Case 3:12-cv-03251-P Document 7 Filed 08/30/12

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Pro se

plaintiff

IN THE US DISTRICT COURT DALLAS DIVISION

DR. ORLY TATTZ, ESQ
Case

FOR THE IYORTHERN DISTRICT OF TEXAS

ti

it
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Plaintiff,
VS.

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KATFILEEN SEBELIUS, In her capacity of Secretary of

Defendant.

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Health and Human Services et.al.

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of

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MOTTO1Y FOR STAY/

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Plaintiff Pro Se Dr. Orly Taitz (hereinafter "'faitz") hereby moves this Court
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to enter a stay/preliminary injunction to assessment of the penalty tax under PPACA against her. Plaintiffs asserts that such penalty tax violates Plaintiff
Tait.z v Sebelius et al. Motlon for Stay/ Preliminary Injunction
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Th e

PRELIMINARY INJUNCTION

Fo g
DEMANDED

No.: 3:12-cv-03251-P

VIOLATION OF 14TH AMENDMENT EQUAL PROTECTIONI RIGHTS, ESTABLISHMENT CLAUSE ARTICLE 2 SEC 1 OF COSTITUTIO INJTINCTIVE RE,LIE,F, STAY DECLARATORY RELIEF

RICO, PREDECATE CRIMES : FRAUD, AIDING AND ABETTING FORGERY AND UTTERING OF FORGED DOCUMENTS TO COMMIT ELECTIONS FRAI'D 7TH AMENDMENT JURY

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Dr. Orly Taitz, ESQ 29839 Santa Margarita, ste 100 Rancho Santa Margarita, CA 92688 Ph. 949-683-5411 fax 949-766-76A3

Case 3:12-cv-03251-P Document 7 Filed 08/30/12

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constitutional and statutory rights for Free Exercise of Religion, Free Speech, Due
submits an accompanying brief and a proposed order.

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Respectfully submitted,

August 28,2A12

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bylsl Orly Taitz Dr. Orly Taitz ESQ. Plaintiff Pro Se

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Taltz v Sebelius et al. Motion for Stay/ Preliminary Injunction

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process rights, and rights provided by RFRA. In support of this motion Plaintiff

Case 3:12-cv-03251-P Document 7 Filed 08/30/12

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Pro se plaintiff
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IN THE US DISTRICT COURT FOR THE NORTHBRN DISTRICT OF TEXAS DALLAS DIVISION
DR. ORLY TAITZ, ESQ
Case

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Plaintiff,
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VS.
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Health and Human Services et.al. Defendant.

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of

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nd

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BRIEF IN SUPPORT OF MOTION FOR STAY/PRELIMINARY IINJUNCTION

Taltz v Sebelius et al. Motion for Stay/ Preliminary

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Th e

KATHLEEN SEBELIUS, In her capacity of Secretary of

Fo g
DEMANDED

No.: 3:12-cv-03251-P

VIOLATION OF 14TH AMENDMENT EQUAL PROTECTION RIGHTS ESTABLISHMENT CLAUSE ARTICLE 2 SEC 1 OF COSTITUTI INJUNCTIVE RELIEF, STAY DE,CLARATORY RELIEF

RICO, PREDECATE CRIMES : FRAUD, AIDING AND ABETTING FORGERY AND UTTERING OF FORGED DOCUMENTS TO COMMIT ELECTIONS FRAIJD 7TH AMENDMENT JIJRY

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fnjunction

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Dr. Orly Taitz, ESQ 29839 Santa Margarita, ste 100 Rancho Santa Margarita, CA 92GBB Ph. 949-683-54 1 1 fax 949-7 66-7 603

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Table of

Authorities.

.........ii

Introduction Argument l. Likelihood of Success on the

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A) Violation of RJRA..
2. Irreparable J.
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Harm to non-moving Public

partL

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Harm

Interest.

