Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
Thanks for all the helpful responses on this. I've published a post on the underinclusiveness question here: http://balkin.blogspot.com/2014/01/hobby-lobby-part-iv-myth-of.html On Sat, Jan 11, 2014 at 7:54 AM, Marty Lederman 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 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 applicat
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
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 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 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?
>>
>
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
I didn't say anything to suggest that *some* plans might not try to avoid leaving "grandfathering" status for an extended period. Perhaps some will. But certainly most will not, because there's a substantial cost for doing so: They would have to avoid making any of the specified changes that trigger cessation of grandfathered status, such as an increase in cost-sharing requirements above a certain threshold, a decrease in employer contributions beyond a certain threshold, or the elimination of certain benefits. There's not much incentive for many plans to avoid such changes for years on end. It's not surprising, therefore, that the percentage of employees in grandfathered plans is declining rapidly, from 56% in 2011 to 48% in 2012 to 36% in 2013. More to the point, Congress surely expected that virtually all plans would lose grandfathering status eventually--and likely sooner rather than later. Its quite laudable intent in creating such a grandfathering system was to allow plans to avoid the costs and impact of the required major changes until such time as they were making other significant changes; the idea that the legislature didn't really care very much about preventive services and expected many people not to be able to use them for many years, is implausible. On Sat, Jan 11, 2014 at 12:15 PM, Gaubatz, Derek wrote: > > 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 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. Do
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
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 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
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
Not sure I understand what you're saying here, Nathan. The law is designed so that virtually all plans -- whether employer plans, or Medicaid, or Medicare, or exchange plans -- provide access to cost-free preventive services coverage (including but by no means limited to contraceptive coverage). There is simply not the sort of underinclusiveness, with respect to the government interest, that raises a question under the "compelling interest" component of RFRA (or the Sherbert doctrine), or under Lukumi. If I understand you correctly, you're now shifting away from the compelling interest/underinclusiveness question to the question of whether RFRA's "least restrictive means" test is met. Which has nothing to do with Lukumi, or underinclusiveness. If that's what you're suggesting, then the question would become whether the government's "means" -- the rule that *all* health insurance plans must coverage a litany of preventive services -- is the least restrictive means of furthering that compelling governmental interest, or whether the government could satisfy that interest just as easily even if it granted religious exemptions whenever any employers' owners had a religious objection to coverage of any of those required preventive services (as well as all the additional, pre-existing covered services, such as minimum hospital stays after birth, and patient costs for items and services furnished in connection with participation in certain clinical trials, etc.). I'm happy to discuss that question, too -- it is certainly present in the HL and CW cases -- but it has little or nothing to do with the topic of this thread, underinclusiveness, or with any legal distinction between large and small employers (except that of course an exemption for large employers would be much *more* harmful to the government interests -- or much more costly for the government to counteract in other ways -- than would be an exemption for small employers). On Sat, Jan 11, 2014 at 10:13 AM, nathan chapman wrote: > I take it that RFRA and Lukumi incorporate a means test, not just an ends > test. If the government can meet its goal without forcing small employers > to subsidize it, why not with a small class of large for profit corps? The > government may have a good answer -- I don't mean to imply that it doesn't. > But as I take the tests, that's the question it must answer. > > Again, for what its worth, on treating small employers differently, I > think the government has good *legislative* precedent in Title VII, > though the court has not considered that exception in the context of a > RFRA/Lukumi challenge, and I'm not sure how legislative precedent ought to > factor into what is a pretty straightforward balancing and means/end > analysis. Perhaps the legislative precedent creates an intuitive baseline, > a law-world in which we ordinarily think of small businesses as different, > and treating them differently under the ACA is not really an exception, but > the rule. > > > On Jan 11, 2014, at 10:03 AM, Marty Lederman > wrote: > > Businesses with fewer than 50 fulltime employees are subject to all of the > same federal laws as larger employers -- and all the same incentives to > offer employee plans -- with one principal exception: If they do not offer > a plan at all, they do not need to pay the 4980H(a) assessment to help fund > the cost of the exchanges. > > But how is that distinction relevant to the underinclusiveness question? > The argument -- either under RFRA's compelling interest test or under > *Lukumi* -- is that the government must not care all that much about > no-cost contraceptive services (as well as, I suppose, colorectal cancer > screening, diabetes screening for those with high blood pressure, > immunizations, basic childhood preventive check-ups, etc.), because > "millions" of people won't be eligible for those services. > > But that's wrong -- virtually everyone will be eligible for such services, > whether they work for a small employer or a large employer -- or if they > don't work at all. > > On Sat, Jan 11, 2014 at 9:49 AM, nathan chapman < > nathan.s.chap...