Not sure I understand what you're saying here, Nathan. The law is designed so that virtually all plans -- whether employer plans, or Medicaid, or Medicare, or exchange plans -- provide access to cost-free preventive services coverage (including but by no means limited to contraceptive coverage).
There is simply not the sort of underinclusiveness, with respect to the government interest, that raises a question under the "compelling interest" component of RFRA (or the Sherbert doctrine), or under Lukumi. If I understand you correctly, you're now shifting away from the compelling interest/underinclusiveness question to the question of whether RFRA's "least restrictive means" test is met. Which has nothing to do with Lukumi, or underinclusiveness. If that's what you're suggesting, then the question would become whether the government's "means" -- the rule that *all* health insurance plans must coverage a litany of preventive services -- is the least restrictive means of furthering that compelling governmental interest, or whether the government could satisfy that interest just as easily even if it granted religious exemptions whenever any employers' owners had a religious objection to coverage of any of those required preventive services (as well as all the additional, pre-existing covered services, such as minimum hospital stays after birth, and patient costs for items and services furnished in connection with participation in certain clinical trials, etc.). I'm happy to discuss that question, too -- it is certainly present in the HL and CW cases -- but it has little or nothing to do with the topic of this thread, underinclusiveness, or with any legal distinction between large and small employers (except that of course an exemption for large employers would be much *more* harmful to the government interests -- or much more costly for the government to counteract in other ways -- than would be an exemption for small employers). On Sat, Jan 11, 2014 at 10:13 AM, nathan chapman <nathan.s.chap...@gmail.com > wrote: > I take it that RFRA and Lukumi incorporate a means test, not just an ends > test. If the government can meet its goal without forcing small employers > to subsidize it, why not with a small class of large for profit corps? The > government may have a good answer -- I don't mean to imply that it doesn't. > But as I take the tests, that's the question it must answer. > > Again, for what its worth, on treating small employers differently, I > think the government has good *legislative* precedent in Title VII, > though the court has not considered that exception in the context of a > RFRA/Lukumi challenge, and I'm not sure how legislative precedent ought to > factor into what is a pretty straightforward balancing and means/end > analysis. Perhaps the legislative precedent creates an intuitive baseline, > a law-world in which we ordinarily think of small businesses as different, > and treating them differently under the ACA is not really an exception, but > the rule. > > > On Jan 11, 2014, at 10:03 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > Businesses with fewer than 50 fulltime employees are subject to all of the > same federal laws as larger employers -- and all the same incentives to > offer employee plans -- with one principal exception: If they do not offer > a plan at all, they do not need to pay the 4980H(a) assessment to help fund > the cost of the exchanges. > > But how is that distinction relevant to the underinclusiveness question? > The argument -- either under RFRA's compelling interest test or under > *Lukumi* -- is that the government must not care all that much about > no-cost contraceptive services (as well as, I suppose, colorectal cancer > screening, diabetes screening for those with high blood pressure, > immunizations, basic childhood preventive check-ups, etc.), because > "millions" of people won't be eligible for those services. > > But that's wrong -- virtually everyone will be eligible for such services, > whether they work for a small employer or a large employer -- or if they > don't work at all. > > On Sat, Jan 11, 2014 at 9:49 AM, nathan chapman < > nathan.s.chap...@gmail.com> wrote: > >> I suppose I need to be more specific. Are small businesses subject to the >> same taxes/penalties/fees/tithes/required payments to the government that >> large businesses are subject to if they do not provide a health plan? >> >> >> >> On Jan 11, 2014, at 9:42 AM, Marty Lederman <lederman.ma...@gmail.com> >> wrote: >> >> *No* businesses have to offer plans (as I've explained in several posts >> at Balkinization). But if a plan does so, it must include preventive >> services. And if the employer -- large or small -- does not offer a plan, >> its employees will be eligible for an exchange plan, which must also >> include such services. Either way, employees are entitled to the coverage >> -- which was the point of the legislation, viz., to create a new universal >> preventive services benefit. >> >> Sent from my iPhone >> >> On Jan 11, 2014, at 9:26 AM, nathan chapman <nathan.s.chap...@gmail.com> >> wrote: >> >> Marty, >> >> Quick clarification: Do small business have to offer plans? (I know that >> small businesses are not subject to the same Title VII standards as large >> businesses, so there is strong legislative precedent for treating small >> businesses differently than, say, large closely held for profits with >> religious objections.) >> >> Nathan >> >> 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. >> >> _______________________________________________ >> 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. > > > > _______________________________________________ > 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.
