Re: Equal Protection violation for not extending contraception coverage exemption to secular anti-abortion group?

[Marty Lederman]

No, Sandy.  Leon doesn't read RFRA to extend to nonreligion.  The RFRA
claims he recognizes -- those of two *employees *of MfL who want coverage
without contraception -- are based on their religion.  MfL's own claim is
upheld on EPC grounds.

On Tue, Sep 1, 2015 at 10:45 AM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

> So, is the argument that RFRA would be unconstitutional if it protected
> only "religious freedom," so that we a) expand it to protect any and all
> claims of "conscience," even if based on admittedly non-religious grounds
> and b) we must assume as well that Congress would prefer this solution to
> one that would, as Justice Stevens had suggested, simply invalidate RFRA?
> If I'm wrong in my surmise, then I think that Leon's RFRA argument makes no
> sense, unlike his equal protection argument, which requires no Orwellian
> interpretation of "religion."
>
> Although no one agreed with me at the time of Hobby Lobby, I continue to
> be perplexed how anyone who finds Leon persuasive could defend Gillette or,
> indeed, forcing pacifists to help finance the killing machine of government
> by paying taxes.
>
> Sandy
>
> Sent from my iPhone
>
> On Sep 1, 2015, at 7:42 AM, Marty Lederman 
> wrote:
>
> So rules Judge Richard Leon:
>
> https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1149-30
>
> His rationale is that because HHS extended the exemption to churches *because
> their employees are unlikely to use contraception*, it does not satisfy 
> *rational
> basis* review for HHS to deny a comparable exemption to March for Life, a
> secular group whose employees allegedly would not use IUDs, ella and Plan B
> (because MfL refuses to hire employees who are not opposed to use of such
> methods of contraception).
>
> On first glance, I'm dubious.  HHS exempts churches not only because HHS
> assumes that most of their employees share their objections to the use of
> contraception, but also because HHS assumes that requiring payment for such
> coverage would burden the churches' religious exercise (or beliefs) --
> something that is not present in the case of March for Life.  As the
> agencies wrote when they first established the exemption:  "In the
> Departments' view, it is appropriate that HRSA, in issuing these
> Guidelines, takes into account* the effect on the religious beliefs of
> certain religious employers* if coverage of contraceptive services were
> required in the group health plans in which employees in certain religious
> positions participate."  Or as they wrote in their brief in this case:
>  "[T]he religious employer exemption serves the 'legitimate purpose' of
> 'limiting governmental interference with the exercise of religion' by
> religious institutions." (quoting *Amos*).  See also 78 Fed. Reg. at
> 39874 ("exemption respect[s] the religious interests of houses of worship
> and their integrated auxiliaries").
>
> Judge Leon also holds that as to two of MfL's employees who have
> *religious* objections to participating in insurance plans that cover the
> four methods in question, RFRA grants them an exemption notwithstanding 
> *Priests
> for Life*, because (and only because) their insurer is willing to offer
> them a plan that does not include those methods.  This holding doesn't have
> any effect on MfL as long as Judge Leon's equal protection judgment stands
> (because MfL will be entirely exempt, anyway).  But what would its effects
> be if the EPC ruling is overturned?  Not much as to the employees
> themselves, of course, because they won't use the contraception in any
> event.  But it would presumably deny the benefit to their dependents who
> might use those methods, including those aged 18-26.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
>
> ___
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Re: Equal Protection violation for not extending contraception coverage exemption to secular anti-abortion group?

[Levinson, Sanford V]

Not for the first time, I'm grateful to Marty for providing clarification on 
the RFRA point. I should have read the decision more carefully.

Sandy

Sent from my iPhone

On Sep 2, 2015, at 8:06 AM, Marty Lederman 
> wrote:

No, Sandy.  Leon doesn't read RFRA to extend to nonreligion.  The RFRA claims 
he recognizes -- those of two employees of MfL who want coverage without 
contraception -- are based on their religion.  MfL's own claim is upheld on EPC 
grounds.

On Tue, Sep 1, 2015 at 10:45 AM, Levinson, Sanford V 
> wrote:
So, is the argument that RFRA would be unconstitutional if it protected only 
"religious freedom," so that we a) expand it to protect any and all claims of 
"conscience," even if based on admittedly non-religious grounds and b) we must 
assume as well that Congress would prefer this solution to one that would, as 
Justice Stevens had suggested, simply invalidate RFRA?  If I'm wrong in my 
surmise, then I think that Leon's RFRA argument makes no sense, unlike his 
equal protection argument, which requires no Orwellian interpretation of 
"religion."

