I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you:
Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always *lose *under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that "If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, *they are barred from owning any business with more than fifty employees*." But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are "barred from owning any business with more than fifty employees." *Even if the company had fewer than 50 employees, its plan would still have to include contraception*. If *any*employer, with fewer *or *more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: "If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong, then *they will have little choice but to drop their plans."* Also, another small thing related to that sentence: The individual plaintiffs, at least in *Hobby Lobby*, would not "pay for" contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that *payment *is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html
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