Full opinion text
OPINION COWEN, Circuit Judge. Appellants Conestoga Wood Specialties Corporation (“Conestoga”), Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony Hahn, and Kevin Hahn (collectively, “the Hahns”) appeal from an order of the District Court denying their motion for a preliminary injunction. In their Complaint, Appellants allege that regulations promulgated by the Department of Health and Human Services (“HHS”), which require group health plans and health insurance issuers to provide coverage for contraceptives, violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (“RFRA”) and the Free Exercise Clause of the First Amendment of the United States Constitution. The District Court denied a preliminary injunction, concluding that Appellants were unlikely to succeed on the merits of their claims. See Conestoga Wood Specialties Corp. v. Sebelius, 917 F.Supp.2d 394 (E.D.Pa.2013). Appellants then filed an expedited motion for a stay pending appeal with this Court, which was denied. See Conestoga Wood Specialties Corp. v. Sec’y of the United States Dep’t of Health & Human Servs., No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8, 2013). Now, we consider the fully briefed appeal from the District Court’s denial of a preliminary injunction. Before we can even reach the merits of the First Amendment and RFRA claims, we must consider a threshold issue: whether a for-profit, secular corporation is able to engage in religious exercise under the Free Exercise Clause of the First Amendment and the RFRA. As we conclude that for-profit, secular corporations cannot engage in religious exercise, we will affirm the order of the District Court. I. In 2010, Congress passed the Patient Protection and Affordable Care Act, Pub.L. No. 111-148 (March 23, 2010) (“ACA”). The ACA requires' employers with fifty or more employees to provide their employees with a minimum level of health insurance. The ACA requires nonexempt group plans to provide coverage without cost-sharing for preventative care and screening for women in accordance with guidelines created by the Health Resources and Services Administration (“HRSA”), a subagency of HHS. See 42 U.S.C. § 300gg-13(a)(4). The HRSA delegated the creation of guidelines on this issue to the Institute of Medicine (“IOM”). The IOM recommended that the HRSA adopt guidelines that require non-exempt group plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” These recommended guidelines were approved by the HRSA. On February 15, 2012, HHS, the Department of the Treasury, and the Department of Labor published final rules memorializing the guidelines. See 77 Fed.Reg. 8725 (Feb. 15, 2012). Under the regulations, group health plans and health insurance issuers are required to provide coverage consistent-with the HRSA guidelines in plan years beginning on or after August 1, 2012, unless the employer or the plan is exempt. Appellants refer to this requirement as the “Mandate,” and we use this term throughout this opinion. Employers who fail to comply with the Mandate face a penalty of $100 per day per offending employee. See 26 U.S-.C. § 4980D. The Department of Labor and plan participants may also bring a suit against an employer that fails to comply with the Mandate. See 29 U.S.C. § 1132. II. The Hahns own 100 percent of the voting shares of .Conestoga. Conestoga is a Pennsylvania for-profit corporation that manufactures wood cabinets and has 950 employees. The Hahns practice the Mennonite religion. According to their Amended Complaint, the Mennonite Church “teaches that taking of life which includes anything that terminates a fertilized embryo is intrinsic evil and a sin against God to which they are held accountable.” .(Am. Compl. ¶ 30.) Specifically, the Hahns object to two drugs that must be provided by group health plans under the Mandate that “may cause the demise of an already conceived but not yet attached human embryo.” (Id. at ¶ 45.) These are “emergency contraception” drugs such as Plan B (the “morning after pill”) and ella (the “week after pill”). The Amended Complaint alleges that it is immoral and sinful for Appellants to intentionally participate in, pay for, facilitate, or otherwise support these drugs. (Id. at ¶ 32.) Conestoga has been subject to the Mandate as of January 1, 2013, when its group health plan came up for renewal. As a panel of this Court previously denied an injunction pending appeal, Conestoga is currently subject to the Mandate, and in fact, Appellants’ counsel represented during oral argument that Conestoga is currently complying with the Mandate. III. We review a district court’s denial of a preliminary injunction for abuse of discretion, but review the underlying factual findings for clear error and questions of law de novo. Am. Express Travel Related Servs. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir.2012). The District Court had jurisdiction over this case under 28 U.S.C. § 1331. This Court has appellate jurisdiction under 28 U.S.C. § 1292(a)(1). “A party seeking a preliminary injunction must show: (1) a likelihood of success oil 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 Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004). A plaintiff seeking an injunction must meet all four criteria, as “[a] plaintiff’s failure to establish any element in its favor renders a preliminary injunction inappropriate.” NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.1999). This is the same standard applied in the District Court, and, on appeal, no party has questioned its accuracy. We will first consider whether Appellants are likely to succeed on the merits of their claim, beginning with the claims asserted by Conestoga, a for-profit, secular corporation. IV. A. First, we turn to Conestoga’s claims under the First Amendment. Under the First Amendment, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.” The threshold question for this Court is whether Conestoga, a for-profit, secular corporation, can exercise religion. In essence, Appellants offer two theories under which we could conclude that Conestoga can exercise religion: (a) directly, under the Supreme Court’s recent decision in Citizens United, and (b) indirectly, under the “passed through” method that has been articulated by the Court of Appeals for the Ninth Circuit. We will discuss each theory in turn. In Citizens United, the Supreme Court held that “the Government may not suppress political speech on the basis of the speaker’s corporate identity,” and it accordingly struck down statutory restrictions on corporate independent expenditure. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). Citizens United recognizes the application of the- First Amendment to corporations generally without distinguishing between the Free Exercise Clause and the Free Speech Clause, both which are contained within the First Amendment. Accordingly, whether Citizens United is applicable to the Free Exercise Clause is a question of first impression. See Hobby Lobby Stores, Inc. v. Sebelius, — U.S.-, 133 S.Ct. 641, 643, 184 L.Ed.2d 448 (2012) (Sotomayor, Circuit Justice) (“This court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders.... ”). While “a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law,’ ... a wide variety of constitutional rights may be asserted by corporations.” Consol. Edison Co. of N.Y., Inc. v. Pataki 292 F.3d 338, 347 (2d Cir.2002) (quoting Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636, 4 L.Ed. 629 (1819) (Marshall, C.J.)) In analyzing whether constitutional guarantees apply to corporations, the Supreme Court has held that certain guarantees are held by corporations and that certain guarantees are “purely personal” because “the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n. 14, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (internal citation omitted). The Bellotti Court observed: Corporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against compulsory self-incrimination, Wilson v. United States, 221 U.S. 361, 382-386, 31 S.Ct. 538, 545-546, 55 L.Ed. 771 (1911), or equality with individuals in the enjoyment of a right to privacy, California Bankers Assn. v. Shultz, 416 U.S. 21, 65-67, 94 S.Ct. 1494, 1519-1520, 39 L.Ed.2d 812 (1974); United States v. Morton Salt Co., 338 U.S. 632, 651-652, 70 S.Ct. 357, 368-369, 94 L.Ed. 401 (1950), but this is not because the States are free to define the rights of their creatures without constitutional limit. Otherwise, corporations could be denied the protection of all constitutional guarantees, including due process and the equal protection of the laws. Certain “purely personal” guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the “historic function” of the particular guarantee has been limited to the protection of individuals. United States v. White, 322 U.S. 694, 698-701, 64 S.Ct. 1248, 1251-1252, 88 L.Ed. 1542 (1944). Whether or not a particular guarantee is “purely personal” or - is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision. Id. Thus, we must consider whether the Free Exercise Clause has historically protected corporations, or whether the “guarantee is ‘purely personal’ or is unavailable to corporations” based on the “nature, history, and purpose of [this] particular constitutional provision.” Id. In Citizens United, the Supreme Court pointed out that it has “recognized that First Amendment protection extends to corporations.” Citizens United, 558 U.S. at 342, 130 S.Ct. 876. It then cited to more than twenty cases, from as early as the 1950’s, including landmark cases such as New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), in which the Court recognized that First Amendment free speech rights apply to corporations. See id. The Citizens 'United Court particularly relied on Bellotti, which struck down a state-law prohibition on corporate independent expenditures related to referenda issues. Bellotti held: We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because , its source is a' corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. [That proposition] amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication. Bellotti, 435 U.S. at 784, 98 S.Ct. 1407. Discussing Bellotti’s rationale, Citizens United stated that the case “rested on the principle that the Government lacks the power to ban corporations from speaking.” Citizens United, 558 U.S. at 347, 130 S.Ct. 876; see also Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (“The identity of the speaker is not decisive in determining whether speech is protected” as “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”) (quoting Bellotti, 435 U.S. at 795, 98 S.Ct. 1407). Citizens United is thus grounded in the notion that the Court has a long history of protecting corporations’ rights to free speech. Citizens United overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), a case in which the Court had “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] history.” Citizens United, 558 U.S. at 347, 130 S.Ct. 876 (quoting Austin, 494 U.S. at 695, 110 S.Ct. 1391 (Kennedy, J., dissenting)). The Citizens United Court found that it was “confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identify and a post-Austin line that permits them.” Id. at 348, 130 S.Ct. 876. Faced with this conflict, the Court decided that Austin was wrongly decided, based on the otherwise consistent line of cases in which corporations were found to have free speech rights. We must consider the history of the Free Exercise Clause and determine whether there is a similar history of courts providing free exercise protection to corporations. We conclude that there is not. In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations. After all, as the Supreme Court observed in Schempp, the purpose of the Free Exercise Clause “is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (emphasis added). And as the District Court aptly noted in its opinion, “[rjeligious belief takes shape within the minds and hearts of individuals, and. its protection is one of the more uniquely ‘human’ rights provided by the Constitution.” Conestoga, 917 F.Supp.2d at 408. We do not.see how a for-profit “artificial being, invisible, intangible, and existing only in contemplation of law,” Consol. Edison Co., 292 F.3d at 346 (quoting Dartmouth Coll., 17 U.S. at 636 (Marshall, C.J.)), that was created to make money could exercise such an inherently “human” right. We are unable to determine that the “nature, history, and purpose” of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. See Bellotti, 435 U.S. at 778 n. 14, 98 S.Ct. 1407. Even if we were to disregard the lack of historical recognition of the right, .we simply cannot understand how a for-profit, secular corporation— apart from its owners — can exercise religion. As another court considering a challenge to the Mandate noted: General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291 (W.D.Okla.2012), rev’d en banc, No. 12-6294, 723 F.3d 1114, 2013 WL 3216103 (10th Cir. June 27, 2013); see also Hobby Lobby Stores, Inc., 723 F.3d at 1174-75, 2013 WL 3216103, at *51 (Briscoe, C.J., concurring in part and dissenting in part) (questioning “whether a corporation can ‘believe’ at all, see Citizens United, 130 S.Ct. at 972 (‘It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.’) (Stevens, J., concurring in part and dissenting in part).”). In urging us to hold that for-profit, secular corporations can exercise religion, Appellants, as well as the dissent, cite to cases in which courts have ruled in favor of free exercise claims advanced by religious organizations. