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No. 18-55451

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________________________________________________

SKYLINE WESLEYAN CHURCH,

Plaintiff–Appellant

v.

CALIFORNIA DEPARTMENT OF MANAGED HEALTH CARE;

MICHELLE ROUILLARD, in her official capacity as Director of the
California Department of Managed Health Care,
Defendants-Appellees.
______________________________________________________________

On Appeal from the United States District Court for the Southern District of
California, Case No. 3:16-cv-00501-CAB-DHB
______________________________________________________________

BRIEF OF AMICI CURIAE THE JEWISH COALITION FOR

RELIGIOUS LIBERTY AND THE ETHICS & RELIGIOUS LIBERTY
COMMISSION IN SUPPORT OF PLAINTIFF-APPELLANT
SKYLINE WESLEYAN CHURCH
______________________________________________________________

Tyler R. Andrews (Cal. Bar. No. 250686)

6019 Camino Tierra
San Clemente, CA 92673
Telephone: (702) 343-6607

Counsel for Amici Curiae the Jewish Coalition for Religious Liberty and the
Ethics & Religious Liberty Commission
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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, amicus curiae the Jewish Coalition

for Religious Liberty is a non-profit organization incorporated in Delaware.

Amicus curiae the Ethics and Religious Liberty Commission is a 501(c)(3)

non-profit organization incorporated in Tennessee.

Dated: September 21, 2018 Respectfully submitted,

/s/ Tyler R. Andrews__________

Tyler R. Andrews, Esq.

6019 Camino Tierra
San Clemente, CA 92673
Telephone: (702) 343-6607

Counsel for Amici Curiae JCRL and

ERLC.

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TABLE OF CONTENTS

Page

STATEMENT OF AMICI CURIAE .............................................................. 8

ARGUMENT ................................................................................................ 10

I. INTRODUCTION.................................................................... 10
II. SKYLINE’S CLAIMS FALL SQUARELY WITHIN
THE PURVIEW OF § 1983 AND ARE RIPE FOR
JUDICIAL REVIEW ............................................................... 13

A. The district court erred in finding that Skyline

lacked standing due to non-redressability. .................... 15
B. The district court erred in finding that Skyline’s
claims are not Constitutionally or prudentially ripe. ..... 18

i. Constitutional Ripeness ....................................... 19

ii. Prudential Ripeness ............................................. 20
III. THIS COURT CAN AND SHOULD ADDRESS THE
MERITS OF SKYLINE’S CLAIMS ....................................... 23
IV. THE DMHC’S ELECTIVE ABORTION COVERAGE
MANDATE VIOLATES THE FREE EXERCISE
CLAUSE OF THE FIRST AMENDMENT TO THE
UNITED STATES CONSTITUTION. .................................... 24
V. CONCLUSION ........................................................................ 29

CERTIFICATE OF COMPLIANCE............................................................ 31

CERTIFICATE OF SERVICE ..................................................................... 32

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TABLE OF AUTHORITIES

Page(s)

Federal Cases
Abbott Laboratories v. Gardner,
387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ............................. 18
Bishop Paiute Tribe v. Inyo County,
863 F.3d 1144 (9th Cir. 2017) ................................................................. 21
Burnett v. Grattan,
468 U.S. 42 (1984)................................................................................... 15
Burwell v. Hobby Lobby,
573 U.S. ___ (2014)................................................................................. 25
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014)............................................................................. 26
Cantwell v. Connecticut,
310 U.S. 296 (1940)................................................................................. 24
Clark v. City of Seattle,
899 F.3d 802 (9th Cir. 2018) ................................................................... 20
Davis v. Nordstrom, Inc.,
755 F.3d 1089 (9th Cir. 2014) ................................................................. 23
Employment Division v. Smith,
494 U.S. 872 (1990)................................................................................. 12
Gilardi v. U.S. Dept. of Health and Human Servcs.,
733 F.3d 1208 (D.C. Cir. 2013), vacated on other grounds,
134 S. Ct. 2902 (2014)............................................................................. 26
Hanna v. Secretary of the Army,
513 F.3d 4 (1st Cir. 2008)........................................................................ 26
Kimes v. Stone,
84 F.3d 1121 (9th Cir. 1996) ................................................................... 23
Lujan v. Defenders of Wildlife,
504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ......................... 16