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Taitz v Sebelius et al. Motion for Stay/ Preliminary rnjunction

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Merits

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... ... ...12

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... ...5

.... 13

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INTRODTiCTION
The case Taitz v Sebelius et al u'as filed in The United States District Court
J

Central District of California on.Tuly 5. ZAn.

on

06.28 .2012 supreme Courr of the United States issued a

ruling in

National Federation of Independent Business. et al. v. Kathleen Sebelius.

Secretary of Health and Human Services. et

al.. Department of Health

Human Servi

ida. et a1.: Florida, et al. v

Healtlr and Human Services. et al. 567 U.S. 2012 (docket 1l-393,11-j98.
9

I 1-400). In a narrow 5- 4 decision against some 26 states and the National

Federation

of

Independent Businesses- Supreme Court ruled that even

though the healthcare

bill

and individual mandates rvithin it, violate the

Commerce clause, it is valid under taxing powers of Congress. The cornplaint is incorporated herein by reference. The complaint
1.1

challenges the religious discrimination embedded in the Patient Protection and

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Affordable Care Act26 USC $50004. (Hereinafter PPACA) is unconstitutional

asserting that it violates Plaintiff s rights protected by the U.S. Constitution and

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federal statutes. PPACA states:

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Section 1411 5(A)

nd

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(5)

"Sec 50004. Requirements to mailrtain minimum essential coverage"

EXEMPTIONS FROM INDIVIDUAL

of

1. H. R. 3590 "Patient Protection and Affordable Care Act" (PPACA) Section l4l I (5XA) Exemptions from individual requirements state.

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REQTJIREMENTS

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In the case of an individual w,ho is seeking an exemption certificate under section 1311(dX4XH) from an-y requirement or penalty imposed by section
5000A, the following infbrmation:

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Tariz -; Sebe.'ius e: a.. i{oticr fcr: Saai'/ ?reiininar}' I:llunc::c::

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RESPONSIBILITY

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and

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(A) In the case of an individual

individual's status as a member
division... "
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seeking exemption based on the

tr

As such according to PPACA 26U.S.C. $$ 5000A{dXi) and (ii) members of a religious sect or division who object to insurance or acceptance of insurance are

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Party seeking a preliminary injunction must show: 1) a likelihood of success on the rnerits, 2\ a thread of irreparable harm, 3) rvhich outweighs any

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2012)). Each element favors injunctive relief requested by the Plaintiff.

1. Likelihood of Surcess on the Merits

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u) Violation of the United State Constitution

PPACA violates the free exercise of religion protected by First Amendment of the U.S. Constitution.

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ln Church of the Lukumi Babalu Alre- Inc v City of

protections of the Free Exercise Clause pertain in the law at issue discriminates

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undertaken tbr religious reasons." (Lukumi, 508 U.S. at 53?}. The court continues stating that when the "object of a larv is to infringe upon or restrict practices

nd

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against some or all religious beliefs or regulates or prohibits conduct because it is

of

Hialeah, 508 U.S. 52A,547 (1993) the court established that "at minimum, the

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harm to the non-moving party, 4) and that the injunction would not adversely affect the public interest (See Awad v Ziriax, o7A F.3d 1111, 1125 110ft Cir.

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because of their religion motivation, the law is not neutral, and

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is

justified by a compelling interest and is narrow'ly tailored to advance that

In recent decision in Nervland et. al. v Sebelius. case No: 1:12-cv-1123'

tx

interest." (Lukumi, 508 U.S. at 533).

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JLK, the court granted Plaintiff

Motion for Preliminary lnjunction where

Talcz v Sebelius et al , i.{oticn for Stay,/ Pre-iininary Injunction

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exetnpt from the individual mandate to purchase such insurance or pay a he{ty penalty tax.

it is invalid unless

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sect of

of an exempt religious

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Plaintiffs sought an injunction tiom providing coverage under PPACP and tiorn
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drugs, contraception and sterilization.

