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
>> 
>> 
>> 
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