One caveat to Marty’s second point: Paul Clement quite pointedly would not concede that his clients would be comfortable with the nonprofit-style accommodation – which is of course being challenged by several nonprofit entities represented by Becket Fund, which also represents Hobby Lobby.
To be sure, it would be awkward for Hobby Lobby/Conestoga Wood to turn around and bring a RFRA challenge to the very accommodation that their lawyer identified at oral argument as a less-restrictive alternative – but we’ve seen stranger things in these contraception cases over the last two years. On Mar 25, 2014, at 4:19 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. _______________________________________________ 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.
_______________________________________________ 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.