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Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972)................................................................................. 13
M.S. v. Brown,
--- F.3d ----, 2018 WL 4211165 (9th Cir. 2018) ..................................... 16
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission,
584 U.S. ___ (2018)................................................................................. 25
McDaniel v. Paty
435 U.S. 618 (1978)................................................................................. 25
McNeese v Board of Education,
373 U.S. 668 (1963)................................................................................. 15
Nat’l Park Hospitality Ass’n v. Dep’t of Interior,
538 U.S. 803, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) ................. 18, 20
National Institute of Family and Life Advocates v. Becerra,
585 U.S. ___ (2018)................................................................................. 25
Oklevueha Native Am. Church of Hawaii, Inc. v. Holder,
676 F.3d 829 (9th Cir. 2012) ................................................................... 22
Parks Sch. of Business, Inc. v. Symington,
51 F.3d 1480 (9th Cir. 1995) ................................................................... 23
Patsy v. Board of Regents of Fla.,
457 U.S. 496 (1982)........................................................................... 14, 22
Quinn v. Robinson,
783 F.2d 776 (9th Cir. 1986) ................................................................... 23
Renee v. Duncan,
686 F.3d 1002 (9th Cir. 2012) ................................................................. 16
Republic of Marshall Islands v. United States,
865 F.3d 1187 (9th Cir. 2017) ................................................................. 17
Robertson v. Wegmann,
436 U.S. 584 (1978) ................................................................................. 13
Serbian Eastern Orthodox Diocese v. Milivojevich
426 U.S. 696 (1976)................................................................................. 25

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Thomas v. Anchorage Human Rights Comm’n,

165 F.3d 692 (9th Cir. 1999), vacated on other grounds, 220
F.3d 1134 (9th Cir. 2000) (en banc) ........................................................ 27
Torcaso v. Watkins,
367 U.S. 488 (1961)................................................................................. 25
United States v. Ballard,
322 U.S. 78 (1944)................................................................................... 25
US West Commc’ns v. MFS Intelenet, Inc.,
193 F.3d 1112 (9th Cir. 1999) ........................................................... 12, 21
Zebdieh v. Sessions,
2018 WL 3155711 (CD Cal. 2018) ......................................................... 20

Federal Statutes

42 U.S.C. § 238n ........................................................................................... 26

42 U.S.C. § 300a-7........................................................................................ 26
42 U.S.C. § 1983 ........................................................................................... 13
42 U.S.C § 1983, and (3) .................................................................................8
50 U.S.C. Appendix § 456(j) ........................................................................ 26

State Statutes

Cal. Health & Safety Code § 1340 et seq. .................................................... 10

Federal Rules
Fed. R. App. P. 29(a)(4)(e) ..............................................................................8
Fed. R. App. P. 32(a)(5)................................................................................ 29
Fed. R. App. P. 32(a)(6)................................................................................ 29
Fed. R. App. P. 32(a)(7)(B) .......................................................................... 29
Fed. R. App. P. 32(a)(7)(B)(iii) .................................................................... 29

Local Rules
United States Court of Appeals, Ninth Circuit Local Rules,
Rule 29-2(b) ................................................................................................8

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Constitutional Provisions
U.S. Const. amend. I ............................................................. 10, 12, 24, 25, 28
U.S. Const. amend. XIV ......................................................................... 12, 24

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STATEMENT OF AMICI CURIAE

As Amici Curiae, the Jewish Coalition for Religious Liberty (“JCRL”)

and the Ethics and Religious Liberty Commission (“ERLC”) (collectively

“Amici”) respectfully file this brief in support of Plaintiff-Appellant Skyline

Wesleyan Church (“Skyline”).1 California’s Department of Managed

Healthcare (“DMHC”) violated Skyline’s religious liberty by stripping the

church of its long standing ability to exempt coverage for elective abortion –

which is prohibited under Skyline’s sincerely held religious beliefs -- from

the health insurance plans provided to its employees.

While Amici, through this brief, are not making any substantive

arguments on the elective abortion debate, Amici stand in solidarity with

Skyline and seek to assist the Court by demonstrating that (1) the outcome of

this appeal and its effect on religious liberty will transcend any single

church, denomination, or religion, (2) the issues raised on appeal constitute

actionable constitutional injuries that are ripe for review under 42 U.S.C §

1983, and (3) the Court can and should address Appellant’s claims on their

merits to prevent ongoing injustice for both Skyline and California’s broader

1
Pursuant to Ninth Circuit Rule 29-3, Amici obtained consent from all
parties prior to filing the instant brief. Pursuant to Fed. R. App. P.
29(a)(4)(e), Amici confirm that no party’s counsel authored this brief in
whole or in part; no party or party’s counsel contributed money that was
intended to fund preparing or submitting this brief; and no person or entity
contributed money intended to fund preparing or submitting this brief.

