Thanks very much to everyone for the responses. Some follow-ups:
1. Most importantly, in response to Alan, the less-restrictive
"solution" that appeared to have some traction with the Justices was
_not_ simply that the government could in theory pay for the services
(with single-payer or a new tax scheme, for instance). Such a
holding would be a radical deviation from decades of decisions -- Lee
and Tony & Susan Alamo would have come out differently, for
instance. And the SG would and should have resisted that idea
strenuously, as he has done, in his briefs.
The argument, instead, is that once the agency has _already_ offered
an alternative (here, the "Notre Dame" solution) to a certain subset
of objectors (nonprofits) -- thereby demonstrating that that
alternative is viable for at least a certain group -- it has to treat
other religious objectors the same, unless there is good reason to
treat them differently. This is, in effect, merely _O Centro _all
over again (recall that the government had no good reason for
treating
hoasca differently from peyote). As the SG indicated in his answers
to questions about the secondary accommodation, there _might _be such
a good reason for disparate treatment here: For instance, extending
the accommodation to for-profit corporations _might _be far more
costly to the government than if it is limited to nonprofits,
depending on how many for-profit objectors are self-insured and use
third-party administrators. (In such cases, the government
effectively picks up the tab by giving credits to the TPAs.) Because
these plaintiffs have not asked for that remedy, there hasnt been any
occasion for the government to estimate such costs yet. But if it
turns out that most for-profits use issuers (such as Aetna), or if
very few for-profits with self-insured plans would invoke the
accommodation, then perhaps the government would have no good basis
for refusing to extend the secondary accommodation to for-profits.
Of course, Greg Lipper is right that the Justices would hardly be
inclined to settle upon this solution if it would not resolve the
RFRA
claims -- if the for-profit cases would simply slide on over into the
Notre Dame column, and remain unresolved. But presumably, if they
embrace this compromise, they will signal (or even hold) that the
Notre Dame-like claims are meritless. (Thats another virtue of this
solution -- it would take care of all the outstanding cases.)
2. As for the possibility that the Justices will hold that there is
no substantial burden because Hobby Lobby can simply drop its health
care plan . . . Dan Conkle is right that Paul Clement asked for an
opportunity for a trial on that question. I have argued that we
neednt even get there, because the plaintiffs have failed to satisfy
the requirement of even pleading facts that would, if proved,
demonstrate that that option would impose substantial pressure on
them
to offer contraceptive coverage:
http://balkin.blogspot.com/2014/02/hobby-lobby-part-ix-there-is-no.html
[7]. Of course, these or other plaintiffs might file new complaints
that satisfy Iqbal/Trombly, in which case there would, indeed, need
to
be trials on the question. I am skeptical that most employers will
be able to prove the requisite degree of pressure -- see
http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html
[8] -- but perhaps some would. The whole point of my posts on this
question has been that its a highly fact-intensive question that
should be adjudicated case-by-case.
3. I forgot to mention in my original post one other thing that
struck me during the argument: Justice Kagan described the
Sherbert/Yoder _practice_ of the Court as being a form of balancing,
involving not only the nature and degree of burden on the plaintiff
and the governments interest, but also the impact on third parties.
Of course, as most of you know, shes absolutely right -- this is in
fact _exactly_ what the Court was doing in cases from _Braunfeld_ to
_Jimmy Swaggart_, even while it was (disingenuously) mouthing the
language of strict scrutiny. (The only case Im aware of in which the
Court was honest about its balancing was Warrens plurality opinion in
_Braunfeld_.) This led me to think, once again, that perhaps Chip
was right way back in 1993 -- it would have been much better for
Congress to have used the language of balancing, or some form of
intermediate scrutiny, in RFRA, if its aim was to recreate the FEC
doctrine of the preceding generation. A lesson for state
legislatures and mini-RFRAs going forward?
On Tue, Mar 25, 2014 at 11:46 PM, Alan Brownstein
<aebrownst...@ucdavis.edu [9]> wrote:
I think Martys second point below about the Courts somewhat positive
reception to the least restrictive means argument is important
because it provides a basis for resolving this case in Hobby Lobbys
favor that is relatively limited in its application. Clement argues
that this is a unique case because it is simply about who should pay
for insurance coverage that could easily be provided by the
government or other private entities (insurers). Clement explicitly
distinguishes this case from cases involving religious objections to
anti-discrimination laws because the government cannot mitigate the
harms to third parties if accommodations to such laws are granted.
If the Court accepts that argument in its opinion, the door would be
open for for-profit, privately held businesses to assert RFRA
claims, but the opinion would say little to encourage claimants
to believe that they would succeed on the merits in such
lawsuits when there is harm to third parties that cannot be avoided
by alternative regulatory approaches -- which is the case when
anti-discrimination laws are at issue.
Alan
-------------------------
FROM: religionlaw-boun...@lists.ucla.edu [1]
[religionlaw-boun...@lists.ucla.edu [2]] on behalf of Marty Lederman
[lederman.ma...@gmail.com [3]]
SENT: Tuesday, March 25, 2014 1:19 PM
TO: Law & Religion issues for Law Academics
SUBJECT: Hobby Lobby transcript
is here:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf
[4]
Audio should be available later in the week.
Id be curious to hear what others who attended thought of the
argument.
Ill mention only three things of particular note:
First, several of the Justices, including Justice Kennedy, appeared
to be at least somewhat sympathetic to the argument Ive been
stressing that the employers religion might not be substantially
burdened because they have the option of not offering a plan (which
might well save them money).
Second, there appeared by the end of the argument to be a very real
possibility of a judgment that the government must advance its
interests through the less restrictive means of offering its
secondary accommodation (payment required of the issuer or the TPA)
to for-profit corporations, as well. This idea seemed to have
traction with Justices of varying perspectives, and neither advocate
resisted it much -- indeed, Paul Clement appeared to go out of his
way in rebuttal to encourage it, and to stress that he had hinted at
it on page 58 of the Hobby Lobby brief.
Third, Justices Alito and Scalia tried to argue that RFRA goes much
further than codifying the pre-Smith FEC doctrine . . . but I am
very doubtful there are five votes for that.
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[8]
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