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S, 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124. L.Ed.2d 472 (1993). None of the cases relied on by the dissent involve secular, for-profit corporations. We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion. As the Supreme Court recently noted, “the text of the First Amendment ... gives special solicitude to the rights of religious organizations.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, — U.S. -, 132 S.Ct. 694, 706, 181 L.Ed.2d 650 (2012). That churches — as means by which individuals practice religion — have long enjoyed the protections of the Free Exercise Clause is not determinative of the question of whether for-profit, secular corporations should be granted these same protections. Appellants also argue that Citizens United is applicable to the Free Exercise Clause because “the authors of the First Amendment only separated the Free Exercise Clause and the Free Speech Clause by a semi-colon, thus showing the continuation of intent between the two.” (Appellants’ Br. at 34.) We are not persuaded that the use of a semi-colon means that each clause of the First Amendment must be interpreted jointly. In fact, historically, each clause has been interpreted separately. Accordingly, the courts have developed different tests in an effort to apply these clauses. For example, while the various clauses of the First Amendment have been incorporated and made applicable to the states by the Due Process Clause of the Fourteenth Amendment, the Supreme Court did so at different times. Incorporation of the clauses of the First Amendment began with Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), where the Court noted that “we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” More than ten years later, in De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937), the Court incorporated the right of peaceable assembly. In doing so, the Court cited to Git-low, and noted that “[t]he right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” Id. at 364, 57 S.Ct. 255. The language is important — even though the Free Speech Clause and the Petition Clause appear next to one another in the First Amendment, the Court did not find that Gitlow had already decided that the Petition Clause was incorporated, but rather cited Gitlow as precedent to expand the incorporation doctrine to cover the Petition Clause. Several years later, in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the Supreme Court incorporated the Free Exercise Clause. The Cantwell Court did not cite to Gitlow as authority for incorporating the Free Exercise Clause; in other words, it did not automatically follow that the Free Exercise Clause was incorporated just because the Free Speech Clause was incorporated. Seven years after Cantwell, in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Court incorporated the Establishment Clause. In Everson, the Court cited to Cantwell and noted that the Court’s interpretation of the Free Exercise Clause should be applied to the Establishment Clause. Id. at 15, 67 S.Ct. 504. But notably, it took seven years for the Court to hold this; and following the same pattern, Cantwell did not automatically incorporate the Establishment Clause. Thus, it does not automatically follow that all clauses of the First Amendment must be interpreted identically. Second, Appellants argue that Conestoga can exercise religion under a “passed through” theory, which was first developed by the Court of Appeals for the Ninth Circuit in EEOC v. Townley Engineering & Manufacturing Company, 859 F.2d 610 (9th Cir.1988), and affirmed in Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). In Townley and Stormans, the Ninth Circuit held that for-profit corporations can assert the free exercise claims of their owners. In Townley, the plaintiff was a closely-held manufacturing company whose owners made a “covenant with God requiring] them to share the Gospel with all of their employees.” Townley, 859 F.2d at 620. Townley, the plaintiff corporation, sought an exemption, on free exercise grounds, from a provision of Title VII of the Civil Rights Act that required it to accommodate employees asserting religious objections to attending the company’s mandatory devotional services. Although the plaintiff urged the “court to hold that it is entitled to invoke the Free Exercise Clause on its own behalf,” the Ninth Circuit deemed it “unnecessary to address the abstract issue whether a for profit' corporation has rights under the Free Exercise Clause independent of those of its shareholders and officers.” Id. at 619-20. Rather, the court concluded that, “Townley is merely the instrument through and by which Mr. and Mrs. Townley express their religious beliefs.” Id. at 619. As “Townley presents no rights of its own different from or greater than its owners’ rights,” the Ninth Circuit held that “the rights at issue are those of Jaké and Helen Townley.” Id. at 620. The court then examined the rights at issue as those of the corporation’s owners, ultimately concluding that Title VU’s requirement of religious accommodation did not violate the Townleys’ free exercise rights. Id. at 621. The Ninth Circuit subsequently applied Townley’s reasoning in Stormans. There, a pharmacy brought a Free Exercise Clause challenge to a state regulation requiring it to dispense Plan B, an emergency contraceptive drug. Stormans, 586 F.3d at 1117. In analyzing whether the pharmacy had standing to assert the free exercise rights of its owners, the court emphasized that the pharmacy was a “fourth-generation, family-owned business whose shareholders and directors are made up entirely of members of the Stormans family.” Id. at 1120. As in Townley, it “deeline[d] to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause and instead examine[d] the rights at issue as those of the corporate owners.” Id. at 1119. The court concluded that the pharmacy was “an extension of the beliefs of members of the Stormans family, and that the beliefs of the Stormans family are the beliefs of the phármacy.” Id. at 1120. Because the pharmacy did “not present ány free exercise rights of its own different from or greater than its owners’ rights,” the Ninth Circuit held, as it had in Townley, that the company had “standing to assert the free exercise rights of its owners.” Id. Appellants argue that Conestoga is permitted to assert the free exercise claims of the Hahns, its owners, under the Toimley/Stormans “passed through” theory. After carefully considering the Ninth Circuit’s reasoning, we are not persuaded. We decline to adopt the Townley/Stormans theory, as we believe that it rests on erroneous assumptions regarding the very nature of the corporate form. In fact, the Ninth Circuit did not mention certain basic legal principles governing the status of a corporation and its relationship with the individuals who create and own the entity. It is a fundamental principle that “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obli: gations, powers, and privileges different from those of the natural individuals who created” the corporation. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001). The “passed through” doctrine fails to acknowledge that, by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation. See Barium Steel Corp. v. Wiley, 379 Pa. 38, 108 A.2d 336, 341 (1954) (“It is well established [under Pennsylvania law] that a corporation is a distinct and separate entity, irrespective of the persons who own all its stock.”). The corporate form offers several advantages “not the least of which was limitation of liability,” but in return, the shareholder must give up some prerogatives, “including that of direct legal action to redress an injury to him as primary stockholder in the business.” Kush v. Am. States Ins. Co., 853 F.2d 1380, 1384 (7th Cir.1988). Thus, under Pennsylvania law—where Conestoga is incorporated— “[e]ven when a corporation is owned by one person or family, the corporate form shields the individual members of the corporation from personal liability.” Kellytown Co. v. Williams, 284 Pa.Super. 613, 426 A.2d 663, 668 (1981). Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga. Conestoga “is a closely-held, family-owned firm, and [we] suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own.” Grote v. Sebelius, 708 F.3d 850, 857 (7th Cir.2013) (Rovner, J., dissenting). But, it is Conestoga that must provide the funds to comply with the Mandate—not the Hahns. We recognize that, as the sole shareholders of Conestoga, ultimately the corporation’s profits will flow to the Hahns. But, “[t]he owners of an LLC or corporation, even a closely-held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so.” Id. at 858 (Rovner, J., dissenting). “The fact that one person owns all of the stock does not make him and the corporation one and the same person, nor does he thereby become the owner of all the property of the corporation.” Wiley, 108 A.2d at 341. The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold—contrary to Townley and Stormans—that the free exercise claims of a company’s owners cannot “pass through” to the corporation. B. Next, we consider Conestoga’s RFRA claim. Under the RFRA, “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb-l(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies -to a “person’s exercise of religion.” Id. at § 2000bb-l(a). Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a “person” under the RFRA. V. Finally, we consider whether the Hahns, as the owners of Conestoga, have viable Free Exercise Clause and RFRA claims on their own. For the same reasons that we concluded that the Hahns’ claims cannot “pass through” Conestoga, we hold that the Hahns do not have viable claims. The Mandate does not impose any requirements on the Hahns. Rather, compliance is placed squarely on Conestoga. If Conestoga fails to comply with the Mandate, the penalties — including fines, see 26 U.S.C. § 4980D, and civil enforcement, see 29 U.S.C. § 1132 — would be brought against Conestoga, not the Hahns. As the Hahns have decided to utilize the corporate form, they cannot “move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms.” Potthoff v. Morin, 245 F.3d 710, 717 (8th Cir.2001) (quoting Kush, 853 F.2d at 1384). Thus, we conclude that the Hahns are not likely to succeed on their free exercise and RFRA claims. VI. As Appellants have failed to show that they are likely to succeed on the merits of their Free Exercise Clause and RFRA claims, we need not decide whether Appellants have shown that they will suffer irreparable harm, that granting preliminary relief will not result in even greater harm to the Government, and that the public interest favors the relief of a preliminary injunction. See NutraSweet Co., 176 F.3d at 153 (“A plaintiffs failure to establish any element in its favor renders a preliminary injunction inappropriate.”). Therefore, we will affirm the District Court’s order denying Appellants’ motion for a preliminary injunction. We recognize the fundamental importance of the free exercise of religion. As Congress stated, in passing the RFRA and restoring the compelling interest test to laws that substantially burden religion, “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” 42 U.S.C. § 2000bb(a). Thus, our decision here is in no way intended to marginalize the Hahns’ commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an “intrinsic evil and a sin against God to which they are held accountable,” (Compl. • ¶ 30), and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary — that a for-profit corporation can engage in religious exercise — would eviscerate the fundamental principié that a corporation is a legally distinct entity from its owners. . The Complaint also alleges that the regulations violate the Establishment Clause, the Free Speech Clause, the Due Process Clause, and the Administrative Procedure Act. While the District Court’s opinion addressed some of these additional claims, Appellants have limited their appeal to whether the regulations violate the RFRA and the Free Exercise Clause. . See Women's Preventive Services: Required Health Plan Coverage Guidelines, available at www.hrsa.gov/womensguidelines (last visited July 25, 2013). . These