PER CURIAM:
Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R.APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is DENIED.
In the en banc poll, 4 judges voted in favor of rehearing (Judges Jones, Clement, Owen, and Elrod), and 11 judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Davis, Smith, Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa).
JONES, Circuit Judge, joined by CLEMENT and OWEN, Circuit Judges, dissenting from Denial of Rehearing En Banc,
This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act ("RFRA"). That the panel's decision, like those of other circuit courts, rejects these religious institutions' free exercise of their faith is ironic and tragic. How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the Judeo-Christian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.1 As an example to other courts, ours should have corrected the panel's grave error en banc.
Because much has been written about these particular issues in a clear Eighth Circuit opinion2 and several elegant dissents,3 we add only a few points.
The panel opinion denied religiously affiliated institutions' RFRA challenge to the "accommodation" provided by HHS in administering the Affordable Care Act ("ACA"). Under RFRA, the federal government may sustain a regulation against the claim that it substantially burdens a person's exercise of religion only if the government demonstrates a compelling interest and adopts the least restrictive means to further the interest. 42 U.S.C. § 2000bb-1(a), (b). The ACA requires covered employers to provide health care insurance that includes emergency contraceptive services.4 Only last year, the Supreme Court applied RFRA to exempt a corporation owned by sincere religious believers who opposed the contraceptive mandate from complying with the requirement. Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014).
The HHS "accommodation" offered in this case requires each religiously affiliated institution to fill out forms that effectuate contraceptive insurance coverage for their employees without direct payments by the institutions. These institutions assert, without dispute, that complying with the "accommodation" violates their sincerely held religious beliefs that they would become morally complicit in furnishing services that involve the destruction of human life at or shortly after conception. Also undisputed is that if they fail to comply with the "accommodation," they will incur millions of dollars in fines. The panel concluded, however, that the acts the institutions are required to perform "do not include providing or facilitating access to contraceptives." E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 459 (5th Cir. 2015). The panel simply disagreed with the institutions' view of what Christian theology demands. Finding no "substantial burden" on the institutions' religious exercise if they fill out the required forms, the panel never addressed the government's compelling interest or whether the "accommodation" is the least restrictive means to furnish insurance for emergency contraceptive services.
Based on this court's precedents, this should have been an easy case for upholding religious liberty. Within the past decade, this court has acknowledged that a substantial burden was placed on a person's religious exercise in nine claims under RFRA or related federal and state statutes;5 this court denied only one claim that affected prison security, a compelling interest. The nine claims involved possession of eagle feathers for Native American worship; a Sikh's wearing a 3-inch kirpan (dagger); a Native American prisoner's possession of a lock of hair; a Muslim inmate's beard; long hair on a Native American high school student; Santeria practitioners' keeping and slaughtering four-legged animals; kosher food in prison; worship in a particular prison setting; and possession of stones by Odinists in prison.6 In none of the cases did this court find that the secular regulation did not impose a "substantial" burden on the believers' free exercise of religion. Yet when these institutions' beliefs are predicated on a long history of Christian moral theology concerning complicity in immoral conduct, Hobby Lobby, 134 S.Ct. at 2778 & n. 34, the panel here declared their concerns too "attenuated" to merit legal protection.
As a consequence of the panel's dismissal of the institutions' RFRA claim, three interrelated issues should have been addressed by this court en banc:
1. whether under RFRA, the courts decide the "substantiality" of a burden imposed by government regulations on sincerely held religious beliefs, or whether the believers' views are controlling;
2. whether the substantiality of a burden is measured by the degree of modification of the religious objector's behavior or by the severity of the penalty for noncompliance with the objectionable action;
3. whether under the "accommodation," the acts causing theprovision of insurance coverage for services the institutions believe are immoral are truly "independent" of the institutions.
Had these issues been resolved favorably to the institutions, we would also have to rule on the compelling interest/least restrictive means aspects of the RFRA claim. Because the three threshold issues have sparked lengthy debate and dissent in nearly every other circuit, we will not revisit the arguments here.
Nevertheless, it seems decisive that the Supreme Court rejected the government's contention in Hobby Lobby that the link between mandated emergency contraceptive coverage and the destruction of human embryos was "too attenuated." Id. at 2777. The Court explained:
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 plaintiffs'] belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS . . . in effect tell[s] the plaintiffs their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.
Id. at 2778. At the least, Hobby Lobby says the decision on whether a person's government-compelled act is "attenuated" from the immorality that follows poses a religious and ethical question that courts may not second-guess. Hobby Lobby also says, contrary to implications in the panel's decision here, that the Court is not ruling on the constitutionality of the accommodation regulation itself. Id. at 2763 n. 9, 2782.
Second, the district court granted an injunction against HHS's enforcement of the "accommodation" regulation for some of these plaintiffs. E. Tex. Baptist Univ. v. Sebelius, 988 F.Supp.2d 743 (S.D.Tex. 2013). The court found a clear connection between the acts that the plaintiffs here are required to perform and the consequences, i.e. the provision of emergency contraceptive services to the institutions' employees: "It is the insurance plan that the religious-organization employer put into place, the issuer or TPA the employer contracted with, and the self-certification form the employer completes and provides the issuer or TPA, that enable the employees to obtain the free access to the contraceptive devices that the plaintiffs find religiously offensive." Id. at 768-69. The court went on to find that the government demonstrated no compelling interest in requiring the institutions to comply with the "accommodation" regulation, nor did HHS employ the least restrictive means to achieve its goal. Curiously, the panel opinion never joins issue with the trial court's reasoning.
Third, recent opinions of the Eighth Circuit and a dissent in the Seventh Circuit explain in a detailed review of the regulations how the filing of the forms required of these institutions is the sine qua non, the but-for cause, the indisputable link to the provision of contraceptive coverage to their employees. Sharpe Holdings, Inc. v. U.S. Dep't of Health & Human Servs., 801 F.3d 927, 2015 WL 5449491 (8th Cir. Sept. 17, 2015); Grace Sch. v. Burwell, 801 F.3d 788, 807-08, 2015 WL 5167841, at *17 (7th Cir. Sept. 4, 2015) (Manion, J., dissenting).
Finally, this case is not controlled by Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), and the related cases cited by the panel; in contradistinction to those cases, these plaintiffs are required to perform acts that put into motion the steps necessary to enable their employees to obtain contraceptive coverage they would not otherwise have received. The plaintiffs in the "government acts" cases cited by the panel performed no such acts that, to them, were morally abhorrent.
Conscience is the essence of a moral person's identity. Thomas More went to the scaffold rather than sign a little paper for the King. Liberty of conscience was the foundation for Madison's and Jefferson's and other Framers' views underlying the First Amendment's religion clauses. We end with two questions about the instant case. If the government's "accommodation" forms are really "independent" of the provision of free contraceptive insurance to religious institutions' employees, why does the government insist on requiring them? And if the forms are not "independent" but indeed inseparable from the "attenuated" consequences, how can HHS or the federal courts thrust them on religious believers under the false nomer of "accommodation"?
We dissent.
