Marty -- In your message below, and in your post over at Balkinization, you posit that Wheaton College "might still allege a RFRA violation" if "employees do get the coverage" under the Court's current solution of written notification to the government without using the challenged form and without the obligation that the College notify its insurance issuers and administrators. But in it's reply brief to the Court on Wednesday, Wheaton College represented its position as follows:
"[E]ligible organizations should be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. That is precisely the relief Wheaton seeks .... Wheaton has no difficulty complying with—and indeed has already complied with—the terms prescribed by this Court in Little Sisters.... "Wheaton asks for the same relief that this Court granted to the Little Sisters of the Poor. Little Sisters, 134 S. Ct. 1022. There, the Court freed the Sisters from using the Form and allowed them to merely inform the government (not their TPA) of their religious objection. And after the Court issued its order -- which emphasizes (as you note in your Balkinization post) that "[n]othing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives" and that "[n]othing in this order precludes the Government from relying on [Wheaton's] notice [of its religious objection], to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act" -- Wheaton's counsel described the order as a "victory" that allows the college to "practice its faith free from crushing government fines." Of course, other non-profits might draw the line in a different place than Wheaton College and argue that written notification to the government is as problematic as written notification to insurance issuers or third party administrators. And perhaps some other nonprofits might (as I think your post suggests Wheaton College might) conditionally object to notifying the government depending on precisely how the government treats the written notification (e.g., as a definitive legal trigger designating a plan administrator or as an invocation of RFRA, which obligates the government to then find some solution, which perhaps could be viewed as less definitive of a trigger even if everyone knows what the result of the written notification will be). But given its representations to the Court, and its embrace of the Court's order, I think Wheaton College is unlikely to be the entity that presses that argument, no? - Jim On Sat, Jul 5, 2014 at 3:50 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > Yes, sorry -- did mean to refer to my B'Zation post, and certainly didn't > mean to be snippy. Alas, as my post suggests, all will not be clear. > That's the point: There's no doubt that the majority in WC thinks it has > come up with an ingenious solution that will satisfy everyone. And perhaps > it has, if its opinion is construed to suggest that RFRA empowers the > government to direct Blue Cross to provide the coverage without WC > designating BC as plan administrator, and if that suggestion is legally > feasible. (Two huge "if"s.) But the dissenters, and most of the public, > appear to be of the view that the Court's order will result in a denial of > coverage to WC employees . . . and perhaps they're right. It may depend on > technical ERISA questions. Moreover, as I suggest, if the employees do get > the coverage, WC itself might still allege a RFRA violation, particularly > if BC is designated a plan administrator. > > Chip may be right that at some level this mess is the inevitable result of > RFRA, and of any exemption test that turns in part on an evaluation of the > nature of the burden on religion. But I also think that it is a function > of the increasingly implausible theories of complicity being offered by the > plaintiffs' lawyers -- which the Court has invited with its capacious > understanding of what constitutes a "religious question" beyond the ken of > civil authorities to evaluate. > > > On Sat, Jul 5, 2014 at 2:49 AM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote: > >> Perhaps I misunderstood Marty's brief response, to the effect that I >> should read his post. I took that to mean that all would be clear if I just >> bothered to read again the post to which I was responding. Perhaps instead >> he meant that I should read a post he made on the Balkinization blog; if >> so, then my apologies for taking offense and responding as I did. >> >> Mark Scarberry >> >> >> Sent from my Verizon Wireless 4G LTE Smartphone >> >> _______________________________________________ >> 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. >> > > > _______________________________________________ > 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. >
_______________________________________________ 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.