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religious community.

The JCRL is a non-denominational organization of Jewish communal

and lay leaders, seeking to protect the ability of all Americans to freely

practice their faith. JCRL also fosters cooperation between Jewish and other

faith communities in supporting religious freedom. The JCRL is led by its

President, rabbi Mitchell Rocklin, a former member of the Executive

Committee of the Rabbinical Council of America (“RCA”), the largest

organization of Orthodox rabbis in the United States. As a U.S. Army

Reserve chaplain, Rocklin tended to practitioners of several diverse faiths

and witnessed the profound importance all Americans place on their

sincerely held religious beliefs. Rocklin and the JCRL recognize the

necessity of protecting such beliefs from undue government interference.

The ERLC is an entity of the Southern Baptist Convention (“SBC”),

the nation’s largest Protestant denomination with over 46,000 autonomous

churches and nearly 16 million members. The ELRC is dedicated to

engaging the culture with the gospel of Jesus Christ and speaking to issues in

the public square for the protection of religious liberty and human

flourishing. The ERLC is charged by the SBC with addressing public policy

affecting such issues as freedom of speech, religious freedom, marriage and

family, and the sanctity of human life.

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Amici maintain a direct and substantial interest in the outcome of this

lawsuit because it involves a critical issue of religious freedom, namely,

whether a state government can target religious organizations and compel

them to facilitate conduct or practices in direct conflict with sincerely held

religious beliefs. Amici assert that the First Amendment to the United States

Constitution prohibits such coercion. Indeed, to find otherwise would put

the religious liberty of millions of churches, synagogues, and parishioners at

grave risk.

ARGUMENT

I. INTRODUCTION
On August 22, 2014, Skyline was stripped of the ability to operate its

church freely and consistently with the tenets of its faith. California’s

DMHC decreed, by way of a letter to all health insurance providers, that it

was fundamentally altering its interpretation of California’s Knox-Keene

Health Care Service Plan Act of 1975 (“Knox Keene Act”), and mandating

that regulated insurance plans cover elective abortion as a “basic health care

service.” Any existing policies exempting abortion coverage (which were

uniformly held by religious organizations such as Skyline) were suddenly no

longer valid. The DMHC issued its mandate without enacting any new law

or regulation, without consulting any of the affected religious groups, and

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without offering any chance for public comment. This unilateral dictate has

forced Skyline to carry out its day to day operations in a manner inconsistent

with one of its core biblical beliefs – that elective abortion constitutes the

taking of innocent human life, which begins at conception.2

Upholding the DMHC’s mandate would adversely affect the

constitutional rights of not only Skyline, but religious groups of various

faiths and denominations throughout California. The impact of this decision

will reach far beyond the abortion debate, as state laws coercing

objectionable activity in all areas of daily life, from Orthodox Jewish food

preparation, to evangelical Christian home-schooling, to Muslim hijab and

prayer requirements, and countless other religious practices, may be

affected. Through this brief, Amici seek to protect the First Amendment

rights of all Californians to freely exercise their religious faith. They do so

through two primary arguments.

First, Amici assert that the district court’s dismissal of Skyline’s

claims on standing and ripeness grounds was clear error. Far from a

“premature adjudication” or “abstract disagreement” between the parties, the

2
See Jeremiah 1:4-5 (“…Before I formed you in the womb I knew you, and
before you were born I consecrated you…”); Psalm 139:13-16 (God
“formed my inward parts…knitted me together in my mother’s womb,” and
knew “the days that were formed for me, when as yet there was none of
them”).

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DMHC’s mandate represents a final determination that caused immediate

(and ongoing) harm to Skyline, and needs no further factual development or

exhaustion for judicial review. See US West Commc’ns v. MFS Intelenet,

Inc., 193 F.3d 1112, 1118 (9th Cir. 1999). Indeed, the harm suffered by

Skyline (and by all similarly situated religious organizations throughout the

state) is precisely what the First and Fourteenth Amendments prohibit, and

precisely what Section 1983 was enacted to address.

Second, Amici assert that the DMHC’s mandate is Constitutionally

unsound because, among several other things, it knowingly targets religious

groups objecting to abortion coverage based on their sincerely held beliefs.

