RE: The contraception mandate under Empoyment Division v Smith
Dear colleagues, Here is the complaint, filed today by the University of Notre Dame, challenging the mandate on RFRA, FEC, and other grounds. Among other things, it has the information (I think) that Kevin is asking about. http://opac.nd.edu/assets/69013/hhs_complaint.pdf Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Pybas, Kevin M Sent: Monday, May 21, 2012 11:13 AM To: Law Religion issues for Law Academics Subject: RE: The contraception mandate under Empoyment Division v Smith I'm very late to this thread but does anyone know where I might find a list of parties exempt, wholly or partially, from the health care reform law? I believe, for example, that the Amish are exempt. But am interested in the complete exemption picture, so will appreciate any guidance anyone can offer. Thanks. Kevin Pybas Missouri State University From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Saturday, February 11, 2012 10:53 AM To: 'Law Religion issues for Law Academics' Subject: RE: The contraception mandate under Empoyment Division v Smith The first claim in the pending complaints is RFRA, which of course completely avoids the Smith problem. The free exercise count alleges that there are both statutory and administrative exceptions that affect tens of millions of Americans who will get no coverage, or less than full coverage, from their employers, so that the law is not neutral and generally applicable. I have not looked at any of these provisions. But the employers who are permitted to provide less than full coverage seems the most powerful example here. These exceptions go not only to general applicability, but also to the compelling interest argument under both RFRA and the Free Exercise Clause Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: The contraception mandate under Empoyment Division v Smith
I'm very late to this thread but does anyone know where I might find a list of parties exempt, wholly or partially, from the health care reform law? I believe, for example, that the Amish are exempt. But am interested in the complete exemption picture, so will appreciate any guidance anyone can offer. Thanks. Kevin Pybas Missouri State University From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Saturday, February 11, 2012 10:53 AM To: 'Law Religion issues for Law Academics' Subject: RE: The contraception mandate under Empoyment Division v Smith The first claim in the pending complaints is RFRA, which of course completely avoids the Smith problem. The free exercise count alleges that there are both statutory and administrative exceptions that affect tens of millions of Americans who will get no coverage, or less than full coverage, from their employers, so that the law is not neutral and generally applicable. I have not looked at any of these provisions. But the employers who are permitted to provide less than full coverage seems the most powerful example here. These exceptions go not only to general applicability, but also to the compelling interest argument under both RFRA and the Free Exercise Clause Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: The contraception mandate under Empoyment Division v Smith
The first claim in the pending complaints is RFRA, which of course completely avoids the Smith problem. The free exercise count alleges that there are both statutory and administrative exceptions that affect tens of millions of Americans who will get no coverage, or less than full coverage, from their employers, so that the law is not neutral and generally applicable. I have not looked at any of these provisions. But the employers who are permitted to provide less than full coverage seems the most powerful example here. These exceptions go not only to general applicability, but also to the compelling interest argument under both RFRA and the Free Exercise Clause Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee Sent: Saturday, February 11, 2012 12:32 AM To: religionlaw@lists.ucla.edu Subject: The contraception mandate under Empoyment Division v Smith I've been following the coverage of the mandate that religious organizations provide free contraception through their insurance plans, regardless of whether or not it forces them to violate the tenets of their faith. Today's announcement of an accomodation notwithstanding, ,though, I'm wondering what the chances are that the courts would rule against the administration if the lawsuits that have been filed go to trial. It's my understanding that, in Employment Division v Smith, the Court clearly said that a neutral law of general applicability isn't going to violate the Free Exercise Clause. From what I've read, the regulation in question appears to be both neutral and of general applicability. A strict adherence to Smith would seem to weigh against the religious freedom claims, which is the danger many have seen in Smith since the ruling first came out. What is the sense here whether the Courts would adhere to Smith and uphold the mandate, or would the Courts see it as an opportunity to revisit Smith? I don't remember that there was the same national controversy over Smith when it came out, but it seemed to me that, outside of legal and Native American circles, most folks didn't worry about it because they didn't see it as a ruling beyond peyote. The contraceptive mandate has certainly gotten the attention of a much larger segment of society, though. I wonder if the Court would see a case like this as an opportunity to restore what was lost in Smith. Brad Pardee ___ 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.
