Marty -- Good point. I should have mentioned in my original post that even
if the Court were to reach the merits of Conestoga's free exercise claim,
it might not find the small business and grandfather provisions to be
"exemptions" for purposes of the selective-exemption rule, and thus might
not have to reach some of the other difficult questions about the scope of
the rule that I outline below.
Indeed, the government's brief in Hobby Lobby makes the argument (pages
53-57) that the "exemption that respondents seek is fundamentally different
from the statutory and regulatory provisions to which they attempt to
analogize it." In Hobby Lobby, the argument over selectivity (or the lack
thereof) only arises under RFRA's compelling-interest test, but presumably
the government will make the same argument in response to Conestoga's
free-exercise selective-exemption claim. And whether one conceives of it as
a threshold argument ("there are no secular 'exemptions'") or an argument
going to question #3 below ("the granted exemptions are not sufficiently
analogous to be a relevant comparator"), I think the government has a
strong argument.
Assuming the Court does not have to reach most or all of the interesting
questions about the scope of the Smith/Lukumi selective-exemption rule in
Conestoga, the next opportunity for a high profile hearing of those
questions will be the Stormans case, which involves a state duty to
dispense rule that is alleged to have secular exemptions that trigger the
selective-exemption rule. But that case has some odd procedural quirks that
could well prevent the Ninth Circuit from diving into the most interesting
questions.
All of which makes me wonder if there might be a case working its way
through the system that does not involve hot button social issues.
Something like the Big Sky Colony case the Court denied cert in last summer
(involving a requested exemption from a state workers comp law by a
community of Hutterites). I think it might be helpful for many of us
(present company included) to revisit some of these difficult doctrinal
questions in a context other than contraception or same-sex marriage. And I
say this as someone who is finishing a piece on religious exemptions to
same-sex marriage laws ...
On Sat, Jan 11, 2014 at 4:54 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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