21A240 023 Dec 30 2021 Main Document 20211230152102552 41916 Pdf Whitehead (U.S.)

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No. 21A240 
================================================================================================================ 
In The 
Supreme Court of the United States 
--------------------------------- ♦ --------------------------------- 
JOSEPH R. BIDEN, JR., PRESIDENT 
OF THE UNITED STATES, et al., 
Applicants,        
v. 
STATE OF MISSOURI, et al.,  
Respondents.        
--------------------------------- ♦ --------------------------------- 
On Application For A Stay Of The Injunction 
Issued By The United States District Court For The 
Eastern District Of Missouri Pending Appeal To The 
United States Court Of Appeals For The Eighth 
Circuit And Further Proceedings In This Court 
--------------------------------- ♦ --------------------------------- 
MOTION FOR LEAVE TO FILE AND BRIEF 
OF AMICI CURIAE BAPTIST HOMES & 
HEALTHCARE MINISTRIES AND THE CHRISTIAN 
LIFE COMMISSION OF THE MISSOURI BAPTIST 
CONVENTION SUPPORTING RESPONDENTS 
--------------------------------- ♦ --------------------------------- 
MICHAEL K. WHITEHEAD  
WHITEHEAD LAW FIRM, LLC 
229 SE Douglas Street, 
 Suite 210 
Lee’s Summit, Missouri 64063 
816.398.8967 – Phone 
816.875.3291 – Fax 
Mike@ 
 TheWhiteheadFirm.com 
December 30, 2021 
JONATHAN R. WHITEHEAD 
 Counsel of Record 
LAW OFFICES OF 
 JONATHAN R. WHITEHEAD LLC 
229 SE Douglas Street, 
 Suite 210 
Lee’s Summit, Missouri 64063 
816.398.8305 – Phone 
Jon@WhiteheadLawLLC.com 
Counsel for Baptist Amici 
================================================================================================================ 
COCKLE LEGAL BRIEFS (800) 225-6964 
WWW.COCKLELEGALBRIEFS.COM 

1 
MOTION FOR LEAVE TO FILE BRIEF 
OF AMICI CURIAE BAPTIST HOMES & 
HEALTHCARE MINISTRIES AND THE 
CHRISTIAN LIFE COMMISSION OF THE 
MISSOURI BAPTIST CONVENTION 
SUPPORTING RESPONDENTS. 
 
Baptist Homes & Healthcare Ministries (BHHM) 
and the Christian Life Commission of the Missouri 
Baptist Convention (CLC MBC) respectfully move un-
der Rule 37.2(b) of the Rules of this Court for leave to 
file the attached brief as Amici Curiae in support of 
Respondents State of Missouri, et al., in Case No. 
21A240.1 Your Amici also seek leave to file their brief 
with four days’ notice to the parties, which is fewer 
than ordinarily required by this Court’s Rule 37.2(a). 
 
BHHM operates a faith-based Long-Term Care 
Facility and Skilled Nursing Facility in Missouri that 
receives Medicare and Medicaid funds, and thus the 
CMS Mandate affects the Home. The facts presented 
by BHHM in Missouri show the unique impact of the 
Mandate on similar religious ministries around the 
country, which the government parties may not fully 
represent. 
 
Similarly, the CLC MBC is the public policy and 
religious liberty arm of the Missouri Baptist Conven-
tion. It vigorously advocates for the public interest in 
 
 
1 No counsel for any party authored this amicus brief in 
whole or in part, and no person or entity other than amici curiae, 
its members, or its counsel made a monetary contribution in-
tended to fund the brief ’s preparation or submission. SUP. CT. R. 
37.6 

2 
preventing the violation of a party’s constitutional 
rights that impact Baptist principles. 
 
Counsel for Amici have consulted with the parties’ 
counsel and on December 26, 2021, giving them notice 
of intent to file this brief. The briefing schedule pre-
vented giving ten days’ notice. Applicants took no posi-
tion on the filing of this brief. Respondents consented 
to a timely filing.  
 
To the extent that leave is required, Amici respect-
fully move for leave to file the attached brief electroni-
cally and on unbound 8½- by 11-inch paper. No party 
objects. Should the Clerk or the Court so require, Amici 
will re-file in booklet format promptly. See SUP. CT. R. 
21.2(c).  
 