@gmail.com> wrote: > >> I suppose I need to be more specific. Are small businesses subject to the >> same taxes/penalties/fees/tithes/required payments to the government that >> large businesses are subject to if they do not provide a health plan? >> >> >> >> On Jan 11, 2014, at 9:42 AM, Marty Lederman >> wrote: >> >> *No* businesses have to offer plans (as I've explained in several posts >> at Balkinization). But if a plan does so, it must include preventive >> services. And if the employer -- large or small -- does not offer a plan, >> its employees will be eligible for an exchange plan, which must also >> include such services. Either way, employees are entitled to the coverage >> -- which was the point of the legislation, viz., to create a new universal >> preventive services benefit. >> >> Sent from my iPhone >> >> On Jan 11, 2014, at
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
I take it that RFRA and Lukumi incorporate a means test, not just an ends test. If the government can meet its goal without forcing small employers to subsidize it, why not with a small class of large for profit corps? The government may have a good answer -- I don't mean to imply that it doesn't. But as I take the tests, that's the question it must answer. Again, for what its worth, on treating small employers differently, I think the government has good legislative precedent in Title VII, though the court has not considered that exception in the context of a RFRA/Lukumi challenge, and I'm not sure how legislative precedent ought to factor into what is a pretty straightforward balancing and means/end analysis. Perhaps the legislative precedent creates an intuitive baseline, a law-world in which we ordinarily think of small businesses as different, and treating them differently under the ACA is not really an exception, but the rule. On Jan 11, 2014, at 10:03 AM, Marty Lederman wrote: > Businesses with fewer than 50 fulltime employees are subject to all of the > same federal laws as larger employers -- and all the same incentives to offer > employee plans -- with one principal exception: If they do not offer a plan > at all, they do not need to pay the 4980H(a) assessment to help fund the cost > of the exchanges. > > But how is that distinction relevant to the underinclusiveness question? The > argument -- either under RFRA's compelling interest test or under Lukumi -- > is that the government must not care all that much about no-cost > contraceptive services (as well as, I suppose, colorectal cancer screening, > diabetes screening for those with high blood pressure, immunizations, basic > childhood preventive check-ups, etc.), because "millions" of people won't be > eligible for those services. > > But that's wrong -- virtually everyone will be eligible for such services, > whether they work for a small employer or a large employer -- or if they > don't work at all. > > On Sat, Jan 11, 2014 at 9:49 AM, nathan chapman > wrote: > I suppose I need to be more specific. Are small businesses subject to the > same taxes/penalties/fees/tithes/required payments to the government that > large businesses are subject to if they do not provide a health plan? > > > > On Jan 11, 2014, at 9:42 AM, Marty Lederman wrote: > >> *No* businesses have to offer plans (as I've explained in several posts at >> Balkinization). But if a plan does so, it must include preventive services. >> And if the employer -- large or small -- does not offer a plan, its >> employees will be eligible for an exchange plan, which must also include >> such services. Either way, employees are entitled to the coverage -- which >> was the point of the legislation, viz., to create a new universal preventive >> services benefit. >> >> Sent from my iPhone >> >> On Jan 11, 2014, at 9:26 AM, nathan chapman >> wrote: >> >>> Marty, >>> >>> Quick clarification: Do small business have to offer plans? (I know that >>> small businesses are not subject to the same Title VII standards as large >>> businesses, so there is strong legislative precedent for treating small >>> businesses differently than, say, large closely held for profits with >>> religious objections.) >>> >>> Nathan >>> >>> On Jan 11, 2014, at 7:54 AM, Marty Lederman >>> 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
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
