Full opinion text
MATHESON, Circuit Judge. TABLE OF CONTENTS Glossary.1156 I. Introduction .1159 II. Hobby Lobby and this case.1160 III. Background.1160 A. Regulatory Background.1160 1. The ACA Mandate and the Religious Employer Exemption.1160 2. The Accommodation Scheme for Religious Non-Profit Organizations.1162 a. EBSA Form 700 .1163 b. Alternative notice.1163 3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and Self-Insured Church Plans.1165 a. Insured plans.1165 b. Self-insured plans.1166 c. Self-insured church plans.1166 d. Legal obligation to provide coverage after the accommodation.... 1167 B. The Plaintiffs.1167 1. Little Sisters of the Poor.1167 2. Southern Nazarene .1168 3. Reaching Souls.1169 C. Procedural History.1169 1. Little Sisters of the Poor.1169 2. Southern Nazarene .1170 3. Reaching Souls.1171 IV. Unusual Nature of Plaintiffs’ Claim. 1171 1173 Legal Background.1174 1. Standard of Review.1174 t> 2. RFRA and Free Exercise.1174 3. Elements of RFRA Analysis.1175 4. Courts Determine Substantial Burden.1176 5. Accommodations Can Lessen or Eliminate Burden.1177 Substantial Burden Analysis.1178 td 1. Plaintiffs’RFRA Arguments .1178 2. The Accommodation Scheme Eliminates Burdens on Religious Exercise.1179 3. The Accommodation Scheme Does Not Impose a Substantial Burden.'.. 1180 a. Opting out does not cause contraceptive coverage.1180 5. No substantial burden from complicity .1190 c. No burden from ongoing requirements.1193 Strict Scrutiny.1195 Conclusion.1195 O P VI. First Amendment.1195 A. Free Exercise Clause.1196 Legal Background .1196 The Mandate and Accommodation Scheme are Neutral .1197 The Mandate and Accommodation Scheme are Generally Applicable .1197 The Mandate and Accommodation Scheme Have a Rational Basis.... 1198 B. Establishment Clause.1199 1. Organizational Distinctions Well-Established in Federal Law.1199 Organizational Distinctions and Respecting the Religion Clauses.1200 Organizational Distinctions Compatible with Larson and Colorado Christian.120,0 C. Plaintiffs’ Argument Based on the Departments’ Rationale.1201 Free Speech Clause.1202 1. Compelled Speech.1203 2. Compelled Silence.1204 VII. Conclusion.1205 GLOSSARY This opinion is heavily laden with terms from the applicable statute and regulations, types of health insurance arrangements, and names of numerous entities. We appreciate the challenge this presents to the reader and provide this glossary to help navigate the opinion. Legal and Regulatory Terms: ACA: The Affordable Care Act, which encompasses the Patient Protection and Affordable Care Act, enacted on March 23, 2010, and the Health Care and Education Reconciliation Act, enacted on March 80, 2010. Accommodation scheme: A regulatory mechanism that allows religious nonprofit organizations to relieve themselves of their obligation to provide contraceptive coverage for employees by either (a) sending a form to their health insurance issuer or third-party administrator or (b) sending a notification to the Department of Health and Human Services. ANPRM: Advance Notice of Proposed Rulemaking, which an administrative agency may issue to notify the public it is contemplating rulemaking and to invite comments. Departments: The Department of Health and Human Services, Department of Labor, and Department of the Treasury, which collectively implement the ACA. EBSA: The Employee Benefits Security Administration, an agency within the Department of Labor. ERISA: The Employee Retirement Income Security Act, codified at 29 U.S.C. § 1001 et seq., which is a federal law that sets minimum standards for certain employer-sponsored benefit plans. Form 700: A standardized notification that religious non-profit organizations may send to their health insurance issuer or third party administrator under the accommodation scheme to self-certify they object to providing contraceptive coverage. HHS: The Department of Health and Human Services, which is one of the three departments tasked with implementing the ACA and contraceptive coverage requirement. HRSA: The Health Resources and Services Administration, an agency within HHS, which issued guidelines requiring coverage of all FDA-approved contraceptive methods under the ACA. IOM: The Institute of Medicine, an independent body that reviewed evidence on women’s preventive services and issued a report used by the HRSA in formulating its guidelines. IRC: The Internal Revenue Code, codified at 26 U.S.C. § 1 et seq., which is a comprehensive compilation of the federal tax laws. Mandate: Regulations enacted under the ACA requiring employer-sponsored group health plans to cover contraceptive services for women as a form of preventive care. RFRA: The Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb-l et seq., which states that laws that substantially burden a person’s exercise of religion are only permissible if they are the least restrictive means of furthering a compelling governmental interest. RLUIPA: The Religious Land Use and Institutionalized Persons Act, codified at 42 U.S.C. § 2000cc et seq., which states that laws that substantially burden religious exercise through land use restrictions or restrictions on prisoners are only permissible if they are the least restrictive means of furthering a compelling governmental interest. Religious employers: As defined by reference to §§ 6033(a)(3)(A)(i) or (iii) of the IRC, employers that are organized and operate as non-profit entities and are churches, their integrated auxiliaries, conventions or associations of churches, or the exclusively religious activities of any religious order. Religious non-profit organizations: Organizations that do not qualify as religious employers but are eligible for an accommodation from the contraceptive coverage requirement because they have religious objections to providing contraceptive coverage, are organized and operate as non-profit entities, hold themselves out as religious organizations, and self-certify that they satisfy these criteria. The Plaintiffs in these cases are religious non-profit organizations. Health Insurance Terms: Group health plan: A benefit plan established or maintained by an employer that provides health insurance to employees and their dependents either directly — a self-insured group health plan — or through a health insurance issuer — an insured group health plan. Health insurance issuer: A health insurance company, service, or organization that must be licensed to engage in the insurance business and is subject to state laws regulating insurance. Insured group health plan: A benefit plan in which the employer employs a health insurance issuer to assume the risk of providing health insurance. Plan participants and beneficiaries: Individuals who are covered by a group health plan. Self-insured group