For these reasons, Amici Curiae request leave to 
file the attached, with fewer than ten days’ notice. 
Respectfully submitted, 
JONATHAN R. WHITEHEAD 
 Counsel of Record 
LAW OFFICES OF  
 JONATHAN R. WHITEHEAD LLC 
MICHAEL K. WHITEHEAD  
229 SE Douglas Street, Suite 210 
Lee’s Summit, Missouri 64063 
816.398.8305 – Phone 
Jon@WhiteheadLawLLC.com  
Counsel for Baptist Amici 

i 
 
TABLE OF CONTENTS 
Page 
Table of Contents ....................................................  
i 
Table of Authorities ................................................  iii 
Interest of the Amici Curiae ..................................  
1 
Statement of Case ..................................................  
3 
Summary of Argument ...........................................  
4 
Argument ................................................................  
5 
 
I.   The CMS Mandate Worsens the Economic 
Harm on all Nursing Homes ..................... 
5 
 II.   The CMS Mandate Causes Unique Consti-
tutional Harms to Religious Ministries .... 
8 
A.   The CMS Mandate Violates the First 
Amendment ......................................... 
8 
B.   BHHM Illustrates how the CMS Mandate 
Violated Constitutional Rights of Religious 
Conscience and Ministry Autonomy ........ 10 
1. CMS Mandate Redirects BHHM Min-
istry Resources and Mission ........... 11 
2. CMS Mandate “Commandeers” BHHM 
Ministry Employment Decisions ...... 12 
3. CMS Mandate Allows no Exemp-
tions for BHHM or Other Religious 
Ministries ....................................... 13 
4.  The Mandate Forces BHHM to 
Choose Between Autonomy or Serv-
ing Saints who Depend on Medicare 
or Medicaid ..................................... 14 

ii 
 
TABLE OF CONTENTS – Continued 
Page 
 III.   The CMS Mandate Violates RFRA ............ 14 
A.   The Mandate Substantially Burdens 
Religious Ministries’ Beliefs ................ 14 
B.   The Mandate Fails Under Compelling 
Interest/Narrow Tailoring ................... 16 
 IV.   Religious Ministries Hold Biblical Convic-
tions About Autonomy to Call and Employ 
Ministers .................................................... 16 
 
V.   The Injunction Serves the Public Interest 
by Protecting First Amendment Rights .... 18 
Conclusion ............................................................ 19 
 

iii 
 
TABLE OF AUTHORITIES 
Page 
CASES 
BST Holdings, LLC v. OSHA, 17 F.4th 604 (5th 
Cir. 2021) ................................................................... 9 
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 
(2014) ........................................................... 14, 15, 18 
Dahl v. W. Mich. Univ., 15 F.4th 728 (6th Cir. 
2021) ........................................................................ 16 
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 
1114 (10th Cir. 2013) ............................................... 18 
Hosanna-Tabor Evangelical Lutheran Church 
& Sch. v. EEOC, 565 U.S. 171 (2012) ........................ 8 
Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 
(1952) ..................................................................... 8, 9 
Little Sisters of the Poor v. Pennsylvania, 140 
S. Ct. 2367 (2020) .................................................... 15 
Our Lady of Guadalupe School v. Morrissey-
Berru, 140 S. Ct. 2049 (2020) ........................ 9, 10, 11 
Presiding Bishop v. Amos, 483 U.S. 327 (1987) ...... 9, 10 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
141 S. Ct. 63 (2020) ................................................. 16 
Sambrano v. United Airlines, Inc., No. 21-11159, 
2021 WL 5881819 (5th Cir. Dec. 13, 2021) ............. 15 
Thomas v. Review Board of Ind. Emp. Sec. Div., 
450 U.S. 707 (1981) ................................................. 15 

iv 
 
TABLE OF AUTHORITIES – Continued 
Page 
CONSTITUTION, EXECUTIVE ORDERS, AND STATUTES 
U.S. CONST. amend. I .......................................... passim 
42 U.S.C. § 2000bb-1(a)-(b) ......................................... 14 
 
OTHER AUTHORITIES 
Baptist Faith & Message, 2000 .......................... passim 
Davis A. Lieb, Associated Press, Missouri to Let 
Nursing Homes Close Due to Vaccine Mandate, 
U.S. News & World Report (Nov. 12, 2021), 
https://www.usnews.com/news/best-states/ 
missouri/articles/2021-11-12/missouri-to-let- 
nursing-homes-close-due-to-vaccine-mandate .......... 7 
Ed Yong, Why Health-Care Workers are Quitting 
in Droves, The Atlantic (Nov. 16, 2021), 
https://www.theatlantic.com/health/archive/2021/ 
11/the-mass-exodus-of-americas-health-care- 
workers/620713/ ........................................................ 5 
Lenny Bernstein and Andrew Van Dam, Nursing 
Home Staff Shortages Are Worsening Problems 
at Overwhelmed Hospitals, Washington Post 
(Dec. 28, 2021), at https://www.washingtonpost. 
com/health/2021/12/28/nursing-home-hospital- 
staff-shortages/ .......................................................... 6 
Proposed Rule Amendment (proposed Nov. 12, 
2021) (to be codified at 19 CSR 30-82.010), 
https://health.mo.gov/about/proposedrules/pdf/ 
19CSR-30-82.010.pdf ................................................ 7 
 
