Jeffrey Cutler v. HHS , 797 F.3d 1173 ( 2015 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued May 12, 2015                 Decided August 14, 2015
    No. 14-5183
    JEFFREY CUTLER,
    APPELLANT
    v.
    UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
    SERVICES, ET AL.,
    APPELLEES
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:13-cv-02066)
    Robert J. Muise argued the cause for appellant. With him
    on the briefs was David E. Yerushalmi.
    Katherine Twomey Allen, Attorney, U.S. Department of
    Justice, argued the cause for appellees. With her on the brief
    were Benjamin C. Mizer, Acting Assistant Attorney General,
    Ronald C. Machen Jr., U.S. Attorney at the time the brief was
    filed, and Mark B. Stern and Alisa B. Klein, Attorneys.
    Before: HENDERSON, ROGERS and MILLETT, Circuit
    Judges.
    Opinion for the Court filed by Circuit Judge MILLETT.
    2
    MILLETT, Circuit Judge: Jeffrey Cutler’s insurance
    company cancelled his health insurance plan because it did
    not comply with the requirements of the Patient Protection
    and Affordable Care Act (“Affordable Care Act” or “Act”),
    Pub. L. No. 111-148, 124 Stat. 119 (2010). He objects to the
    requirement that he buy compliant insurance for personal, but
    not religious, reasons. So he filed suit challenging the
    religious exemption in the Affordable Care Act as an
    unconstitutional establishment of religion. He also argues
    that the Administration’s decision to temporarily suspend
    enforcement of some of the Act’s requirements for a
    transitional period deprived him of the equal protection of the
    laws. While we disagree with the district court’s holding that
    he lacked standing to press his Establishment Clause
    challenge, long-settled precedent dooms his claim on the
    merits. Cutler lacks standing to assert his equal protection
    claim because nothing in the transitional policy requires him
    to buy insurance; his inability to maintain his old plan was the
    independent choice of his insurer.
    I
    Statutory and Regulatory Framework
    Congress enacted the Affordable Care Act in 2010 in an
    effort to “increase the number of Americans covered by
    health insurance and decrease the cost of health care.”
    National Federation of Independent Business v. Sebelius, 
    132 S. Ct. 2566
    , 2580 (2012). Key to the Act’s “interlocking
    reforms,” King v. Burwell, No. 14-114, 576 U.S. ___, slip op.
    at 1 (June 25, 2015), is a general requirement that individuals
    must maintain health insurance coverage or pay a tax penalty
    to the Internal Revenue Service. 26 U.S.C. § 5000A.
    Without that obligation to obtain insurance, Congress found,
    “many individuals would wait to purchase health insurance
    3
    until they needed care,” 42 U.S.C. § 18091(2)(I), creating an
    “adverse selection * * * death spiral” that would destabilize
    insurance markets, King, slip op. at 2.1
    Consistent with the statutory goals of near-universal
    coverage and protecting the efficient functioning of the health
    insurance market, 42 U.S.C. § 18091(2)(D) and (I), Congress
    allowed only carefully limited exceptions to the general
    obligation to maintain health insurance. See Seven-Sky v.
    Holder, 
    661 F.3d 1
    , 6 (D.C. Cir. 2011). Of relevance here,
    the Affordable Care Act generally exempts those with sincere
    religious objections to purchasing health insurance. See 26
    U.S.C. § 5000A(d)(2). Specifically, the Act provides for a
    “religious conscience exemption” that applies to an individual
    1
    “Adverse selection” is an economic term of art that describes
    problems that can arise in insurance markets when the healthy have
    insufficient incentive to purchase health insurance, and thus the
    resulting pool of insureds consists predominantly of the sick and
    those actively using their insurance. As the Supreme Court
    explained in King v. Burwell, some state-level precursors to the
    Affordable Care Act, by banning the denial of insurance for
    preexisting conditions, had
    encouraged people to wait until they got sick to buy
    insurance. Why buy insurance coverage when you are
    healthy, if you can buy the same coverage for the same
    price when you become ill? This consequence—known as
    ‘adverse selection’—led to a second: Insurers were forced
    to increase premiums to account for the fact that, more and
    more, it was the sick rather than the healthy who were
    buying insurance.