health plan: A benefit plan in which the employer assumes the risk of providing health insurance. Self-insured church plan: A self-insured group health plan established by a church or association of churches covering the church or association’s employees, which is not subject to regulation under ERISA unless it has elected to opt in to ERISA’s provisions. TPA: A third-party administrator, which is an entity that processes insurance claims and provides administrative services for employers with self-insured group health plans. Plaintiffs and Related Entities: Little Sisters of the Poor: Little Sisters of the Poor: A religious non-profit organization that provides health care to employees through the Christian Brothers Employee Benefit Trust. Christian Brothers Employee Benefit Trust: A self-insured church plan that is not subject to ERISA and uses Christian Brothers Services as its TPA. Christian Brothers Services: The TPA. for the Christian Brothers Employee Benefit Trust. Southern Nazarene: Southern Nazarene University: A religious non-profit organization that is self-insured up to $100,000 and provides health care to employees through Blue Cross Blue Shield for claims above $100,000. Oklahoma Baptist University: A religious non-profit organization insured by Blue Cross Blue Shield of Oklahoma. Oklahoma Wesleyan University: A religious non-profit organization insured by Community Care of Oklahoma. Mid-America Christian University: A religious non-profit organization that provides health care to employees through plans provided by GuideStone Financial Resources. Reaching Souls: Reaching Souls: A religious non-profit organization that provides health care to employees through the GuideStone Plan. Trueth-McConnell College: A religious non-profit organization that provides health care to employees through the GuideStone Plan. GuideStone Financial Resources: A religious non-profit organization that sponsors the GuideStone Plan and has arranged for TPAs to provide claims administration under that plan. GuideStone Plan: A self-insured church plan that is not subject to ERISA and uses entities like Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc. as its TPAs. I. INTRODUCTION When Congress passed the Affordable Care Act (“ACA”) in 2010, it built upon the widespread use of employer-based health insurance in the United States. The ACA and its implementing regulations require employers who provide health insurance coverage to their employees to include coverage for certain types of preventive care without cost to the insured. The appeals before us concern the regulations that require group health plans to cover contraceptive services for women as a form of preventive care (“Mandate”). In response to religious concerns, the Departments implementing the ACA— Health and Human Services (“HHS”), Labor, and Treasury — adopted a regulation that exempts religious employers— churches and their integrated auxiliaries— from covering contraceptives. When religious non-profit organizations complained about their omission from this exemption, the Departments adopted a regulation that allows them to opt out of providing, paying for, or facilitating contraceptive coverage. Under this regulation, a religious non-profit organization can opt out by delivering a form to their group health plan’s health insurance issuer or third-party administrator (“TPA”) or by sending a notification to HHS. The Plaintiffs in the cases before its are religious non-profit organizations. They contend that complying with the Mandate or the accommodation scheme imposes a substantial burden on their religious exercise. The Plaintiffs argue the Mandate and the accommodation scheme violate the Religious Freedom Restoration Act (“RFRA”) and the Religion and Speech Clauses of the First Amendment. Although we recognize and respect the sincerity of Plaintiffs’ beliefs and arguments, we conclude the accommodation scheme relieves Plaintiffs of their obligations under the Mandate and does not substantially burden their religious exercise under RFRA or infringe upon their First Amendment rights. Exercising jurisdiction under 28 U.S.C. § 1292(a), we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F.Supp.3d 1225 (D.Colo. 2013), and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene University v. Sebelius, No. CIV-13-1015-F, 2013 WL 6804265 (W.D.Okla. Dec. 23, 2013), and Reaching Souls International, Inc. v. Sebelius, No. CIV-13-1092-D, 2013 WL 6804259 (W.D.Okla. Dec. 20, 2013). II. HOBBY LOBBY AND THIS CASE Last year, the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc., — U.S.-, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), in which closely-held for-profit corporations challenged the Mandate under RFRA. The difference between Hobby Lobby and this case is significant and frames the issue here. In Hobby Lobby, the plaintiff for-profit corporations objected on religious grounds to providing contraceptive coverage and could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties. Id. at 2759-60. In the cases before us, the plaintiff religious non-profit organizations can avail themselves of an accommodation that allows them' to opt out of providing contraceptive coverage without penalty. Plaintiffs contend the process to opt out substantially burdens their religious exercise. In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation. The Plaintiffs do not claim the Departments have not tried to accommodate their religious concerns. They claim the Departments’ attempt is inadequate because the acts required to opt out of the Mandate substantially burden their religious exercise. As we discuss more fully below, however, the . accommodation relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise. III. BACKGROUND We begin by providing background information on the ACA and its implementing regulations, the Plaintiffs objecting to the accommodation scheme, and the procedural history of the three cases before us. A. Regulatory Background. The regulations at issue in these cases have evolved in significant ways since their initial promulgation. We review: (1) the exemption from the ACA’s contraceptive coverage requirement for churches and integrated auxiliaries, (2) the accommodation scheme for religious non-profit organizations, and (3) the mechanics of the accommodation scheme for different types of group health plans. 1. The ACA Mandate and the Religious Employer Exemption Under the ACA, employer-sponsored group health plans must meet minimum coverage requirements. As part of these requirements, both group health plans and health insurance issuers must cover preventive health care services and cannot require plan participants and beneficiaries to share the costs of these services through co-payments, deductibles, or coinsurance. 