain language therefore contemplates all corporations, regardless of their profit-making status. Departure from RFRA's plain language is only warranted if its "context" alters the meaning of the term "person." 1 U.S.C. 1. RFRA's context does no such thing. The parties agree that RFRAthrough use of the term "person"-can encompass non-profit corporations. (See IB at 10; AB at 10 (both acknowledging that non-profit corporations with religious objections to the HHS Mandate may benefit from RFRA).) But, although it is well-established that for-profit, secular corporations-like their non-profit counterparts-also have First Amendment rights, 2 the federal government contends that these corporations do not have religious rights entitling them to RFRA's protections. (IB at 18-22.) [*9] Contrary to the federal government's position, RFRA provides no basis to distinguish between corporations based on whether they seek financial gain. See Korte v. Sebelius, Nos. 12-3841, 13-1077, 2013 WL 5960692, at *15 (7th Cir. Nov. 8, 2013) (conducting contextual analysis and concluding that the line that the "government draws is nowhere to be found in the text of RFRA or any related act of Congress"); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1132 (10th Cir. 2013) ("[T]he government has given us no persuasive reason to think that Congress meant 'person' in RFRA to mean anything other than its default meaning in the Dictionary Act-which includes corporations regardless of their profitmaking status."). RFRA 2 See Citizens United v. Fed. Election Comm 'n,558 U.S. 310, 343 (2010) ("The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not 'natural persons."'); First Nat 'I Bank of Boston v. Bellotti, 435 U.S. 765, 780 (1978) ("Freedom of speech and the otherfreedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, and the Court has not identified a separate source for the right when it has been asserted by corporations.") (internal citations omitted) (emphasis added).

2013 U.S. 11th Cir. Briefs LEXIS 478, *9 Page 6 of 10 defines terms but does not define "person." See42 U.S.C. 2000bb-2 (defining other terms "as used in this chapter"). Congress narrows definitions when it wishes; it was perfectly capable of redefining "person" in RFRA to exclude for-profit, secular corporations if that was the intent. It opted not to do so here. Logic confirms the plain language of RFRA. That corporations act only through human [*10] agency does not distinguish for-profit and non-profit entities. Korte, 2013 WL 5960692, at *9 ("organizational associations, including corporations, act only through human agency"). Churches, for example, only pray or "observe sacraments or take other religiously-motivated actions" through individual actors. Hobby Lobby, 723 F.3d at 1136. Although these entities also act only through human agency, RFRA's protections extend to safeguard their corporate religious exercise. Id. ("The Church of Lukumi Babalu Aye, Inc., for example, did not itself pray, worship, or observe sacraments-nor did the sect in O Centro. But both certainly have Free Exercise rights.") (referencing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) and Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)). Religious beliefs can be practiced in a commercial environment as readily as a noncommercial one. As the Seventh Circuit explained in Korte, "entering the marketplace and earning money" does not "forfeit[s] free-exercise rights." 2013 WL 5960692, at* 19. Indeed, [*11] for someone who sincerely believes his religious tenets, those tenets will inform all aspects of the individual's life, including how he conducts his business. A sincere practice of religion cannot be limited to one's home and house of prayer. See id. at *21 ("Religious people do not practice their faith in that compartmentalized way."). Nothing precludes entering "the forprofit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values." Hobby Lobby, 723 F.3d at 1135. As argued in the recent Amicus Brief of Michigan, Ohio, and 16 other states (including Florida): "to say that forprofit corporations are not covered because they are for-profit is not so much an explanation as a tautology." Brief for Michigan, Ohio, and 16 Other States as Amici Curiae Supporting Petitioners at 12, Conestoga Wood Specialties Corp v. Sebelius, No. 13-356, cert. granted (supporting a grant of certiorari to the United States Supreme Court in an analogous case) (hereinafter "States' Am. Br."). In sum, "Congress did not exclude for-profit corporations from RFRA's protections. Such corporations can be 'persons' [*12] exercising religion for purposes of the statute." Hobby Lobby, 723 F.3d at 1129. The federal government's "misguided effort to circumscribe religious liberty to only religious organizations is similar to confining religious practice to worship, as if religious principles may not animate a corporation-or a person-in public and commercial life. It is akin to suggesting that only ordained religious officials should express religious views. But this is a misunderstanding of religion and religious freedom. RFRA's protections are for everyone." States' Am. Br. at 19. II. Florida's For-Profit Corporations Can Pursue More Than Financial Gain. Regulating business entities is typically the province of the states. See, e.g., Melrose Distillers, Inc. v. United States, 359 U.S. 271, 272 (1959) (whether a corporation "exists" for purposes of the Sherman Act "is determined by reference to state law"). Florida allows for-profit corporations to be formed for "any lawful purpose or purposes," 607.0301, Fla. Stat. "Any purpose"

