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 <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 >> >> >> >> _______________________________________________ >> 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. >> > >
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