PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


        Nos. 13-3536, 14-1374, 14-1376, 14-1377


 GENEVA COLLEGE; WAYNE HEPLER; THE SENECA
HARDWOOD LUMBER COMPANY, INC., a Pennsylvania
  Corporation; WLH ENTERPRISES, a Pennsylvania Sole
Proprietorship of Wayne L. Hepler; CARRIE E. KOLESAR

                          v.

  SECRETARY UNITED STATES DEPARTMENT OF
  HEALTH AND HUMAN SERVICES; SECRETARY
    UNITED STATES DEPARTMENT OF LABOR;
SECRETARY UNITED STATES DEPARTMENT OF THE
  TREASURY; UNITED STATES DEPARTMENT OF
 HEALTH AND HUMAN SERVICES; UNITED STATES
    DEPARTMENT OF LABOR; UNITED STATES
       DEPARTMENT OF THE TREASURY,

                         Appellants in case no. 13-3536
GENEVA COLLEGE; WAYNE L. HEPLER, in his personal
capacity and as owner and operator of the sole proprietorship
WLH Enterprises; THE SENECA HARDWOOD LUMBER
COMPANY, INC., a Pennsylvania Corporation; CARRIE E.
                        KOLESAR

                             v.

  SECRETARY UNITED STATES DEPARTMENT OF
  HEALTH AND HUMAN SERVICES; SECRETARY
    UNITED STATES DEPARTMENT OF LABOR;
SECRETARY UNITED STATES DEPARTMENT OF THE
  TREASURY; UNITED STATES DEPARTMENT OF
 HEALTH AND HUMAN SERVICES; UNITED STATES
    DEPARTMENT OF LABOR; UNITED STATES
       DEPARTMENT OF THE TREASURY,

                            Appellants in case no. 14-1374

MOST REVEREND LAWRENCE T. PERSICO, BISHOP
 OF THE ROMAN CATHOLIC DIOCESE OF ERIE, AS
 TRUSTEE OF THE ROMAN CATHOLIC DIOCESE OF
    ERIE, A CHARITABLE TRUST; THE ROMAN
CATHOLIC DIOCESE OF ERIE; ST. MARTIN CENTER,
INC., AN AFFILIATE NONPROFIT CORPORATION OF
 CATHOLIC CHARITIES OF THE DIOCESE OF ERIE;
  PRINCE OF PEACE CENTER, INC., AN AFFILIATE
    NONPROFIT CORPORATION OF CATHOLIC
    CHARITIES OF THE DIOCESE OF ERIE; ERIE
CATHOLIC PREPARATORY SCHOOL, AN AFFILIATE
   NONPROFIT CORPORATION OF THE ROMAN
           CATHOLIC DIOCESE OF ERIE




                             2
                           v.

SECRETARY OF UNITED STATES DEPARTMENT OF
 HEALTH AND HUMAN SERVICES; SECRETARY OF
   UNITED STATES DEPARTMENT OF LABOR;
SECRETARY OF UNITED STATES DEPARTMENT OF
THE TREASURY; UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES
   DEPARTMENT OF LABOR; UNITED STATES
       DEPARTMENT OF THE TREASURY,

                          Appellants in case no. 14-1376


MOST REVEREND DAVID A. ZUBIK, BISHOP OF THE
 ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as
  Trustee of the Roman Catholic Diocese of Pittsburgh, a
Charitable Trust; THE ROMAN CATHOLIC DIOCESE OF
 PITTSBURGH, as the Beneficial Owner of the Pittsburgh
    series of The Catholic Benefits Trust; CATHOLIC
CHARITIES OF THE DIOCESE OF PITTSBURGH, INC.,
 an affiliate nonprofit corporation of The Roman Catholic
                   Diocese of Pittsburgh

                           v.

SECRETARY OF UNITED STATES DEPARTMENT OF
 HEALTH AND HUMAN SERVICES; SECRETARY OF
   UNITED STATES DEPARTMENT OF LABOR;
SECRETARY OF UNITED STATES DEPARTMENT OF
THE TREASURY; UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES




                           3
     DEPARTMENT OF LABOR; UNITED STATES
        DEPARTMENT OF THE TREASURY,

                            Appellants in case no. 14-1377



      On Appeal from the United States District Court
           for the Western District of Pennsylvania
 (District Court Nos.: 1-13-cv-00303; 2-12-cv-00207 and
                       2-13-cv-01459)
 District Judges: Honorable Joy Flowers Conti; Honorable
                      Arthur J. Schwab


               Argued on November 19, 2014


  Before: McKEE, Chief Judge, RENDELL, SLOVITER,
                   Circuit Judges

             (Opinion filed: February 11, 2015)


Stuart F. Delery, Esquire
David J. Hickton, Esquire
Beth S. Brinkmann, Esquire
Mark B. Stern, Esquire (ARGUED)
United States Department of Justice
Civil Division
Room 7531
950 Pennsylvania Avenue, N.W.
Washington, DC 20530




                             4
Michael A. Comber, Esquire
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

Bradley P. Humphreys, Esquire
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Room 7130
Washington, DC 20530

Adam C. Jed, Esquire
United States Department of Justice
Civil Division
Appellate Section, Room 7240
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Alisa B. Klein, Esquire
United States Department of Justice
Civil Division
Appellate Section, Room 7325
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Patrick Nemeroff, Esquire
United States Department of Justice
Civil Division, Room 7217
950 Pennsylvania Avenue, N. W.
Washington, DC 20530




                             5
Eric R. Womack, Esquire
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N. W.
Room 7130
Washington, DC 20530

              Counsel for Appellants Secretary United States
Department of Health and Human Services; Secretary United
States Department of Labor; Secretary United States
Department Of Treasury; United States Department of Health
and Human Services; United States Department of Labor;
United States Department of the Treasury


Steven H. Aden, Esquire
Gregory S. Baylor, Esquire (ARGUED)
Matthew S. Bowman, Esquire
Alliance Defending Freedom
801 G Street, N.W.
Suite 509
Washington, DC 20001

Erik W. Stanley, Esquire
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260

Kevin H. Theriot, Esquire
Alliance Defending Freedom
15192 Rosewood Street
Leawood, KS 66224




                             6
David A. Cortman, Esquire
Alliance Defending Freedom
1000 Hurricane Shoals, N.E.
Building D - Suite 1100
Lawrenceville, GA 30043

David J. Mongillo, Esquire
Bradley S. Tupi, Esquire
Tucker Arensberg
1500 One PPG Place
Pittsburgh, PA 15222

    Counsel for Appellees Geneva College; Seneca
Hardwood Lumber Company, Inc.; Carrie E. Kolesar;
Wayne Hepler


Paul M. Pohl, Esquire (ARGUED)
John D. Goetz, Esquire
Leon F. DeJulius, Jr., Esquire
Ira M. Karoll, Esquire
Alison M. Kilmartin, Esquire
Mary Pat Stahler, Esquire
Jones Day
500 Grant Street, Suite 4500
Pittsburgh, PA 15219

       Counsel for Appellees Most Reverend Lawrence T.
Persico, Bishop Of The Roman Catholic Diocese of Erie, as
Trustee of the Roman Catholic Diocese Of Erie, a Charitable
Trust; The Roman Catholic Diocese of Erie; ST. Martin
Center, Inc., an affiliate Nonprofit Corporation of Catholic
Charities of the Diocese of Erie; Prince of Peace Center, Inc.,




                              7
an Affiliate Nonprofit Corporation Of Catholic Preparatory
School, an Affiliate Nonprofit Corporation Of The Roman
Catholic Diocese of Erie; Most Reverend David A. Zubik,
Bishop of the Roman Catholic Diocese of Pittsburgh, as
Trustee of the Roman Catholic Diocese of Pittsburgh, a
Charitable Trust, Roman Catholic Diocese of Pittsburgh,
Catholic Charities Diocese Of Pittsburgh

Deborah J. Dewart, Esquire
Liberty, Life and Law Foundation
620 East Sabiston Drive
Swansboro, NC 28584

