Interestingly, the same underinclusion argument is playing out in two distinct ways in religious exemption litigation: (1) in RFRA cases, where the argument is made that underinclusion in a law indicates that it does not serve a compelling interest and (2) in constitutional free exercise cases, where the argument is made that underinclusion renders a law non-neutral and/or non-generally applicable, and thus subject to strict scrutiny.
In the for-profit contraception cases, there was a possibility, albeit remote, that the Court would address both of these underinclusion arguments (in addition to the parties' RFRA claims, Conestoga Wood's free exercise claim was before the Court and it explicitly made underinclusion argument #2 with respect to that claim). The Court, of course, ended up resolving neither underinclusion argument, although it did send some signals in dicta that it was open to argument #1. I believe that the most prominent pending case raising argument #2 is *Stormans v. Selecky*, which was originally scheduled for oral argument before the Ninth Circuit last fall, but was held for the Supreme Court's decision in *Hobby Lobby*. Are folks aware of any other pending cases raising argument #2? As for argument #1, presumably it will continue to play a prominent role in the many non-profit contraception cases still working their way through the pipeline. Like Alan and Eugene, I find the argument unpersuasive, but in light of the dicta in *Hobby Lobby*, I would expect advocates for the non-profits to press it vigorously. - Jim On Tue, Jul 1, 2014 at 9:29 PM, Alan Brownstein <aebrownst...@ucdavis.edu> wrote: > Eugene read my mind and wrote exactly what I was going to write. Maybe > gross underinclusion isn't entirely irrelevant, but standing alone it has > little bearing on whether the state's interest is compelling or not for > religious liberty exemption purposes. > > Alan > ------------------------------ > *From:* Volokh, Eugene [vol...@law.ucla.edu] > *Sent:* Tuesday, July 01, 2014 8:09 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: Hobby Lobby Question > > The Court also said that there’s a compelling government > interest in preventing race discrimination in employment, even though there > are literally millions of people who are exempted from Title VII (since > they work for employers who have fewer than 15 employees). Is such gross > underinclusion relevant to the issue of compelling interest? If so, does > it keep the interest from being compelling, and entitle religiously > objecting employers with more than 15 employees to an exemption from Title > VII? > > > > The Court has also said that there’s a compelling > government interest in collecting federal income taxes, even though there > are literally millions of people who pay no net federal income tax. Is > such gross underinclusion relevant to the issue of compelling interest, to > the point that people who object to paying certain kinds of taxes are > entitled to an exemption from federal text law? > > > > The Court has also rejected a claim of religious exemption > from the draft (for people who oppose only unjust wars, and therefore > aren’t entitled to a statutory exemption), and has been understood as > saying that there’s a compelling government interest in raising armies, > even though there are literally tens of millions of people who aren’t > eligible for the draft. Is such gross underinclusion relevant to the issue > of compelling interest, to the point that people who object to unjust wars > really are entitled to a draft exemption? > > > > Eugene > > > > *From:* Rick Duncan > *Sent:* Tuesday, July 01, 2014 5:04 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Hobby Lobby Question > > > > The Court assumed that there is a compelling interest in covering > contraceptives, even though there are literally millions of women whose > policies are exempted from the mandate under the ACA. Do we all agree that > such gross underinclusion is irrelevant to the issue of compelling interest? > >
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