The mandate is not an “incidental” burden on religion, nor is it a “valid and

neutral law of general applicability” under Employment Division v. Smith,

494 U.S. 872 (1990). Rather, the DMHC – upon advice from special interest

“allies” and abortion rights lobbyists 3 – launched a clandestine attack upon

groups holding certain disfavored religious beliefs about the sanctity of

unborn human life. As such, the mandate is subject to strict scrutiny, and it

fails. The DMHC cannot unilaterally strip religious organizations of

3
As demonstrated in the record and explained in Skyline’s opening brief, the
DMHC issued its mandate only after contact and legal consultation with its
self-proclaimed “allies” – groups supporting expansive abortion rights such
as the National Health Law Program (a group committed to removing
religious restrictions on abortion), the ACLU, and Planned Parenthood.
Opening Brief, 10-13.

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existing policy exemptions or compel them to cooperate in practices that

violate core beliefs. Nor can the DMHC pass constitutional muster by

offering to analyze future religious exemptions on a case-by-case basis,

using no set timelines or objective criteria. This “fix” would only add to the

substantial harm and uncertainty faced by Skyline and other religious

organizations with similar beliefs on abortion, including many of those

associated with Amici.

II. SKYLINE’S CLAIMS FALL SQUARELY WITHIN THE

PURVIEW OF § 1983 AND ARE RIPE FOR JUDICIAL
REVIEW

The very purpose of 42 U.S.C. § 1983 -- from which Skyline’s

constitutional claims arise -- is to protect and compensate “all persons

injured by deprivation of federal rights and…abuses of power by those

acting under color of state law.” Robertson v. Wegmann, 436 U.S. 584, 590-

91 (1978). One of the most powerful and consequential statutes ever

enacted by Congress, Section 1983 was intended to provide “broad and

sweeping protection” for violations of the protections enshrined in the Bill of

Rights. Lynch v. Household Fin. Corp., 405 U.S. 538, 543 (1972). To

effectuate those goals, Congress intended to “throw open the doors of the

United States courts” to those who had been deprived of constitutional rights

“and to provide these individuals immediate access to the federal courts . . .”

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Patsy v. Board of Regents of Fla., 457 U.S. 496, 504 (1982) (emphasis

added).

Here, the district court’s dismissal of Skyline’s claims on standing and

ripeness grounds was clear error. Despite effectively conceding that Skyline

suffered an actual injury by way of the DMHC’s mandate, the district court

then puzzlingly held that Skyline lacked standing to seek any judicial

remedy for this constitutional harm. Rather than allowing “immediate

access to the federal courts” as required, the district court’s order would

force Skyline to jump through arbitrary procedural hoops and exhaust vague

future administrative remedies (through the very same state agencies that

violated Skyline’s constitutional rights to begin with) before its claims could

even be judicially considered. Indeed, the court held that Skyline was not

even permitted to climb the courthouse steps until it (1) found an insurance

carrier that would willingly violate the DMHC’s mandate by issuing a policy

excluding elective abortion coverage in nearly all instances, then (2) pleaded

with the DMHC for a wholly discretionary exemption from elective abortion

coverage that contradicted the clear terms of its own mandate, and (3) waited

who-knows-how-long for the government to apply who-knows-what-type of

criteria to consider and then reject Skyline’s exemption request.

This is precisely what § 1983 was enacted to prevent. Indeed, the

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district court’s order ignores long standing Supreme Court precedent that the

“dominant characteristic” of § 1983 actions is that “they belong in court.”

Burnett v. Grattan, 468 U.S. 42, 50 (1984). Such claims are “independent of

any other legal or administrative relief that may be available as a matter of

federal or state law” and are “judicially enforceable in the first instance.”

Ibid. (emphasis added). The Supreme Court has powerfully explained the

reason for this broad standing basis:

“human rights under the Federal Constitution are always a

proper subject for adjudication, … we have not the right to
decline the exercise of that jurisdiction simply because the
rights asserted may be adjudicated in some other forum.”
McNeese v Board of Education, 373 U.S. 668, 674, n.6 (1963)

(emphases added).