Businesses with fewer than 50 fulltime employees are subject to all of the same federal laws as larger employers -- and all the same incentives to offer employee plans -- with one principal exception: If they do not offer a plan at all, they do not need to pay the 4980H(a) assessment to help fund the cost of the exchanges. But how is that distinction relevant to the underinclusiveness question? The argument -- either under RFRA's compelling interest test or under *Lukumi* -- is that the government must not care all that much about no-cost contraceptive services (as well as, I suppose, colorectal cancer screening, diabetes screening for those with high blood pressure, immunizations, basic childhood preventive check-ups, etc.), because "millions" of people won't be eligible for those services. But that's wrong -- virtually everyone will be eligible for such services, whether they work for a small employer or a large employer -- or if they don't work at all. On Sat, Jan 11, 2014 at 9:49 AM, nathan chapman wrote: > I suppose I need to be more specific. Are small businesses subject to the > same taxes/penalties/fees/tithes/required payments to the government that > large businesses are subject to if they do not provide a health plan? > > > > On Jan 11, 2014, at 9:42 AM, Marty Lederman > wrote: > > *No* businesses have to offer plans (as I've explained in several posts at > Balkinization). But if a plan does so, it must include preventive > services. And if the employer -- large or small -- does not offer a plan, > its employees will be eligible for an exchange plan, which must also > include such services. Either way, employees are entitled to the coverage > -- which was the point of the legislation, viz., to create a new universal > preventive services benefit. > > Sent from my iPhone > > On Jan 11, 2014, at 9:26 AM, nathan chapman > wrote: > > Marty, > > Quick clarification: Do small business have to offer plans? (I know that > small businesses are not subject to the same Title VII standards as large > businesses, so there is strong legislative precedent for treating small > businesses differently than, say, large closely held for profits with > religious objections.) > > Nathan > > On Jan 11, 2014, at 7:54 AM, Marty Lederman > 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 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 cat
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
I suppose I need to be more specific. Are small businesses subject to the same taxes/penalties/fees/tithes/required payments to the government that large businesses are subject to if they do not provide a health plan? On Jan 11, 2014, at 9:42 AM, Marty Lederman wrote: > *No* businesses have to offer plans (as I've explained in several posts at > Balkinization). But if a plan does so, it must include preventive services. > And if the employer -- large or small -- does not offer a plan, its employees > will be eligible for an exchange plan, which must also include such services. > Either way, employees are entitled to the coverage -- which was the point of > the legislation, viz., to create a new universal preventive services benefit. > > Sent from my iPhone > > On Jan 11, 2014, at 9:26 AM, nathan chapman > wrote: > >> Marty, >> >> Quick clarification: Do small business have to offer plans? (I know that >> small businesses are not subject to the same Title VII standards as large >> businesses, so there is strong legislative precedent for treating small >> businesses differently than, say, large closely held for profits with >> religious objections.) >> >> Nathan >> >> On Jan 11, 2014, at 7:54 AM, Marty Lederman 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 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 ind
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
*No* businesses have to offer plans (as I've explained in several posts at Balkinization). But if a plan does so, it must include preventive services. And if the employer -- large or small -- does not offer a plan, its employees will be eligible for an exchange plan, which must also include such services. Either way, employees are entitled to the coverage -- which was the point of the legislation, viz., to create a new universal preventive services benefit. Sent from my iPhone On Jan 11, 2014, at 9:26 AM, nathan chapman wrote: > Marty, > > Quick clarification: Do small business have to offer plans? (I know that > small businesses are not subject to the same Title VII standards as large > businesses, so there is strong legislative precedent for treating small > businesses differently than, say, large closely held for profits with > religious objections.) > > Nathan > > On Jan 11, 2014, at 7:54 AM, Marty Lederman 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 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 >>> se
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
Marty, Quick clarification: Do small business have to offer plans? (I know that small businesses are not subject to the same Title VII standards as large businesses, so there is strong legislative precedent for treating small businesses differently than, say, large closely held for profits with religious objections.) Nathan On Jan 11, 2014, at 7:54 AM, Marty Lederman 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 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 > su
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
To follow up on Marty's last point --In the Milwaukee Archdiocese bankruptcy, the AD is arguing that the religious exemptions in the federal bankruptcy code trigger strict scrutiny. I agree w Marty's implicit point -- that makes little sense. Our opening briefs to the 7 th Cir are due on Wed. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton > On Jan 11, 2014, at 7:54 AM, Marty Lederman 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 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
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 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. Und