regulations were updated on July 2, 2013. See 78 Fed.Reg. 39870 (July 2, 2013). The recent changes have no impact on this litigation. .The exemptions encompass "grandfathered” plans, which are plans that were in existence on March 23, 2010, see 45 C.F.R. § 147.140 and "religious employers,” see 45 C.F.R. § 147.130(a)(l)(iv)(B). Additionally, the ACA requirement to provide employer sponsored health insurance to employees is entirely inapplicable to employers that have fewer than 50 employees. See 26 U.S.C. § 4980H(a), (c)(2)(A). . In addition, on October 31, 2012, Conestoga’s Board of Directors adopted "The Hahn Family Statement on the Sanctity of Human Life,” which provides, amongst other things, that "The Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore, it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the taking of human life." (Id. at ¶ 92.) . The dissent has undertaken a scholarly survey of the proper standard for obtaining a preliminary injunction throughout the country. However, Appellants never took an appeal of the preliminary injunction standard applied by the District Court. (See Appellants’ Br. at 4-6 (statement of issues presented for review).) Moreover, the dissent acknowledges that it "may be true” that the plaintiff’s failure to satisfy any element in its favor renders a preliminary injunction inappropriate. (Dissenting Op. at 392-93.) . We acknowledge that the Court of Appeals for the Tenth Circuit, in an eight judge en banc panel, in six separate opinions, recently held that for-profit, secular corporations can assert RFRA and free exercise claims in some circumstances. See Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 723 F.3d 1114, 2013 WL 3216103 (10th Cir. June 27, 2013). We respectfully disagree with that Court’s analysis.
JORDAN, Circuit Judge, dissenting. Having previously dissented from the denial of a stay pending appeal in this case, I now have a second opportunity to consider the government’s violation of the religious freedoms of Conestoga Wood Specialties Corporation (“Conestoga”) and its owners, the Hahns, a family of devout Mennonite Christians who believe in the sanctity of human life. The Hahns do not want to be forced to pay for other people to obtain contraceptives and sterilization services, particularly the drugs known as “Plan B” (or the “morning after pill”) and “Ella” (or the “week after pill”), which they view as chemical killers of actual lives in being. Sadly, the outcome for the Hahns and their business is the same this time as it was the last time they were before us. My colleagues, at the government’s urging, are willing to say that the Hahns’ choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit. That deeply disappointing ruling rests on a cramped and confused understanding of the religious rights preserved by Congressional action and the Constitution. The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is. I do not believe my colleagues or the District Court judge whose opinion we are reviewing are ill-motivated in the least, but the outcome of their shared reasoning is genuinely tragic, and one need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the government’s determination to either make the Hahns bury their religious scruples or watch while their business gets buried. So, as I did the last time this case was before us, I respectfully dissent. I. Background Five members of the Hahn family — Norman,. Elizabeth, Norman Lemar, Anthony, and Kevin — own 100 percent of Conestoga, which Norman founded nearly fifty years ago and which, as noted by the Majority, is a Pennsylvania corporation that manufactures wood cabinets. (Maj. Op. at 381.) The Hahns are hands-on owners. They manage their business and try to turn a profit, with the help of Conestoga’s 950 full-time employees. It is undisputed that the Hahns are entirely committed to their faith, which influences all aspects of their lives. They feel bound, as the District Court observed, “to operate Conestoga in accordance with their religious beliefs and moral principles.” Conestoga Wood Specialties Corp. v. Sebelius, 917 F.Supp.2d 394, 402 (E.D.Pa.2013). One manifestation of that commitment is the “Statement on the Sanctity of Human Life” adopted by Conestoga’s Board of Directors on October 31, 2012, proclaiming that [t]he Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the deliberate taking of human life. Id. at 403 n. 5. Accordingly, the Hahns believe that facilitating the use of contraceptives, especially ones that destroy a fertilized ovum, is a violation of their core religious beliefs. (Am. Compl. ¶ 30, 32.) Conestoga, at the Hahns’ direction, had previously provided health insurance that omitted coverage for contraception. (Am. Compl. ¶ 3.) Then came the Patient Protection and Affordable Care Act (the “ACA”) and related regulations, and the Hahns’ previous decisions about employee benefits were no longer something the government would tolerate. Under rules effectively written by an entity called the “Institute of Medicine,” corporations like Conestoga must purchase employee health insurance plans that include coverage for “[a]ll Food and Drug Administration [ (“FDA”) ] approved contraceptive methods, sterilization procedures, and patient education and counseling” — including so-called emergency contraceptives such as Plan B and Ella — “for all women with reproductive capacity, as prescribed by a provider.” 77 Fed.Reg. 8725, 8725 (Feb. 15, 2012) (alterations in original) (internal quotation marks omitted). This is what has been dubbed the “contraception mandate” (the “Mandate”), and it brooks no exception for those, like the Appellants, who believe that supporting the use of certain contraceptives is morally reprehensible and contrary to God’s word. If the Hahns fail to have Conestoga submit to the offending regulations, the company will be subject to a “regulatory tax” — a penalty or fíne — that will amount to about $95,000 per day and will rapidly destroy the business and the 950 jobs that go with it. (See Maj. Op. at 381-82 (noting that “Conestoga is currently complying with the Mandate”).) Conestoga and the Hahns now argue that the Mandate is forcing them, day by day, to either disobey their religious convictions or to incur ruinous fines. That Hobson’s choice, they say, violates both the First Amendment and the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-l. I agree. II. Standard of Review To qualify for preliminary