A. The district court erred in finding that Skyline lacked standing

due to non-redressability.
It is hard to imagine how the district court’s standing analysis could

stray further from the legislative intent and judicial precedent regarding

§ 1983. In fact, should the district court’s reasoning be upheld and adopted

by this Court, it would constitute a massive shift in constitutional standing

doctrine and threaten the fundamental rights of any individual or entity

subject to coercive government action, including Amici. Although the

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district court “assumed” – correctly – that the first and second conditions

(injury in fact, traceable to the challenged conduct) for Article III standing

were met, the court held that the third prong of the standing analysis,

redressability, was lacking. The district court was wrong to conclude that

Skyline’s injury would not be redressed by a favorable judicial decision.

A plaintiff’s burden to establish the redressability component of

standing is “relatively modest.” See M.S. v. Brown, --- F.3d ---- , 2018 WL

4211165, *4 (9th Cir. 2018), quoting Renee v. Duncan, 686 F.3d 1002, 1013

(9th Cir. 2012). In order to ensure the court has the power to provide the

relief requested, a plaintiff must show that it is “likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Id.,

citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130,

119 L.Ed.2d 351 (1992) (internal quotation marks omitted).

For example, in Brown, this Court found it could not redress the injury

to § 1983 plaintiffs who challenged Oregon’s failure to adopt a measure that

would have allowed non-citizens to obtain driving cards. Because the

citizens of Oregon had already voted to reject the measure, a ruling from the

district court was unable to redress the alleged injury: the court could not

substitute its own judgment for the required voter approval. Likewise, in

Republic of Marshall Islands v. United States, the Ninth Circuit held that the

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Marshall Islands had no federal standing to seek enforcement of a non-self-

executing treaty provision because the court had no power to enforce the

treaty. Republic of Marshall Islands v. United States, 865 F.3d 1187, 1199

(9th Cir. 2017).

These holdings – where the court lacked any power to redress the

plaintiffs’ injuries – are in stark contrast to the situation here. In finding that

Skyline did not even meet the “relatively modest” redressability requirement

for standing, the district court created a straw man, stating that it could not

order the DMHC to provide Skyline with an acceptable insurance plan,

because DMHC does not provide health care plans but merely regulates

them. Not only is the district court wrong about the scope of its own

authority (it certainly can and should issue such an order to the DMHC), it

also misses the key point of the case. True, Skyline would likely welcome

the DMHC’s cooperation and approval of acceptable health plan language

(which the DMHC has yet to provide). But the primary injury in this case

occurred the moment the mandate issued -- when the DMHC improperly

stripped Skyline of its existing coverage and forbade all California health

plans from offering such coverage in the future. This outright prohibition on

plans compatible with Skyline’s religious beliefs violates Skyline’s

constitutional rights, and only a court order lifting that prohibition can fully

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redress Skyline’s injury. Ordering a party to stop violating the United States

Constitution is a means of redress well within the power of a federal court;

indeed, it is the very purpose of § 1983.

B. The district court erred in finding that Skyline’s claims are not
Constitutionally or prudentially ripe.
The district court likewise erred in finding that Skyline’s claims are

not constitutionally or prudentially ripe. The district court acknowledged

that ripeness is a “doctrine designed to prevent the courts through avoidance

of premature adjudication, from entangling themselves in abstract

disagreements over administrative polices, and also to protect the agencies

from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.”

See Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 808, 123

S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (quoting Abbott Laboratories v.

Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)).

The district court is wrong on all fronts: (1) the adjudication would

not be premature (the injury occurred when the mandate was issued years

ago); (2) the disagreement is not “abstract” (there is a well-developed factual

record); (3) a formal agency decision does exist (the DMHC’s August 22,

2014 letter), and (4) the effects of the DMHC’s elective abortion coverage

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mandate have already been “felt in a concrete way” (by Skyline and all

churches now forced to purchase plans that violate their protected beliefs).

As such, there can be no legitimate dispute that this case is ripe for review.

The district court erred in its analysis of both constitutional and

prudential ripeness:

i. Constitutional Ripeness

The constitutional ripeness inquiry focuses on ensuring that the courts

are ruling on issues that are “definite and concrete, not hypothetical or

abstract.” But here, the district court essentially conceded that a concrete

injury to Skyline had occurred, so this test has already been met. Indeed,

this case does not involve a situation where Skyline filed a preemptive

lawsuit because it was worried the DMHC might issue a mandate requiring

its insurance plan cover elective abortion. That decision has undisputedly

occurred, and has undisputedly affected Skyline.