42 U.S.C. § 300gg-13. On July 19, 2010, the Departments issued interim final rules implementing the ACA’s requirements for preventive services. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed.Reg. 41,726 (July 19, 2010). Among the services required by the ACA are preventive care and screenings for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (“HRSA”), a federal agency within HHS. 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011, after receiving recommendations from the Institute of Medicine (“IOM”), the HRSA issued its guidelines for women’s preventive health services. The guidelines include coverage of “[a]ll Food and Drug Administration [ (“FDA”) ] approved contraceptives, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. HRSA, Women’s Preventive Services Guidelines, http:// www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015). In accordance with the HRSA’s guidelines, the Departments require coverage of the full range of FDA-approved contraceptive services. See 26 C.F.R. § 54.9815-2713(a)(l)(iv); 29 C.F.R. § 2590.715-2713(a)(l)(iv); 45 C.F.R. § 147.130(a)(l)(iv). Not all employers, however, are required to comply with the Mandate. First, employers with 50 or fewer employees are exempt from the Mandate because they are not required to offer insurance under the ACA. See 26 U.S.C. §§ 4980H(c)(2)(A), 4980D(d). Second, “grandfathered” plans are exempt from the Mandate because the ACA allows individuals to temporarily maintain the health coverage they possessed before the ACA was enacted. See 42 U.S.C. § 18011. Third, and the most relevant here, is the exemption for religious employers. In response to concerns from religious organizations, the Departments amended the interim final regulations to give the HRSA authority to exempt group health plans established or maintained by religious employers. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed.Reg. 46,621, 46,623 (Aug. 3, 2011). The Departments defined a “religious employer” as one that: “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id. The cited sections “refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of any religious order.” Id. The Departments noted the definition was intended “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” Zd They invited comments on the proposed definition of “religious employer” and potential alternatives. Id. The Departments received more than 200,000 responses to their request for comments from a variety of entities both supporting and opposing expansion of the proposed exemption. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed.Reg. 8725, 8726 (Feb. 15, 2012). After reviewing these comments, they published final regulations on February 15, 2012, adopting their proposed definition of “religious employer.” Id. at 8727. They also created a one-year safe harbor for religious non-profit organizations, during which the Departments would not enforce the Mandate against them. Id. at 8728. 2. The Accommodation Scheme for Religious Non-Profit Organizations In response to religious groups that were dissatisfied with the scope of the proposed religious employer exemption, the Departments issued an advance notice of proposed rulemaking (“ANPRM”) in anticipation of creating additional accommodations for non-exempt religious non-profit organizations. Certain Preventive Services Under the Affordable Care Act, 77 Fed.Reg. 16,501 (Mar. 21, 2012). After reviewing the comments received from the ANPRM, the Departments published proposed rules creating an accommodation for a wider range of religious non-profit organizations. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed.Reg. 8456 (Feb. 6, 2013). The Departments received over 400,000 comments on the proposed rules, and finalized two notable changes.' Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed.Reg. 89,870, 39,871 (July 2, 2018). First, the Departments simplified and clarified the existing exemption for religious employers by eliminating the first three elements of the definition, thereby defining “religious employer” as “an employer that is organized and operates as a nonprofit entity and is referred to in section 6033(a) (3) (A) (i) or (iii) of the [Internal Revenue] Code [ (“IRC”) ].” Id. at 39,874. Second, they created an accommodation for religious non-profit organizations that did not meet this simplified definition of a religious employer. Id. The regulations state a religious nonprofit organization can receive this accommodation if it: (1) has religious objections to “providing coverage for some or all of the contraceptive services required to be covered” under the Mandate, (2) “is organized and operates as a nonprofit entity,” (3) “holds itself out as a religious organization,” and (4) “self-certifies that it satisfies the first three criteria.” Id. The accommodation is available for both (1) insured group health plans, under which an employer contracts with a health insurance issuer to assume the risk of providing benefits to employees, and (2) self-insured group health plans, under which the employer itself assumes the risk of providing benefits to employees. Id. at 39,875-80. As we explain below, religious non-profit organizations can self-certify their religious objection and receive the accommodation either by notifying their health insurance issuer or TPA or by notifying HHS directly. a. . EBSA Form, 700 To self-certify under the accommodation scheme, the Departments initially required religious non-profit organizations to use the Employee Benefits Security Administration’s (“EBSA”) Form 700 (“Form”). Objecting organizations are relieved from complying with the Mandate by delivering the executed Form to their health insurance issuer or TPA. The Form notifies the health insurance issuer or TPA that the organization self-certifies as exempt from the Mandate because it has a religious objection to providing coverage for some or all contraceptive services to its employees, and identifies the relevant federal regulations under which the organization is permitted to opt out of that obligation. See Dep’t of Labor, EBSA Form 700 (Aug. 2014), http://www.dol.gov/ebsa/preventive serviceseligibleorganizationcertification form.doc (citing 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b)). .The back of the Form notifies TPAs of their obligations. Form at 2. It informs the TPA that the eligible organization “[wjill not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services.” Form at 2. It identifies regulations requiring the TPA to provide contraceptive coverage without cost sharing to plan participants and beneficiaries if the TPA agrees to continue providing administrative services for a group health plan. Id. (citing 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2510.3-16; 29 C.F.R. § 2590.715-2713A). A TPA that receives the Form from an objecting employer is eligible for a government payment to cover the costs of providing contraceptive coverage. See 45 C.F.R. § 156.50(d)(5). As part of this scheme, the regulations initially included a non-interference provision, which specified that objecting religious non-profit organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision” whether to provide coverage for contraceptives. 