             Counsel for Amicus Liberty, Life and Law
Foundation

Witold J. Walczak, Esquire
Sara J. Rose, Esquire
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213

Brigitte Amiri, Esquire
Jennifer Lee, Esquire
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004

Daniel Mach, Esquire
American Civil Liberties Union Foundation
915 15th Street, 6th Floor
Washington, DC 20005




                            8
              Counsel for Amicus Julian Bond, The American
Civil Liberties Union and the American Civil Liberties Union
of Pennsylvania


Charles E. Davidow, Esquire
Andree J. Goldsmith, Esquire
Karin Dryhurst, Esquire
Paul, Weiss, Rifkind, Wharton & Garrison
2001 K Street, N.W., Suite 600
Washington, DC 20006

Marcia D. Greenberger, Esquire
Judith G. Waxman, Esquire
Emily J. Martin, Esquire
Gretchen Borchelt, Esquire
Leila Abolfazli, Esquire
National Women’ Law Center
11 DuPont Circle, NW, Suite 800
Washington, DC 20036

             Counsel for Amicus National Women’s Law
Center and Twenty Other National, State and Local
Organizations


Ayesha N. Khan, Esquire
American United For Separation of Church and State
1301 K Street, NW, Suite 850, East Tower
Washington, DC 20005

              Counsel for Amicus American United for
Separation of Church and State




                             9
Sarah Somers, Esquire
Martha Jane Perkins, Esquire
Dipti Singh, Esquire
National Health Law Program
101 East Weaver Street, Suite G-7
Carrboro, NC 27510

             Counsel for National Health Law Program,
American Public Health Association, National Family
Planning & Reproductive Health Association, National
Women’s Health Network, National Latina Institute For
Reproductive Health, National Asian Pacific American
Women’s Forum, Asian Americans Advancing Justice,
AAJC, Asian Americans Advancing Justice, Los Angeles,
Asian & Pacific Islander American Health Forum, National
Hispanic Medical Association, Forward Together, IPAS,
Sexuality Information and Education Council of the U. S.
(Siecus), HIV Law Project, and California Women’s Law
Center as Amici Curiae


Kimberlee Wood Colby, Esquire
Center for Law & Religious Freedom
Christian Legal Society
8001 Graddock Road, Suite 302
Springfield, VA 22151

             The Association of Gospel Rescue Missions,
Prison Fellowship Ministries, Association of Christian
Schools International, National Association of Evangelicals,
Ethics & Religious Liberty Commission of the Southern
Baptist Convention, American Bible Society, The Lutheran




                            10
Church – Missouri Synod, Institutional Religious Freedom
Alliance, and Christian Legal Society in Support of Appellees
and Urging Affirmance



                        OPINION


RENDELL, Circuit Judge:

        The appellees in these consolidated appeals challenge
the preventive services requirements of the Patient Protection
and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124
Stat. 119 (2010), under the Religious Freedom Restoration
Act (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb-4.
Particularly, the appellees object to the ACA’s requirement
that contraceptive coverage be provided to their plan
participants and beneficiaries.      However, the nonprofit
appellees are eligible for an accommodation to the
contraceptive coverage requirement, whereby once they
advise that they will not pay for the contraceptive services,
coverage for those services will be independently provided by
an insurance issuer or third-party administrator.         The
appellees urge that the accommodation violates RFRA
because it forces them to “facilitate” or “trigger” the
provision of insurance coverage for contraceptive services,
which they oppose on religious grounds. The appellees
affiliated with the Catholic Church also object on the basis
that the application of the accommodation to Catholic
nonprofit organizations has the impermissible effect of
dividing the Catholic Church, because the Dioceses
themselves are eligible for an actual exemption from the




                             11
contraceptive coverage requirement. The District Courts
granted the appellees’ motions for a preliminary injunction,
and, in one of the cases, converted the preliminary injunction
to a permanent injunction. Because we disagree with the
District Courts and conclude that the accommodation places
no substantial burden on the appellees, we will reverse.

                     I.   BACKGROUND

    A. Statutory and Regulatory Background

           1. The Affordable Care Act, the Preventive
              Services Coverage Requirement, and the
              Accommodation for Religious Nonprofit
              Organizations

       In 2010, Congress passed the ACA, which requires
group health plans and health insurance issuers offering
health insurance coverage1 to cover preventive care and
screenings for women, without cost sharing (such as a
copayment, coinsurance, or a deductible), as provided for in
guidelines established by the Department of Health and

1
   Eligible organizations may be either “insured” or “self-
insured.” An employer has an “insured” plan if it contracts
with an insurance company to bear the financial risk of
paying its employees’ health insurance claims. An employer
has a “self-insured” plan if it bears the financial risk of paying
its employees’ claims. Many self-insured employers use
third-party administrators to administer their plans and
process claims. See Cong. Budget Office, Key Issues in
Analyzing Major Health Insurance Proposals 6 (2008). The
appellees here fall into both categories.




                               12
Human Services (“HHS”). 42 U.S.C. § 300gg-13(a)(4).2
HHS requested assistance from the Institute of Medicine
(“IOM”), a nonprofit arm of the National Academy of
Sciences, to develop guidelines regarding which preventive
services for women should be required. Group Health Plans
and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the Patient Protection and
Affordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15,
2012) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; and
45 C.F.R. pt. 147). The IOM issued a report recommending a
list of preventive care services, including all contraceptive
methods approved by the Food and Drug Administration
(“FDA”). The regulatory guidelines accordingly included
“[a]ll Food and Drug Administration . . . approved
contraceptive methods, sterilization procedures, and patient
education and counseling for all women with reproductive
capacity,” as prescribed by a health care provider. 77 Fed.
Reg. at 8725 (alteration in original). The relevant regulations
require coverage of the contraceptive services recommended
in the guidelines. See 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29
C.F.R.        § 2590.715-2713(a)(1)(iv);       45       C.F.R.
§ 147.130(a)(1)(iv).


2
  The ACA’s preventive care requirements apply only to non-
grandfathered group health plans and health insurance issuers
offering non-grandfathered health insurance coverage. See 45
C.F.R. § 147.140 (exempting “grandfathered” plans—
“coverage provided by a group health plan, or a group or
individual health insurance issuer, in which an individual was
enrolled as of March 23, 2010,” the date on which the ACA
was enacted “for as long as it maintains that status under the
rules of this section”).




                              13
        The implementing regulations authorize an exemption
from contraceptive coverage for the group health plan of a
“religious employer.”     45 C.F.R. § 147.131(a).        The
regulations define a religious employer as a nonprofit
organization described in the Internal Revenue Code
provision referring to churches, their integrated auxiliaries,
and conventions or associations of churches, and the
exclusively religious activities of any religious order. 

U.S.C. § 6033(a)(3)(A)(i), (iii)).

        After notice-and-comment rulemaking, the Department
of the Treasury, the Department of Labor, and the Department
of Health and Human Services (the “Departments”) published
final regulations in July 2013 that provided relief for
organizations that, while not “religious employers,”
nonetheless oppose coverage on account of their religious
objections. These regulations include an “accommodation”
for group health plans established or maintained by “eligible
organizations” (and group health coverage provided in
connection with such plans). See 26 C.F.R. § 54.9815-
2713A(a), 29 C.F.R. § 2590-2713A(a), 45 C.F.R.
§ 147.131(b); Coverage of Certain Preventive Services Under
the Affordable Care Act, 78 Fed. Reg. 39,870 (July 2, 2013)
(codified at 26 C.F.R. pt. 54; 29 C.F.R. pts. 2510 & 2590; and
45 C.F.R. pts. 147 & 156). An “eligible organization” means
a nonprofit organization that “holds itself out as a religious
organization” and “opposes providing coverage for some or
all of any contraceptive services required to be covered . . . on
account of religious objections.” 45 C.F.R. § 147.131(b). To
invoke this accommodation, an employer must certify that it
is such an organization. 