 

v 
 
TABLE OF AUTHORITIES – Continued 
Page 
Tessa Weinberg, Missouri Gives Nursing Homes 
a Way to Temporarily Close in Face of Federal 
Vaccine Rule, Missouri Independent (Nov. 15, 
2021), https://missouriindependent.com/2021/ 
11/15/missouri-gives-nursing-homes-a-way-to- 
temporarily-close-in-face-of-federal-vaccine- 
rule/ ............................................................................ 7 

1 
INTEREST OF THE AMICI CURIAE 
 
The Missouri Baptist Convention (MBC) is the 
state convention for Southern Baptist churches in Mis-
souri. The Southern Baptist Convention (SBC) is the 
nation’s largest Protestant denomination, with about 
50,000 churches and 16 million members. The MBC is 
comprised of about 1800 independent local churches, 
with about a half million members. 
 
Baptist Homes & Healthcare Ministries 
(BHHM) is a Missouri nonprofit, tax-exempt corpora-
tion, affiliated with the Missouri Baptist Convention. It 
is headquartered in Jefferson City, Missouri. Its mission 
is to be a distinctively Christian ministry, called to joy-
fully serve in a Christ-like manner by educating, advo-
cating, and caring for the aging for the glory of God.  
 
BHHM operates a network of faith-based senior 
adult facilities with about 250 employees, including a 
Long-Term Care and Skilled Nursing Facility in Inde-
pendence, Missouri, that is CMS-certified to receive 
Medicare and Medicaid funds. BHHM owns facilities 
in six other towns in Missouri and expects to apply for 
CMS certification for each location. Thus, BHHM 
would be subject to the CMS vaccine mandate if the 
Eastern District of Missouri’s injunction is stayed or 
vacated.  
 
Under the BHHM corporate charter, MBC is the 
“sole member” of the corporation, meaning MBC 
elects the BHHM board of trustees, and MBC exer-
cises oversight and accountability to ensure ministry 

2 
compatibility with the MBC and SBC statement of 
faith, Baptist Faith & Message, 2000.  
 
BHHM Bylaw 7 declares that:  
[BHHM] hires and prefers qualified employ-
ees who affirm these truths without reserva-
tion, express a personal faith in Jesus Christ 
as Lord and Savior, join with Baptist Conven-
tion-affiliated churches that affirm the same 
statement of faith, and support the Southern 
Baptist Cooperative Program efforts of such 
churches. All administrators, and employees 
must annually indicate their on-going com-
mitment to perform their duties and speak 
consistent with and not contrary to the BFM 
2000. 
 
Thus, BHHM sees its employees and volunteers as 
participants in ministry. Their jobs are not “just jobs,” 
but religious ministry, even though not all are “minis-
terial positions.” Each staffer is a representative of 
Missouri Baptists and is expected to speak and to live 
consistent with the Baptist Faith & Message and 
Christian character.  
 
The Christian Life Commission of the Mis-
souri Baptist Convention is the public policy and 
religious liberty arm of the Missouri Baptist Conven-
tion. It vigorously advocates for the public interest in 
preventing the violation of constitutional rights, espe-
cially First Amendment rights of its members, 
churches, and ministries. The CLC commissioners, 
named by the MBC, have adopted the Baptist Faith & 
Message, 2000, as the CLC’s statement of faith. 

3 
 
Religious freedom is an indispensable, bedrock 
value for Southern Baptists. The Constitution’s guar-
antee of freedom from governmental interference in 
matters of faith, church autonomy, and free exercise is 
a crucial protection on which SBC members and adher-
ents of other faith traditions depend as they follow the 
dictates of their conscience under God in the practice 
of their faith, even in the marketplace and in the public 
square.  
 