    No. 14-114, 576 U.S. ___, slip op. at 2.
    4
    who is both “(i) a member of a recognized religious sect or
    division thereof which is described in [26 U.S.C.] section
    1402(g)(1),” and “(ii) an adherent of established tenets or
    teachings of such sect or division as described in such
    section.” 26 U.S.C. § 5000A(d)(2)(A)(i)–(ii).
    Section 1402(g)(1) of Title 26, in turn, houses the
    religious exemption from Social Security and Medicare taxes,
    which Congress enacted as part of the Social Security
    Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286. That
    provision allows an individual who, because of religious faith,
    is “conscientiously opposed to acceptance of the benefits of
    any private or public [health] insurance,” to opt out of the
    Social Security and Medicare programs.             26 U.S.C.
    § 1402(g)(1).2
    To qualify for the exemption, an individual must prove
    “membership in, and adherence to the tenets or teachings of,
    2
    Section 1402(g)(1) provides in full:
    Any individual may file an application (in such form and
    manner, and with such official, as may be prescribed by
    regulations under this chapter) for an exemption from the
    tax imposed by this chapter if he is a member of a
    recognized religious sect or division thereof and is an
    adherent of established tenets or teachings of such sect or
    division by reason of which he is conscientiously opposed
    to acceptance of the benefits of any private or public
    insurance which makes payments in the event of death,
    disability, old-age, or retirement or makes payments
    toward the cost of, or provides services for, medical care
    (including the benefits of any insurance system established
    by the Social Security Act).
    26 U.S.C. § 1402(g)(1).
    5
    the sect or division thereof” and must waive “all benefits and
    other payments” under the Social Security and Medicare
    programs. 26 U.S.C. § 1402(g)(1)(A)–(B). In addition, the
    Commissioner of Social Security must find that (i) the “sect
    or division thereof has the [relevant] established tenets or
    teachings[,]” (ii) “it is the practice * * * for members of such
    sect or division thereof to make provision for their dependent
    members,” and (iii) “such sect or division thereof has been in
    existence at all times since December 31, 1950.” 
    Id. § 1402(g)(1)(C)–(E).3
    3
    Specifically, an application for religious exemption under Section
    1402(g)(1) “may be granted only if the application contains or is
    accompanied by—
    (A) such evidence of such individual’s membership in, and
    adherence to the tenets or teachings of, the sect or division
    thereof as the Secretary may require for purposes of
    determining such individual’s compliance with the preceding
    sentence, and
    (B) his waiver of all benefits and other payments under titles II
    and XVIII of the Social Security Act on the basis of his wages
    and self-employment income as well as all such benefits and
    other payments to him on the basis of the wages and self-
    employment income of any other person,
    and only if the Commissioner of Social Security finds that—
    (C) such sect or division thereof has the established tenets or
    teachings referred to in the preceding sentence,
    (D) it is the practice, and has been for a period of time which
    he deems to be substantial, for members of such sect or
    division thereof to make provision for their dependent
    members which in his judgment is reasonable in view of their
    general level of living, and
    (E) such sect or division thereof has been in existence at all
    times since December 31, 1950.
    26 U.S.C. § 1402(g)(1)(A)–(E).
    6
    The Affordable Care Act religious exemption thus comes
    as a package deal with the Medicare and Social Security
    religious exemption. The qualifications for each include not
    only sincere religious belief, but also membership in a group
    with an established track record of providing care for its
    members in need and thus ensuring that the cost of their care
    is not transferred to the public.
    Aside from the coverage requirement for individuals, the
    Affordable Care Act imposes a number of requirements on
    insurance providers and employers who offer health insurance
    to their workers, such as the guaranteed availability of
    coverage and a prohibition on refusing coverage due to an
    applicant’s pre-existing medical condition. See 42 U.S.C.