Sunilarly, case at hand Taitz v Sebelius is seeking a stay and injunction

against PPACA on the grounds that it violates her First Amendment right of free exercise of religion, violates First Amendment Establishment Clause, Fifth

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Amendment Due Process Clause and Fourteenth Amendment Equal Protection

Clause, as u,ell as RFRA as PPACA gives preference to citizens of certain

religions by exempting them from payment of the Healthcare tax. "The Free
Exercise of Religion Clause protects religious observers against unequal

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treatment, and inequality results rvhen a legislature decides that the governmental
interests it seeks to advance are worthy of being pursued only against conduct

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with a religious motivation." (Lukumi, 508 U.S. at 542-43). Nothing can be

described as more than "unequal treatment" other than requiring citizens to pa-v

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additional tax due to the fact that they are members of a certain religion. In Addition to violation of the Free Exercise of Religion clause, PPACA violates the Establishment clause, as it encourages individuals to adhere to certain

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religions in order not to be penalized. For example according to Sharia law

not belong to a religion that is exempt. So in order to avoid being severely

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violation of the 14d'amendment.

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In addition to violation of First, Fifth and Fourteens Amendments, PPACA violates RFRA which prohibits government from creating larvs that will place
substantial burdens a person's free exercise of their religion. RFRA provides:
Ta:tz r-r Sebeiius e: ar. MoEicn fox SLay/ P::eiirninary Tnj-':incLlon

nd

discrimination between citizens is akin to an establishment of religion. Additionally it shows clear discrimination and lack of equal protection in

b)Violation of RFRA

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penalized she would have to convert to another religion, such as Islam. Such

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insurance is forbidden, as it is seen as a form of gambling and usury. Plaintiff does

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any penalt.v tax under PPACP due to the Plaintiffs aversion against abortifacient

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(a) In general

religion even if the burden results from the rule of general applicability,
except as provided in subsection (b) of this section.
(b) Exception

Government may substantially burden a person's exercise of religion

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only if it demonstrates that application of the burden to the person

(1)Is in furtherance of a compelling governmental interest; and

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(2) ls the least restrictive means of furthering that compelling goverrmental

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interest. 42 USC 2000bb-1. Under RFRA a strict scrutiny is applied. O Centro

Espiria 546 US at 424 n.1., Employment Division v Smith, 494 U.s. 872 (1990).

ln United States v Hardeman. 297 F.3d 1127 (10u' Cir. 2A02) the court
established that to

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justify

a substantial burden on

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religion, the government must show that its application of the act furthers "interests of the highest order." While the government may have interest of promoting the public health, it damages the vital interests of the significant amount of the US citizens. "Law cannot be regarded as protecting an interest of

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Additionally, the whole PPACA r,vas turned into a sham w'hen 190 million people were exempt. With so rnaly exemptions predicted cost of Health insurance the is expected to rise and not to go down, u'hich defeats the whole purpose of
1aw'.

The new tax exempts over 190 million from paying the tax rvithout to penalizing them. lt means that only one third of the population will be subject

when larv penalty tax, which represents a substantial burden. A burden is created
Ta.itz v Sebel:us ec ai. i'loticn icr S-tay/ Preij-r*j-nary ililuictioi:

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508 U.S. 520,547 (1993).

of

the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited." Church of the Lukumi Babalu Aye. Jnc v Citlr of Hialeah,

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Plaintiff s free exercise of

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Government shall not substantiall"v burden a person's exercise

of

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coerces a person or a group "to choose betw'een following the precepts

2

of [their]

[their] religion in order to accept [govemment benefits], on the other hand."

Sherbert r,. Vemer,374 U.S. 404 (1963), PPACA imposes a clear burden as in

order to receive governmental benefits (exemption from paying a tax) Plaintiff must change the religion.

The Supreme Court has found "a fme imposed against appellant" is a quintessential burdeil. Shebert,374 U.S. 403-04. Such burden is envisioned in
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PPACA.