Your Amici believe the outcome of this case will af-
fect faith-based ministries well beyond BHHM, the 
CLC, and the MBC. At stake is the freedom of religious 
ministries to manage their staff and resources accord-
ing to the dictates of religious conscience. For that rea-
son, your amici draw the Court’s attention to the 
vaccine mandate’s violation of religious conscience and 
ministry autonomy for Baptists and other church-re-
lated ministries. 
--------------------------------- ♦ --------------------------------- 
 
STATEMENT OF CASE 
 
This case involves a challenge to an Interim Final 
Rule promulgated by the U.S. Department of Health 
and Human Services and its Centers for Medicare and 
Medicaid Services (“CMS”). Specifically, CMS’s IFR im-
poses an unprecedented federal “Vaccine Mandate” on 
healthcare facilities that receive Medicare or Medicaid 
funds; it would require nearly every full- or part-time 
employee, trainee, volunteer, or third-party contractor 
to be vaccinated against SARS-CoV-2 (“COVID”) and 

4 
to have received at least a first dose of the vaccine be-
fore December 6, 2021 (now extended to January 27, 
2022). 
 
Ten states sued in the U.S. District Court for the 
Eastern District of Missouri, seeking a preliminary in-
junction pending a full judicial review of the mandate’s 
legality.2 On November 29, 2021, Judge Matthew T. 
Schelp issued a preliminary injunction, prohibiting 
CMS from enforcing the Mandate on any covered 
healthcare facilities or suppliers within the ten Plaintiff 
States, pending a trial on the merits of this action. The 
Biden Administration applied to this Court for a stay of 
the injunction, while it appeals to the Eighth Circuit. 
--------------------------------- ♦ --------------------------------- 
 
SUMMARY OF ARGUMENT 
 
The trial court properly held that the CMS Vaccine 
Mandate is unconstitutional for multiple reasons, so 
the application for stay of the injunction should be de-
nied. 
 
The CMS Vaccine Mandate unleashes arbitrary 
and capricious executive power, unauthorized by 
Congress, and unpermitted by the Constitution. The 
nursing home industry was already in a crisis of 
 
 
2 Plaintiffs, the States of Missouri, Nebraska, Arkansas, Kan-
sas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and 
New Hampshire, sued to challenge the Centers for Medicare and 
Medicaid Services (“CMS”) Interim Final Rule with Comment Pe-
riod (“IFC”) entitled “Medicare and Medicaid Programs; Omnibus 
COVID-19 Health Care Staff Vaccination.” 86 Fed. Reg. 61,555 
(Nov. 5, 2021). 

5 
understaffing, but the CMS Mandate has worsened the 
harm, deepening the so-called Great Resignation3 in 
healthcare while many other areas of the economy are 
in recovery. 
 
In addition to general economic harm caused by 
the Mandate, CMS has caused serious constitutional 
harms for religious ministries. This is especially true 
of ministries in the nursing home industry who have 
religious beliefs in the autonomy of religious ministries 
to control staff and resource decisions to accomplish 
the religious mission, without government interfer-
ence. BHHM’s history is illustrative of such convic-
tions and shows the harm of these constitutional 
violations. The CMS Mandate violates the First 
Amendment rights of such ministries and individuals, 
and also violates Free Exercise rights under the RFRA. 
--------------------------------- ♦ --------------------------------- 
 
ARGUMENT 
I. 
The CMS Mandate Worsens the Economic 
Harm on all Nursing Homes. 
 
Nursing home staffing shortages were already at 
a crisis point, but the Mandate threatens irreparable 
economic harm to the nursing home industry. The 
Washington Post reported on December 28, 2021:  
 
 
3 See Ed Yong, Why Health-Care Workers are Quitting in 
Droves, The Atlantic (Nov. 16, 2021), https://www.theatlantic.com/ 
health/archive/2021/11/the-mass-exodus-of-americas-health-care- 
workers/620713/ (last accessed December 29, 2021). 

6 
 
According to the U.S. Bureau of Labor 
Statistics, 425,000 employees, many of them 
low-paid certified nursing assistants who are 
the backbone of the nursing home workforce, 
have left since February 2020 . . .  
 
Nearly 237,000 workers left during the 
recovery, data through November show. No 
other industry suffered anything close to 
those losses over the same period. . . .  
 
Workers in the broader health-care in-
dustry have been quitting in record numbers 
for most of the pandemic, plagued by burnout, 
vulnerability to the coronavirus and poach-
ing by competitors. Low-wage workers tend to 
quit at the highest rates, Labor Department 
data show, and nursing home workers are the 
lowest paid in the health sector, with nonman-
agerial earnings averaging between $17.45 an 
hour for assisted living to $21.19 an hour for 
skilled nursing facilities, according to the 
BLS.4 
 
CMS announced the Mandate on November 5, 
2021. On November 12, 2021, the Associated Press re-
ported that in ten states, including Missouri, over 40% 
of nursing home staffers were unvaccinated, and that 
Missouri’s health department anticipated that many 
workers would quit rather than comply with the CMS 
 
 
4 Lenny Bernstein and Andrew Van Dam, Nursing Home 
Staff Shortages Are Worsening Problems at Overwhelmed Hospi-
tals, Washington Post (Dec. 28, 2021), at https://www.washington 
post.com/health/2021/12/28/nursing-home-hospital-staff-shortages/ 
(last accessed: December 28, 2021). 