    § 300gg-1. The Centers for Medicare and Medicaid Services
    (“the Centers”), which is part of the Department of Health and
    Human Services, oversees the implementation of many of the
    legislatively mandated changes.
    Several of the Affordable Care Act’s new requirements
    were scheduled to take effect on January 1, 2014, including
    provisions governing insurance premiums and discrimination
    on the basis of preexisting conditions. See 42 U.S.C. § 300gg
    (relating to fair health insurance premiums); 
    id. § 300gg-1
    (relating to guaranteed availability of coverage and ban on
    pre-existing condition requirements); 
    id. § 300gg
    (note)
    (effective date). But the Centers determined that many
    “affected individuals and small businesses * * * [were]
    finding that [Affordable Care Act-compliant] coverage would
    be more expensive than their current coverage, and thus they
    may be dissuaded from immediately transitioning to such
    coverage.” Letter from Gary Cohen, Director, Center for
    Consumer Information and Insurance Oversight, Centers for
    Medicare and Medicaid Services, to State Insurance
    7
    Commissioners, Nov. 14, 2013, at 1.4 Accordingly, the
    Centers announced a “transitional policy” under which
    “health insurance issuers may choose to continue coverage
    that would otherwise be terminated or cancelled” as non-
    compliant with the Affordable Care Act, and the renewed
    plans “will not be considered to be out of compliance” with
    the statute. 
    Id. The announcement
    also “encouraged” state
    insurance regulators to “adopt the same transitional policy[.]”
    
    Id. at 3.
    That transition period was ultimately extended until
    October 1, 2016. See Centers for Medicare and Medicaid
    Services, Insurance Standards Bulletin Series – Extension of
    Transitional Policy through Oct. 1, 2016 (March 5, 2014).5
    Factual and Procedural History
    Jeffrey Cutler is a resident of Pennsylvania. Complaint
    ¶ 1, J.A. 11. He is “financially stable, has an annual income
    that requires him to file federal tax returns, and could afford
    health insurance if he wanted to obtain such coverage.” 
    Id. ¶ 5,
    J.A. 12. He is non-observant in his religion, and does not
    qualify for the Affordable Care Act’s religious exemption. 
    Id. He is
    “not covered, nor wishes to be mandated to be covered,
    under any health insurance plan” meeting the Affordable Care
    Act’s requirements. 
    Id. ¶ 15,
    J.A. 15. He alleges that he “had
    health insurance which was cancelled due to the changes
    specified by regulations that altered the law as approved.” 
    Id. 4 Available
        at http://www.cms.gov/CCIIO/Resources/Letters/
    Downloads/commissioner-letter-11-14-2013.PDF (last visited
    August 6, 2015).
    5
    Available at http://www.cms.gov/CCIIO/Resources/Regulations-
    and-Guidance/Downloads/transition-to-compliant-policies-03-06-
    2015.pdf (last visited August 6, 2015).
    8
    ¶ 24, J.A. 17. He “does not want to be forced to purchase
    health insurance.” 
    Id. Cutler, proceeding
    pro se, filed suit in the United States
    District Court for the District of Columbia to challenge the
    Affordable Care Act as unconstitutional, both facially and as
    applied to him. Complaint ¶ 20, J.A. 16. Specifically, his
    complaint alleged that the religious exemption in the
    Act violates the First Amendment’s guarantee of religious
    freedom. 
    Id. ¶ 1,
    J.A. 11.
    Cutler later filed a motion for partial summary judgment,
    in which he raised for the first time a separate claim that the
    transitional policy, as implemented, violates his “rights under
    the Equal Protection Clause in the Fourteenth Amendment[.]”
    Plaintiff’s Motion for Partial Summary Judgment at 2, J.A.
    23.      Specifically, he objected that “state insurance
    commissioners are now empowered to override the law—‘if
    you like your plan you can keep it, but only in NY, CT, CA,
    etc.’” 