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ln addition, Defendants fail to use the least restrictive means because the
could allou, for free portability of insurance across the state lines or health care tort reform, r,vhich would make Health Insurance more affordable without discrimination based on religion. Instead, by creating PPACA, Defendants used their ovrn liberate discretion to promote a particular religion such as Muslim religion on all Americans by exempting them from penalty tax.

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compelling goveflrmental interest." RFRA, with "the strict scrutiny test it known to constitutional larv." City af Boerne v. Flores,521 U.S. 5A7,534 {1997). A compelling interest is an interest of "the highest order," Lukttrni,508 U.S. at
546, andis implicated only by "the gravest abuses, endangering paramount interests," Thomas v. Collins,323 U.S. 516, 530 (1945). Defendants cannot

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"in propose such an interest "in the abstract," but must show a compelling interest the circumstances of this case" by looking at the particular "aspect" of the interest
as "addressed by the larv at issue." Cql. Democratic Party v-Jones,530

nd

2L

adopted," OCentro Espirita,546 U.S. at 430, imposes "the ntost demanding test

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Additionally PPACA cannot lvithstand the strict scrutin,v test and cannot show a compelling governmental interest in dividing citizens based on religion. Defendants cannot establish that their coercion of Plaintiffs is "in furtherance of a

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government could create exemptions on other basis then religion. The govemment

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Taitz i. Sebeiius ei al. Mciion for S-Lay/ Preiir,iaary inriunctlon

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U.S' 567,

religion and forfeiting benefits, on the one hand, and abandoning one precepts of

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584 (2000)- O Centro Espiritcr,546IJ.S. at 430-32 (RFRA's test can only be

particular claintant"); see also Lukurml, 508 U.S. at 546 (rejecting the assertion

that protecting public health was a compelling interest "in the context of these

ordinances"). The goverrment must "specifically identif,,' an 'actual problem' in

need of solving" and show that coercing Plaintitfs
-t

is "actually necessary to the

solution." Brotyn v. Entm't Merchs. Ass'n, 131 S. Ct. 2729,2738 (June 27, 2011). If Defendants' "evidence is not compelling," they fail their burden. Id.

at 2739. To be compelling, the govemment's evidence rnust show, not merely

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The government cannot shor.v that there is a compelling interest in assessing a

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hefty tax on Christians and Jer,vs, while exempting Muslirns, would serve a

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a correlation but a "caus[al]" nexus between their Mandate and the grave interest it supposedly serves. Id. The governmeut "bears the risk of uncertainty . . . ambiguous proof u,ill not suffice." Id.

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compelling governmental interest of making the Health care more affordable.

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anything, it u,ould make it more expensive tbr ones who pay fbr it, as it would
create an excuse for others not to pay for the health care, but use the benefits. The

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only interest that would be served, would be tuming citizens towards conversion
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Religious exeurptions violate Equal Protection Clause, Establishment Clause,

Free Exercise of Religion ciause.

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Srhen Supreme'Court of the United States reviewed an application for stay in

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into religions that are exempt.

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relation to the 10th Circuit Court of Appeals decision in

0 Centro Espirita 314F

463, it noted:

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"Courts have routinely rejected religious exemptions from laws regulating controlled substances employing tests similar to that required by RFRA. See

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United States v. Greene, 8gZF.2d 453, 456-57 (6th Cir.l989); Olsen v. DEA, 878 F.2d 1458 , 146l-62 (D.C.Cir.1989); Olsen v. Iowa,808 F.2d 652, 653 (8th
Tail-z .,. Sebeiius et- ai. i{atj-cn for Siayl Prelininar}' ln-uxc-L:cn

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If
3

satisfled "through application of the challenged law 'to the person'-the

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Cir. 1 936); Linited States v. Rush, 738

.2d

497

, 5L2-13 { lst Cir. 1984) , Liruited

v. smith,494 U.S. 872.905, 110 S.Ct. 1595, 108 L.Ed.2d876 (1990) (O'Connor,
J., concurring). Even after enactment of R-FRA, religious exemptions tiom or
5

defenses to the CSA have not fared r,vell. See [Jnited States v. Brown, 72Y.3d 134, 1gg5

WL 732803 (Bth Cir.1995); {}nited States v. Jffirson,

175 F.Supp.2d,1123,

1131 (N.D.Ind.2001). Moreover, as noted by the government here, permission for

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sacramental use of peyote was granted by Congress afte, enactment of RFRA, suggesting Congressional doubts that RFRA was sufficient (alone) to grant an

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exemption. Gov't Reply Br. at 9 (citing 42 U.S.C' $ 1996a)."