7 
Mandate.5 Facilities that fail to comply with the Man-
date may face penalties or even removal from the Med-
icare and Medicaid programs.6 
 
Anticipating that the vaccine Mandate might re-
sult in resignations or discharges, the Missouri De-
partment of Health and Senior Services proposed an 
emergency rule to allow under-staffed homes to close 
for up to two years without losing their state license.7 
This would allow facilities to return to the field after 
the shortage is over.  
 
The economic impact of the Mandate is hard to 
overstate. CMS estimates first-year compliance costs at 
$1.38 billion. 86 Fed. Reg. at 61,613. Judge Schelp, at 
page five of his Memorandum and Order, observed: 
Those costs, though, do not take into account 
the economic significance this mandate has 
from the effects on facilities closing or limiting 
services and a significant exodus of employees 
 
 
5 Davis A. Lieb, Associated Press, Missouri to Let Nursing 
Homes Close Due to Vaccine Mandate, U.S. News & World Report 
(Nov. 12, 2021), https://www.usnews.com/news/best-states/missouri/ 
articles/2021-11-12/missouri-to-let-nursing-homes-close-due-to- 
vaccine-mandate (last accessed Dec. 28, 2021). 
 
6 Tessa Weinberg, Missouri Gives Nursing Homes a Way to 
Temporarily Close in Face of Federal Vaccine Rule, Missouri In-
dependent (Nov. 15, 2021), https://missouriindependent.com/ 
2021/11/15/missouri-gives-nursing-homes-a-way-to-temporarily- 
close-in-face-of-federal-vaccine-rule/ (last accessed December 28, 
2021). 
 
7 See Proposed Rule Amendment (proposed Nov. 12, 2021) 
(to be codified at 19 CSR 30-82.010), https://health.mo.gov/ 
about/proposedrules/pdf/ 19CSR-30-82.010.pdf (last accessed De-
cember 28, 2021). 

8 
that choose not to receive a vaccination. 
Likewise, the political significance of a man-
datory coronavirus vaccine is hard to under-
state, especially when forced by the heavy 
hand of government. Indeed, it would be dif-
ficult to identify many other issues that cur-
rently have more political significance at this 
time. 
 
So the Mandate has worsened the economic harms 
suffered by all nursing homes. But the Mandate also 
causes unique constitutional harms to be suffered by 
religious ministries in particular.  
 
II. 
The CMS Mandate Causes Unique Consti-
tutional Harms to Religious Ministries. 
A. The CMS Mandate Violates the First 
Amendment. 
 
The First Amendment recognizes the “autonomy” 
of religious organizations, especially as to decisions 
about employing ministers or religious workers to ac-
complish the religious purposes of the church or organ-
ization. Hosanna-Tabor Evangelical Lutheran Church 
& Sch. v. EEOC, 565 U.S. 171, 189 (2012). The “church 
autonomy” doctrine broadly assures that faith-based 
organizations will enjoy “independence from secular 
control or manipulation.” Kedroff v. Saint Nicholas 
Cathedral, 344 U.S. 94, 116 (1952), and “autonomy 
with respect to internal management decisions that 
are essential to the institution’s central mission.” Our 
Lady of Guadalupe School v. Morrissey-Berru, 140 
S. Ct. 2049, 2060 (2020). “Only a component of this 

9 
autonomy is the selection of the individuals who play 
certain key roles.” Id. Thus, religious autonomy guar-
antees that “a religious community defines itself ” by 
determining what “activities are in furtherance of ” its 
mission and who gets to “conduct them.” Presiding 
Bishop v. Amos, 483 U.S. 327, 342 (1987) (Brennan, J., 
concurring in the judgment). 
 