To skirt around this contradiction, the district court again builds and

dismantles a straw man. Instead of focusing on the actual injury caused by

the DMHC’s mandate, the district court reframed the issue to focus on

subsequent future events (possible exemptions), and unilaterally declared

that such future events were too speculative. This finding ignores the fact

that since August 2014, through the current date, and at the very moment the

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district court was penning its order, Skyline was already offering its

employees a health plan that covered elective abortions – in direct violation

of its religious beliefs. The district court therefore created an impossible

standard based on an undefined future exemption: “[u]ntil the DMHC

receives and denies approval of a health care plan that reflects Plaintiff’s

religious beliefs, the Court concludes that Plaintiff’s claims do not present a

constitutionally ripe case or controversy.” This extraneous requirement, that

Skyline – despite having already suffered clear constitutional injury – cannot

even come to court until an unknown third party takes some unknown future

act outside of Skyline’s control, is not required by the law, and is clear error.

ii. Prudential Ripeness

The district court also declined to rule on the case under the doctrine

of prudential ripeness. Prudential ripeness (recently called into doubt as

sound doctrine)4 is a discretionary evaluation of “(1) the fitness of the issues

for judicial decision and (2) the hardship to the parties of withholding court

consideration.” See Nat'l Park Hospitality Ass'n, 538 U.S. at 808, 123 S.Ct.

2026. Courts have found cases not prudentially ripe only where the harm

has not yet occurred and is not certain to occur. See, e.g., Zebdieh v.

Sessions, 2018 WL 3155711, *4 (CD Cal. 2018) (request for injunction from

4
See Clark v. City of Seattle, 899 F.3d 802, 809, n. 4 (9th Cir. 2018).

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detention was not prudentially ripe because petitioner was not currently

detained and may not be in the future). The district court erred in finding

Skyline’s case not prudentially ripe.

“In determining whether a case is fit for judicial decision, this court

has looked to whether the case presents a concrete factual situation or purely

legal issues.” See Bishop Paiute Tribe v. Inyo County, 863 F.3d 1144, 1154

(9th Cir. 2017) (internal quotations omitted). (internal quotations omitted)

(case was “clearly” prudentially ripe for judicial decision where the

complaint contained a detailed factual account of the disputes and sought

redress of multiple hardships, such as ongoing legal costs). In other words,

“[a] claim is fit for decision if the issues raised are primarily legal, do not

require further factual development, and the challenged action is final.” U.S.

West Commc'ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999).

Here, the cross-motions for summary judgment alone establish that

the facts of the case are fully developed and that the legal issues are clear.

And the district court admits that the DMHC’s mandate “may well be a

definitive and final decision on the part of the DMHC….”. Further, because

the district court acknowledged that the DMHC’s mandate caused an actual

injury to Skyline, and because there is no dispute that the injury has not yet

been redressed, there cannot be a legitimate question that Skyline is

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suffering “hardship” of “withholding court consideration.” As such, the

district court had no possible basis to find the case not prudentially ripe.

Whether or not some future DMHC exemption may occur is not a proper

component of the ripeness inquiry. See Oklevueha Native Am. Church of

Hawaii, Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012) (“we are

unpersuaded by the Government's assertion that Plaintiffs' request for

prospective relief is unripe because Plaintiffs did not request an exception to

the CSA from the DEA.”).

Put simply, the district court failed to uphold its obligation to “throw

open the doors of the United States courts” to Skyline’s deprivation of

constitutional rights “and to provide [Skyline] immediate access to the

federal courts . . .” Patsy v. Board of Regents of Fla., 457 U.S. 496, 504

(1982) (emphasis added). In requiring Skyline to seek a new individualized

exemption from the very state agency that stripped away its coverage in the

first place before bringing a claim for relief, the district court undermined

the very purpose of § 1983. This standing and ripeness standard would pose

grave consequences not just for Skyline, Wesleyans, Christians, or those

opposing elective abortion, but to groups of all faiths desiring to live out the

tenets of their religion in peace and protected from government intrusion.

Amici respectfully request that the Court reverse the district court’s order.

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III. THIS COURT CAN AND SHOULD ADDRESS THE MERITS

OF SKYLINE’S CLAIMS

The district court’s improper dismissal of Skyline’s claims on

standing and ripeness grounds left the substantive merit of Skyline’s

constitutional violation unresolved. But this Court has the authority and

discretion to decide substantive claims on their merits, even where the lower

court declines to do so, if such issues are “purely legal” and the “record

below has been fully developed.” Davis v. Nordstrom, Inc., 755 F.3d 1089,

1094-95 (9th Cir. 2014). This discretion is particularly useful where

“injustice might otherwise result.” Ibid.; see also Quinn v. Robinson, 783

F.2d 776, 814 (9th Cir. 1986). Although rare, this Court may even consider

issues sua sponte, or those raised on appeal in the first instance, if it would

“prevent a miscarriage of justice” or “when the issue is purely one of law.”