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In O Centro Espirita 546 tl.S. 423 425the Supreme Court found no compelling goveffrmental interest even rvhen regulation of potent hallucinogenic drugs w'as
concerned.

.'At minimum, the protections of the Free Exercise Clause pertain if the larv
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at issue discriruinates against some or

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prohibits conduct because it is undertaken for religious reasons." Iuk lrn l- 508 ll.S. at 532. When the "object of a larn, is to infiinge upon or restrict practices
because of their religious motivation, the larv is not neutral, and

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lisious beli
f:r
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unless

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treatmentu, Id, at 542-543.

nd

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"A law

examining its text and operation. Id. at 534-35' ..The Free Exercise Clause protects religious observers aBainst uneQual

of

it is justified by a compelling interest and is narrorn'ly tailored to by advance that interest.,, Id. at 533. The object of a law can be determined

facialneutr@
i' 508 U'S'
'uk?l'??

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it is invalid

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or context'" secular. mearling discemible from the language

s33.

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between religions Since the individual mandate flagrantly discriminates and it violates the allowing exemptions to some religions, it is unconstitutional
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Frerrr'i:a:y

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at

States v. A,liddleton, 690 F.2d 82A, 824 ( I lth Cir. 1 982), see also Employment Div.

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Free Exercise of Religion, due Process and Establishment clause based on Lukumi
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As the individual mandate is not generally applied and is not lleutral in relation
to religion, it is vierved under the strict scrutiny test and

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it fails the test by

flagrantly discrimin ating befween religions. The Govemment' must treat

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individual religions and religious institutions 'without discrimination or

preference."' Colo. Christisn U. v. llteuu-er, 534 F.3d 1245, 1257 (1Oth Cir. 2008);

Larsonv. Valente.456 U.S.228 (1982); see also L'[/ilsonv. ]VLRB,920F.2d1282

o

(6th Cir. 1990) (holding that section 19 of the National Labor Relations Act,
w'hich exempts from mandatory union membership any employee u,'ho "is a

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member of and adheres to established and traditional tenets or teachings of a bona

fide religion, body, or sect which has historically held conscientious objections
to joining or financially supporting labor organizations," is unconstitutional
because

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it

discriminates among religions and would involve an impermissible

govefirment inquiry into religious tenets\. cert. denied,505 U.S. 1218 (1992).

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tinder Wilsbn v NLRB the individual mandate is unconstitutional under the l, 5th, l4th Amendments.

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Weaver the Tenth Circuit held unconstitutional a discrimination among-

religions in that case attempted to treat "pervasively sectarian" education

employees and students lvere of one religious persuasion; the courses sought to

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"indoctrinate": the governance was tied to particular church atfiliation; and similar

factors. Id. at 1250-51.

Individual mandate under PPACA is unconstitutional under Weaver, as it violates lst, 5th and 14th Amendments, specifically freedom of religion clause,
Establishment Clause, due Process Clause and Equal protection Clause.

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institutions differently than other religious institutions, based on r.vhether: the

Taltz v sebelius

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religions policy that is very similar to the Mandate. The discrimination among

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analysis.