The CMS Mandate “commandeers” religious min-
istries and their work “to compel [their] employees” to 
comply with the Mandate. BST Holdings, LLC v. 
OSHA, 17 F.4th 604, 617 (5th Cir. 2021). Covered reli-
gious ministries are required to interrogate their min-
isters and employees to discover their personal health 
information and to discern the true thoughts, inten-
tions and spiritual motives in their hearts regarding 
their medical decision-making, often influenced by 
their religious beliefs. The First Amendment deplores 
this kind of “secular control or manipulation” of the re-
ligious organization. Kedroff, 344 U.S. at 116. Further, 
the Mandate requires religious ministries to include 
the vaccine in the “terms and conditions of employ-
ment,” thereby violating the First Amendment, Amos, 
440 U.S. at 502-3, and interfering with their ability to 
“select[ ] the individuals who play certain key roles.” 
Our Lady of Guadalupe, 140 S. Ct. at 2060.  
 
The Mandate applies, even though caregivers at 
BHHM are recognized as “ministers” under BHHM’s 
governing documents, or under Our Lady of Guada-
lupe, id. at 2055. Other staff members at BHHM who 
are not in direct patient care still interface with resi-
dents, family and ministry friends, and fall under the 

10 
“ministerial exception.” Id. at 2060. And the interfer-
ence with the Religious Ministry’s ability to hire any 
employee to “conduct” “activities . . . in furtherance of 
their religious missions violates religious autonomy. 
Amos, 483 U.S. at 342 (Brennan, J., concurring in the 
judgment). Thus, the Mandate violates the First 
Amendment.  
 
B. BHHM Illustrates how the CMS Man-
date Violated Constitutional Rights of 
Religious Conscience and Ministry Au-
tonomy. 
 
In the original Complaint, the Plaintiff States 
made general allegations about the failure of CMS to 
anticipate the unique harm of inserting federal power 
into the employment decisions of religious institu-
tions.8  
119. Upon information and belief, some reli-
gious healthcare institutions received Medi-
care and Medicaid funding and will be subject 
to the CMS vaccine mandate. The mandate 
will thus require those religious institutions 
to terminate ministerial employees in viola-
tion of the First Amendment. Our Lady of 
Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 
 
 
8 Since there has been no discovery in the trial court, Re-
spondents filed affidavits in support of their Motion for Prelimi-
nary Injunction, which the court summarized in its order. See 
E.D. Injunction, p. 25ff. The lower court does not mention 
whether any affidavits addressed the precise issue in paragraph 
119, the impact on religious organizations. In this brief, Amicus 
BHHM provides some factual support on that issue. 

11 
2049, 2061 (2020). But CMS never considered 
this problem when imposing its mandate. (See 
Compl., p 28, ¶119).  
 
Of course, the States cannot fully vindicate the re-
ligious principles of a religious organization. The trial 
court made findings based on affidavits that the CMS 
Mandate adversely impacted nursing homes, but did 
not discuss faith-based facilities and the violation of 
their religious autonomy. See Injunction at 25, et seq. 
 
1. CMS Mandate Redirects BHHM Min-
istry Resources and Mission. 
 
For BHHM, the violation of its religious autonomy 
in handling staff and resources was more than “infor-
mation and belief.” It was a reality. Between November 
5 and November 29, 2021, BHHM leaders spent days 
researching and analyzing the language of the Rule 
and trying to understand their compliance obligations. 
They spent hours consulting CMS resources and legal 
counsel to develop a vaccine policy and an exemption 
application and review process. They worked continu-
ally to allay growing fears among staff who heard re-
ports of a looming statewide crisis and closings in the 
nursing home industry. They investigated reports of 
possible legal challenges, and debated what BHHM 
would do, as a matter of conscience, if there were no 
injunction.  
 
2. CMS Mandate “Commandeers” BHHM 
Ministry Employment Decisions. 

12 
 
In an update memo to his Board, the President of 
BHHM reported as follows:  
As of November 21, 2021 (the final day to 
have the first dose of the vaccine and be al-
lowed to work without interruption), 69 
BHHM employees had not been vaccinated. 
Two qualified for medical exemptions while 
13 employees proceeded to be vaccinated. Two 
employees submitted resignations and two 
walked off the job. Religious exemptions were 
provided for 40 employees, while 12 remain 
undecided. Those who do not receive an ex-
emption or the first dose of a qualifying vac-
cine before 12/5/2021 will be terminated, 
barring a federal stay of the CMS healthcare 
mandate. 
 
BHHM leadership strongly urged staff to be vac-
cinated. They were pro-vaccine. But BHHM leaders 
were anti-mandate, as a matter of Christian con-
science. BHHM leaders could not, with a clear con-
science, allow government to “commandeer” the 
BHHM leadership to compel them to act as agents of 
law enforcement with respect to employment decisions 
over ministry staff.  
 