26 C.F.R. § 54.9815-2713A(b)(iii) (2013). When the Plaintiffs filed their suits, they sought a preliminary injunction relieving them from complying with this version of the accommodation scheme, arguing delivery of the Form to their health insurance issuer or TPA constituted a substantial burden on their religious exercise in violation of RFRA and the First Amendment. b. Alternative notice In response to litigation by Plaintiffs and others, the Departments have since expanded the accommodation scheme. The Supreme Court granted injunctions pending appeal in two suits brought by religious non-profit organizations, including the Little Sisters, that objected to the accommodation scheme. See Wheaton Coll. v. Burwell, — U.S.-, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, — U.S. -, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014). In a third suit, the Court declined to recall or stay a circuit court mandate in favor of the Government, but granted an injunction to religious non-profit organizations pending final disposition of their petition for certio-rari. See Zubik v. Burwell, Nos. 14A1065, 14-1418, — U.S. -, 135 S.Ct. 2924, 2924,-L.Edüd-, 2015 WL 3947586, at *1 (2015). The injunctions allowed the organizations to notify HHS directly of their religious objection to the. Mandate rather than sending the Form to their health insurance issuers or TPAs. In response to the injunction in Wheaton College, the Departments issued an interim final rule on August 27, 2014, creating an alternative accommodation for religious non-profit organizations. Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed.Reg. 51,092, 51,092 (Aug. 27, 2014). These regulations relieve a religious non-profit organization from complying with the Mandate if it notifies HHS in writing of its religious objection to the provision of some or all contraceptive services. Id. at 51,094. The notice may be sent by letter or email, and must contain (1) “the name of the eligible organization and the basis on which it qualifies for an accommodation,” (2) “its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services,” including any particular subset to which it objects; (3) the name and type of the group health plan; and (4) the name and contact information for any of the plan’s TPAs and/or health insurance issuers. Id. at 51,094-95. According to the Departments, these requirements constitute “the minimum information necessary for the Departments to determine which entities are covered by the accommodation, to administer the accommodation, and to implement the policies in the July 2013 final regulations.” Id. at 51,095. The revised regulations also repeal the non-interference provision by deleting language prohibiting organizations from interfering with or seeking to influence their TPA’s decision to cover contraception. Id. We note again that the entirety of this accommodation scheme for religious nonprofit organizations — using either the Form or the alternative notice to HHS— was not available to the for-profit corporate plaintiff in Hobby Lobby. Here, an accommodation is available to Plaintiffs. In the cases before us, we consider whether their taking advantage of that accommodation to opt out of the Mandate is itself a substantial burden on their religious exercise. 3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and Self-Insured Church Plans The Plaintiffs use different types of employer-sponsored group health plans, which the Departments treat differently within the accommodation scheme. By its own terms, the ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. 42 U.S.C. § 300gg-13 (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”); 26 C.F.R. § 54.9815 — 2713(a)(1); 29 C.F.R. § 2590.715-2713(a)(l); 45 C.F.R. § 147.130(a)(1). Because the differences among these arrangements are relevant to our discussion of the merits of Plaintiffs’ claims, we consider it helpful to explain how the Mandate and accommodation scheme affect insured plans, self-insured plans, and self-insured church plans. a. Insured plans When a religious non-profit organization offers its employees an insured plan, the statutory language not only requires the group health plan to cover contraception, but also obligates the plan’s health insurance issuer to ensure plan participants and beneficiaries receive contraceptive coverage. See 42 U.S.C. §§ 300gg-13; 300gg-22. Thus, even if a religious non-profit organization does not self-eertify that it has an objection, its health insurance issuer is obligated to provide contraceptive coverage to plan participants and beneficiaries and charge the organization for the cost. See Priests for Life v. U.S. Dep’t of Health & Hum. Servs., 7 F.Supp.3d 88, 95-96 & n. 2 (D.D.C.2013). The organization can free itself from complying with the Mandate and paying for that coverage, however, “if the eligible organization or group health plan provides either a copy of the self-certification to each issuer providing coverage in connection with the plan or a notice to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(c)(l); 29 C.F.R. § 2590.715-2713A(c)(l); 45 C.F.R. § 147.131(c)(1). When an organization submits the Form expressing an objection to providing contraceptive coverage, “the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(e)(l)(i); see also 26 C.F.R. § 54.9815-2713AT(c)(l)(i) (requiring coverage in accordance with § 54.9815-2713); 29 C.F.R. § 2590.715-2713A(c)(l)(i) (requiring coverage in accordance with § 2590.715-2713). Similarly, when an organization notifies HHS, the Department of Labor will send a separate notification to the organization’s issuer informing it of that notice and describing its regulatory obligations. 