Here, there is
no dispute that the nonprofit religious organization appellees
are eligible organizations under these regulations.




                               14
        To take advantage of the accommodation to the
contraceptive coverage requirement, the eligible organization
must complete the self-certification form, EBSA Form 700,
issued by the Department of Labor’s Employee Benefits
Security Administration, indicating that it has a religious
objection to providing coverage for the required contraceptive
services. The eligible organization then is to provide a copy
of the form to its insurance issuer or third-party administrator.
78 Fed. Reg. at 39,875.3

3
  After these suits had been filed, the Supreme Court granted
an injunction pending appeal in Wheaton College v. Burwell,

(2014), and ordered that the eligible
organization applicant need not use EBSA Form 700 to notify
its insurance issuer or third-party administrator of its religious
objection to the contraceptive coverage requirement; instead,
if the organization notifies the government in writing of its
objection, the government is enjoined from enforcing the
contraceptive coverage requirement against the organization.

In response, interim final regulations were issued
in August 2014 allowing an eligible organization to opt out
by notifying HHS directly, rather than notifying its insurance
issuer or third-party administrator; the eligible organization
also need not use EBSA Form 700. Coverage of Certain
Preventive Services Under the Affordable Care Act, 79 Fed.
Reg. 51,092 (Aug. 27, 2014) (codified at 26 C.F.R. pt. 54; 29
C.F.R. pts. 2510 & 2590; and 45 C.F.R. pt. 147); see also 29
C.F.R. § 2590.715-2713A(b)(1)(ii)(B), (c)(1)(ii); 45 C.F.R.
§ 147.131(c)(1)(ii).        We conclude here that the
accommodation, even when utilizing EBSA Form 700, poses
no substantial burden. To the extent that the Supreme Court’s
order in Wheaton may be read to signal that the alternative




                               15
        The submission of the form has no real effect on the
plan participants and beneficiaries. They still have access to
contraception, without cost sharing, through alternate
mechanisms in the regulations.4 Under these regulations, an
eligible organization is not required “to contract, arrange, pay,
or refer for contraceptive coverage” to which it objects on
religious grounds. 78 Fed. Reg. at 39,874. As a result, either
the health insurance issuer or the third-party administrator is
required by regulation to provide separate payments for
contraceptive services for plan participants and beneficiaries.
The ACA’s prohibition on cost sharing for preventive
services, including contraception, bars the insurance issuer or
third-party administrator from imposing any premium or fee
on the group health plan, or plan participants and
beneficiaries. Furthermore, the accommodation prohibits the
insurance issuer or third-party administrator from imposing
such fees on the eligible organization. See 42 U.S.C.


notification procedure is less burdensome than using EBSA
Form 700, we also conclude that the alternative compliance
mechanism set forth in the August 2014 regulations poses no
substantial burden.
4
 The Supreme Court has recognized that the accommodation
ensures that employees of entities with religious objections
have the same access to all FDA-approved contraceptives as
employees of entities without religious objections to
providing such coverage. “The effect of the HHS-created
accommodation on the women employed . . . would be
precisely zero. Under that accommodation, these women
would still be entitled to all FDA-approved contraceptives
without cost sharing.” Burwell v. Hobby Lobby Stores, Inc.,

, 2760 (2014).




                               16
§ 300gg-13(a); 29 C.F.R. § 2590.715-2713A(b)(2), (c)(2)(ii);
45 C.F.R. § 147.131(c)(2)(ii). The insurance issuer or third-
party administrator must “[e]xpressly exclude contraceptive
coverage from the group health insurance coverage provided
in connection with the [eligible organization’s] group health
plan” and “segregate premium revenue collected from the
eligible organization from the monies used to provide
payments for contraceptive services.” 29 C.F.R. § 2590.715-
2713A(c)(2)(i)(A), (ii); 45 C.F.R. § 147.131(c)(2)(i)(A), (ii).
The third-party administrator may seek reimbursement for
payments for contraceptive services from the federal
government. 29 C.F.R. § 2590.715-2713A(b)(3).

       Furthermore, the health insurance issuer or third-party
administrator, not the eligible organization, provides notice to
the plan participants and beneficiaries regarding contraceptive
coverage “separate from” materials that are distributed in
connection with the eligible organization’s group health
coverage, specifying that “the eligible organization does not
administer or fund contraceptive benefits, but that the third
party administrator or issuer, as applicable, provides separate
payments for contraceptive services, and must provide
contact information for questions and complaints.” See 26
C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d);
45 C.F.R. § 147.131(d).5 This is in accordance with the
preventive services requirement of the ACA.

5
  As part of this separate notice regime, eligible organizations
do not need to provide the names of their beneficiaries to their
insurance issuers or third-party administrators, or otherwise
coordinate notices with them. See Priests for Life v. U.S.
Dep’t of Health & Human Servs., 

, 254 (D.C.
Cir. 2014) (agreeing that “[n]o regulation related to the




                              17
          2. RFRA Challenge to the Accommodation

        The appellees challenge the ACA’s contraceptive
coverage requirement as posing a substantial burden on their
religious exercise, in violation of RFRA. RFRA places
requirements on all federal statutes that impact a person’s
exercise of religion, even when that federal statute is a rule of
general applicability. 42 U.S.C. § 2000bb-1(a).6 Under
RFRA, the “[g]overnment may substantially burden a
person’s exercise of religion only if it 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.” 

accommodation imposes any such duty on Plaintiffs”); see
also 29 C.F.R. § 2590.715-2713A(b)(4) (“A third party
administrator may not require any documentation other than a
copy of the self-certification from the eligible organization or
notification from the Department of Labor”); 

2713A(c)(1)(i) (“When a copy of the self-certification is
provided directly to an issuer, the issuer has sole
responsibility for providing such coverage . . . . An issuer
may not require any further documentation from the eligible
organization regarding its status as such.”).
6
  Because the issue was not raised before us, we assume that
RFRA is constitutional as applied to federal laws and
regulations. But see City of Boerne v. Flores, 

,
536 (1997) (holding that Congress did not have authority
under the Fourteenth Amendment to impose RFRA on state
or local laws).




                               18
       Congress enacted RFRA in 1993 in response to the
Supreme Court’s decision in Employment Division,
Department of Human Resources of Oregon v. Smith, 

(1990). In Smith, the Supreme Court rejected the
balancing test for evaluating claims under the Free Exercise
Clause of the First Amendment set forth in Sherbert v.
Verner, 

(1963), and Wisconsin v. Yoder, 

(1972), under which the Court asked whether the
challenged law substantially burdened a religious practice
and, if it did, whether that burden was justified by a
compelling governmental interest.          The Smith Court
concluded that the continued application of the compelling-
interest test would produce a constitutional right to ignore
neutral laws of general applicability and would “open the
prospect of constitutionally required religious exemptions
from civil obligations of almost every conceivable kind,”
which the First Amendment does not 

. “The government’s ability to enforce generally
applicable prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy, ‘cannot
depend on measuring the effects of a governmental action on
a religious objector’s spiritual development.’” 

(quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 

, 451 (1988)). Making an individual’s obligation to
obey a generally applicable law contingent upon the
individual’s religious beliefs, except where the state interest is
compelling, permits that individual, “by virtue of his beliefs,
‘to become a law unto himself,’” which “contradicts both
constitutional tradition and common sense.” 

v. United States, 

, 167 (1878)).




                               19
        Congress then passed RFRA to legislatively overrule
the Smith standard for analyzing claims under the Free
Exercise Clause of the First Amendment. RFRA’s stated
purposes are: (1) to restore the compelling-interest test as set
forth in Sherbert and Yoder and to guarantee its application in
all cases where free exercise of religion is substantially
burdened; and (2) to provide a claim or defense to persons
whose religious exercise is substantially burdened by the
government. 42 U.S.C. § 2000bb(b). The Supreme Court has
characterized RFRA as “adopt[ing] a statutory rule
comparable to the constitutional rule rejected in Smith.”
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

, 424 (2006).

