Government brief in Little Sisters
The government has filed its brief in the Little Sisters case, which I discussed in this post. The basic argument is that "with the stroke of their own
pen, applicants can secure for themselves the relief they seek
from this Court -- an exemption from the requirements of the
contraceptive-coverage provision -- and the employer-applicants’
employees (and their family members) will not receive
contraceptive coverage through the plan’s third-party
administrator either." The brief argues:
Employer-applicants’ third-party administrator [Christian Brothers Services] will be
under no legal obligation to provide the coverage after
applicants certify that they object to providing it. If
employer-applicants’ third-party administrator were nevertheless
to decide to provide contraceptive coverage, applicants’
employees and their covered dependents would receive such
coverage despite applicants’ assertion of their religious
objections, not because of those objections.
In this case, however, as both of the lower courts again
recognized, the third-party administrator of applicants’ church
plan says it will not provide contraceptive coverage. As a
result, a signed certification will discharge all employer-applicants’ responsibilities under the contraceptive-coverage
provision, and their employees will not receive such coverage
from the third-party administrator. Given these circumstances, applicants’ concern that they are “authorizing others” to provide coverage lacks any foundation in the facts or the law.
* * * *
Applicants draw flawed analogies when they say that under
the court of appeals’ reasoning, “Quaker conscientious objectors
would suffer no penalties if they would just join the military;
Jewish prisoners would suffer no burden if they would just eat
the pork; Seventh Day Adventists would not lose their benefits
if they would just work on Saturdays.” Appl. 26-27. To mirror
the situation here, the question in all of those cases would be
whether the religious objector could be required to sign a
certification form in order to secure the religion-based
exemption he sought. It is applicants’ position, not that of
the court of appeals, that would lead to absurd results in those
cases, for it would seemingly mean that the Quaker could not be
made to attest to his status as a conscientious objector before
being absolved of his military obligations; that the Jewish
prisoner could not be required to fill out a form saying he had
a religious objection to the consumption of pork before he was
provided an alternative meal; and that the Seventh Day Adventist
could not be obligated to state that he had a religious
objection to working on Saturdays before being relieved of his
shift.
When extending religious accommodations, the government must be allowed to provide for regularized, orderly means of
permitting eligible individuals or entities to declare that they
intend to take advantage of them. That is what the self-certification under the regulations accomplishes, and it does so
by requiring only that employer-applicants say something that
they have said repeatedly in this litigation, namely, that they
object on religious grounds to providing contraceptive coverage
to their employees. To interpret RFRA to negate even such a
certification requirement would be extraordinary. Cf. Roy, 476
U.S. at 699-700 (no free-exercise right to dictate how the
government conducts its internal affairs). At the very least,
it is not indisputably clear that applicants would be entitled
to relief on that sweeping theory.
The government also invokes the point I made in earlier posts, one more relevant to the Hobby Lobby/Conestoga Wood cases, namely, that
The preventive-services coverage provision in general,
and the contraceptive-coverage provision in particular, apply
only if an employer offers a group health plan. Employers, however, are not required to offer group health plans in the first place. Large employers (those with more than 50 full-time-equivalent employees) face a potential tax if they do not
provide coverage, 26 U.S.C. 4980H (Supp. V 2011), but that gives
them a “choice” between two legal options: provide a group
health plan or risk payment of the tax. Liberty Univ., 733 F.3d
at 98; cf. National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
2566, 2596-2597 (2012).