45 C.F.R. § 147.131(c)(l)(ii); see also 26 C.F.R. § 54.9815-2713AT(c)(l)(ii); 29 C.F.R. § 2590.715-2713A(c)(l)(ii). In the context of insured plans, health insurance issuers are generally responsible for paying for contraceptive coverage when a religious non-profit organization opts out. See 45 C.F.R. § 156.50. The Departments expect this will be cost-neutral for issuers because of the cost savings that accompany improvements in women’s health and lower pregnancy rates. See 78 Fed.Reg. at 39,877. b. Self-insured, plans When a religious non-profit organization offers its employees a self-insured plan, the accommodation works in a slightly different fashion. A self-insured group health plan complies with the regulatory requirements and is excused from providing contraceptive coverage if “[t]he eligible organization or its plan contracts with one or more third party administrators” and “[t]he eligible organization provides either a copy of the self-certification to each third party administrator or a notice to the Secretary of Health and Human Services that it is an eligible organization and of its religious objection to coverage of all or a subset of contraceptive services.” 26 C.F.R. § 54.9815-2713AT(b)(l); 29 C.F.R. § 2590.715-2713A(b)(l). Although the text of the ACA does not specify a role for TPAs, it expressly requires group health plans to include contraceptive coverage, and federal regulations impose obligations on TPAs that administer self-insured group health plans. See 42 U.S.C. § 300gg-13; 26 C.F.R. § 54.9815-2713AT(b); 29 C.F.R. § 2590.715-2713A(b). The regulations require a TPA administering a group health plan to provide or arrange for contraceptive coverage without cost sharing with the organization or its beneficiaries when it: (1) receives a notification that an eligible employer has opted out of providing coverage and (2) decides to remain in a relationship with that employer or its plan to provide administrative services for the plan. 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA’s obligations are enforceable under the Employee Retirement Income Security Act (“ERISA”). See 78 Fed.Reg. at 39,879-80. In the context of self-insured plans, a TPA may seek reimbursement if it has received the Form or a notification from the government and “provides or arranges payments for contraceptive services.” See 26 C.F.R. § 54.9815-2713AT(b)(3); 29 C.F.R. § 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d)(2)(ii)-(iii). TPAs do so by working through health insurance issuers, who receive adjustments to fees they pay to the government under the ACA and pass along the reimbursements to TPAs. See 45 C.F.R. § 156.50(d). c. Self-insured church plans Although federal regulations impose certain requirements on TPAs, the Departments concede they lack authority to enforce those requirements as to self-insured “church plans,” which are group health plans established by a church or association of churches covering the church’s or association’s employees. 29 U.S.C. § 1002(33). Organizations that provide health care coverage for employees through self-insured church plans are exempt from regulation under ERISA. 29 U.S.C. § 1003(b)(2). Unless a church plan has made an election under 26 U.S.C. § 410(d), which opts plans into provisions of ERISA, the Departments concede they lack authority to compel church plan TPAs to provide contraceptive coverage, and may not levy fines against those TPAs for failing to provide it. d. Legal obligation to provide coverage after the accommodation Although the accommodation is available for both insured and self-insured group health plans, the source of the legal obligation to provide contraceptive coverage after a religious non-profit organization has opted out differs based on the type of insurance arrangement the organization uses. When an organization takes advantage of the accommodation, the ACA requires health insurance issuers to provide coverage for insured group health plans, while federal regulations adopted pursuant to the ACA require TPAs to arrange coverage for self-insured group plans that are subject to ERISA. As we discuss below, these distinctions shape the claims advanced by different Plaintiffs in the cases before us. B. The Plaintiffs The Plaintiffs in this litigation object to both means to receive an accommodation — sending the Form to their health insurance issuer or TPA or sending a notification to HHS. The Plaintiffs differ from each other in ways that are relevant to the Departments’ authority to require employers to provide contraceptive coverage and relieve objecting religious non-profit organizations from the Mandate when they use the accommodation scheme. 1. Little Sisters of the Poor The Little Sisters of the Poor Home for the Aged, Denver, Colorado and Little Sisters of the Poor, Baltimore (“Little Sisters”) belong to an order of Catholic nuns who devote their lives to care for the elderly. The Little Sisters provide health insurance coverage to their employees through the Christian Brothers Employee Benefit Trust (“Trust”), a self-insured church plan that is not subject to ERISA. The Trust uses Christian Brothers Services (“Christian Brothers”), another Catholic organization, as its TPA. The Little Sisters have always excluded coverage of sterilization, contraception, and abortifacients from their health care plan in accordance with their religious belief that deliberately avoiding reproduction through medical means is immoral. The Little Sisters “believe that it is wrong for them to intentionally facilitate the provision . of these medical procedures, drugs, devices, and related counseling and services.” LS Br. at 10. They cite “well-established Catholic teaching that prohibits encouraging, supporting, or partnering with others in the provision of sterilization, contraception, and abortion.” LS Br. at 9-10. The Little Sisters contend they “cannot provide these things, take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme,” as the mere appearance of condoning these services “would violate their public witness to the sanctity of human life and human dignity and could mislead other Catholics and the public.” LS Br. at 10. The Little Sisters are subject to the Mandate unless they take advantage of the accommodation scheme by delivering the Form to the Christian Brothers, their TPA, or notifying HHS of their religious objection. If they do not take one of these steps and do not provide contraceptive coverage, they estimate a single Little Sisters home could incur penalties of up to $2.5 million per year, and allege the Trust could lose up to $130 million in plan contri-buttons. The Little Sisters plaintiffs object that the accommodation scheme violates their sincerely held religious beliefs because they cannot take actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme. 2. Southern Nazarene Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Christian University are “Christ-centered institutions of higher learning.” SN Br. at 1-2. Southern Nazarene is partially self-insured; it generally assumes the risks of providing coverage but contracts with a health insurance issuer to pay all claims over $100,000. For its insured employee coverage, it uses Blue Cross Blue Shield of Oklahoma. It offers separate coverage to students through an insured plan. Oklahoma Baptist is