    B. Factual Background and Procedural History7

       We review here the following District Court opinions:
two preliminary injunctions issued in Geneva College v.
Sebelius, and a preliminary injunction and permanent
injunction issued in the related cases of Most Reverend David
A. Zubik v. Sebelius and Most Reverend Lawrence T. Persico
v. Sebelius. The Zubik and Persico appeals were consolidated
and now have also been consolidated with the Geneva appeal.

              1. Geneva Appellee

        Appellee Geneva College (“Geneva”) is a nonprofit
institution of higher learning established by the Reformed
Presbyterian Church of North America. Geneva believes that

7
  The District Courts in these cases had jurisdiction pursuant
to 28 U.S.C. § 1331, and this Court has appellate jurisdiction
pursuant to 28 U.S.C. §§ 1291, 1292(a)(1).




                              20
it would be sinful and immoral for it to intentionally
participate in, pay for, facilitate, enable, or otherwise support
access to abortion (including emergency contraceptives Plan
B and ella, and two intrauterine devices, all of which Geneva
characterizes as causing abortion) because such participation
violates religious prohibitions on murder. Geneva contracts
with an insurance issuer for its student and employee health
insurance plans.

              2. Geneva District Court Opinions

       The District Court granted Geneva’s motion for a
preliminary injunction with respect to its student plan on June
18, 2013, and enjoined the government from applying or
enforcing 42 U.S.C. § 300gg-13(a)(4) and requiring that
Geneva’s student health insurance plan, its plan broker, or its
plan insurer provide “abortifacients” contrary to Geneva’s
religious objections. (J.A. 35-36.) The District Court began
by stating that the Supreme Court has cautioned courts to be
reluctant to “dissect religious beliefs” when engaging in a
substantial burden analysis. (J.A. 24 (quoting Thomas v.
Review Bd. of Ind. Emp’t Sec. Div., 

, 715
(1981)).)
       The District Court concluded that Geneva had shown a
likelihood of success on the merits with respect to the
presence of a substantial burden under RFRA and found that
three Supreme Court free exercise cases supported Geneva’s
argument regarding the presence of a substantial burden
under RFRA. First, it noted that in 

-
35, a state compulsory education law for children up to age
sixteen, with a penalty of a criminal fine, violated the free
exercise rights of the Amish plaintiffs. Second, in 

, the state could not withhold unemployment




                               21
benefits from a worker who refused employment on the
grounds that working Saturdays violated her religious beliefs.
Third, in 

, the state could not deny
unemployment benefits to a worker whose religious beliefs
forbade his participation in manufacturing tanks for use by
the military. The District Court interpreted these cases as
standing for the proposition that these indirect burdens on
religious exercise are substantial enough to be cognizable
under RFRA. The District Court concluded that Geneva had
only two choices under the regulations—either provide the
objected-to coverage or drop its health insurance—and by
being forced to choose between those two options, both
repugnant to its religious beliefs,8 Geneva faced a substantial
burden.
       The District Court then granted Geneva’s second
motion for a preliminary injunction, this time with respect to

8
  We recognize that the appellees believe providing health
insurance to their employees and students is part of their
religious commitments. The appellees urge, at most, that
dropping their health insurance coverage would be a violation
of their moral beliefs, but they do not argue that it would be,
in and of itself, another substantial burden imposed on their
religious exercise. (Geneva Br. at 5 (“To fulfill its religious
commitments and duties in the Christ-centered educational
context, the College promotes the spiritual and physical well-
being and health of its employees and students. This includes
the provision of general health insurance to employees and
their dependants and the facilitation of a student health
plan.”); Zubik/Persico Br. at 6 (“As part of overseeing their
affiliates and as part of Catholic social teaching, the Dioceses
provide self-insured health plans for Diocesan entities,
including the Affiliates.”).)




                              22
its employee plan, on December 23, 2013. The District Court
again enjoined the government from enforcing 42 U.S.C. §
300gg-13(a)(4) and requiring that Geneva’s employee health
insurance plan, its plan broker, or its plan insurer provide
“abortifacients” contrary to Geneva’s religious objections.
(J.A. 67-68.) The District Court concluded that Geneva had
shown a likelihood of success on the merits as to the presence
of a substantial burden because the self-certification process
forced Geneva to facilitate access to services it finds
religiously objectionable.        First, the District Court
emphasized that a court must assess the intensity of the
coercion and pressure from the government, rather than
looking at the merits of the religious belief. (J.A. 58 (citing
Korte v. Sebelius, 

, 683 (7th Cir. 2013), cert.
denied sub nom. Burwell v. Korte, 

(2014),
and Hobby Lobby Stores, Inc. v. Sebelius, 

,
1137 (10th Cir.), aff’d sub nom. Burwell v. Hobby Lobby
Stores, Inc., 

(2014)).) The District Court
analogized to cases involving the contraceptive coverage
mandate for entities not eligible for the accommodation, such
as the Hobby Lobby opinion in the Court of Appeals for the
Tenth Circuit, which found that the substantial fines and
penalties imposed on an entity that refused to offer health
care coverage to its employees at all, or refused to provide
coverage for the mandated preventive services, constituted a
substantial burden.

       The District Court was convinced by Geneva’s
explanation that, although Geneva must engage in the same
conduct that it did before the ACA—namely, notify the
insurance carrier that it would not provide coverage for the
objected-to services—the effect of that conduct is now
different. Before the ACA, Geneva’s notification resulted in




                              23
its employees being unable to obtain coverage for
contraceptive services; after the ACA, Geneva’s employees
are still provided access to the services as a matter of law.
“Under the ACA, Geneva has two choices: (1) provide
insurance coverage to its employees, which will result in
coverage for the objected to services; or (2) refuse to provide
insurance coverage for its employees, which will result in
fines, harm to its employees’ well-being and competitive
disadvantages. Both options require Geneva to act contrary
to its religious duties and beliefs.” (J.A. 61 n.12.)

       Geneva argues that the District Court was correct that
a substantial burden is present here because (1) complying
with either the contraceptive coverage requirement or the
accommodation would cause Geneva to “trigger,” “facilitate,”
or be “complicit” in the commission of acts that it likens to
abortion; and (2) the fines that Geneva faces for its refusal to
comply with the contraceptive coverage requirement or the
accommodation would pressure it to conform.
              3. Zubik/Persico Appellees

       Appellees in the Zubik and Persico cases include: the
Bishop of Pittsburgh, David A. Zubik, and the Bishop of Erie,
Lawrence T. Persico; the Diocese of Pittsburgh and the
Diocese of Erie, both of which qualify for the exemption to
the contraceptive coverage requirement under 45 C.F.R. §
147.131(a); and Catholic Charities of the Diocese of
Pittsburgh, Prince of Peace Center, St. Martin Center, and
Erie Catholic Cathedral Preparatory School, which are all
nonprofit organizations affiliated with the Catholic Church.
The Catholic religious nonprofit organizations are controlled
by their respective Dioceses and operate in accordance with
Catholic doctrine and teachings. The Bishops oversee the




                              24
management of the affiliated nonprofits with regard to
adherence to Catholic doctrine. The Catholic faith prohibits
providing, subsidizing, initiating, or facilitating insurance
coverage for sterilization services, contraceptives, other drugs
that the Catholic Church believes to cause abortion, and
related reproductive educational and counseling services.
The Dioceses provide self-insured health plans to the
nonprofits and contract with third-party administrators to
handle claims administration of the plans. As a result of their
provision of coverage to the nonprofits, the Dioceses, which
are otherwise exempt, must comply with the contraceptive
coverage requirement as to the nonprofits.

