I don't think Marty is suggesting otherwise, but on the substantial burden issue and the Iqbal/Twombly point, I can't think that there would have to be a new lawsuit. Wouldn't the Supreme Court properly remand to permit the district court to grant leave to amend the complaint under FRCP 15(a)(2)?
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: Wednesday, March 26, 2014 7:44 AM To: Law & Religion issues for Law Academics Subject: Re: Hobby Lobby transcript 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 hasn't 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. (That's 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 needn't 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. 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 -- but perhaps some would. The whole point of my posts on this question has been that it's 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 government's interest, but also the impact on third parties. Of course, as most of you know, she's 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 I'm aware of in which the Court was honest about its balancing was Warren's 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<mailto:aebrownst...@ucdavis.edu>> wrote: I think Marty's second point below about the Court's somewhat positive reception to the least restrictive means argument is important because it provides a basis for resolving this case in Hobby Lobby's 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<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Marty Lederman [lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>] 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 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