2013 U.S. 11th Cir. Briefs LEXIS 478, *12 Page 7 of 10 inherently includes the pursuit of an owner's conception of advancing public good in the business context. Although non-profit [*13] corporations may be specifically and expressly organized for "religious" purposes, 617.0301, Fla. Stat., nothing in Florida's Statutes renders adherence to religious tenets inconsistent with a hope of remuneration. Florida law does not distinguish between for-profit and non-profit corporations based on which may pursue charitable, religious, political, or cultural goals. Many for-profit corporations support such purposes through their speech. See Citizens United v. Fed. Election Comm 'n,558 U.S. 310 (2010). The distinguishing factor under Florida law between the two types of corporations is that non-profits may only be organized "for any lawful purpose or purposes not for pecuniary profit." 617.0301, Fla. Stat. (emphasis added). Non-profit corporations are a limited subset of corporations. Though a for-profit corporation may have both pecuniary and religious goals, a non-profit corporation may not. Consistent with this definitional distinction, Florida law empowers forprofit, secular corporations to engage in activities guided by the corporation's "conscience" even though they yield no profit. Id. 607.0302(12) (providing corporations with the power [*14] to "make donations for the public welfare or for charitable, scientific, or educational purposes."). Obviously, that "conscience" derives from the corporation's human actors, i.e., the corporate directors or controlling shareholders. "So long as they act consistent with their fiduciary responsibilities to shareholders, corporate charters, and other applicable requirements, corporate directors may lead their companies to pursue a wide variety of missions." States' Am. Br. at 13. A closely-held corporation-through its familial leadership-may choose to advance in religious goals-and has every right under Florida's business-friendly environment to exercise this prerogative. 3 If this Court interprets RFRA as the federal government suggests, [*15] Florida's for-profit companies could be deprived of the ability to pursue certain religious purposes. Yet, Florida's corporations are empowered and encouraged to focus on more than pecuniary gains. RFRA is designed, consistent with Florida law, to protect this right. As the Tenth Circuit explained, "Congress structured RFRA to override other legal mandates, including its own statutes, if and when they encroach on religious liberty." Hobby Lobby, 723 F.3d at 1156 (Gorsuch, Kelly, and Tymkovich, JJ., concurring and explaining that RFRA protects individual owners as well as company). In light of RFRA's protections and Florida's corporate policies, Florida's corporations should be able to adhere to their guiding religious principles unless the HHS Mandate satisfies strict scrutiny. III. The HHS Mandate Does Not Pass Muster under RFRA. Under RFRA, the government may not substantially burden a person's free exercise of religion, even from a law of general applicability, unless the government can demonstrate a compelling government interest and no less restrictive means of furthering that interest. 42 U.S.C. 2000bb-l(a). Neutral laws [*16] of general applicability "may burden religious exercise as surely as laws intended to interfere with religious exercise." Id. 2000bb(a)(2). 3 Non-profit status under Florida law has no effect on limited liability treatment for corporate participants. 617.0604, Fla. Stat. ("A member of a [nonprofit] corporation is not, as such, personally liable for any act, debt, liability, or obligation of the corporation.").

