Friday, January 03, 2014

Government brief in Little Sisters

Marty Lederman

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).

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