To follow up on Marty's last point --In the Milwaukee Archdiocese bankruptcy, the AD is arguing that the religious exemptions in the federal bankruptcy code trigger strict scrutiny. I agree w Marty's implicit point -- that makes little sense. Our opening briefs to the 7 th Cir are due on Wed.
Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton > On Jan 11, 2014, at 7:54 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > > Just a quick point to quibble with the factual premises of the "selectivity" > argument. Plans offered by small business do have to include the relevant > preventive services, including -- but hardly limited to -- contraception > services. (The services also include cholesterol screening; colorectal > cancer screening; diabetes screening for those with high blood pressure; > certain immunizations; “evidence-informed preventive care and screenings” for > infants, children, and adolescents; specified annual well-woman visits; > gestational diabetes screening; HPV DNA testing; testing for sexually > transmitted diseases and HIV screening and counseling; breastfeeding support, > supplies and counseling; and domestic violence screening and counseling.) > > Likewise, the so-called grandfathering "exception" is merely an ordinary > "phasing in," or timing, provision, which allows a transition period for > compliance with several of the Act's requirements until the plans otherwise > make one of several specified changes. The employees of such plans will > eventually receive the preventive care coverages (not only contraception -- > all those listed above). > > The only real "carve-out" -- the only one that would result in employees not > receiving contraceptive coverage -- is HHS's own exemption for churches and > their auxiliaries. And if that religious accommodation is what triggers > Lukumi, well . . . > > >> On Fri, Jan 10, 2014 at 9:37 PM, James Oleske <jole...@lclark.edu> wrote: >> The opening brief for Conestoga Wood Specialties Corp. has been filed, and I >> believe this may be the first time the Supreme Court has been presented with >> an argument in a party's merits brief as to the scope of the so-called >> "Sherbert-exception to Smith" -- the idea expressed in both Smith and Lukumi >> that although the Free Exercise Clause does not require religious exemptions >> to be made from uniform legal obligations, religious exemptions may be >> required when other exemptions to a law are available. >> >> In an article last year, I suggested that there remain at least five major >> unresolved questions about the selective-exemption rule: >> >> 1. What is the purpose of the rule: is it designed to guard against the >> danger of intentional discrimination or to address the adverse impact on >> religious minorities of unintentional neglect or indifference? >> >> >> >> 2. Does the rule only apply when a law allows for ad hoc, individualized >> exemptions to an obligation (e.g., discretionary excuses under a "good >> cause" or "necessary" standard), or does it also apply when the government >> makes select categorical exemptions to a law? >> >> >> >> 3. If the rule applies when categorical exemptions are made, how should >> courts determine whether an existing categorical exemption to a law is >> sufficiently analogous to the requested religious exemption to be deemed a >> relevant comparator? >> >> >> >> 4. How many comparable categorical exemptions must exist before the >> selective-exemption rule is triggered by the denial of a religious exemption? >> >> >> >> 5. What is the appropriate level of judicial scrutiny to be applied once the >> selective-exemption rule is triggered? >> >> >> Conestoga's positions on questions #2 and #5 are what you would expect. On >> #2, it argues that the selective-exemption rule extends to situations >> involving categorical exemptions (in this case, the ACA's exemptions for >> small businesses and grandfathered plans). On #5, it argues for strict >> scrutiny (which is what the Court indicated in both Smith and Lukumi applies >> to individualized-exemption situations). >> >> Conestoga's brief does not contain much argument relevant to questions #3 >> and #4. >> >> As for #1, I found the most relevant passage in Conestoga's brief to be >> quite surprising. Usually, advocates of a broad reading of the >> selective-exemption rule make a point of contending that the rule is not >> limited to situations involving the danger of discriminatory intent. Yet, >> Conestoga's brief quotes a portion of the Third Circuit's decision in >> Fraternal Order of Police Newark Lodge v. Newark that speaks directly to >> discriminatory intent and is not usually quoted by advocates of a broad >> reading of the rule: >> >> "Providing secular exemptions 'while refusing religious exemptions is >> sufficiently suggestive of discriminatory intent as to trigger heightened >> scrutiny under Smith and Lukumi.'" Br. at 46 (quoting Newark Lodge at 365). >> >> >> As it turns out, this is the very same passage from Newark Lodge that I >> suggested in my article may narrow the universe of categorical-exemption >> situations that trigger the selective-exemption rule: >> >> "[T]the court’s application of the selective-exemption rule in Newark Lodge >> also included the key phrase, 'while refusing.' That phrase is a reminder of >> an important but underappreciated fact in the case: the categorical medical >> exemption was not part of the original no-beard policy and was only adopted >> after the request for the religious exemptions was made. Under those >> circumstances, granting the categorical medical exemption while denying the >> religious exemptions would, as the court notes, seem to raise the same risk >> of devaluing religion as a situation in which individualized exemptions are >> available and religious exemptions are denied. It is important to note, >> however, that the very reason there was a risk of devaluing religion in >> Newark Lodge—that the denied religious exemption was considered alongside >> other granted exemptions—is a dynamic likely to be absent in many >> categorical exemption cases, where exemptions are written into a law or >> policy separate from any consideration of a request for a religious >> exemption. In those more typical categorical exemption cases, there would >> seem to be considerably less reason to draw an inference of discriminatory >> intent from the adoption of a categorical exemption." - Lukumi at Twenty, >> 19 Animal Law 295, 308 (2013). >> >> With respect to the ACA cases, the denied religious exemptions for >> commercial business owners were not considered alongside the granted secular >> exemptions. Rather, "the granted secular exemptions (for small businesses >> with fewer than fifty employees and for grandfathered plans) were adopted by >> Congress in the ACA prior to HHS's regulatory consideration of religious >> exemptions for commercial businesses." Id. at 328 n.193. So if my reading of >> the selective-exemption rule is correct, the rule would not necessarily be >> implicated in the ACA cases (at least by the small business and grandfather >> exemptions; I'll leave to others the merits of Conestoga's argument that >> HHS's granting of exemptions to some religious entities requires exemptions >> to be granted to all entities with a religious objection). >> >> Of course, many commentators take a much broader view of the >> selective-exemption rule than do I, as reflected in the brief filed by 24 >> constitutional law professors in Stormans v. Selecky, which is now being >> held by the Ninth Circuit pending Conestoga. >> >> That law-scholars amicus brief is available here: >> http://www.becketfund.org/wp-content/uploads/2011/02/Constitutional-Law-Scholars-Brief.pdf. >> >> My article on the selective-exemption rule is available here: >> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2216207 >> >> Conestoga's opening brief is available here: >> http://www.adfmedia.org/files/ConestogaMeritsBrief.pdf >> >> - Jim >> >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