BHHM leaders could not, in good conscience, tell 
its ministry staff to “take the jab or lose your job.” Be-
cause these were not just “jobs.” These are servants of 
the Lord, serving the Lord’s people in very hard places. 
And BHHM leaders, with the spiritual responsibility 
for calling and leading these servants of Christian 

13 
healthcare, could not surrender control to government 
agents or politicians.  
 
BHHM leaders believe they must submit respect-
fully to lawful authority, but they also hold deeply reli-
gious convictions that government has no right to 
dictate ministerial decisions, especially the hiring, fir-
ing or discipline of staff members performing critical 
ministry functions. 
 
3. CMS Mandate Allows no Exemptions 
for BHHM or Other Religious Minis-
tries. 
 
As BHHM leaders understood the CMS Mandate, 
some employees would be eligible for “reasonable ac-
commodations.” But the Mandate makes no “reasona-
ble accommodation” for religious organizations. The 
religious ministry is compelled to participate and im-
plement the Mandate, and to enforce it in the ministry, 
no matter what religious scruples the ministry might 
hold about a God-called, spiritually qualified team of 
Christian healthcare servants. The Mandate compels 
religious institutions to incur significant costs and di-
vert precious resources away from their religious pur-
poses of preaching the Gospel and providing Christ-
like care to the aged and infirm. The Mandate abuses 
executive power as it violates constitutional rights.  
4. The Mandate Forces BHHM to Choose 
Between Autonomy or Serving Saints 
who Depend on Medicare or Medi-
caid. 

14 
 
BHHM leaders realized they would have to draw 
the line of conscience, because they cannot allow the 
federal government to commandeer their ministries, or 
usurp their responsibilities of spiritual leadership over 
their ministry staff. Yet BHHM has spiritual and legal 
duties as caregivers to the residents who depend on 
Medicare and Medicaid to finance their care. The con-
flict of conscience for BHHM is real, and is repeated for 
like-minded ministries across the country.  
 
III. The CMS Mandate Violates RFRA. 
A. The Mandate Substantially Burdens Re-
ligious Ministries’ Beliefs. 
 
RFRA prohibits the government from substan-
tially burdening a Ministry’s exercise of religion with-
out showing that the government action furthers a 
compelling interest by the least restrictive means. 42 
U.S.C. § 2000bb-1(a)-(b). “Congress enacted RFRA . . . 
to provide very broad protection for religious liberty.” 
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 
(2014). Those protections cover for-profit and non-
profit entities and go “far beyond what [the Supreme 
Court] ha[d] held [was] constitutionally required.” Id. 
at 706. The Mandate creates a substantial burden on 
the exercise of religion by BHHM and other similar 
ministries. CMS cannot clear the high bar of “strict 
scrutiny” to justify that burden. 
 
CMS’s rule here burdens religious exercise. The 
government substantially burdens a person’s exercise 
of religion if it “demands that [he] engage in conduct 

15 
that seriously violates his religious beliefs” with the 
threat of “economic consequences.” Id. at 720. See also 
Thomas v. Review Board of Ind. Emp. Sec. Div., 450 U.S. 
707, 717-18 (1981) (“burden on religion exists” if the 
government “put[s] substantial pressure on an adher-
ent to modify his behavior and to violate his beliefs.”). 
 
Because CMS’s rule requires that religious minis-
tries comply with enforcing the mandate on their 
workplace or face substantial consequences, it sub-
stantially burdens exercise. Hobby Lobby, 573 U.S. at 
720. Although BHHM does not categorically oppose 
vaccines, its Christian faith requires honor and respect 
toward employees who cannot violate religious con-
science. BHHM’s faith prevents it from burdening the 
unvaccinated employee’s religious conscience for refus-
ing to receive the vaccine in this way. Hobby Lobby, 573 
U.S. at 691 (desire not to be complicit in providing con-
traception constituted sincerely held religious belief ); 
Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 
2367, 2383 (2020) (noting that “the contraceptive 
mandate violated RFRA as applied to entities with 
complicity-based objections”); Sambrano v. United 
Airlines, Inc., No. 21-11159, 2021 WL 5881819 at *2 
(5th Cir. Dec. 13, 2021) (Ho, J., dissenting) (“Forcing 
individuals to choose between their faith and their 
livelihood imposes an obvious and substantial burden 
on religion.”). 
 