              4. Zubik/Persico District Court Opinions

        The District Court issued a preliminary injunction that
applied to both the Zubik and Persico cases on November 21,
2013, and converted that injunction into a permanent
injunction on December 20, 2013.
        The District Court characterized the issue before it as
“whether [the appellees], being non-secular in nature, are
likely to succeed on the merits of proving that their right to
freely exercise their religion has been substantially burdened
by the ‘accommodation’ which requires the Bishops of two
separate Dioceses . . . to sign a form which thereby
facilitates/initiates the provision of contraceptive products,
services, and counseling.” (J.A. 116.) The Zubik/Persico
appellees conceded that they have provided similar
information as is required by the self-certification form to
their third-party administrator in the past. However, their past
actions barred the provision of contraceptive products,
services, or counseling.        Now, under the ACA, this
information will be used to “facilitate/initiate the provision of




                               25
contraceptive products, services, or counseling – in direct
contravention to their religious tenets.” (Id.) Accordingly,
the District Court concluded that the government is
impermissibly asking the appellees for documentation for
what the appellees sincerely believe is an immoral purpose,
and thus “they cannot provide it.” (J.A. 117.) In conclusion,
the District Court acknowledged that the accommodation
allows the appellees to avoid directly paying for contraceptive
services by shifting responsibility for providing contraceptive
coverage. Despite this fact, because the appellees had a
sincerely held belief that this shift in responsibility did not
exonerate them from the moral implications of the use of
contraception, the accommodation imposed a substantial
burden.

       Furthermore, the District Court held that the differing
application of the exemption and the accommodation—the
former applying to the Catholic Church, and the latter
applying to Catholic nonprofit organizations—has the effect
of dividing the Catholic Church, thereby imposing a
substantial    burden.        “[T]he   religious    employer
‘accommodation’ separates the ‘good works (faith in action)
employers’ from the ‘houses of worship employers’ within
the Catholic Church by refusing to allow the ‘good works
employers’ the same burden-free exercise of their religion”
under the exemption. (J.A. 118.) The District Court
questioned why religious employers who share the same
religious tenets are not exempt, or why all religious
employers do not fall within the accommodation, such that
“even though [the appellees] here share identical, religious
beliefs, and even though they share the same persons as the
religious heads of their organizations, the heads of [the
appellees’] service organizations may not fully exercise their




                              26
right to those specific beliefs, when acting as the heads of the
charitable and educational arms of the Church.” (J.A. 118,
120.) The District Court concluded that “the religious
employer ‘exemption’ enables some religious employers to
completely eliminate the provision of contraceptive products,
services, and counseling through the Dioceses’ health plans
and third parties,” whereas “the religious employer
‘accommodation’ requires other religious employers (often
times the same member with the same sincerely-held beliefs)
to take affirmative actions to facilitate/initiate the provision of
contraceptive products, services, and counseling – albeit from
a third-party.” (J.A. 120-21.)

       The Zubik/Persico appellees argue that the District
Court was correct in finding a substantial burden because (1)
they interpret the accommodation to require them to authorize
and designate a third party to add the objectionable coverage
to their plans, in violation of their sincerely held religious
beliefs that they cannot provide or facilitate that coverage;
and (2) the different scope of the religious employer
exemption and the accommodation impermissibly splits the
Catholic Church.

        The government, as appellant in both the
Zubik/Persico and Geneva appeals, argues that the District
Courts were incorrect and the appellees are not subject to a
substantial burden, because the submission of the form is not
in itself burdensome and does not give rise to the coverage.
Rather, federal law requires third parties—insurance issuers
and third-party administrators—to provide coverage after the
appellees refuse to provide contraceptive coverage
themselves. By invoking the accommodation process, the
appellees do not facilitate the provision of contraceptive




                                27
coverage by third parties. Rather, the third parties providing
coverage do so as a result of legal obligations imposed by the
ACA.

                     II.   DISCUSSION

    A. Standard of Review

       We employ a tripartite standard of review for
preliminary injunctions. “We review the District Court’s
findings of fact for clear error. Legal conclusions are
assessed de novo. The ultimate decision to grant or deny the
injunction is reviewed for abuse of discretion.” K.A. ex rel.
Ayers v. Pocono Mountain Sch. Dist., 

, 105 (3d
Cir. 2013) (quoting Sypniewski v. Warren Hills Reg’l Bd. of
Educ., 

, 252 (3d Cir. 2002)). The same
framework applies to the review of a grant of a permanent
injunction. See United States v. Bell, 

, 477-78
(3d Cir. 2005).9 Because we conclude that the appellees have
not demonstrated a likelihood of success on the merits of their

9
  “A party seeking a preliminary injunction must show: (1) a
likelihood of success on the merits; (2) that it will suffer
irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the
nonmoving party; and (4) that the public interest favors such
relief.” Kos Pharm., Inc. v. Andrx Corp., 

, 708
(3d Cir. 2004). It is the plaintiff’s burden to establish every
element in its favor. P.C. Yonkers, Inc. v. Celebrations the
Party & Seasonal Superstore, LLC, 

, 508 (3d
Cir. 2005). A permanent injunction requires actual success
on the merits. See Shields v. Zuccarini, 

, 482
(3d Cir. 2001).




                              28
RFRA claim, we need not reach the other prongs of the
injunction analysis.

   B. Likelihood of Success as to Substantial Burden

              1. Trigger/Facilitation/Complicity

                 Argument

        We first must identify what conduct the appellees
contend is burdensome to their religious exercise. It is not the
act of filling out or submitting EBSA Form 700 itself. The
appellees conceded at oral argument that the mere act of
completing EBSA Form 700 does not impose a burden on
their religious exercise.

       The appellees’ essential challenge is that providing the
self-certification form to the insurance issuer or third-party
administrator “triggers” the provision of the contraceptive
coverage to their employees and students. The appellees
reframed this proposition at oral argument, stating that the
accommodation requires them to be “complicit” in sin.
Appellees urge that there is a causal link between providing
notification of their religious objection to providing
contraceptive coverage and the offering of contraceptive
coverage by a third party. That link, they argue, makes them
complicit in the provision of certain forms of contraception,
which is prohibited by their religious beliefs.

       Without testing the appellees’ religious beliefs, we
must nonetheless objectively assess whether the appellees’
compliance with the self-certification procedure does, in fact,
trigger, facilitate, or make them complicit in the provision of




                              29
contraceptive coverage. Through RFRA’s adoption of the
Supreme Court’s pre-Smith free exercise jurisprudence,
Congress has required qualitative assessment of the merits of
the appellees’ RFRA claims. See 

(Rovner, J., dissenting).10 “It is virtually self-evident that the
Free Exercise Clause does not require an exemption from a
governmental program unless, at a minimum, inclusion in the
program actually burdens the claimant’s freedom to exercise
religious rights.” Tony & Susan Alamo Found. v. Sec’y of
Labor, 

, 303 (1985). Furthermore, the Supreme
Court has stated that “[a] governmental burden on religious
liberty is not insulated from review simply because it is
indirect; but the nature of the burden is relevant to the
standard that the government must meet to justify the
burden.” Bowen v. Roy, 

, 706-07 (1986)
(citation omitted). These principles were applied in Lyng,
where the Supreme Court recognized that the Native
American respondents’ beliefs were sincere, and that the
government’s proposed actions would have severe adverse
effects on their religious practice. However, the Court
disagreed that the burden on the respondents’ belief was
“heavy enough to violate the Free Exercise Clause unless the

10
   We note that the Korte majority opinion may have been
undermined by the later decision of the Court of Appeals for
the Seventh Circuit in Univ. of Notre Dame v. Sebelius, 

, 554 (7th Cir. 2014), petition for cert. filed, No. 14-
392 (Oct. 3, 2014). The majority opinion in Notre Dame,
decided after Korte but before Hobby Lobby, analyzes the
mechanics of the accommodation and weakens the Korte
majority’s urge for deference. This type of analysis remains
good law after Hobby Lobby. See Priests for Life, 

, 247 (D.C. Cir. 2014).




                               30
Government can demonstrate a compelling need to complete
the . . . road to engage in timber harvesting in the . . .
[challenged] 

(emphasis added).