    Id. The district
    court granted the government’s motion to
    dismiss, reasoning that Cutler lacked standing to bring either
    claim. See Cutler v. Department of Health and Human
    Services, 
    52 F. Supp. 3d 27
    , 33 (D.D.C. 2014). As for equal
    protection, the court noted that Cutler “makes no claim as to
    how he is injured * * * by the alleged fact that the Act will be
    enforced differently in different states.” 
    Id. at 35
    n.4.6
    6
    Although Cutler brought his equal protection challenge under the
    Fourteenth Amendment, which applies to the States and not to the
    federal defendants, the district court treated Cutler’s claim as if it
    were brought under the equal protection component of the Fifth
    Amendment’s Due Process Clause, which applies to the federal
    government. 
    Cutler, 52 F. Supp. 3d at 31
    n.3; see also, e.g.,
    9
    With respect to the Establishment Clause challenge, the
    district court found no standing because Cutler “bases his
    challenge to the religious exemption on the fact that such
    exemptions harm everyone by their mere existence and not
    that the exemption personally harms him.” Cutler, 52 F.
    Supp. 3d at 37. The court reasoned that, even if Cutler’s
    Establishment Clause challenge succeeded, “[h]e would be
    subject to the individual mandate and would be required to
    either obtain health insurance coverage or pay the penalty,”
    and so “the fact that he is subject to the individual mandate[]
    is not redressed by declaring the religious exemption invalid.”
    
    Id. at 38.
    The court did not agree with Cutler that, if it found
    the religious exemption invalid, it would have to strike down
    the entire law. 
    Id. Nevertheless, “given
    the evolution of the taxpayer
    standing doctrine and in an abundance of caution,” the court
    addressed Cutler’s exemption challenge on the merits. 
    Cutler, 52 F. Supp. 3d at 38
    (internal citations omitted). The court
    followed the Fourth Circuit’s decision in Liberty University v.
    Lew, 
    733 F.3d 72
    (4th Cir. 2013), and held that the exemption
    served a secular legislative purpose, had the primary effect of
    ensuring coverage rather than advancing or inhibiting
    religion, and created no excessive entanglement with religion.
    See 
    Cutler, 52 F. Supp. 3d at 39
    –40. The district court also
    noted that the religious exemption in the Affordable Care Act
    “incorporates the same provision of the Social Security
    Amendments of 1965,” which courts have repeatedly upheld
    against Establishment Clause challenge. 
    Id. at 40
    n.8.
    Pollack v. Duff, --- F.3d ---, 
    2015 WL 4079788
    (D.C. Cir. July 7,
    2015) (“[T]he principle of equal protection indisputably applies to
    the federal government as well as to the states.”). We do likewise.
    10
    II
    Analysis
    Standard of Review
    We review the district court’s dismissal of Cutler’s
    complaint on both standing and merits grounds de novo. See
    Brown v. Whole Foods Market Group, Inc., 
    789 F.3d 146
    , 150
    (D.C. Cir. 2015). In so doing, we accept the factual
    allegations in the complaint as true, and grant Cutler the
    benefit of all reasonable inferences that can be drawn in his
    favor. See 
    id. And because
    Cutler proceeded below without
    counsel, we hold his district court filings to “less stringent
    standards than formal pleadings drafted by lawyers[.]”
    Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007) (quoting Estelle v.
    Gamble, 
    429 U.S. 97
    , 106 (1976)).
    Establishment Clause Challenge
    Standing
    The first thing we must decide is whether we can decide.
    If Cutler lacks standing to bring his claims in federal court,
    then we are powerless to decide the case and must dismiss it.
    See, e.g., Florida Audobon Society v. Bentsen, 
    94 F.3d 658
    ,
    663 (D.C. Cir. 1996) (“[A] showing of standing ‘is an
    essential and unchanging’ predicate to any exercise of our
    jurisdiction.”) (quoting Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992)).
    The “irreducible constitutional minimum of standing” is
    that (i) the plaintiff suffered an “injury in fact,” meaning “an
    invasion of a legally protected interest” that is “concrete and
    particularized” and “actual or imminent, not conjectural or
    11
    hypothetical”; (ii) the injury must be “fairly traceable to the
    challenged action of the defendant”; and (iii) a favorable
    decision by the court must be likely to redress the injury.
    
    Lujan, 504 U.S. at 560
    –561 (internal citations, quotation
    marks, and alterations omitted).
    The party invoking federal jurisdiction bears the burden
    of showing each of those elements, “with the manner and
    degree of evidence required at the successive stages of the
    litigation.” 
    Lujan, 504 U.S. at 561
    . Because the district court
    dismissed this case at the complaint stage, Cutler need only
    make a plausible allegation of facts establishing each element
    of standing. See Price v. Socialist People’s Libyan Arab
    Jamahiriya, 
    294 F.3d 82
    , 93 (D.C. Cir. 2002) (“[W]here the
    defendant contests only the legal sufficiency of plaintiff’s
    jurisdictional claims, the standard is similar to that of Rule
    12(b)(6), under which dismissal is warranted if no plausible
    inferences can be drawn from the facts alleged that, if proven,
    would provide grounds for relief.”). In evaluating standing at
    this juncture, we must assume that the party asserting federal
    jurisdiction is correct on the legal merits of his claim, “that a
    decision on the merits would be favorable and that the
    requested relief would be granted[.]” In re Thornburgh, 
    869 F.2d 1503
    , 1511 (D.C. Cir. 1989).
    Applying those standards, we conclude that Cutler has
    standing to bring his Establishment Clause challenge to the
    religious exemption.       His objection is straightforward:
    Because he is neither a member of a religious group that
    qualifies for the religious exemption nor religiously opposed
    to obtaining insurance, he must either pay for a statutorily
    compliant insurance plan or pay a penalty. Cutler argues that
    allowing individuals to avoid both paying for insurance and
    paying the penalty if they abjure insurance for religious
    reasons, but not if they abjure it for secular reasons, violates
    12
    the Establishment Clause because it favors faith over his non-
    belief. In so doing, Cutler has adequately alleged an injury in
    fact to his constitutional right not to be treated differently—
    not to be penalized for lacking insurance—just because he is
    not religiously motivated. See, e.g., McCreary County,
    Kentucky v. American Civil Liberties Union of Kentucky, 
    545 U.S. 844
    , 860 (2005) (“[T]he First Amendment mandates
    governmental neutrality between * * * religion and
    nonreligion.”) (internal citation and quotation marks omitted).
    That injury, in turn, stems directly from the religious
    exemption in the Affordable Care Act, as that is what causes
    him to be subject to a penalty when religious objectors to
    purchasing insurance are not. See Sissel v. United States
    Dep’t of Health and Human Services, 
    760 F.3d 1
    , 5 (D.C. Cir.
    2014); see generally 
    Lujan, 504 U.S. at 560
    (injury must be
    “fairly traceable to the challenged action of the defendant”)
    (internal quotation marks and alterations omitted).
    Finally, because we must assume at this stage that the
    requested relief would be granted, Cutler satisfies the
    redressability prong of the standing inquiry. In his complaint,
    Cutler seeks wholesale invalidation of the Affordable Care
    Act, see Complaint, Prayer ¶ 4, while his appellate briefing
    suggests that he might be satisfied with a court order
    “enjoining the enforcement of the penalty provision as applied
    against Plaintiff,” Cutler Br. 18. Either way, if this court were
    to give Cutler what he wants, his Establishment Clause
    injury—the differential treatment because of his lack of
    religious objection—would disappear. See In re 
    Thornburgh, 869 F.2d at 1511
    (“[T]he redressability test asks whether a
    plaintiff’s injury would be likely to be redressed if the
    requested relief were granted.”) (emphasis in original).
    The district court read Cutler’s complaint as asserting
    injury solely in his objection to the existence of a religious
    13
    exemption, which the court deemed to be the type of
    “generalized grievance” that will not support standing.
    
    Cutler, 52 F. Supp. 3d at 37
    . That was mistaken. Cutler is
    explicit that he is injured by being forced to choose between
    paying for compliant insurance and paying a penalty. That is
    the type of direct and concrete injury that satisfies Article III,
    see 
    Sissel, 760 F.3d at 5
    , regardless of how many other people
    face the same financial choice. “[A]n injury shared by a large
    number of people is nonetheless an injury.” Center for Auto
    Safety v. National Highway Traffic Safety Admin., 
    793 F.2d 1322
    , 1324 (D.C. Cir. 1986); see also Federal Election
    Comm’n v. Akins, 
    524 U.S. 11
    , 24 (1998) (“[W]here a harm is
    concrete, though widely shared, the Court has found injury in
    fact.”) (internal citation and quotation marks omitted).
    The government argues that removing the religious
    exemption—while leaving the rest of the Affordable Care Act
    in place—would leave Cutler in precisely the same position
    with respect to his own obligations under the Act. The
    Supreme Court rejected the exact same standing argument in
    Arkansas Writers’ Project, Inc. v. Ragland, 
    481 U.S. 221
    (1987). The Arkansas Writers’ Project challenged the
    constitutionality of a tax exemption afforded to some
    newspapers and journals, but not to its magazine. Just as the
    government argues here, the state supreme court had ruled
    that the constitutional challenge that the tax was “invalid, as
    discriminatory” was not properly raised: “[I]t would avail
    [appellant] nothing if it wins its argument” since “it is the
    exemption that would fall, not the tax against” the appellant.
    
    Id. at 226
    (quoting Ragland v. Arkansas Writers’ Project, 
    698 S.W.2d 802
    , 803 (Ark. 1985)) (brackets in original).
    The U.S. Supreme Court thought otherwise. Reasoning
    that the “constitutional attack holds the only promise of
    escape from” the differential “burden,” the Supreme Court
    14
    held that the Arkansas Writers’ Project did have Article III
    standing. Arkansas Writers’ 
    Project, 481 U.S. at 227
    (quoting Orr v. Orr, 
    440 U.S. 268
    , 273 (1979)). To adopt the
    state’s “notion of standing,” the Supreme Court concluded,
    would “effectively insulate underinclusive statutes from
    constitutional challenge[.]” 
    Id. Moreover, in
    analyzing the redressability prong of
    standing, it must be remembered that “a court sustaining” an
    equal protection claim faces “‘two remedial alternatives: [it]
    may either declare [the statute] a nullity and order that its
    benefits not extend to the class that the legislature intended to
    benefit, or it may extend the coverage of the statute to include
    those who are aggrieved by the exclusion.’” Heckler v.
    Matthews, 
    465 U.S. 728
    , 738–739 (1984)) (quoting Welsh v.
    United States, 
    398 U.S. 333
    , 361 (1970) (Harlan, J.,
    concurring in the result)); see also, e.g., Jacobs v. Barr, 
    959 F.2d 313
    , 317 (D.C. Cir. 1992) (same); Dumaguin v.
    Secretary of Health and Human Services, 
    28 F.3d 1218
    , 1222
    (D.C. Cir. 1994) (same). Thus, because one response to the
    differential-treatment challenge would be for the government
    to expand the exemption and treat Cutler’s non-religious
    objection to obtaining insurance equally, and “we have no
    way of knowing how the [government] will in fact respond,”
    Cutler “must be held to have standing here.” Orr v. Orr, 
    440 U.S. 268
    , 272 (1979).
    Challenges to the Religious Exemption
    Settled precedent answers Cutler’s argument that the
    Affordable Care Act’s religious accommodation provision
    runs afoul of the Establishment Clause. The religious
    exemption in the Affordable Care Act, like its counterpart in
    the Social Security Act, accommodates religion by exempting
    all believers whose faith system provides an established,
    15
    alternative support network that ensures individuals will not
    later seek to avail themselves of the federal benefits for which
    they did not contribute. Cutler is correct that the Affordable
    Care Act withholds a similar exemption for non-believers.
