Brad,
In the complaint filed by Belmont Abbey College challenging the contraception
mandate, the Becket Fund argues that the contraception mandate is not a law of
general applicability because among other things (a) it does not apply to all
employers (for instance it does not apply to employers with fewer than 50
employees); (b) it does not apply to certain "grandfathered" insurance plans;
and (c) it provides for a system of individualized exemptions by allowing HHS
the ability to grant waivers in response to individualized requests. You can
access the complaint here:
http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf)
Maybe the question to be asked is which "law" must be of general
applicability? In Smith, it strikes me that the peyote statute was a stand
alone criminal law. In this instance, I understood that the contraception
mandate was just one component of the overall federal healthcare reform act.
So it seems to me that in interpreting whether the law is one of general
applicability, a court would be required to look at the entire healthcare
reform act and determine what waivers and exemptions were included in it,
rather than just narrowly focusing on the contraception mandate itself.
Thoughts?
Will
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
********************
"We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light."
(Attributed to Plato, 428-345 B.C.)
********************
--- On Sat, 2/11/12, Brad Pardee <bp51...@windstream.net> wrote:
From: Brad Pardee <bp51...@windstream.net>
Subject: The contraception mandate under Empoyment Division v Smith
To: religionlaw@lists.ucla.edu
Date: Saturday, February 11, 2012, 12:31 AM
I've been following the coverage of the mandate that religious organizations
provide free contraception through their insurance plans, regardless of whether
or not it forces them to violate the tenets of their faith. Today's
announcement of an accomodation notwithstanding, ,though, I'm wondering what
the chances are that the courts would rule against the administration if the
lawsuits that have been filed go to trial.
It's my understanding that, in Employment Division v Smith, the Court clearly
said that a neutral law of general applicability isn't going to violate the
Free Exercise Clause. From what I've read, the regulation in question appears
to be both neutral and of general applicability. A strict adherence to Smith
would seem to weigh against the religious freedom claims, which is the danger
many have seen in Smith since the ruling first came out.
What is the sense here whether the Courts would adhere to Smith and uphold the
mandate, or would the Courts see it as an opportunity to revisit Smith? I
don't remember that there was the same national controversy over Smith when it
came out, but it seemed to me that, outside of legal and Native American
circles, most folks didn't worry about it because they didn't see it as a
ruling beyond peyote. The contraceptive mandate has certainly gotten the
attention of a much larger segment of society, though. I wonder if the Court
would see a case like this as an opportunity to restore what was lost in Smith.
Brad Pardee
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