Why do you say the language quoted from Lee is "arguably the most relevant"? The Supreme Court appears never to have relied on that language in subsequent cases. The Court's most recent reading of Lee comes from the 2006 O Centro case:
The Government points to some pre-Smith cases relying on a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause, but those cases strike us as quite different from the present one. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise; they instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. In United States v. Lee, 455 U.S. 252 (1982), for example, the Court rejected a claimed exception to the obligation to pay Social Security taxes, noting that "mandatory participation is indispensable to the fiscal vitality of the social security system" and that the "tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief." Id., at 258, 260. . . . These cases show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program. 546 U.S. 418, 435 (2006). If Lee is less about imposition on employees and more about government's interest in uniformity, as O Centro suggests, then Hobby Lobby wins. The government cannot have a compelling interest in uniformity with respect to contraception when it has exempted millions of businesses, covering many more millions of employees, from the mandate. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Monday, July 08, 2013 2:01 PM To: religionlaw@lists.ucla.edu Subject: The Hobby Lobby Case: Four Thoughts In light of recent developments, including the Tenth Circuit's en banc decision holding that Hobby Lobby is likely to prevail on the merits of its RFRA exemption claim and the Administration's decision to delay enforcement of the employer mandate, this issue-rich case has suddenly become even more interesting. So with apologies in advance for the long post, here are four preliminary thoughts about the current landscape. Reactions and corrections would be very welcome -- I'm working on an exemptions piece this summer (albeit it in another context) and will be teaching a Religion and the Law seminar in the fall in which I'm inclined to spend considerable time on the contraceptive-coverage cases. Thanks. - Jim I. THE TENTH CIRCUIT'S INCOMPLETE DISCUSSION OF UNITED STATES v. LEE Given its conclusion that "the purpose of RFRA was restoration of pre-Smith free exercise jurisprudence, not expansion of the scope of the Free Exercise Clause," Slip Op. at 9, the en banc majority in Hobby Lobby understandably focuses heavily on United States v. Lee, the pre-Smith case that is most directly on point. See Slip Op. at 55 ("Hobby Lobby and Mardel stand in essentially the same position as the Amish carpenter in Lee, who objected to being forced to pay into a system that enables someone else to behave in a manner he considered immoral. That is precisely the objection of Hobby Lobby and Mardel."). Yet, the majority opinion never addresses what is arguably the most relevant language from Lee: "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees." 455 U.S. 252, 261. If Lee did not have a pre-Smith free exercise right to an exemption that would affect the relatively few employees in his carpentry shop, it's not clear why Hobby Lobby is likely to have a RFRA right to an exemption that will affect thousands of employees in its stores around the country. Cf. Cutter v. Wilkinson, 544 U.S. 709, 720 ("Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries."). At the very least, some effort by the en banc majority to engage the relevant language from Lee would seem to have been warranted, no? II. NEW RIPENESS ISSUE MORE COMPLICATED THAN PORTRAYED Following last week's announcement that the overall employer mandate would be delayed, Professor Friedman raised the question whether any of the pending business challenges to the contraception-coverage mandate might be dismissed on ripeness grounds. Since then, the Becket Fund and several commentators have offered a simple and straightforward argument for why the delay should have absolutely no effect on ripeness: The overall mandate and the contraception mandate are contained in different legal provisions; only those provisions relating to the overall mandate are covered by the delay; thus, while a large employer might not have to provide health coverage at all before 2015 due to the delay, if such an employer does provide coverage, as Hobby Lobby does, the burden of the contraception-coverage mandate "remains fully in force." Becket Fund Statement, July 3. This reasoning, however, is in tension with Hobby Lobby's brief to the Tenth Circuit, which ties the burden of the contraception-coverage mandate to the overall requirement that large employers provide health coverage. Br. at 7-8 ("The government has allowed numerous employers and plans to avoid the Mandate.... 'Small employers,' employing over 34 million people, need not offer health insurance at all and can therefore avoid the Mandate.... But Hobby Lobby does not qualify for any of these measures.... As a 'large employer' with 50 or more employees, Hobby Lobby must offer insurance covering all mandated services."). Nonetheless, there would appear to be at least two alternative (and overlapping) arguments that Hobby Lobby's challenge is still ripe: (1) the temporary delay of the large employer mandate makes it no less certain that that mandate ultimately will be imposed and (2) it would be unreasonable to expect Hobby Lobby to drop health coverage to avoid the contraception-coverage mandate temporarily when it will be required to provide health coverage again in a year. I defer to others as to the strength of those arguments, but initially, they strike me as more persuasive than the "different provisions" argument that treats the overall employer mandate as wholly irrelevant to the ripeness issue (if, for example, the overall mandate were repealed instead of just delayed, the ripeness of the burden described in Hobby Lobby's brief to the Tenth Circuit would almost certainly be affected). One final ripeness note: even if a court were to conclude that Hobby Lobby's RFRA claims were not ripe in light of the delay, its free exercise claim, which relies on selective treatment and not substantial burdens, might still be ripe. III. THE SELECTIVE-EXEMPTION CATCH-22 As many here know, for several years, a group of religious liberty scholars have been sending letters to state legislatures urging them to include broad religious exemptions in any laws recognizing same-sex marriage. Among other things, these letters urge legislatures to exempt from public accommodations laws non-profit religious organizations and small businesses whose owners have religious objections to providing services for same-sex weddings. By doing so, legislatures are told, they can help avoid "unnecessary legal conflicts" that will arise if such exemptions are not included. But here's the rub: when the government does provide such selective exemptions, as Congress it did in the Affordable Care Act (small-business exception) and as HHS did in its regulations implementing the preventative care mandate (non-profit-religious-organization exemption), the argument is then made that the granting of these very exemptions creates a constitutional problem under the Free Exercise Clause. See Hobby Lobby Br. at 49-51 (arguing that the small business exemption renders the mandate not generally applicable and subject to strict scrutiny) and 53 (arguing that the non-profit religious organization exemption renders the mandate not neutral and subject to strict scrutiny). IV. THE UNCERTAIN BREADTH OF THE SELECTIVE-EXEMPTION RULE Because the Tenth Circuit found that Hobby Lobby was likely to prevail on its RFRA claim, the court did not address the merits of Hobby Lobby's constitutional claim. But there are several other pending cases involving for-profit employers, and courts that reject employers' RFRA arguments on substantial-burden grounds may well address the alternative constitutional claims. Those claims rest on the "selective-exemption rule" -- 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 the government makes available other exemptions to a law (thus rendering it not generally applicable and/or not neutral). The breadth of the selective-exemption rule post-Lukumi remains the subject of considerable confusion. Several of the district courts that have reached the issue in the contraceptive-coverage mandate context have taken a very narrow view of the selective-exemption rule, finding that it is not triggered unless the existing exemptions are so prevalent that the objecting religious entities are virtually the only entities burdened by the law. Other courts and commentators narrowly interpret the rule by concluding that it is only triggered when a law allows for individualized exemptions, and not when categorical exemptions are written into a law. By contrast, a group of 24 constitutional law professors filed an amicus brief last year in the Ninth Circuit arguing for a very broad view of the selective-exemption rule under which strict scrutiny would be triggered whenever a law contains a single categorical secular exemption that undermines the state's interest in the law, even if that single secular exemption is adopted under circumstances that do not suggest discriminatory intent toward religion. Con Law Prof Brief in Stormans v. Selecky, available at http://www.becketfund.org/wp-content/uploads/2011/02/Constitutional-Law-Scholars-Brief.pdf. I've got a new piece out arguing that neither the very narrow view nor the very broad view of the selective-exemption rule is the best reading of the Supreme Court's post-Smith free exercise jurisprudence. "Lukumi at Twenty," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2216207. I discuss the Stormans case and the constitutional law professors' amicus brief at length (Part II.D.), and the ACA cases more briefly (notes 106-110 & accompanying text and note 193), and I propose a middle-ground version of the selective-exemption rule that -- consistent with the Court's "equal protection" approach to free exercise in Smith -- is designed to guard against the risk of intentional discrimination. Under this version of the rule, heightened scrutiny could be triggered when laws contain categorical secular exemptions, but only when those secular exemptions were adopted under circumstances that suggest discriminatory intent (e.g., when similarly situated secular and religious exemptions were both considered by a legislature, but only the former were written into a law). In the end, the variety of different interpretations of the selective-exemption rule reflect the fact that the Court's post-Smith jurisprudence remains far from clear on the topic. As I say in my piece, "while Lukumi contained its fair share of tea leaves, it ultimately provided no definitive guidance as to how courts should approach laws that do no operate as invidious gerrymanders, but do contain some selective categorical exemptions." It will be interesting to see how the Ninth Circuit reads those tea leaves in Stormans and how other circuits eventually read them in the ACA contraceptive-coverage cases. In one context or another, it seems inevitable that the issue will ultimately make its way to the Supreme Court. ________________________________ PLEASE TAKE NOTICE, the information contained in this electronic communication and any document attached hereto or transmitted herewith, including metadata, is attorney-client privileged, work product, private or otherwise confidential, and is intended for the exclusive use of the individual or entity named above. The information transmitted in this e-mail and any attachment is intended only for the personal and confidential use of the intended recipients and is covered by the Electronic Communications Privacy Act, 18 U.S.C. ?2510-2521. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any examination, use, dissemination, distribution, or copying of this communication or any part thereof is strictly prohibited. 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