2013 U.S. 11th Cir. Briefs LEXIS 478, *16 Page 8 of 10 A. The HHS Mandate Substantially Burdens Companies' Exercise of Religion. Whether a law "substantially burdens" the free exercise of religion under RFRA is informed by two Supreme Court cases: Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). In Sherbert, the Court determined that a generally applicable state law that incidentally prevented a Seventh Day Adventist from receiving unemployment benefits because she would not work on Saturdays had to yield to the free exercise of her religion. 374 U.S. at 410. The "disqualification for benefits" was a substantial burden on religious exercise because: The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against [*17] appellant for her Saturday worship. Id. at 404. In Yoder, a Wisconsin law that obligated compulsory education beyond eighth grade was likewise an unconstitutional burden on Amish religious exercise, despite its generality. 406 U.S. at 218-19. The burden placed on Plaintiffs and other religiously motivated Florida corporations by the generally applicable HHS Mandate mimics the burden placed on the plaintiff in Sherbert. Like the Sherbert plaintiff, the Mandate forces businesses to choose between following the precepts of their particular faiths or facing hefty annual fines for failing to provide insurance coverage for contraceptive methods, sterilization procedures, and reproductive counseling. As the States' amicus brief in Conestoga Wood analogized: [C]onsider a Quaker business's commitment to pacifism and its owner's objection to handguns. If a mandate required the business either to provide handguns to employees for selfdefense or to contract with a weapons supplier to provide a handgun, that would be understood as something different from paying the employees' wages. To put it another way, it is one thing for employees [*18] to use their paycheck to buy alcohol. It is an entirely different matter to compel the employer to provide beer. States' Am Br. at 23. The "substantial burden" imposed on religious exercise here is therefore apparent-to disobey the HHS Mandate in favor of religious values is financially disabling. B. The Federal Government Lacks a Compelling Interest to Apply the HHS Mandate to Plaintiffs. That an interest is important, or even "paramount," does not render it compelling. Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). Rather, for a governmental interest to justify a substantial burden on a person's religious liberty, the government must show with "particularity how its admittedly strong interest would be adversely affected by granting an exemption to the [claimant]." Id. (quoting Yoder, 406 U.S. at 236). Stated another way, the inquiry is narrowly focused on the effect of an exemption for the "particular claimant whose sincere exercise of religion is being substantially burdened." Id. at 430-31 (emphasis added).

2013 U.S. 11th Cir. Briefs LEXIS 478, *18 Page 9 of 10 The focused nature of this inquiry undercuts the federal government's [*19] position that there is a compelling interest in having contraceptive services available to all women. (IB at 32-34.) The interest, by the Mandate's own terms, does not rise to the level of being compelling because there are already exceptions for various categories of employers. For example, the Mandate does not reach employers with fewer than 50 employees or "grandfathered" plans. See Korte, 2013 WL 5960692, at *26 ("Since the government grants so many exceptions already, it can hardly argue against exempting these plaintiffs."); Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012) ("this massive exemption [for grandfathered plans] completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs"). The contention that the HHS Mandate would be adversely affected by granting an exception to businesses such as Plaintiffs' thus cannot withstand strict scrutiny. There is no compelling need to abridge the religious liberty of these businesses. Equally important, there are other, less restrictive means by which the federal government could have achieved its goals, such as tax credits to employers. [*20] The court in Newland delineated several such less-restrictive options, including "creation of a contraception insurance plan with free enrollment, direct compensation of contraception and sterilization providers, creation of a tax credit or deduction for contraceptive purchases, or imposition of a mandate on the contraception manufacturing industry to give its items away for free." 881 F. Supp. 2d at 1298. These less restrictive alternatives further preclude finding a compelling interest in this situation. CONCLUSION RFRA does not distinguish between types of corporations. Rather, both RFRA and Florida recognize that for-profit, secular corporations may exercise sincerely held religious beliefs. The HHS Mandate substantially burdens the free exercise of religious beliefs without a compelling need to do so. Florida's businesses and citizens should not be subjected to unconstitutional infringements on their liberty interests. For these reasons, in addition to the reasons in Plaintiffs' answer brief, this Court should affirm the Middle District's grant of a preliminary injunction protecting Plaintiffs' religious freedoms. Dated: November 27, 2013 Respectfully [*21] Submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ Leah A. Sevi Allen Winsor (FBN 016295) Solicitor General Leah A. Sevi (FBN 87283) Deputy Solicitor General Blaine H. Winship (FBN 0356913) Special Counsel

2013 U.S. 11th Cir. Briefs LEXIS 478, *21 Page 10 of 10 Office of the Attorney General The Capitol, PL-01 Tallahassee, FL 32399-1050 Tel: (850) 414-3300 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the applicable type-volume limitation under Rule 32(a)(7) of the Federal Rules of Appellate Procedure and 11th Circuit Rule 32-4. According to the word count in Microsoft Word 2007, there are 3,109 words in the applicable sections of this brief. I also certify that this brief complies with the applicable type-style requirements limitation under Rule 32(a)(5) and (6). The brief was prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point, Times New Roman font. /s/ Leah A. Sevi Attorney CERTIFICATE OF SERVICE I hereby certify that on November 27, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eleventh Circuit by using the appellate CM/ECF system. Participants [*22] in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. All of the participants in this case are registered CM/ECF users. /s/ Leah A. Sevi Attorney End of Document