    But the Supreme Court has repeatedly held that “the
    government may accommodate religious practices without
    violating the Establishment Clause.” Cutter v. Wilkinson, 
    544 U.S. 709
    , 713 (2005) (internal citations, quotation marks, and
    alterations omitted); see also Locke v. Davey, 
    540 U.S. 712
    ,
    718 (2004); Hobbie v. Unemployment Appeals Comm’n of
    Florida, 
    480 U.S. 136
    , 144 (1987).
    Even more to the point, the Supreme Court has addressed
    the religious exemption in the Social Security Act that the
    Affordable Care Act replicates as an “accommodat[ion], to
    the extent compatible with a comprehensive national program,
    [of] the practices of those who believe it a violation of their
    faith to participate in the social security system.” United
    States v. Lee, 
    455 U.S. 252
    , 260 (1982). In creating that
    exemption, the Supreme Court continued, Congress “provided
    for a narrow category which was readily identifiable,” in a
    manner “sensitive to the needs flowing from the Free Exercise
    Clause.” 
    Id. at 260–261.
    The religious accommodation in the Affordable Care Act,
    like the Social Security exemption it mirrors, is narrow. The
    exemption is available only to those (i) whose sincere
    religious beliefs prevent them from subscribing to any form of
    health insurance, and (ii) whose faith communities have a
    demonstrated track record of taking care of their dependent
    members. Those factors together alleviate any Establishment
    Clause concerns in two ways.
    First, by limiting the exemption to those whose sincerely
    held faith beliefs flatly forbid participation in the federal
    16
    program, the accommodation is carefully confined to
    “alleviat[ing] exceptional government-created burdens on
    private religious exercise.”       
    Cutter, 544 U.S. at 720
    .
    Democratic government, after all, cannot survive if every
    political or personal objection to a government-imposed
    obligation must be accommodated. Confining the exemption
    to members of faith groups for whom an established and pre-
    existing belief system forbids the benefits as well as the
    burdens of the governmental program allows those believers
    to avoid “a hard choice between contravening imperatives of
    religion and conscience or suffering penalties.” Gillette v.
    United States, 
    401 U.S. 437
    , 445 (1971); see also
    Employment Division, Dep’t of Human Resources of Oregon
    v. Smith, 
    494 U.S. 872
    , 890 (1990) (“[A] society that believes
    in the negative protection accorded to religious belief can be
    expected to be solicitous of that value in its legislation as
    well.”); Lee v. Weisman, 
    505 U.S. 577
    , 628 (1992) (Souter, J.,
    concurring) (“[G]eneral rules can unnecessarily offend the
    religious conscience when they offend the conscience of
    secular society not at all.”); Board of Education of Kiryas Joel
    Village School District v. Grumet, 
    512 U.S. 687
    , 715 (1994)
    (O’Connor, J., concurring in part and concurring in the
    judgment) (“What makes accommodation permissible, even
    praiseworthy, is not that the government is making life easier
    for some particular religious group as such. Rather, it is that
    the government is accommodating a deeply held belief.”).
    Second, the requirement that the faith system have a
    proven track record of providing an alternative safety net for
    members helps to ensure that the religious adherents will not
    later seek to avail themselves of public services to which they
    have not contributed. The Affordable Care Act, just like the
    Social Security exemption, is carefully calibrated to protect
    the government—and thus taxpayers who do not share the
    religious sensibilities of those covered by the exemption—
    17
    from later having to pick up the tab from which the adherent
    has been exempted. See 
    Cutter, 544 U.S. at 722
    (“Our
    decisions indicate that an accommodation must be measured
    so that it does not override other significant interests.”).
