Friday, October 16, 2015

Supreme Court sets date for consideration of nonprofit RFRA challenges to contraception coverage accommodation

Marty Lederman

As expected, the petitioners in Nos. 15-105, Little Sisters of the Poor v. Burwell, and 15-119, Southern Nazarene Univ. v. Burwell, filed their reply briefs earlier this week (Little Sisters here; Southern Nazarene here), and the Court has now set all seven pending petitions for consideration at its October 30 conference.  That means the Court might announce as early as Monday, November 9 which, if any, of the cases it will consider.  As I explained here and here, I think it is likely that the Court will, at a minimum, accept the government's suggestion and grant the petition in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell.  The petitioners in Little Sisters argue that the Court should grant their petition, too, principally because they also raise a First Amendment question concerning the constitutionality of the lines the government has drawn between the two different accommodations it has offered to different sorts of religious organizations.  The government argues at pages 21-24 of its brief that the Court should not consider that constitutional question, but should instead confine its grant to the RFRA question.

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