Although no one agreed with me at the time of Hobby Lobby, I continue to be 
perplexed how anyone who finds Leon persuasive could defend Gillette or, 
indeed, forcing pacifists to help finance the killing machine of government by 
paying taxes.

Sandy

Sent from my iPhone

On Sep 1, 2015, at 7:42 AM, Marty Lederman 
> wrote:

So rules Judge Richard Leon:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1149-30

His rationale is that because HHS extended the exemption to churches because 
their employees are unlikely to use contraception, it does not satisfy rational 
basis review for HHS to deny a comparable exemption to March for Life, a 
secular group whose employees allegedly would not use IUDs, ella and Plan B 
(because MfL refuses to hire employees who are not opposed to use of such 
methods of contraception).

On first glance, I'm dubious.  HHS exempts churches not only because HHS 
assumes that most of their employees share their objections to the use of 
contraception, but also because HHS assumes that requiring payment for such 
coverage would burden the churches' religious exercise (or beliefs) -- 
something that is not present in the case of March for Life.  As the agencies 
wrote when they first established the exemption:  "In the Departments' view, it 
is appropriate that HRSA, in issuing these Guidelines, takes into account the 
effect on the religious beliefs of certain religious employers if coverage of 
contraceptive services were required in the group health plans in which 
employees in certain religious positions participate."  Or as they wrote in 
their brief in this case:  "[T]he religious employer exemption serves the 
'legitimate purpose' of 'limiting governmental interference with the exercise 
of religion' by religious institutions." (quoting Amos).  See also 78 Fed. Reg. 
at 39874 ("exemption respect[s] the religious interests of houses of worship 
and their integrated auxiliaries").

Judge Leon also holds that as to two of MfL's employees who have religious 
objections to participating in insurance plans that cover the four methods in 
question, RFRA grants them an exemption notwithstanding Priests for Life, 
because (and only because) their insurer is willing to offer them a plan that 
does not include those methods.  This holding doesn't have any effect on MfL as 
long as Judge Leon's equal protection judgment stands (because MfL will be 
entirely exempt, anyway).  But what would its effects be if the EPC ruling is 
overturned?  Not much as to the employees themselves, of course, because they 
won't use the contraception in any event.  But it would presumably deny the 
benefit to their dependents who might use those methods, including those aged 
18-26.
___
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Religionlaw@lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Equal Protection violation for not extending contraception coverage exemption to secular anti-abortion group?

[Arthur Spitzer]

Could March for Life lawfully refuse to employ a person whose spouse or
dependents wish to use forms of contraception that March for Life opposes?

*Warning:  This email is subject to monitoring by the NSA.*

On Tue, Sep 1, 2015 at 11:07 AM, Ira Lupu  wrote:

> So now March for Life will receive more favorable legal treatment than
> Priests for Life? Something is deeply wrong with this picture.
> (Re the employee claim, Marty is right that the decision ignores the
> interests of female dependents of the objecting employees.)
>
> Sent from my iPhone
>
> On Sep 1, 2015, at 10:45 AM, Levinson, Sanford V 
> wrote:
>
> So, is the argument that RFRA would be unconstitutional if it protected
> only "religious freedom," so that we a) expand it to protect any and all
> claims of "conscience," even if based on admittedly non-religious grounds
> and b) we must assume as well that Congress would prefer this solution to
> one that would, as Justice Stevens had suggested, simply invalidate RFRA?
> If I'm wrong in my surmise, then I think that Leon's RFRA argument makes no
> sense, unlike his equal protection argument, which requires no Orwellian
> interpretation of "religion."
>
> Although no one agreed with me at the time of Hobby Lobby, I continue to
> be perplexed how anyone who finds Leon persuasive could defend Gillette or,
> indeed, forcing pacifists to help finance the killing machine of government
> by paying taxes.
>
> Sandy
>
> Sent from my iPhone
>
> On Sep 1, 2015, at 7:42 AM, Marty Lederman 
> wrote:
>
> So rules Judge Richard Leon:
>
> https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1149-30
>
> His rationale is that because HHS extended the exemption to churches *because
> their employees are unlikely to use contraception*, it does not satisfy 
> *rational
> basis* review for HHS to deny a comparable exemption to March for Life, a
> secular group whose employees allegedly would not use IUDs, ella and Plan B
> (because MfL refuses to hire employees who are not opposed to use of such
> methods of contraception).
>
> On first glance, I'm dubious.  HHS exempts churches not only because HHS
> assumes that most of their employees share their objections to the use of
> contraception, but also because HHS assumes that requiring payment for such
> coverage would burden the churches' religious exercise (or beliefs) --
> something that is not present in the case of March for Life.  As the
> agencies wrote when they first established the exemption:  "In the
> Departments' view, it is appropriate that HRSA, in issuing these
> Guidelines, takes into account* the effect on the religious beliefs of
> certain religious employers* if coverage of contraceptive services were
> required in the group health plans in which employees in certain religious
> positions participate."  Or as they wrote in their brief in this case:
>  "[T]he religious employer exemption serves the 'legitimate purpose' of
> 'limiting governmental interference with the exercise of religion' by
> religious institutions." (quoting *Amos*).  See also 78 Fed. Reg. at
> 39874 ("exemption respect[s] the religious interests of houses of worship
> and their integrated auxiliaries").
>
> Judge Leon also holds that as to two of MfL's employees who have
> *religious* objections to participating in insurance plans that cover the
> four methods in question, RFRA grants them an exemption notwithstanding 
> *Priests
> for Life*, because (and only because) their insurer is willing to offer
> them a plan that does not include those methods.  This holding doesn't have
> any effect on MfL as long as Judge Leon's equal protection judgment stands
> (because MfL will be entirely exempt, anyway).  But what would its effects
> be if the EPC ruling is overturned?  Not much as to the employees
> themselves, of course, because they won't use the contraception in any
> event.  But it would presumably deny the benefit to their dependents who
> might use those methods, including those aged 18-26.
>
> ___
> 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; 