Parks Sch. of Business, Inc. v. Symington, 51 F.3d 1480, 1488 (9th Cir.

1995). See also Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996)

(“because the issue is purely one of law, and because our addressing it at this

juncture will not prejudice the plaintiffs, we will do so here.”)

The Court can and should exercise its discretion to reach and

determine the substantive merit of Skyline’s § 1983 claims. Skyline’s

opening brief discusses the ongoing injustice and unnecessary delay that

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would result if, after determining Appellant has standing to pursue their

claims, this Court remands the case back to the district court for

consideration on the merits. Amici agree with Appellant, and urge this Court

to address the ongoing violations of Skyline’s religious liberty now, rather

than remanding. The underlying issues are fundamentally legal in nature

and do not require further development of the record. Reaching the legal

merit of the claims on appeal will not only protect against prolonging

Skyline’s ongoing deprivation of liberty, it will also remove the

longstanding cloud of uncertainty the DMHC’s mandate places on all

California organizations forced to offer insurance coverage for elective

abortions in a manner inconsistent with their religious beliefs.

IV. THE DMHC’S ELECTIVE ABORTION COVERAGE

MANDATE VIOLATES THE FREE EXERCISE CLAUSE OF
THE FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION.

Upon reaching the merits, this Court should determine and declare

that the DMHC’s mandate is constitutionally inapplicable to Skyline, or to

any religious organization or employer that objects to providing elective

abortion coverage due to sincerely held religious beliefs.

The free exercise clause of the First Amendment to the U.S.

Constitution, applicable to the states through the Fourteenth Amendment

(see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)), provides that

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"Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof …." (U.S. Const., Amendment 1).

Under well-settled First Amendment precedent, the government may not

compel support of religious beliefs (Torcaso v. Watkins, 367 U.S. 488

(1961)), punish the expression of purportedly “false” doctrine (United States

v. Ballard, 322 U.S. 78 (1944)), force speech or conduct contrary to

religious convictions (National Institute of Family and Life Advocates v.

Becerra, 585 U.S. ___ (2018); Burwell v. Hobby Lobby, 573 U.S. ___

(2014)), impose commercial penalties on the basis of religious views

(Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S.

___ (2018); McDaniel v. Paty 435 U.S. 618 (1978)), or support one favored

side in intra-faith controversies over religious dogma. (Serbian Eastern

Orthodox Diocese v. Milivojevich 426 U.S. 696 (1976)). This case warrants

issuing a similar restraint against government overreach on religious beliefs.

Amici fully support Skyline’s position that requiring a church to

choose between violating a Government mandate or violating its sincerely

held religious belief substantially burdens its exercise of religion. Any

statute or regulation requiring Skyline to be complicit in a practice abhorrent

to its own faith forces the church into an impossible choice—to either

violate conscience or violate the law.

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The DMHC’s mandate forces Skyline to offer abortion coverage to its

employees and thus violates Skyline’s constitutional rights. The DMHC’s

justification for this act, that the mandate only applies to insurance providers

and thus does not impact the faith of the end-users, is unavailing.

Legislatures and courts have long recognized that an organization’s sincere

religious beliefs may prevent it from approving, authorizing, or aiding an

activity or practice the organization considers to be wrong, even if the

organization itself does not directly commit the wrong. For example,

Congress exempts conscientious objectors not only from combat roles but

from participation “in any form” in war. 50 U.S.C. App. § 456(j); Hanna v.

Secretary of the Army, 513 F.3d 4 (1st Cir. 2008) (exempting Coptic

Christian physician from active duty based on religious beliefs). See also

Burwell v. Hobby Lobby, 573 U.S. ___ (2014) (“the question here is not

whether the reasonable observer would consider the plaintiffs complicit in

an immoral act, but rather how the plaintiffs themselves measure their degree

of complicity) (“the federal courts have no business addressing” whether a

plaintiffs’ religious beliefs are reasonable); Gilardi v. U.S. Dept. of Health

and Human Servcs., 733 F.3d 1208, 1215 (D.C. Cir. 2013) (noting that

“even attenuated participation may be construed as a sin”); Thomas v.