an insured university. It uses Blue Cross Blue Shield of Oklahoma, and offers separate coverage to students through an insured plan. Oklahoma Wesleyan is an insured university. It uses Community Care of Oklahoma. Mid-America Christian is a self-insured university on a church plan that is not subject to ERISA. It uses plans provided by Guide-Stone Financial Resources. The universities have brought suit collectively, but they are in slightly different positions insofar as Mid-America Christian University uses a church plan and contracts with a TPA, Oklahoma Baptist University and Oklahoma Wesleyan use health insurance issuers, and Southern Nazarene contracts with a TPA but uses a health insurance issuer for student coverage and employee claims above $100,000. The universities believe “it would be sinful and immoral for them to participate in, pay for, facilitate, enable, or otherwise support access to abortion, abortion-inducing drugs and devices, and related counseling.” SN Br. at 1-2. They object to the provision of contraceptives they consider abortifacients. The universities currently offer health plans to students and employees that do not cover the contraceptives the universities find objectionable. The universities are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections to relieve themselves of the obligation to provide contraceptive coverage. They object to the accommodation, however, because they believe it requires them to expressly or functionally offer contraceptive coverage through their group health plan, interferes with the spiritual development of their communities, and requires them to facilitate behavior they consider sinful. If they do not take advantage of the accommodation, each university must either provide coverage or incur penalties of $100 per employee per day. 3. Reaching Souls Reaching Souls is a non-profit corporation founded by a Southern Baptist minister and based in Oklahoma. The organization trains pastors and evangelists and provides care to orphans in Africa, India, and Cuba. Truett-McConnell College is a private liberal arts college based in Georgia. Both Reaching Souls and Truett-McConnell use the GuideStone Plan, a self-insured church plan that is not subject to ERISA. GuideStone Financial Resources, a Texas non-profit corporation, established the GuideStone Plan and holds the assets funding it in trust. GuideStone Financial Resources has entered into agreements with other entities to provide claims administration as TP As under the Guide-Stone Plan, including Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc. Reaching Souls believes life begins at conception and objects to four of the twenty FDA-approved .methods of contraception that Reaching Souls characterizes as abortifacients. Truett-McConnell has adopted the Southern Baptist Convention’s statement of faith and objects to the same four methods of contraception. Guide-Stone Financial Resources, as an arm of the Southern Baptist Convention, also opposes coverage of contraception methods it believes to be abortifacients. The organizations ground their beliefs in the sanctity of human life and opposition to elective abortion in the religious teachings of the Southern Baptist Convention. Both ■ Reaching Souls and Truett-McConnell College are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections. If they do, GuideStone Financial Resources would have to pass the information to the TPAs of the GuideStone Plan to effectuate the coverage. The plaintiffs believe this would violate their religious beliefs “by making them complicit in the government’s scheme to provide abortifacients.” RS Br. at 4. If the organizations do not take advantage of the accommodation scheme or provide coverage, they contend they will incur millions of dollars in fines, which “would crush the ministries and force a mass exodus from GuideStone.” RS Br. at 3. C. Procedural History The district courts reached different results in the three cases before us, denying a preliminary injunction to the plaintiffs in Little Sisters but granting a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls. Reviewing the reasoning behind their determinations clarifies the claims before us on appeal. 1. Little Sisters of the Poor In Little Sisters, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the Little Sisters’ or Christian Brothers’ religious exercise. 6 F.Supp.3d at 1239-45. The court’s analysis of the preliminary injunction factors began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied. Id. at 1236. After determining it was the court’s duty to determine how the regulations operate as a matter of law, id. at 1239, the court concluded the accommodation scheme does not require the Little Sisters to provide contraceptive coverage or to participate in the provision of contraceptive coverage, id. at 1239-42. The court noted that the Little Sisters— unlike the plaintiffs in Hobby Lobby— could be relieved of the obligation to provide coverage by signing and delivering the Form to their TPA, the Christian Brothers. Id. at 1237. The court underscored that, while the Departments could require the Little Sisters to sign and deliver the Form to their TPA to avoid the Mandate, the Departments lacked enforcement authority under ERISA to levy fines or otherwise force the Christian Brothers to provide contraceptive coverage as the TPA for a self-insured, ERISA-exempt church plan. Id. at 1243-44. The court concluded that requiring the Little Sisters to sign and deliver the Form to opt out did not constitute a substantial burden on their religious exercise and declined to issue a preliminary injunction. Id. at 1242-45. The Little Sisters next asked the Tenth Circuit for an injunction pending appeal, which this court denied. The Supreme Court subsequently granted their request for an injunction pending appeal, allowing the Little Sisters to notify HHS of their religious objection instead of sending the Form to their TPA as the regulations at the time required. See Little Sisters, 134 S.Ct. 1022. The Little Sisters now appeal the district court’s denial of a preliminary injunction. 2. Southern Nazarene In Southern Nazarene, the district court granted a preliminary injunction to the plaintiffs. 2013 WL 6804265, at *11. The court’s analysis focused mainly on the plaintiffs’ likelihood of success on the merits. Id. at *7-10. The court characterized the Form as “in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects.” Id. at *8. It determined the Form imposed a substantial burden on the plaintiffs’ sincere religious exercise and the Government had not articulated a compelling state interest or argued its approach was the least restrictive means of advancing that interest. Id. at *7-10. The court concluded the plaintiffs had shown they were likely to succeed on the merits. Id. After reaching this conclusion, it briefly reviewed the other preliminary injunction factors and entered a preliminary injunction that prevented the Departments from enforcing the Mandate, requiring self-certification to opt out, or levying penalties. Id. at *10-11. The Government now appeals the district court’s ruling. 