Re: Equal Protection violation for not extending contraception coverage exemption to secular anti-abortion group?

[Levinson, Sanford V]

So, is the argument that RFRA would be unconstitutional if it protected only 
"religious freedom," so that we a) expand it to protect any and all claims of 
"conscience," even if based on admittedly non-religious grounds and b) we must 
assume as well that Congress would prefer this solution to one that would, as 
Justice Stevens had suggested, simply invalidate RFRA?  If I'm wrong in my 
surmise, then I think that Leon's RFRA argument makes no sense, unlike his 
equal protection argument, which requires no Orwellian interpretation of 
"religion."

Although no one agreed with me at the time of Hobby Lobby, I continue to be 
perplexed how anyone who finds Leon persuasive could defend Gillette or, 
indeed, forcing pacifists to help finance the killing machine of government by 
paying taxes.

Sandy

Sent from my iPhone

On Sep 1, 2015, at 7:42 AM, Marty Lederman 
> wrote:

So rules Judge Richard Leon:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1149-30

His rationale is that because HHS extended the exemption to churches because 
their employees are unlikely to use contraception, it does not satisfy rational 
basis review for HHS to deny a comparable exemption to March for Life, a 
secular group whose employees allegedly would not use IUDs, ella and Plan B 
(because MfL refuses to hire employees who are not opposed to use of such 
methods of contraception).

On first glance, I'm dubious.  HHS exempts churches not only because HHS 
assumes that most of their employees share their objections to the use of 
contraception, but also because HHS assumes that requiring payment for such 
coverage would burden the churches' religious exercise (or beliefs) -- 
something that is not present in the case of March for Life.  As the agencies 
wrote when they first established the exemption:  "In the Departments' view, it 
is appropriate that HRSA, in issuing these Guidelines, takes into account the 
effect on the religious beliefs of certain religious employers if coverage of 
contraceptive services were required in the group health plans in which 
employees in certain religious positions participate."  Or as they wrote in 
their brief in this case:  "[T]he religious employer exemption serves the 
'legitimate purpose' of 'limiting governmental interference with the exercise 
of religion' by religious institutions." (quoting Amos).  See also 78 Fed. Reg. 
at 39874 ("exemption respect[s] the religious interests of houses of worship 
and their integrated auxiliaries").

Judge Leon also holds that as to two of MfL's employees who have religious 
objections to participating in insurance plans that cover the four methods in 
question, RFRA grants them an exemption notwithstanding Priests for Life, 
because (and only because) their insurer is willing to offer them a plan that 
does not include those methods.  This holding doesn't have any effect on MfL as 
long as Judge Leon's equal protection judgment stands (because MfL will be 
entirely exempt, anyway).  But what would its effects be if the EPC ruling is 
overturned?  Not much as to the employees themselves, of course, because they 
won't use the contraception in any event.  But it would presumably deny the 
benefit to their dependents who might use those methods, including those aged 
18-26.
___
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.
___
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To subscribe, unsubscribe, change options, or get password, see 
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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.