    Cutler argues that the exemption impermissibly
    discriminates between religions, exempting only those that
    meet the foregoing criteria. That argument fails because the
    qualifications for exemption are not drawn on sectarian lines;
    they simply sort out which faiths have a proven track record
    of adequately meeting the statutory goals. And the exemption
    promotes the Establishment Clause’s concerns by ensuring
    that those without religious objections do not bear the
    financial risk and price of care for those who exempt
    themselves from the tax. As configured by this specific
    statutory framework, that is an objective, non-sectarian basis
    for cabining the exemption’s reach. See 
    Cutter, 544 U.S. at 720
    (government “must take adequate account of the burdens
    a     requested     accommodation      may      impose     on
    nonbeneficiaries”); see also Children’s Healthcare is a Legal
    Duty, Inc. v. Min De Parle, 
    212 F.3d 1084
    , 1091 (8th Cir.
    2000).
    Equal Protection Claim
    Cutler alleges that the transitional policy, which allows
    States to permit the issuance of non-Affordable Care Act
    compliant insurance plans for an interim period, deprives him
    of equal protection of the law. As Cutler understands the law,
    the transitional policy allows States to choose not only to
    delay implementation of the Affordable Care Act’s
    requirements and thus allow non-compliant plans, but also to
    force insurers to continue to offer non-compliant plans.
    Cutler claims that Arkansas has done just that, requiring
    insurers to continue issuing policies that flunk the Affordable
    18
    Care Act’s requirements. Pennsylvania, where Cutler lives,
    has merely opted to allow—but not demand—non-compliant
    plans to continue. So, according to Cutler’s allegations, if he
    lived in Arkansas, his old insurance plan would have
    remained available to him, and he would not have to pay a tax
    penalty. Because he lives in Pennsylvania where the law
    permitted his insurance company to cancel his plan, he cannot
    go back to his old insurance plan and, as a result, Cutler must
    either pay the penalty or subscribe to a different plan against
    his will.
    It is highly dubious whether that argument even plausibly
    alleges an Article III injury because Arkansas law, on its face,
    does not require insurers to offer non-compliant plans. A
    quick glance at the Arkansas insurance bulletin upon which
    Cutler relies (but declines to quote) reveals that Arkansas, like
    Pennsylvania, permits but does not compel the continuation of
    non-compliant plans during the transition period.            See
    Arkansas Insurance Dep’t, Bulletin No. 6-2014 (March 6,
    2014) (“[T]he Department suggests that insurers credit or
    adjust rates for those groups which have already renewed
    under [Affordable Care Act] compliance rates, and permit re-
    enrollment of the group in the earlier [i.e., non-compliant]
    plan, if the group desired or desires to renew under the earlier
    non-grandfathered plan.”) (emphasis added).7 In other words,
    Cutler has not even colorably alleged a differential-treatment
    injury because there is no differential treatment.
    In any event, Cutler lacks Article III standing to pursue
    his equal protection challenge because his alleged injury is
    not fairly traceable to the transitional policy, nor would it be
    7
    Available at http://www.insurance.arkansas.gov/Legal/
    Bulletins/6-2014.pdf (last visited August 6, 2015).
    19
    redressed by striking down that policy. The transitional
    policy applies evenhandedly across the United States, so if
    Cutler cannot obtain the insurance he desires and others can,
    that is because his own insurer cancelled his policy. Cutler’s
    injury is thus the result of the action of his private insurer, not
    the transitional policy, and it is purely speculative whether an
    order in this case would alter or affect the non-party insurers’
    decision. See Simon v. Eastern Kentucky Welfare Rights
    Org., 
    416 U.S. 26
    , 41–42 (1976); National Wrestling Coaches
    Ass’n v. Department of Education, 
    366 F.3d 930
    , 938 (D.C.
    Cir. 2004) (no standing because it is “purely speculative that a
    requested change in government policy will alter the behavior
    of the regulated third parties that are the direct cause of the
    plaintiff’s injuries”).
    III
    Conclusion
    Cutler has standing to litigate his Establishment Clause
    claim, but it fails on the merits. He lacks standing to press his
    equal protection challenge.
    So ordered.