        While the Supreme Court reinforced in Hobby Lobby
that we should defer to the reasonableness of the appellees’
religious beliefs, this does not bar our objective evaluation of
the nature of the claimed burden and the substantiality of that
burden on the appellees’ religious exercise. This involves an
assessment of how the regulatory measure actually works.
Indeed, how else are we to decide whether the appellees’
religious exercise is substantially burdened? “[T]here is
nothing about RFRA or First Amendment jurisprudence that
requires the Court to accept [the appellees’] characterization
of the regulatory scheme on its face.” Mich. Catholic
Conference & Catholic Family Servs., 

, 385 (6th
Cir. 2014) (quoting Roman Catholic Archbishop of Wash. v.
Sebelius, 

, 71 (D.D.C. 2013)). We may
consider the nature of the action required of the appellees, the
connection between that action and the appellees’ beliefs, and
the extent to which that action interferes with or otherwise
affects the appellees’ exercise of religion—all without
delving into the appellees’ beliefs. See, e.g., 

(Rovner, J., dissenting). For example, the court in
Kaemmerling v. Lappin, 

, 679 (D.C. Cir. 2008),
“[a]ccept[ed] as true the factual allegations that
Kaemmerling’s beliefs are sincere and of a religious nature—
but not the legal conclusion, cast as a factual allegations, that
his religious exercise is substantially burdened.” The court
further explained: “we conclude that Kaemmerling does not
allege facts sufficient to state a substantial burden on his




                               31
religious exercise because he cannot identify any ‘exercise’
which is the subject of the burden to which he objects.” Id.11

        The Supreme Court in Hobby Lobby evaluated whether
the requirement to provide contraceptive coverage absent the
accommodation procedure substantially burdened the
religious exercise of the owners of closely-held, for-profit
corporations. The issue of whether there is an actual burden
was easily resolved in Hobby Lobby, since there was little
doubt that the actual provision of services did render the
plaintiffs “complicit.” And in Hobby Lobby, the Court came
to its conclusion that, without any accommodation, the
contraceptive coverage requirement imposed a substantial
burden on the religious exercise of the for-profit corporations,
because those plaintiffs were required to either provide health
insurance that included contraceptive coverage, in violation
of their religious beliefs, or pay substantial fines.12 See 134
11
    The Zubik/Persico appellees argue that we should not
independently analyze the burdens imposed on them, or the
substantiality of that burden, because the government
stipulated to facts contained in the appellees’ declarations—
particularly, that the appellees believe that participation in the
accommodation, including signing the self-certification form,
facilitates moral evil in violation of Catholic doctrine. The
appellees are mistaken, because the government’s factual
stipulation does not preclude this Court from determining the
contours of the asserted burden or whether the burden is
substantial.
12
   Indeed, Justice Alito’s majority opinion in Hobby Lobby
comments favorably on the accommodation procedure at
issue here, which separates an eligible organization from the
objected-to contraceptive services:




                               32
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. Under
that accommodation, the organization can self-
certify that it opposes providing coverage for
particular contraceptive services.         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.”

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

; see also Priests for 

.
Here, the appellees are not faced with a “provide” or “pay”
dilemma because they have a third option—notification
pursuant to the accommodation—to avoid both providing
contraceptive coverage to their employees and facing
penalties for noncompliance with the contraceptive coverage
requirement.

        The appellees urge that a burden exists here because
the submission of the self-certification form triggers,
facilitates, and makes them complicit in the provision of
objected-to services. But after testing that assertion, we
cannot agree that the submission of the self-certification form
has the effect the appellees claim. First, the self-certification
form does not trigger or facilitate the provision of
contraceptive coverage because coverage is mandated to be
otherwise provided by federal law. Federal law, rather than
any involvement by the appellees in filling out or submitting
the self-certification form, creates the obligation of the
insurance issuers and third-party administrators to provide
coverage for contraceptive services. As Judge Posner has
explained, this is not a situation where the self-certification
form enables the provision of the very contraceptive services
that the appellees find sinful. Rather, “[f]ederal law, not the
religious organization’s signing and mailing the form,
requires health-care insurers, along with third-party
administrators of self-insured plans, to cover contraceptive
services.” Notre 

. Thus, federal law,
not the submission of the self-certification form, enables the
provision of contraceptive coverage.


Hobby 

(alterations in original)
(footnotes omitted) (citations omitted).




                               34
       The Court of Appeals for the Sixth Circuit adopted
Judge Posner’s logic that the obligation to cover
contraception is not triggered by the act of self-certification.
Rather, it is triggered by the force of law—the ACA and its
implementing regulations. See Mich. Catholic 

(“Submitting the self-certification form to the
insurance issuer or third-party administrator does not ‘trigger’
contraceptive coverage; it is federal law that requires the
insurance issuer or the third-party administrator to provide
this coverage.”). Most recently, and after the Supreme
Court’s opinion in Hobby Lobby, the Court of Appeals for the
D.C. Circuit agreed with these courts’ explanations of the
mechanics of the accommodation. See Priests for 

(“As the Sixth and Seventh Circuits have also
concluded, the insurers’ or [the third-party administrators’]
obligation to provide contraceptive coverage originates from
the ACA and its attendant regulations, not from Plaintiffs’
self-certification or alternative notice.”). Thus, submitting the
self-certification form means only that the eligible
organization is not providing contraceptive coverage and will
not be subjected to penalties. By participating in the
accommodation, the eligible organization has no role
whatsoever in the provision of the objected-to contraceptive
services.13

13
  Geneva argues that there is no guarantee that its employees
and students would obtain the objected-to contraceptive
coverage if they were not enrolled in Geneva’s health plans.
Therefore, Geneva asserts, the obligation to provide
contraceptive coverage arises only because it sponsors an
employee or student health plan. Geneva cites the following
passage from Notre Dame in support: “By refusing to fill out




                               35
        Moreover, the regulations specific to the Zubik and
Persico appellees’ self-insured plan are no different in this
respect, and in no way cause the appellees to facilitate or
trigger the provision of contraceptive coverage. Those
Department of Labor regulations state that EBSA Form 700
“shall be treated as a designation of the third party
administrator as the plan administrator under section 3(16) of
ERISA for any contraceptive services required to be
covered.” 29 C.F.R. § 2510.3-16(b). The Zubik/Persico
appellees argue that these regulations cause it to “facilitate”
the provision of contraceptives because the signed self-
certification form authorizes the third-party administrator to
serve as the plan administrator. However, this purported


the form Notre Dame would subject itself to penalties, but
Aetna and Meritain would still be required by federal law to
provide the services to the university’s students and
employees unless and until their contractual relation with
Notre Dame 

(emphasis added).
However, Geneva’s argument is unavailing. The provision of
contraceptive coverage is not dependent upon Geneva’s
contract with its insurance company. “Once [the appellees]
opt out of the contraceptive coverage requirement, . . .
contraceptive services are not provided to women because of
[the appellees’] contracts with insurance companies; they are
provided because federal law requires insurers and TPAs to
provide insurance beneficiaries with coverage for
contraception.” Priests for 

. “RFRA
does not entitle [the appellees] to control their employees’
relationships with other entities willing to provide health
insurance coverage to which the employees are legally
entitled.” 

                              36
causal connection is nonexistent. The eligible organization
has no effect on the designation of the plan administrator;
instead, it is the government that treats and designates the
third-party administrator as the plan administrator under
ERISA. See Notre 

. “[The appellees]
submit forms to communicate their decisions to opt out, not to
authorize [the third-party administrators] to do anything on
their behalf. The regulatory treatment of the form as
sufficient under ERISA does not change the reality that the
objected-to services are made available because of the
regulations, not because [the appellees] complete a self-
certification.” Priests for 

. Indeed,
this “opt-out” is just that—an indication that the eligible
organization chooses not to provide coverage for the
objected-to services.

       Moreover, the submission of the self-certification form
does not make the appellees “complicit” in the provision of
contraceptive coverage. If anything, because the appellees
specifically state on the self-certification form that they object
on religious grounds to providing such coverage, it is a
declaration that they will not be complicit in providing
coverage. Ultimately, the regulatory notice requirement does
not necessitate any action that interferes with the appellees’
religious activities. “The organization must send a single
sheet of paper honestly communicating its eligibility and
sincere religious objection in order to be excused from the
contraceptive coverage requirement.” 