Re: The contraception mandate under Empoyment Division v Smith
Brad, In the complaint filed by Belmont Abbey College challenging the contraception mandate, the Becket Fund argues that the contraception mandate is not a law of general applicability because among other things (a) it does not apply to all employers (for instance it does not apply to employers with fewer than 50 employees); (b) it does not apply to certain grandfathered insurance plans; and (c) it provides for a system of individualized exemptions by allowing HHS the ability to grant waivers in response to individualized requests. You can access the complaint here: http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf) Maybe the question to be asked is which law must be of general applicability? In Smith, it strikes me that the peyote statute was a stand alone criminal law. In this instance, I understood that the contraception mandate was just one component of the overall federal healthcare reform act. So it seems to me that in interpreting whether the law is one of general applicability, a court would be required to look at the entire healthcare reform act and determine what waivers and exemptions were included in it, rather than just narrowly focusing on the contraception mandate itself. Thoughts? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. (Attributed to Plato, 428-345 B.C.) --- On Sat, 2/11/12, Brad Pardee bp51...@windstream.net wrote: From: Brad Pardee bp51...@windstream.net Subject: The contraception mandate under Empoyment Division v Smith To: religionlaw@lists.ucla.edu Date: Saturday, February 11, 2012, 12:31 AM I've been following the coverage of the mandate that religious organizations provide free contraception through their insurance plans, regardless of whether or not it forces them to violate the tenets of their faith. Today's announcement of an accomodation notwithstanding, ,though, I'm wondering what the chances are that the courts would rule against the administration if the lawsuits that have been filed go to trial. It's my understanding that, in Employment Division v Smith, the Court clearly said that a neutral law of general applicability isn't going to violate the Free Exercise Clause. From what I've read, the regulation in question appears to be both neutral and of general applicability. A strict adherence to Smith would seem to weigh against the religious freedom claims, which is the danger many have seen in Smith since the ruling first came out. What is the sense here whether the Courts would adhere to Smith and uphold the mandate, or would the Courts see it as an opportunity to revisit Smith? I don't remember that there was the same national controversy over Smith when it came out, but it seemed to me that, outside of legal and Native American circles, most folks didn't worry about it because they didn't see it as a ruling beyond peyote. The contraceptive mandate has certainly gotten the attention of a much larger segment of society, though. I wonder if the Court would see a case like this as an opportunity to restore what was lost in Smith. Brad Pardee -Inline Attachment Follows- ___ 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.
RE: The contraception mandate under Empoyment Division v Smith
I have a question about laws of general applicability. More than a few posts ago, someone - I apologize for not remembering who - gave the speed limit law as an example of a law of general applicability. I recall the point was that even if a person or religious organization had a religious reason for violating the speed limit, the claim would fail. Thus, I wonder about the argument being made by the Becket Fund. The speed limit set by the speed limit law (a) does not apply to everyone (e.g., emergency vehicles), (b) [can't think of an analogy], and (c) provides for a system of individualized exemptions in the form of permits issued to allow violation of the minimum speed requirement for transporting certain large objects (and I think there are some instances where permits can be obtained to exceed the stated maximum). Thus, I wonder, are these the tests for finding a law not to be of general applicability? Jim Maule From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Monday, February 13, 2012 1:36 PM To: Law Religion issues for Law Academics Subject: Re: The contraception mandate under Empoyment Division v Smith Brad, In the complaint filed by Belmont Abbey College challenging the contraception mandate, the Becket Fund argues that the contraception mandate is not a law of general applicability because among other things (a) it does not apply to all employers (for instance it does not apply to employers with fewer than 50 employees); (b) it does not apply to certain grandfathered insurance plans; and (c) it provides for a system of individualized exemptions by allowing HHS the ability to grant waivers in response to individualized requests. You can access the complaint here: http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf) Maybe the question to be asked is which law must be of general applicability? In Smith, it strikes me that the peyote statute was a stand alone criminal law. In this instance, I understood that the contraception mandate was just one component of the overall federal healthcare reform act. So it seems to me that in interpreting whether the law is one of general applicability, a court would be required to look at the entire healthcare reform act and determine what waivers and exemptions were included in it, rather than just narrowly focusing on the contraception mandate itself. Thoughts? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. (Attributed to Plato, 428-345 B.C.) --- On Sat, 2/11/12, Brad Pardee bp51...@windstream.net wrote: From: Brad Pardee bp51...@windstream.net Subject: The contraception mandate under Empoyment Division v Smith To: religionlaw@lists.ucla.edu Date: Saturday, February 11, 2012, 12:31 AM I've been following the coverage of the mandate that religious organizations provide free contraception through their insurance plans, regardless of whether or not it forces them to violate the tenets of their faith. Today's announcement of an accomodation notwithstanding, ,though, I'm wondering what the chances are that the courts would rule against the administration if the lawsuits that have been filed go to trial. It's my understanding that, in Employment Division v Smith, the Court clearly said that a neutral law of general applicability isn't going to violate the Free Exercise Clause. From what I've read, the regulation in question appears to be both neutral and of general applicability. A strict adherence to Smith would seem to weigh against the religious freedom claims, which is the danger many have seen in Smith since the ruling first came out. What is the sense here whether the Courts would adhere to Smith and uphold the mandate, or would the Courts see it as an opportunity to revisit Smith? I don't remember that there was the same national controversy over Smith when it came out, but it seemed to me that, outside of legal and Native American circles, most folks didn't worry about it because they didn't see it as a ruling beyond peyote. The contraceptive mandate has certainly gotten the attention of a much larger segment of society, though. I wonder if the Court would see a case like this as an opportunity to restore what was lost in Smith. Brad Pardee -Inline Attachment Follows- ___ To post, send message to Religionlaw@lists.ucla.eduhttp://us.mc307.mail.yahoo.com/mc/compose?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