3. Reaching Souls Like the district court in Southern Nazarene, the district court in Reaching Souls granted a preliminary injunction to the plaintiffs. 2013 WL 6804259, at *8. The court primarily analyzed the likelihood of plaintiffs’ success on the merits. Id. at *6-8. It characterized the Government’s substantial burden argument as “simply another variation of a proposition rejected by the court of appeals in Hobby Lobby,” likening it to the argument that the Mandate was not a substantial burden on for-profit employers because it required intervening acts by third parties — employees deciding whether to acquire contraception. Id. at *7. It emphasized that regardless of whether the Form actually triggers the provision of contraceptive services, the plaintiffs believe that signing it would signal their tacit support or cooperation. Id. The court thus determined “the accommodation scheme applies substantial pressure on Plaintiffs to violate their belief that participating in or facilitating the accommodation is the moral equivalent of directly complying with the contraceptive mandate.” Id. at *8. It briefly reviewed the other preliminary injunction factors and enjoined the Government from requiring the plaintiffs to comply with the Mandate and accommodation scheme or penalizing the plaintiffs for noncompliance. Id. The Government now appeals the district court’s ruling. IV. UNUSUAL NATURE OF PLAINTIFFS’ CLAIM Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs’ central claim, which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law. Most religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise, and they ask courts to strike down the law or policy or excuse them from compliance. Our circuit’s three most recent RFRA cases fall into this category. In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir.2013) (en banc), aff'd sub nom. Hobby Lobby, 134 S.Ct. 2751, the ACA required the plaintiffs to provide their employees with health insurance coverage of contraceptives against their religious beliefs. In Yellowbear v. Lampert, 741 F.3d 48 (10th Cir.2014), a prison policy denied the plaintiff access to a sweat .lodge, where he wished to exercise his Native American religion. In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir.2010), a prison policy denied the plaintiff a halal diet, which is necessary to his Muslim religious exercise. In each instance, the law or policy failed to provide an exemption or accommodation to the plaintiff(s). The Supreme Court’s recent ruling in Holt v. Hobbs, — U.S. -, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015),-which concerned a prison ban on inmates’ growing beards, is another recent example of the more common RFRA claim. The plaintiff in Holt sought to grow a beard in accordance with his Muslim faith. In Holt, like in Hobby Lobby, the government defendants insisted on a complete restriction and did not attempt to accommodate the plaintiffs religious exercise. The plaintiff in Holt proposed a compromise — he would be allowed to grow only a half-inch beard — which the prison refused. 135 S.Ct. at 861. The Court ultimately approved this compromise in its ruling. Id. at 867. In the cases before us, by contrast, the Departments have developed a religious accommodation rather than leaving it for the courts to fashion judicial relief. Plaintiffs not only challenge a law that requires them to provide contraceptive coverage against their religious beliefs, they challenge the exception that the law affords to them. The precedents Plaintiffs cite are instructive in some respects, but none of them involve a situation where the government offers religious objectors an accommodation. The Supreme Court and this circuit have suggested such accommodations might have eliminated or lessened burdens we otherwise deemed substantial. See, e.g., Hobby Lobby, 134 S.Ct. at 2759 (observing the accommodation scheme “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty”); Yel-lowbear, 741 F.3d at 56 (underscoring that the case “isn’t a situation where the claimant is left with some degree of choice in the matter and we have to inquire into the degree of the government’s coercive influence on that choice”). Until now, however, we have not squarely considered a RFRA challenge to a religious accommodation. The closest Tenth Circuit case we have found is United States v. Friday, 525 F.3d 938 (10th Cir.2008), in which defendant Winslow Friday argued his conviction for shooting a bald eagle without a permit violated RFRA because he shot the eagle for use in a tribal religious ceremony. The Bald and Golden Eagle Protection Act forbids killing a bald eagle, but an applicant can obtain a permit to “take” a live eagle for a religious ceremony. See 16 U.S.C. §§ 668, 668a. We recognized the potential question of “whether it substantially burdens Mr. Friday’s religion to require him to obtain a permit in advance of taking an eagle.” Friday, 525 F.3d at 947. We said we were “skeptical that the bare requirement of obtaining a permit can be regarded as a ‘substantial burden’ under RFRA,” id., but Mr. Friday did not make that specific argument, and we decided the permit accommodation otherwise met RFRA’s strict scrutiny element, id. at 948. We spoke favorably of the government’s accommodation scheme in Friday, even though “[t]hat accommodation may be more burdensome than the [religious objectors] would prefer, and may sometimes subordinate their interests to other policies not of their choosing.” Id. at 960. As we noted in conclusion: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.” Id. We therefore turn to uncharted Tenth Circuit terrain. The Plaintiffs in the three cases before us assert claims against the Mandate and accommodation scheme under RFRA and the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses. Because we determine the accommodation scheme relieves Plaintiffs from complying with the Mandate and does not substantially burden their religious exercise under RFRA or infringe upon their First Amendment rights, we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls. V. RFRA Under RFRA, the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-l. Plaintiffs argue the ACA and its implementing regulations violate RFRA because they substantially burden their religious exercise by forcing them to do one of three things: (a) comply with the Mandate and provide