Marty's argument did seem to get some traction. But in addressing the alternative of not providing insurance and simply paying the $26 million ($2000 per employee), Clement suggested that the overall cost to the employer - including the need to pay higher wages and the adverse impact on attracting employees, etc. - still would amount to a substantial burden. He also argued that the government had not litigated the case on the theory that this alternative was a viable option, and he suggested that he would like a chance to demonstrate - presumably with financial calculations and expert testimony, etc. - that this alternative would not be economically viable and therefore would not eliminate the substantial burden.
Here's what he says at p. 28: "I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue. This case hasn't been litigated on this particular theory, so I think -- I'd love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client and their ability to attract workers, and that in fact would cost them much more out of pocket. But that's not been the nature of the government's theory." So, even if the Court were inclined to accept Marty's argument, wouldn't the challengers have to be given a chance to litigate this question on remand? Dan Conkle ************************************************ Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu ************************************************ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 25, 2014 4:19 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 Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll 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 I've 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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