The
appellees “need only reaffirm [their] religiously based
opposition to providing contraceptive coverage, at which
point third parties will provide the coverage separate and
apart from [the appellees’] plan of benefits.” Priests for Life
v. U.S. Dep’t of Health & Human Servs., 

,




                               37
104 (D.D.C. 2013), aff’d, Priests for Life, 

(D.C.
Cir. 2014). The appellees’ real objection is to what happens
after the form is provided—that is, to the actions of the
insurance issuers and the third-party administrators, required
by law, once the appellees give notice of their objection.
“RFRA does not grant [the appellees] a religious veto against
plan providers’ compliance with those regulations, nor the
right to enlist the government to effectuate such a religious
veto against legally required conduct of third parties.” Priests
for 

. “The fact that the regulations
require the insurance issuers and third-party administrators to
modify their behavior does not demonstrate a substantial
burden on the [appellees].” Mich. Catholic 

.14

14
     A hypothetical example serves as a useful tool to
demonstrate the fallacy in the appellees’ characterization of
the accommodation: Assume that a person, John Doe, has a
job that requires twenty-four-hour coverage, such as an
emergency room doctor or nurse. John Doe is unable to work
his shift on a certain Tuesday, as that day is a religious
holiday that mandates a day of rest. As a result, John Doe
believes that it is inappropriate for anyone to work on that
holiday. John Doe can request time off by filling out a certain
form, but he will be penalized if he fails to show up for work
without appropriately requesting time off. However, by
filling out this form, he believes that he will facilitate or
trigger or be complicit in someone else working in his place
on the religious holiday. John Doe sincerely believes that the
simple filling out of the time-off request imposes a substantial
burden on his religious beliefs. In this example, John Doe,
like the appellees, is able to express his religious objection to
working on a religious holiday by declining to work that day.




                               38
       Thus, we cannot agree with the appellees’
characterization of the effect of submitting the form as
triggering, facilitating, or making them complicit in the
provision of contraceptive coverage. At oral argument, the
appellees argued that it was not merely the filing of the form
that imposed a burden, but, rather, what follows from it. But
free exercise jurisprudence instructs that we are to examine
the act the appellees must perform—not the effect of that
act—to see if it burdens substantially the appellees’ religious
exercise. The Supreme Court has consistently rejected the
argument that an independent obligation on a third party can


John Doe’s time-off request indicates that he will not be
complicit in working on the religious holiday. Furthermore,
declining to work on that Tuesday does not serve as a trigger
or facilitator because one of his other colleagues will be
forced to work that day, regardless of whether John Doe
works or not. However, just because John Doe does not wish
to be associated with or play any role in the result (working
on a religious holiday), does not mean the conduct to which
he objects (filling out the time-off request form) substantially
burdens his free exercise of religion. Just as we cannot
conclude that John Doe’s religious exercise is being burdened
by filling out the form, we cannot conclude that the appellees’
religious exercise is burdened by filling out the self-
certification form.       Furthermore, any “coercive” force
attached to John Doe’s refusal to fill out the time-off request
is similar to the fines that the appellees face if they refuse to
either participate in the accommodation or provide
contraceptive coverage. In any event, such “coercive” force
is relevant only if the conduct itself actually does substantially
burden one’s religious exercise. That is not the case in this
analogy, and it is not the case for the appellees.




                               39
impose a substantial burden on the exercise of religion in
violation of RFRA, as we discuss below. Pre-Smith free
exercise cases, which RFRA was crafted to resurrect, have
distinguished between what a challenged law requires the
objecting parties to do, and what it permits another party—
specifically, the government—to do.

         In Bowen, the Supreme Court determined that the Free
Exercise Clause did not require the government to
accommodate a religiously based objection to the statutory
requirement that a Social Security number be provided to
applicants for certain welfare benefits. Roy, a Native
American, argued that the government’s use of his daughter’s
Social Security number would “‘rob the spirit’ of his daughter
and prevent her from attaining greater spiritual 

. Roy’s claim was unsuccessful because “[t]he
Federal Government’s use of a Social Security number
for . . . [his daughter] d[id] not itself in any degree impair
Roy’s ‘freedom to believe, express, and exercise’ his
religion.” 

Rather, Roy was attempting to use the
Free Exercise Clause to dictate how the government should
transact its business.

      Never to our knowledge has the Court
      interpreted the First Amendment to require the
      Government itself to behave in ways that the
      individual believes will further his or her
      spiritual development or that of his or her
      family. The Free Exercise Clause simply
      cannot be understood to require the Government
      to conduct its own internal affairs in ways that
      comport with the religious beliefs of particular
      citizens. Just as the Government may not insist




                             40
       that appellees engage in any set form of
       religious observance, so appellees may not
       demand that the Government join in their
       chosen religious practices by refraining from
       using a number to identify their daughter.
       “[T]he Free Exercise Clause is written in terms
       of what the government cannot do to the
       individual, not in terms of what the individual
       can extract from the government.” . . . The Free
       Exercise Clause affords an individual protection
       from      certain    forms    of    governmental
       compulsion; it does not afford an individual a
       right to dictate the conduct of the Government’s
       internal procedures.

(quoting 

(Douglas,
J., concurring)).

        And, echoing the principles of Bowen, in Lyng,
members of Native American tribes claimed that the federal
government violated their rights under the Free Exercise
Clause by permitting timber harvesting and construction on
land used for religious 

. The
Supreme Court concluded that the Free Exercise Clause “does
not and cannot imply that incidental effects of government
programs, which may make it more difficult to practice
certain religions but which have no tendency to coerce
individuals into acting contrary to their religious beliefs,
require government to bring forward a compelling
justification for its otherwise lawful actions.” 

      Building on this line of cases, the Court of Appeals for
the D.C. Circuit concluded that a federal prisoner failed to




                              41
state a RFRA claim when he sought to enjoin application of
the DNA Analysis Backlog Elimination Act on the basis that
DNA sampling, storage, and collection without limitations
violated his religious beliefs about the proper use of the
“building blocks of life.” 

.
Kaemmerling could not state a claim that his religious
exercise was substantially burdened because he did not
identify any religious exercise that was subjected to the
burden to which he objected:

      The government’s extraction, analysis, and
      storage of Kaemmerling’s DNA information
      does not call for Kaemmerling to modify his
      religious behavior in any way—it involves no
      action or forbearance on his part, nor does it
      otherwise interfere with any religious act in
      which he engages. Although the government’s
      activities with his fluid or tissue sample after
      the BOP takes it may offend Kaemmerling’s
      religious beliefs, they cannot be said to hamper
      his religious exercise because they do not
      “pressure [him] to modify his behavior and to
      violate his beliefs.”

(alteration in original) (quoting 

). “Like the parents in Bowen, Kaemmerling’s
opposition to government collection and storage of his DNA
profile does not contend that any act of the government
pressures him to change his behavior and violate his religion,
but only seeks to require the government itself to conduct its
affairs in conformance with his religion.” 

                             42
        Thus, the case law clearly draws a distinction between
what the law may impose on a person over religious
objections, and what it permits or requires a third party to do.
Although that person may have a religious objection to what
the government, or another third party, does with something
that the law requires to be provided (whether it be a Social
Security number, DNA, or a form that states that the person
religiously objects to providing contraceptive coverage),
RFRA does not necessarily permit that person to impose a
restraint on another’s action based on the claim that the action
is religiously abhorrent.

       These cases confirm that we can, indeed should,
examine the nature and degree of the asserted burden to
decide whether it amounts to a substantial burden under
RFRA. Furthermore, we must assess how the objected-to
action relates to the appellees’ religious exercise, and whether
the appellees’ objections focus on the action itself or the
result of the action, i.e., the obligations placed upon a third
party.

       Far from “triggering” the provision of contraceptive
coverage to the appellees’ employees and students, EBSA
Form 700 totally removes the appellees from providing those
services. “[T]he regulations provide an opt-out mechanism
that shifts to third parties the obligation to provide
contraceptive coverage to which health insurance
beneficiaries are entitled, and that fastidiously relieves [the
appellees] of any obligation to contract, arrange, pay, or refer
for access to contraception . . . .” Priests for 

.     The self-certification form requires the eligible
organization or its plan to provide a copy to the
organization’s insurance issuer or third-party administrator in




                               43
order for the plan to be administered in accordance with both
the eligible organization’s religious objection and the
contraceptive coverage requirement. The ACA already takes
into account beliefs like those of the appellees and
accommodates them. “The accommodation in this case
consists in the organization’s . . . washing its hands of any
involvement in contraceptive coverage, and the insurer and
the third-party administrator taking up the slack under
compulsion of federal law.” Notre 

.
The regulations accommodate the interests of religious
institutions that provide health services, while not curtailing
the public interest that motivates the federally mandated
requirement that such services shall be provided to women
free of charge. 

       Because we find that the self-certification procedure
does not cause or trigger the provision of contraceptive
coverage, appellees are unable to show that their religious
exercise is burdened. Even if we were to conclude that there
is a burden imposed on the appellees’ religious exercise, we
would be hard-pressed to find that it is substantial. Whether a
burden is “substantial” under RFRA is a question of law, not
a question of fact. See Mahoney v. Doe, 

, 1121
(D.C. Cir. 2011). RFRA’s reference to “substantial” burdens
expressly calls for a qualitative assessment of the burden that
the accommodation imposes on the appellees’ exercise of
religion. 

(Rovner, J., dissenting).
RFRA calls for a threshold inquiry into the nature of the
burden placed on the appellees’ free exercise of religion:
“substantial” is a term of degree that invites the courts to
distinguish between different types of burdens. 

                              44
       We have stated that a substantial burden exists where
(1) “a follower is forced to choose between following the
precepts of his religion and forfeiting benefits otherwise
generally available to other [persons] versus abandoning one
of the precepts of his religion in order to receive a benefit”; or
(2) “the government puts substantial pressure on an adherent
to substantially modify his behavior and to violate his
beliefs.” See Washington v. Klem, 

, 280 (3d Cir.
2007) (interpreting a related statute, the Religious Land Use
and Institutionalized Persons Act, which applies to prisoner
and land use cases). However, a government action does not
constitute a substantial burden, even if the challenged action
“would interfere significantly with private persons’ ability to
pursue spiritual fulfillment according to their own religious
beliefs,” if the government action does not coerce the
individuals to violate their religious beliefs or deny them “the
rights, benefits, and privileges enjoyed by other citizens.”

. Under this definition, can the
submission of the self-certification form, which relieves the
appellees of any connection to the provision of the objected-
to contraceptive services, really impose a “substantial”
burden on the appellees’ free exercise of religion? We think
not. While Hobby Lobby rejected the argument that the
burden was too attenuated because the actual use of the
objected-to contraceptive methods was a matter of individual
choice, here, where the actual provision of contraceptive
coverage is by a third party, the burden is not merely
attenuated at the outset but totally disconnected from the
appellees.

       The reasoning of the District Courts was misguided in
two ways. First, the District Courts accepted the appellees’
characterization of the accommodation as causing them to




                               45
“facilitate,” act as the “central cog,” or serve as the
“necessary stimulus” for the provision of the objected-to
contraceptive services. (J.A. 60-61.) For the reasons we have
detailed, we cannot accept that characterization as a matter of
fact or law. Second, the District Courts focused on the
coercive effect, i.e., the fact that the appellees faced a choice:
submit the self-certification form and “facilitate” the
provision of contraceptive coverage, or pay fines for
noncompliance. However, now that we have dispelled the
notion that the self-certification procedure is burdensome, we
need not consider whether the burden is substantial, which
involves consideration of the intensity of the coercion faced
by the appellees. We will accordingly reverse the challenged
injunctions.

              2. Dividing the Catholic Church Argument

                  in Zubik/Persico

        The appellees in Zubik/Persico argue that a second
substantial burden is imposed on their religious exercise in
that the contraceptive coverage regulatory scheme improperly
partitions the Catholic Church by making the Dioceses
eligible for the exemption, while the Catholic nonprofits can
only qualify for the accommodation, even though all the
Catholic entities share the same religious beliefs. The District
Court agreed with the appellees and concluded that the
contraceptive mandate “would cause a division between the
Dioceses and their nonprofit, religious affiliated/related
spiritual/charitable/educational organizations which fulfill
portions of Dioceses’ mission. Further, any nonprofit,
religious affiliated/related organizations expelled from the
Dioceses’ health insurance plans would require significant




                               46
restructuring of the plans which would adversely affect the
benefits received from pooling resources.” (J.A. 76 (citation
omitted).) We conclude that the inclusion of houses of
worship in the exemption and religious nonprofits in the
accommodation does not impose a substantial burden on the
Zubik/Persico appellees.

       The definition of a “religious employer” who receives
an exemption from the contraceptive coverage requirement
under the regulations is based on longstanding Internal
Revenue Code provisions. See 45 C.F.R. § 147.131(a) (citing
26 U.S.C. § 6033(a)(3)(A)(i), (iii)). “[R]eligious employers,
defined as in the cited regulation, have long enjoyed
advantages (notably tax advantages) over other entities,
without these advantages being thought to violate the
establishment clause.” Notre 

(citation
omitted) (citing Walz v. Tax Comm’n of N.Y., 

,
666, 672-73 (1970)). The Departments chose this definition
from the Internal Revenue Code to categorize the entities
subject to the exemption and the accommodation because that
provision was a bright line that was already statutorily
codified and frequently applied: “The Departments believe
that the simplified and clarified definition of religious
employer continues to respect the religious interests of houses
of worship and their integrated auxiliaries in a way that does
not undermine the governmental interests furthered by the
contraceptive coverage requirement.” 78 Fed. Reg. at 39,874;
see also Coverage of Certain Preventive Services Under the
Affordable Care Act, 78 Fed. Reg. 8456, 8461 (proposed Feb.
6, 2013) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590, and
45 C.F.R. pts. 147, 148, & 156) (“[T]his definition was
intended to focus the religious employer exemption on ‘the
unique relationship between a house of worship and its




                              47
employees in ministerial positions.’” (quoting Group Health
Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the Patient Protection and
Affordable Care Act, 76 Fed. Reg. 46,621, 46,623 (Aug. 3,
2011) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; and
45 C.F.R. pt. 147))).

        Furthermore, we are not persuaded that the challenged
accommodation poses any burden on the exempted appellees’
religious exercise, particularly a burden that would require the
appellees to “expel” the religious nonprofit organizations
from the Dioceses’ health insurance plans. See, e.g., Roman
Catholic Archdiocese of N.Y. v. Sebelius, 

, 252 (E.D.N.Y. 2013) (“First, it is not at all clear why the
Diocesan plaintiffs would have to ‘expel’ their non-exempt
affiliates from their health plans. . . . Second, even if the law
did pressure the Diocesan plaintiffs to ‘expel’ their affiliates,
plaintiffs do not state that the Diocesan plaintiffs’ religious
beliefs require them to have all their affiliate organizations on
a single health plan, such that ‘expelling’ the non-exempt
affiliates would be an act forbidden by their religion.”).

       Thus, we cannot agree that the different treatment
afforded to the Catholic Church as a house worship versus the
Catholic nonprofit organizations imposes a substantial burden
in violation of RFRA.

                   III.    CONCLUSION

       We will reverse the District Courts’ orders granting the
challenged injunctions. Because we conclude that the
appellees have not shown a likelihood of success on the
merits of their RFRA claim, based on the determination that




                               48
the accommodation does not impose a substantial burden on
their religious exercise, we need not reach the question of
whether the accommodation is the least restrictive means of
furthering a compelling governmental interest.




                            49