contraceptive coverage, (b) take advantage of the accommodation scheme, or (c) pay steep fines for non-compliance. We conclude that the accommodation scheme relieves' Plaintiffs of complying with the Mandate or paying fines and does not impose a substantial burden on Plaintiffs’ religious exercise for the purposes of RFRA. To explain why the accommodation is permissible under RFRA, we first review the RFRA framework and consider how religious accommodations may lessen or eliminate the substantiality of a burden on religious exercise. We then apply this framework to the accommodation scheme before us, which exempts religious nonprofits from providing contraceptive coverage and instead assigns that task to health insurance issuers and TPAs. We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA. The dissent parts ways with our majority opinion on the self-insured plaintiffs’ RFRA claims. It stresses that, by opting out, the self-insured plaintiffs would cause the legal responsibility to provide contraceptive coverage to shift to their TPAs. We agree. As we observe below, the regulations are clear on that point. But shifting legal responsibility to provide coverage away from the plaintiffs relieves rather than burdens their religious exercise. The ACA and its implementing regulations entitle plan participants and beneficiaries to coverage whether or not the plaintiffs opt out. And the government has established a scheme where, if the law is followed, self-insured plaintiffs that opt out are relieved of providing, paying for, and facilitating coverage; the government assigns that responsibility to their TPAs; and plan participants and beneficiaries receive the coverage to which they are entitled by federal law. Such an arrangement is among the common and permissible methods of religious accommodation in a pluralist society, and does not constitute a substantial burden under RFRA. A. Legal Background 1. Standard of Review Each appeal before us seeks review of a district court order granting or denying a preliminary injunction. We review orders granting or denying a preliminary injunction for abuse of discretion. See Hobby Lobby, 723 F.3d at 1128; Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir.2006). A preliminary injunction may be granted if the party seeking it shows: “(1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the mov-ant outweighs any harm to the non-moving party; and (4) an injunction is in the public interest.” Hobby Lobby, 723 F.3d at 1128. A district court abuses its discretion by granting or denying a preliminary injunction based on an error of law. See id.; Aid for Women, 441 F.3d at 1115. 2. RFRA and Free Exercise RFRA was enacted in 1993 in response to Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), in which the Supreme Court held that burdens on religious exercise are constitutional under the Free Exercise Clause if they result from a neutral law of general application and have a rational basis. Id. at 878-80, 110 S.Ct. 1595; United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002). Congress enacted RFRA to restore the pre-Smith standard, which permitted legal burdens on an individual’s religious exercise only if the government could show a compelling need to apply the law to that person and that the law did so in the least •restrictive way. Smith, 494 U.S. at 882-84; see also Hobby Lobby, 134 S.Ct. at 2792-93 (Ginsburg, J., dissenting). Congress specified the purpose of RFRA was to restore this compelling interest test as it had been recognized in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). See 42 U.S.C. § 2000bb(b)(l). By restoring the pre-Smith, compelling interest standard, Congress did not express any intent to alter other aspects of Free Exercise jurisprudence. See id.; Hobby Lobby, 723 F.3d at 1133 • (“Congress, through RFRA, intended to bring Free Exercise jurisprudence back to the test established before Smith. There is no indication Congress meant to alter any other aspect of pre-Smith jurisprudence....”)- Notably, pre-Smith jurisprudence allowed the government “wide latitude” to administer large administrative programs, and rejected the imposition of strict scrutiny in that context. As the Supreme Court indicated in Bowen v. Roy, In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be ■ put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest. 476 U.S. 693, 707, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986). As we discuss at greater length below, the pre-Smith standards restored by RFRA permitted the Government to impose de minimis administrative burdens on religious actors without running afoul of religious liberty guarantees. 3. Elements of RFRA Analysis RFRA analysis follows a burden-shifting framework. “[A] plaintiff establishes a prima facie claim under RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960, (10th Cir.2001); see 42 U.S.C. § 2000bb-l(a). The burden then shifts to the government to demonstrate its law or policy advances “a compelling interest implemented through the least restrictive means available.” Hobby Lobby, 723 F.3d at 1142-43. The government must show that the “compelling interest te&t is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 1126 (quotations and citation omitted). “This burden-shifting approach applies even at the preliminary injunction stage.” Id. We have previously stated “a government act imposes a ‘substantial burden’ on religious exercise if it: (1) requires participation in an activity prohibited by a sincerely held religious belief, (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent to engage in conduct contrary to a sincerely held religious belief.”. Hobby Lobby, 723 F.3d at 1125-26 (quotations and alterations omitted); see also Yellowbear, 741 F.3d at 55 (applying this framework to RLUIPA); Abdulhaseeb, 600 F.3d at 1315 (same). As we discuss in the next section, whether a law substantially burdens religious exercise in one or more of these ways is a matter for courts — not plaintiffs- — to decide. 4. Courts Determine Substantial Burden To determine whether plaintiffs have made a prima facie RFRA claim, courts do not question “whether the petitioner ... correctly perceived the commands of [his or her] faith.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); see Hobby Lobby, 723 F.3d at 1138-40. But courts do determine whether a challenged law or policy substantially burdens plaintiffs’ religious exercise. RFRA’s statutory text and religious liberty case law demonstrate that courts — not plaintiffs — -must determine if a law or policy substantially burdens religious exercise. RFRA states the federal government “shall not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). We must “give effect ... to every clause and word” of