                                                                              FILED
                                                                  United States Court of Appeals
                                         PUBLISH                          Tenth Circuit

                          UNITED STATES COURT OF APPEALS                September 3, 2015

                                                                        Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                      Clerk of Court
                             _________________________________

LITTLE SISTERS OF THE POOR HOME
FOR THE AGED, DENVER,
COLORADO, a Colorado non-profit
corporation, et al.,

       Plaintiffs - Appellants,

v.                                                        No. 13-1540

SYLVIA MATHEWS BURWELL,
Secretary of the United States Department
of Health and Human Services, et al.,

       Defendants - Appellees.

------------------------------

ASSOCIATION OF GOSPEL RESCUE
MISSIONS, et al.,

       Amici Curiae.

–––––––––––––––––––––––––––––––––––

SOUTHERN NAZARENE UNIVERSITY,
et al.,

       Plaintiffs - Appellees,
                                                          No. 14-6026
v.

SYLVIA MATHEWS BURWELL, in her
official capacity as Secretary of the United
States Department of Health and Human
Services, et al.,
       Defendants - Appellants.

------------------------------

AMERICAN CIVIL LIBERTIES UNION,
et al.,

       Amici Curiae.

–––––––––––––––––––––––––––––––––––

REACHING SOULS INTERNATIONAL,
INC., an Oklahoma not for profit
corporation, et al.,

       Plaintiffs - Appellees,
                                                               No. 14-6028
v.

SYLVIA MATHEWS BURWELL,
Secretary of the United States Department
of Health and Human Services, et al.,

       Defendants - Appellants.
                       _________________________________

                                          ORDER
                             _________________________________

Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH,
GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, MCHUGH, and
MORITZ, Circuit Judges.
                    _________________________________

        On July 14, 2015, the original panel opinion issued in these matters. On July 23,

2015, the Plaintiffs filed petitions for certiorari to the United States Supreme Court and

did not petition for rehearing to this court. Nonetheless, a poll was called, sua sponte, to

consider en banc rehearing. Upon that consideration, a majority of the active judges of



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the court voted to deny. Judges Kelly, Hartz, Tymkovich, Gorsuch, and Holmes voted to

grant en banc rehearing.

      Judge Hartz has written separately in dissent. Judges Kelly, Tymkovich, Gorsuch

and Holmes join in that dissent.




                                           Entered for the Court



                                           ELISABETH A. SHUMAKER, Clerk




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13-1540, 14-6026, 14-6028 – Little Sisters v. Burwell

HARTZ, Circuit Judge, dissenting, in which Judges KELLY, TYMKOVICH,
GORSUCH and HOLMES join:

       I respectfully dissent from the denial of en banc review.

       The opinion of the panel majority is clearly and gravely wrong—on an issue that

has little to do with contraception and a great deal to do with religious liberty. When a

law demands that a person do something the person considers sinful, and the penalty for

refusal is a large financial penalty, then the law imposes a substantial burden on that

person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they

will be violating God’s law if they execute the documents required by the government.

And the penalty for refusal to execute the documents may be in the millions of dollars.

How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of

religion?

       Yet the panel majority holds otherwise. Where did it go wrong? It does not doubt

the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of

what that belief is. It refuses to acknowledge that their religious belief is that execution

of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as

being only opposition to facilitating the use and delivery of certain contraceptives to

which they object. Under this reframing, the plaintiffs have no religious objection to

executing the forms; it is just that executing the forms burdens their religious opposition

to certain contraceptives. The burden would be akin to that caused by a tax on sales of

religious tracts at the church bookstore, where the church has no religious objection to
paying a tax but complains that the tax will make it harder to spread the Gospel. After so

framing the plaintiffs’ belief, the panel majority then examines the particulars of the

governing law and decides that executing the documents does not really implicate the

plaintiffs in the use or delivery of the contraceptives. If one accepts this reframing of

plaintiffs’ belief, the analysis of the panel majority may be correct; perhaps one could say

that the exercise of this reframed belief was not substantially burdened. But it is not the

job of the judiciary to tell people what their religious beliefs are.

       Or perhaps the panel majority recognizes the plaintiffs’ belief but is simply

refusing to recognize its importance because it is merely an “uninformed derivative” of

their core belief. Some of its language could be read as saying the following: (1) Yes,

the plaintiffs have a religious objection to executing the documents. (2) But the religious

core of that objection is the plaintiffs’ opposition to certain types of contraception; their

religious objection to executing documents is merely the expression of the view that

being required to perform that task substantially burdens their beliefs regarding

contraception. (3) To let the plaintiffs decide whether executing the documents is

independently sinful in itself would be contrary to the court’s duty to determine whether

the document-execution requirement substantially burdens what the plaintiffs’ religious

concern is really all about—the provision and use of contraceptives. Put another way,

the panel majority may be saying that it is the court’s prerogative to determine whether

requiring the plaintiffs to execute the documents substantially burdens their core religious

belief, regardless of whether the plaintiffs have a “derivative” religious belief that
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executing the documents is sinful. This is a dangerous approach to religious liberty.

Could we really tolerate letting courts examine the reasoning behind a religious practice

or belief and decide what is core and what is derivative? A Christian could be required to

work on December 25 because, according to a court, his core belief is that he should not

work on the anniversary of the birth of Jesus but a history of the calendar and other

sources show that Jesus was actually born in March; a December 25 work requirement

therefore does not substantially burden his core belief. Or a Jewish prisoner could be

provided only non-kosher food because the real purpose of biblical dietary laws is health,

so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not

substantially burdened. The Supreme Court has refused to examine the reasonableness of

a sincere religious belief—in particular, the reasonableness of where the believer draws

the line between sinful and acceptable—at least since Thomas v. Review Board of Indiana

Employment Security Division, 450 U.S. 707, 715 (1981), and it emphatically reaffirmed

that position in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014).

       Fortunately, the doctrine of the panel majority will not long survive. It is contrary

to all precedent concerning the free exercise of religion. I am aware of no precedent

holding that a person’s free exercise was not substantially burdened when a significant

penalty was imposed for refusing to do something prohibited by the person’s sincere

religious beliefs (however strange, or even silly, the court may consider those beliefs).

And the law of this circuit is clear. Chief Judge Henry expressed the point for a panel of

this court in Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010): “We
                                              3
conclude that a religious exercise is substantially burdened under [RFRA] when a

government . . . requires participation in an activity prohibited by a sincerely held

religious belief . . . .” The en banc court adopted that proposition in Hobby Lobby Stores,

Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013), aff’d, 134 S. Ct. 2751 (2014).

       Resolution of the substantial-burden question does not, however, resolve this

litigation. I would set aside the panel decision regarding substantial burden and then

return this case to the panel to determine whether the certification requirement is the least

restrictive means of furthering a compelling governmental interest.




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