injunctive relief, a litigant must demonstrate “(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., 369 F.3d 700, 708 (3d Cir.2004). “We review the denial of a preliminary injunction for an abuse of discretion, an error of law, or a clear mistake in the consideration of proof,” and “any determination that is a prerequisite to the issuance of an injunction is reviewed according to the standard applicable to that particular determination.” Id. (alterations and internal quotation marks omitted). We therefore “exercise plenary review over the district court’s conclusions of law and its application of law to the facts.... ” Id. (internal quotation marks omitted). Highly relevant to this case, “a court of appeals must reverse if the district court has proceeded on the basis of an erroneous view of the applicable law.” Id. (internal quotation marks omitted). The Majority gives short shrift to the dispute over the standard of review that emerged during the earlier appeal in this case. My colleagues say simply that “[a] plaintiffs failure to establish any element in its favor renders a preliminary injunction inappropriate.” (Maj. Op. at 382 (quoting NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.1999)) (alteration in original) (internal quotation marks omitted)). That may be true, but it fails to address the problem that arose from the District Court’s erroneous application of a more rigid standard than our case law requires. In explaining away the numerous decisions around the country that have decided that the government should be preliminarily enjoined from enforcing the Mandate, the Court claimed that those other decisions were the result of “a less rigorous standard” for the granting of preliminary injunctive relief than the standard in this Circuit. Conestoga Wood Specialties Corp., 917 F.Supp.2d at 403-04. More specifically, the Court said that those decisions “applied a ‘sliding scale approach,’ whereby an unusually strong showing of one factor lessens a plaintiffs burden in demonstrating a different factor.” Id. It then contrasted that approach with what it characterized as this Court’s approach, saying, “the Third Circuit ... has no such ‘sliding scale’ standard, and Plaintiffs must show that all four factors favor preliminary relief.” Id. The Majority hardly mentions the District Court’s mistaken belief that our standard is more daunting than the standard employed by other courts, nor that the District Court failed to apply binding precedent in which we have adopted the functional equivalent of a sliding scale standard. It is true that we have not used the label “sliding scale” to describe our standard for preliminary injunctions, as numerous other circuit courts of appeals have. But we have said that, “in a situation where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, an injunction might be appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would generally be required.” Constructors Ass’n of W. Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir.1978). On another occasion, we observed that “[a]ll of [the four preliminary injunction] factors often are weighed together in the final decision and the strength of the plaintiffs showing with respect to one may affect what will suffice with respect to another.” Marxe v. Jackson, 833 F.2d 1121, 1128 (3d Cir.1987). And again, we have said, “proper judgment entails a ‘delicate balancing’ of all elements.” Eli Lilly & Co. v. Premo Pharm. Labs., Inc., 630 F.2d 120, 136 (3d Cir.1980) (quoting Kreps, 573 F.2d at 815) (internal quotation marks omitted). If those precedents are not the expression and application of a sliding scale, allowing the strength of a showing on one factor to compensate for a weaker but still positive showing on another, I confess I do not know what to make of them. The District -Court ignored the import of Kreps, Marxe, and Eli Lilly, despite our saying that a party can succeed in gaining injunctive relief if the threatened harm is particularly great and offsets a showing on “likelihood of success” that is less than might ordinarily be required. The Court thus erred, and we should say so. Unlike the Majority, which tacitly endorses the District Court’s application of an incorrect and unduly restrictive standard of review, I would apply the standard mandated by our own case law and used in the vast majority of our sister circuits. III. Discussion The Majority, like the District Court, evaluates only one of the four preliminary injunction factors: the likelihood of the Hahns’ and Conestoga’s success on the merits. Holding that the “Appellants have failed to show that they are likely to succeed on the merits of their Free Exercise Clause and RFRA claims,” the Majority “[does] not decide whether Appellants have shown that they will suffer irreparable harm, that granting preliminary relief will not result in even greater harm to the Government, [or] that the public interest favors the relief of a preliminary injunction.” (Maj. Op. at 888-89.) My colleagues thereby avoid addressing, let alone weighing, the additional factors. I believe that they are wrong about the likelihood of success that both the Hahns and Conestoga should be credited with, and I am further persuaded that the remaining three factors, particularly the showing of irreparabie harm, weigh overwhelmingly in favor of relief, as I will endeavor to explain, A. Likelihood of Success on the Merit This case is one of many filed against the government in recent months by for-profit corporations and their owners seeking protection from the Mandate. Conestoga Wood Specialties Corp., 917 F.Supp.2d at 404-05. So fai’> raost of those cases have reached the preliminary injunction stage only, and a clear majority of courts has determined that temporary injunctive relief is in order. I join that consensus, and note also the recent en banc decision of the United States Court of Appeals for the Tenth Circuit holding that two for-profit companies had “established [that] they are likely to succeed on their RFRA claim” and that the Mandate threatened them with irreparable harm. Hobby Lobby Stores, Inc. v. Sebelius, 728 F.3d 1114, 1144-45, 2013 WL 3216103, at *24 (10th Cir. June 27, 2013) (en banc). To demonstrate a likelihood of success on the merits, a “plaintiff need only prove a prima facie case, not a certainty that he or she will win.” Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir.2001). “[Likelihood of success” means that a plaintiff has “a reasonable chance, or probability, of winning.” Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir.2011) (en banc). It “does not mean more likely than not.” Id. In the sense pertinent here, the term “likelihood” embodies “[t]he quality of offering a prospect of success,” or showing some promise. Oxford English Dictionary, Vol. I, at 1625 (compact ed., 1986) (emphasis added). The Appellants have shown , the requisite prospect of success. 1. Conestoga’s Right to Assert RFRA and First Amendment Claims I begin where the Majority begins and ends, with the issue of Conestoga’s claim to religious liberty. This may be thought of as a question of standing, and, though it was not couched that way in the briefing or argument before us, it has been addressed as such by other courts. E.g., Hobby Lobby, 723 F.3d at 1125-26, 2013 WL 3216103, at *6; Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 114-19 (D.D.C.2012); Legatus v. Sebelius, 901 F.Supp.2d 980, 987-90 (E.D.Mich.2012). However it may be framed, the government’s assertion and the Majority’s conclusion that Conestoga lacks any right to the free exercise of religion is flawed because the Constitution nowhere makes the “for-profit versus non-profit” distinction invented by the government, and the language and logic of Supreme Court jurisprudence justify recognizing that for-profit corporations like Conestoga are entitled to religious liberty. The Majority declares that there is no “history of courts providing free exercise protection to corporations.” (Maj. Op. at 384.) As my colleagues see it, “ ‘[rjeligious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely human rights provided by the Constitution’ ” (id. at 384-85 (quoting Conestoga Wood Specialties Corp., 917 F.Supp.2d at 408)), so religion must be “an inherently ‘human’ right” that cannot be exercised by a corporation like Conestoga (id. at 385). That reasoning fails for several reasons. First, to the extent it depends on the assertion that collective entities, including corporations, have no religious rights, it is plainly wrong, as numerous Supreme Court decisions have recognized the right of corporations to enjoy the free exercise of religion. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525-26, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (recognizing the petitioner as a corporation whose congregants practiced the Santería religion, and concluding that city ordinances violated the corporation’s and its members’ free exercise rights); Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 330, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (recognizing the petitioner as a corporation in a case concerning free exercise rights); Bob Jones Univ. v. United States, 461 U.S. 574, 604 n. 29, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) (allowing two corporations that operated schools but could not be characterized as “churches or other purely religious institutions” to assert free exercise rights). Taking the argument to be somewhat narrower, though — that it is only for-profit corporations that are sealed off from First Amendment religious liberty — it still fails. There is no reason to suppose that a profit motive places a corporation further away from what is “inherently human” than other sorts of motives, so the distinction the Majority draws has no intrinsic logic to recommend it. It also places far too much weight on a supposed lack of precedent. While authority is admittedly scanty, that is in all probability because there has never before been a government policy that could be perceived as intruding on religious liberty as aggressively as the Mandate, so there has been little reason to address the issue. And, in any event, there is an obvious counterpoint to the Majority’s observation: there may not be directly supporting case law, but the “conclusory assertion that a corporation has no constitutional right to free exercise of religion is [also] unsupported by any cited authority.” McClure v. Sports & Health Club, 370 N.W.2d 844, 850 (Minn.1985). In fact, it appears that, far from rejecting the proposition that for-profit corporations may have religious liberty interests, the Supreme Court has reserved the issue for a later time. Cf. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (declining to “address the abstract question whether corporations- have the full measure of rights that individuals enjoy under the First Amendment”); Amos, 483 U.S. at 345 n. 6, 107 S.Ct. 2862 (Brennan, J., concurring in the judgment) (noting that “[i]t is also conceivable that some for-profit activities could have a religious character,” and leaving open the issue of whether for-profit enterprises could have a religious exemption from Title VII of the Civil Nights Act of 1964); id. at 349, 107 S.Ct. 2862 (O’Connor, J., concurring in the judgment) (expressly leaving open the same question). The Majority slips away from its own distinction between for-profit and nonprofit entities when it tries to support its holding with a citation to the Supreme Court’s observation that the Free Exercise Clause “ ‘secure[s] religious liberty in the individual by prohibiting any invasions thereof by civil authority.’” (Maj. Op. at 385 (quoting Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)) (emphasis omitted).) If that out-of-context clause really meant, as the Majority argues, that the right was limited to individuals, then all groups would be left in the cold, not just for-profit corporations. But that is manifestly not what the quoted language means. Not only does the Majority’s interpretation fly in the face of the already cited authority establishing that groups of people have free exercise rights as surely as each individual does, it falters simply as a matter of reason. To recognize that religious convictions are a matter of individual experience cannot and does not-refute the collective character of much religious belief and observance. Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively. “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). And just as the Supreme Court has described the free exercise of religion as an “individual” right, . see Schempp, 374 U.S. at 223, 83 S.Ct. 1560, it has previously said the same thing of the freedom of speech, see Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (calling freedom of speech a “fundamental personal rightf ]”), and still, notwithstanding that occasional characterization, there are a multitude of cases upholding the free speech rights of corporations. E.