an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Update on Zubik--the nonprofit contraceptive case--and an online symposium on NeJaime and Siegel's Conscience Wars
On Wednesday, the Supreme Court will hear 90 minutes of oral argument in Zubik v. Burwell, et al.,the consolidated RFRA cases brought by dozens of nonprofit organizations challenging the federal agencies' accommodation for such organizations. Under that accommodation, the insurance companies that administer employee health plans would pay for beneficiaries' costs of contraception, whereas the objecting employers themselves would not be required to pay for, administer, or otherwise facilitate such coverage.
All of the briefs can be found here. The parties' briefs, on both sides, are excellent; I commend them to you. A good deal of the parties' briefs, as well as many of the amicus briefs, are devoted to the question of whether the accommodation "substantially burdens" the plaintiffs' religious exercise as a matter of law. A few of the amicus briefs, however, focus on the "back end" of RFRA, i.e., on the question of whether denying the RFRA exemptions would be the "least restrictive" means of advancing compelling government interests. At least four of those amicus briefs in support of the government are, IMHO, especially worthy of your attention:
-- The brief of the Guttmacher Institute discusses how cost-free contraceptive coverage results in a much lower incidence of unplanned pregnancies (and thus a lower abortion rate), especially by virtue of the increased use in IUDs, which are among the most effective--but also among the most cost-prohibitive--methods of birth control.
-- Part III of the brief filed by Hogan Lovells on behalf of health-care experts argues that the allegedly "less restrictive" alternatives offered by the petitioners would "erect obstacles of one kind or another to women obtaining contractive services, rendering them much less effective at furthering the compelling government interests in public health and gender equality."
-- The Baptist Joint Committee for Religious Liberty--one of the nation's preeminent defenders of religious liberty and supporters of RFRA--has filed a remarkable brief written by Doug Laycock and Holly Hollman. Part I of the brief elaborates upon the government's argument that even accepting the plaintiffs' claims that the accommodation would somehow coerce them to facilitate contraceptive use in a manner their religion prohibits (by virtue of the involvement of the insurance companies that administer the plans they make available to employees), the Court should conclude that the accommodation as a matter of law would not impose a substantial burden on their religious exercise.
As strong as that argument is, what's most important about the Baptist Joint Committee brief is Part II, which confronts directly a prominent and potentially groundbreaking argument made by the plaintiffs. In their briefs (and those of several of their amici), plaintiffs have, perhaps surprisingly, placed a great deal of emphasis on the argument that their requested RFRA exemptions are compelled by the fact that the agencies have entirely exempted churches and their auxiliaries from the contraception regulation (such that even the plans' insurance companies do not have to offer reimbursement for contraception). The church exemption, argue the plaintiffs, demonstrates that the purportedly compelling government interests must not be so compelling--otherwise, why would the agencies allow the employees of churches to potentially go without coverage?
The BJC brief characterizes this argument as a "mortal threat" to religious liberty in America. It reasons that if the Court were to embrace it, the "underinclusiveness" argument would render suspect many of the lines legislatures and agencies regularly draw when crafting voluntary religious accommodations. And if legislatures and administrators know that RFRA might compel a much broader exemption any time such lines are drawn, that risk would powerfully deter them from offering religious accommodations in the first instance.
The BJC brief is, safe to say, a must-read. (Doug Laycock has just published a much shorter version of the brief's arguments in the Washington Post. The Post piece begins by noting that Doug "had never before filed a brief in support of the government in a case about the free exercise of religion." Also, here's a fine story by Sarah Posner on the BJC brief.)
-- Finally, if I may, together with Tejinder Singh and four fellow religious liberty scholars--Sally Gordon, Kent Greenawalt, Chip Lupu and Bob Tuttle--I filed this brief, which is not so much devoted to the contraception regulation itself, but instead to the history and understanding of what RFRA "restored," and, in particular, to explaining how RFRA's "least restrictive means" test is quite a bit different from, and less demanding than, the sorts of "strict scrutiny" tests the Court often applies in other contexts (such as in facial challenges to statutes that discriminate on the basis of race, religion, or the content of expression).
We argue two things, in particular, that could bear on how the Court treats the RFRA test if it does not reject the plaintiff's "substantial burden" argument:
First, contrary to some statements in the Court's decisions in cases such as City of Boerne and Hobby Lobby, when Congress enacted RFRA it did, in fact, restore, as a matter of statutory law, the very same test the Court had employed in its Free Exercise jurisprudence in the generation before the 1990 decision in Employment Division v. Smith. The Court's decisions in that pre-Smith era, and the reasoning the Court employed in them, therefore should govern how courts apply RFRA.
Second, that pre-Smith "least restrictive means" test, which RFRA restores, is not the same as the test the Court employs when it evaluates a facially discriminatory law; and therefore the Court has erred in referring to the RFRA test as “the most demanding test known to constitutional law.” (We suggest that the Court's error was, at least in the first instance, a function of misleading and unopposed briefing in Boerne that has never, until now, been challenged.) In particular, and of greatest significance to Zubik, we argue that the hypothetical prospect of new legislative appropriations--which almost all of petitioners' alternatives would require--should not be considered "less restrictive alternatives" for advancing the government's compelling interests, or for ameliorating the harms to those interests that would result from the requested religious accommodation.