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The First Amendment protects the right to "decide rvhat not to say." Hurley v.
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(internal quotation marks omiued). Thus, "[l]aws that compel speakers to utter or

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iect to the same nsorous

upon speech because of its contenl" Tnrner Broad. Sys., lrcc. v. FCC, 5I2 U.S. government their religious affiliation

scrutiny" as those "that suppress. disadvantage- or impose differential burdens

624, 642 (1994). Here, the individual mandate forces individuals to report to the

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order

to get an exemption from

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PPACA tax. This represents a violation of both the First Amendment Freedom of
speech clause as well as the First Amendment Freedom of Religion clause.

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Irreparable Harm
In Kikumura v Hurley,242 F.3d 950, 963

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decided that the potential violation of Plaintiff s constitutional and RFRA rights threatens irreparable harm. In the case at hand PPACA provision violates both

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Constitutional and RFRA rights of US citizens as it precludes them from freedom

of exercising the religion protected by the First Amendment and places enormous Plaintiff would suffer imminent irreparable harm.

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The First Amendment in its pertinent part states that"Congress shall mcke

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burden on a person's free exercise of their religion. Absent injunctive relief,

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thereof." Contrary to the fundamental rights embellished into the history of

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United States, Congress passed the law 25 USC $50004 "Patient Protection and Affordable Act" (PPACA) that directly interferes with the freedom of religion. Exemption for religious purpose under PPACA segregates citizens just at it previously segregated them by race and gender which was found unconstitutional by earlier decisions by US Supreme Court (see Brown v. Boald of Edacation
Taiiz v Sebel:-us et aI . l:Io--io;: f;: Stay/ Prelimina::y In;uncr!':n
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no law respecting sn establishment of religion,

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(101r'

Cir. 2001), the Court

or

prohibiting thefree exercise

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the

Irish-Am. Gay,Lesbian, & Bisexual Group of Boston, 515 U.S. 557,573 (1995)

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(1954) (racial segregation) and Reed v. Reed {1971) (discrimination by sex)). In

law which shall abridge the privileges or irnmunities of citizens of the United States. " By providing religion exernption under PPACA, the State enforces the
the Plaintiff, rvhile providing privileges others.

law that leads to segregation, rvill infringe on the rights of the US citizens, such
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Harnr to Non-moving Parh.

Should an injunction enter, non-moving party will be prevented from

"enforcing regulations that Congress found it in the public interest to direct that
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agency to develop and entbrce." Comish v Dudas, 40 F. Supp. 2d 61,61 (D.D.C.

2008). Such potential interest cannot be compared with greatharm that Plaintiffs

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rvill suffer in the absence of injunction since Plaintiff s constitutional and

statutory rights rvould be violated. Moreover, the new law PPACA itself is in direct violation of the US Constitution, First, Fifth, Fourteenth Amendments,

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RFRA and therefore cannot serve public interest. Thus, there can be no harm to
non-moving party.

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In his decision in ].{ewland v Sebelius, the court stated that u,hile

of

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Public Interest

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nation's health. this interest is undermined by creation great number of

exemptions. In addition, the court provided that."these interests are countered, and
indeed outweighed, by the public interest in the free exercise oflreligion." In the
case Taitz

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w,il| interfere rvith free of exercise of religion since PPACA will place enorrnous

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burden on members of some religions like Christians and Jews r,vhile relieve the burden from members of other regions like Muslims by exempting them from
Ta::z v Sel:el-ius et
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nd

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government acting in the public interest and works toward improvement

v Sebelius, Taitz argues that expectance of PPACA "religion" provision

. I'lotict"L f ci- StaY/ Prelininarl' Inj ur:ction

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as

Equal Protection Claus it is directly stated:"lt{o State shatt make or enforce ony

of

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paying additional tax and providing free coverage for their medical expenses. This
interest. Therefore, absence of preliminary injunction will not only not serve the

public interest but indeed will damage rights of US citizens and provide great opportunity for discrimination.

WHEREFORE,

for the reasons set above the

temporary injunction should be granted.

Respectfully submitted,

August 28,2A12

by/s/ Orly Taitz Dr. Orly Taitz ESQ.

Plaintiff Pro

Se

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exemption constitutes clear discrimination which cannot be counted toward public