B. The Mandate Fails Under Compelling 
Interest/Narrow Tailoring. 

16 
 
CMS cannot show a compelling interest or that the 
Mandate is narrowly tailored using the least restric-
tive means. When the “vast majority” of individuals en-
gaging in similar conduct are exempted, narrow 
tailoring “falters.” Dahl v. W. Mich. Univ., 15 F.4th 728, 
735 (6th Cir. 2021) 
 
Moreover, CMS should not receive any unusual 
“benefit of the doubt” at this point. Last year, the Court 
cautioned that “even in a pandemic, the Constitution 
cannot be put away and forgotten.” Roman Catholic 
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). 
Government invocation of “crisis” and “emergency” 
must be held to constitutional limits. This is such a 
case. 
 
IV. Religious Ministries Hold Biblical Convic-
tions About Autonomy to Call and Employ 
Ministers. 
 
The Southern Baptist Convention’s doctrinal state-
ment, Baptist Faith & Message, 2000, (“BFM”)9 in 
Article 15, on the Christian and the Social Order, says: 
All Christians are under obligation to seek to 
make the will of Christ supreme in our own 
lives and in human society. Means and meth-
ods used for the improvement of society and 
the establishment of righteousness among 
men can be truly and permanently helpful 
only when they are rooted in the regeneration 
 
 
9 The full text of the Baptist Faith & Message, 2000, is avail-
able at https://bfm.sbc.net/; last accessed 08/09/2021. 

17 
of the individual by the saving grace of God in 
Jesus Christ. In the spirit of Christ, Chris-
tians should oppose racism, every form of 
greed, selfishness, and vice, and all forms of 
sexual immorality, including adultery, homo-
sexuality, and pornography. We should work 
to provide for the orphaned, the needy, the 
abused, the aged, the helpless, and the sick. 
We should speak on behalf of the unborn and 
contend for the sanctity of all human life from 
conception to natural death. Every Christian 
should seek to bring industry, government, 
and society as a whole under the sway of the 
principles of righteousness, truth, and broth-
erly love. In order to promote these ends 
Christians should be ready to work with all 
men of good will in any good cause, always be-
ing careful to act in the spirit of love without 
compromising their loyalty to Christ and His 
truth. 
 
BFM, Article 17, on Religious Liberty, says, in part: 
God alone is Lord of the conscience, and 
He has left it free from the doctrines and com-
mandments of men which are contrary to His 
Word or not contained in it. Church and state 
should be separate. The state owes to every 
church protection and full freedom in 
the pursuit of its spiritual ends. In provid-
ing for such freedom no ecclesiastical group or 
denomination should be favored by the state 
more than others. Civil government being or-
dained of God, it is the duty of Christians to 
render loyal obedience thereto in all things 
not contrary to the revealed will of God. The 

18 
church should not resort to the civil power to 
carry on its work. The gospel of Christ con-
templates spiritual means alone for the pur-
suit of its ends. The state has no right to 
impose penalties for religious opinions 
of any kind. The state has no right to impose 
taxes for the support of any form of religion. A 
free church in a free state is the Chris-
tian ideal, and this implies the right of free 
and unhindered access to God on the part of 
all men, and the right to form and propa-
gate opinions in the sphere of religion 
without interference by the civil power. 
(emphasis added) 
 
As demonstrated above, the CMS Mandate inter-
feres with BHHM’s ability to implement the statement 
of faith with autonomy concerning the religious and 
spiritual qualifications of its staff. 
 
V. 
The Injunction Serves the Public Interest 
by Protecting First Amendment Rights. 
 
“[I]t is always in the public interest to prevent the 
violation of a party’s constitutional rights.” Hobby Lobby 
Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 
2013), aff’d sub nom. Burwell v. Hobby Lobby Stores, 
Inc., 573 U.S. 682 (2014) (quotations omitted). This is 
particularly true for First Amendment freedoms. Be-
cause the current injunction will accomplish this, the 
requested stay of the injunction should be denied. 
--------------------------------- ♦ --------------------------------- 
 

19 
CONCLUSION 
 
For these reasons, the federal government’s appli-
cation for a stay of the trial court preliminary injunc-
tion should be denied.  
Respectfully submitted, 
JONATHAN R. WHITEHEAD 
 Counsel of Record 
LAW OFFICES OF 
 JONATHAN R. WHITEHEAD LLC 
229 SE Douglas Street, Suite 210 
Lee’s Summit, Missouri 64063 
816.398.8305 – Phone 
Jon@WhiteheadLawLLC.com 
MICHAEL K. WHITEHEAD  
WHITEHEAD LAW FIRM, LLC 
229 SE Douglas Street, Suite 210 
Lee’s Summit, Missouri 64063 
816.398.8967 – Phone 
816.875.3291 – Fax 
Mike@TheWhiteheadFirm.com 
Counsel for Baptist Amici 
December 30, 2021

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