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (recognizing that “First Amendment protection extends to corporations” and listing cases to that effect). Indeed, the Supreme Court has specifically “rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’ ” Id. at 343, 130 S.Ct. 876 (quoting Bellotti, 435 U.S. at 776, 98 S.Ct. 1407). It thus does nothing to advance the discussion to say that the Free Exercise Clause secures religious liberty to individuals. Of course it does. That does not mean that associations of individuals, including corporations, lack free exercise rights. I am not suggesting that corporations enjoy all of the same constitutionally grounded rights as individuals do. They do not, as the Supreme Court noted in First National Bank of Boston v. Bellotti, saying, “[cjertain purely personal guarantees ... are unavailable to corporations and other organizations because the historic function of the particular guarantee has been limited to the protection of individuals.” 435 U.S. at 778 n. 14, 98 S.Ct. 1407 (internal quotation marks omitted); see Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 65-67, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (declining to extend to a corporation the right to privacy to the same extent as individuals); Wilson v. United States, 221 U.S. 361, 382-86, 31 S.Ct. 538, 55 L.Ed. 771 (1911) (finding that the privilege against self-incrimination does not apply to corporations). The question in a case like this thus becomes “[wjhether or not a particular guarantee is ‘purely personal.’” Bellotti, 435 U.S. at 778 n. 14, 98 S.Ct. 1407. And that, in turn, “depends on the nature, history, and purpose of the particular constitutional provision.” Id. Contrary to the Majority’s conclusion, there is nothing about the “nature, history, and purpose” of religious exercise that limits it to individuals. Quite the opposite; believers have from time immemorial sought strength in numbers. They lift one another’s faith and, through their combined efforts, increase their capacity to meet the demands of their doctrine. The use of the word “congregation” for religious groups developed for a reason. Christians, for example, may rightly understand the Lord’s statement that, “where two or three are gathered together in my name, there am I in the midst of them,” Matt. 18:20, to be not only a promise of spiritual outpouring but also an organizational directive. It thus cannot be said that religious exercise is a purely personal right, one that “cannot be utilized by or on behalf of any organization, such as a corporation.” United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). It is exercised by organizations all the time. Wait, says the government in response to such reasoning; don’t get carried away by facts; any collective right to religious exercise must be limited to organizations that are specifically and exclusively dedicated to religious ends. As the government and the Majority see it, religious rights are more limited than other kinds of First Amendment rights. All groups can enjoy secular free expression and rights to assembly, but only “religious organizations” have a right to religious liberty. (See Appellee’s Br. at 17 (“[Wjhereas the First Amendment freedoms of speech and association are ‘right[s] enjoyed by religious and secular groups alike,’ the First Amendment’s Free Exercise Clause ‘gives special solicitude to the rights of religious organizations.’ ” (quoting Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, — U.S.-, 132 S.Ct. 694, 706, 713, 181 L.Ed.2d 650 (2012))); Maj. Op. at 385, 386 (acknowledging that “First Amendment free speech rights apply to corporations,” but declining to “draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion”).) Of course, that view leaves it to the government to decide what qualifies as a “religious organization,” which ought to give people serious pause since one of the central purposes of the First Amendment is to keep the government out of the sphere of religion entirely. Cf. Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist. No. 71, 333 U.S. 203, 212, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (“[T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.”). Assuming, however, that the government had the competence to decide who is religious enough to qualify as a “religious organization,” there is no reason to suppose that the Free Exercise guarantee is as limited as the government claims or the Majority accepts. Our Constitution recognizes the free exercise of religion as something in addition to other kinds of expression, not because it requires less deference, but arguably because it requires more. At the very least, it stands on an equal footing with the other protections of the First Amendment. See Prince v. Massachusetts, 321 U.S. 158, 164, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (“[I]t may be doubted that any of the great liberties insured by the First Article can be given higher place than the others. All have preferred position in our basic scheme. All are interwoven there together.”); Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (“[T]he people of this nation have ordained in the light of history, that ... these liberties [religious faith and political belief] are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop • unmolested . and unobstructed.”). The values protected by the religious freedom clauses of the First Amendment “have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance,” Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In spite of that history of zealous protection, the Majority relegates religious liberty to second-class status, saying that, because Supreme Court case law incorporated the Free Exercise and Free Speech Clauses into the Fourteenth Amendment’s Due Process clause at different times, “it does not automatically follow that all clauses of the First Amendment must be interpreted identically.” (Maj. Op. at 386.) Implicit in the Majority’s position is that the Free Exercise Clause may be afforded less protection than the Free Speech Clause, and that is indeed the effect of the Majority’s ruling. I wholeheartedly disagree with that inversion of the special solicitude historically shown for the free exercise of religion. And to any who might try to obfuscate what has happened today by saying, “different doesn’t mean worse,” please note: