Marty, I'd likewise quibble with your characterization of the grandfather provision. A plan can maintain its grandfather provision for the foreseeable future so long as it abides by the conditions for doing so. This was at least part of the basis for the President's infamous "if you like your plan and doctor you can keep it" claim. Of course, in practice the government is trying to right the rules so narrowly that it makes it difficult to do so or reduces the incentive to do so. Nonetheless, many plans will for a period of years maintain that status, thereby creating an underinclusiveness problem.
From: Marty Lederman Sent: Saturday, January 11, 2014 7:56 AM To: Law & Religion issues for Law Academics Reply To: Marty Lederman Subject: Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument 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<mailto: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<mailto: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.
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