Anchorage Human Rights Comm’n, 165 F.3d 692 (9th Cir. 1999), vacated

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on other grounds, 220 F.3d 1134 (9th Cir. 2000) (en banc) (recognizing a

Christian landlord’s sincere religious belief that unmarried cohabitation was

sin merited exemption from state housing laws).

As the Supreme Court recently held in Masterpiece Cakeshop, 584

U.S. ___ (2018), “the government, if it is to respect the Constitution’s

guarantee of free exercise, cannot impose regulations that are hostile to the

religious beliefs of affected citizens and cannot act in a manner that passes

judgment upon or presupposes the illegitimacy of religious beliefs and

practices. The Free Exercise Clause bars even ‘subtle departures from

neutrality’ on matters of religion. Id., quoting Church of the Lukumi Babalu

Aye, Inc. v. Hialeah, 508 U.S. 520, 534 (1993).

Here, the government’s “departure from neutrality” on matters of

religion was far from subtle. Indeed, the sole purpose of the DMHC’s

August 22, 2014 mandate was to strip away exclusions for abortion coverage

which the DMHC knew only applied to religious organizations such as

Skyline. The DMHC admitted that it only began “looking into” its policy for

such exclusions after learning that two religious colleges announced that

they were eliminating abortion coverage from their health plans consistent

with their religious beliefs. This admission by the DMHC, combined with

the fact that the DMHC met only with abortion rights “allies” such as the

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National Health Law Program (a group committed to removing religious

restrictions on abortion), the ACLU, and Planned Parenthood, and never

once sought comment from or met with a single affected religious group,

tells this Court all it needs to know in analyzing whether this government

dictate is “neutral” towards religion and “generally applicable,” or whether

strict scrutiny should apply. Emp’t Div., Dep’t of Human Res. of Or. v.

Smith, 494 U.S. 872, 884 (1990).

Amici agree with Skyline that strict scrutiny must apply to the

DMHC’s mandate, and that the government cannot possibly meet this

standard. Not only does the DMHC mandate (1) intentionally target

religious organizations, (2) exempt whole categories of other types of group

plans at its sole discretion, and (3) refer to the very type of “individual

assessments” for religious groups requiring strict scrutiny under Smith, it

also fails to advance any compelling state interest whatsoever. Indeed, as

noted by Skyline, “no court has ever held that forcing any third party—let

alone a church—to fund abortion coverage for someone else is a compelling

interest.” Opening Brief, 63.

Applying anything less than strict scrutiny to the DMHC’s improper

mandate would negatively impact Skyline, Amici, and thousands of other

religious organizations throughout the state. This Court must uphold and

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defend the Constitution’s protection for people all faiths to live consistently

with their sincerely held religious beliefs and practices – particularly where

those beliefs and practices might be deemed unpopular, disagreeable, or

unique to most of the public. Anything less would threaten peaceful

religious adherents of all faiths with what Alexis de Tocqueville properly

coined the “tyranny of the majority,” and chip away this County’s

foundational protection of individual rights and religious liberty.

V. CONCLUSION
For the foregoing reasons, Amici respectfully ask that the Court

reverse the district court’s decision, find that Skyline maintains standing to

pursue this action, and determine that its claims are ripe for determination on

their merits. Amici further request that the Court consider and determine the

merits of Appellant’s § 1983 claims, and hold that the application of

DMHC’s elective abortion coverage mandate violates the free exercise

clause of the First Amendment to the United States Constitution.

Dated: September 21, 2018 Respectfully submitted,

/s/ Tyler R. Andrews_____________

Tyler R. Andrews
6019 Camino Tierra
San Clemente, CA 92673
(702) 343-6607

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Counsel for Amici Curiae JCRL and

ERLC.

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App.

P. 32(a)(7)(B) because it contains 4557 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief further complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirement of Fed. R. App. P. 32(a)(6)

because it has been prepared in a proportionally spaced typeface using

Microsoft Word in 14-point Times New Roman font.

Dated: September 21, 2018 Respectfully submitted,

/s/ Tyler R. Andrews_____________

Tyler R. Andrews
6019 Camino Tierra
San Clemente, CA 92673
(702) 343-6607

Counsel for Amici Curiae JCRL and

ERLC.

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system on September 21, 2018.

I certify that all participants in this case are registered CM/ECF users

and that service will be accomplished by the appellate CM/ECF system.

/s/ Tyler R. Andrews_________________

Tyler R. Andrews

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