Tuesday round-up

By on Jul 8, 2014 at 7:26 am

Commentators continue to parse last week’s decision in Burwell v. Hobby Lobby, in which a divided Court held that closely held companies with strong religious objections are not required to comply with the Affordable Care Act’s birth-control mandate.  At the Nonprofit Law Prof Blog, Lloyd Mayer contends that “the Hobby Lobby decision does not clearly resolve the cases involving religious nopnrofits that are not flatly exempt from the contraceptives services coverage requirement but instead accommodated,” while at Forbes Daniel Fisher suggests that the decision “pushes the law a bit farther than many legal scholars are comfortable with” because it “allow[s] the plaintiff also to determine what  constitutes a ‘substantial burden’ upon it.”  In an op-ed for the National Law Journal (registration required), Ira Lupu examines what effect the decision might have on benefits for same-sex spouses, while at The Hill’s Congress Blog Ciara Torres-Spelliscy likens the Court to “the modern day Dr. Frankenstein,” which has “breathed legal life into the corporate form and then slowly lost control.”  At ACSblog, Charlotte Garden draws comparisons between Hobby Lobby and the Court’s decision the same day in Harris v. Quinn, holding that Illinois home-health care workers are not full-fledged “public employees” and therefore cannot be required to pay agency fees to a union:  she suggests that both “decisions share an important characteristic: they allow some to shift the costs of their ideological or religious commitments onto workers who may disagree.”  At Dorf on Law, Michael Dorf continues his series on the decision with a post that focuses on “what may strike many as a peculiar aspect of the Hobby Lobby case: the idea that religious claimants are entitled to rely on empirically false propositions to ground their legal claims to exceptions.”  At Hamilton and Griffin on Rights, Marci Hamilton provides a “Hobby-Lobby-To-English Translation Dictionary,” while at his Election Law Blog, Rick Hasen criticizes comments by a federal judge/blogger who had in turn criticized the Hobby Lobby decision.
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Petition of the day

By on Jul 7, 2014 at 10:26 pm

The petition of the day is:

Deemer v. Beard
13-1153

Issue: Whether the favorable termination requirement of Heck v. Humphrey applies when federal habeas relief was unavailable as a practical matter to a Section 1983 plaintiff.

 

 
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Dr. Eastman is the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Fowler School of Law.  He is also the Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence, which filed an amicus curiae brief in the Hobby Lobby case.

Others in this symposium have already parsed the Court’s decision in Burwell v. Hobby Lobby Stores, Inc., its application of the Religious Freedom Restoration Act to closely held corporations, and what the decision portends for the so-called accommodation for groups like the Little Sisters of the Poor that is currently being litigated.  I want to focus on the reactions to the decision, for the vitriolic criticism and outright lies that have been leveled against the Supreme Court’s holding are eye-opening.  No doubt egged on by Justice Ginsburg’s own false claim in her dissent that the decision “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage,” pro-abortion groups have accused the Court of preventing women from having access to birth control and of giving bosses the power to force their personal beliefs on their women employees.  Another entry in this symposium claims that the decision was “stunningly bad for women’s health and starkly dismissive of women’s own religious beliefs,” giving corporations “a license to discriminate against their female employees by overriding those employee’s rights to contraceptive coverage.”  The New York Times even editorialized that the decision granted “owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.”  And that’s just the reaction from the mainstream left.  The fringe left was utterly unhinged, among other things contending that Hobby Lobby is now worse than the Taliban in trying to impose its religious views on others.   Continue reading »

Monday round-up

By on Jul 7, 2014 at 11:23 am

The Court is now in the first full week of its summer recess, which means that wrap-ups of the Term abound.  In her review of the Term, NPR’s Nina Totenberg observes that the unanimity which often prevailed at the Court “is illusory, often just a technical agreement on the bottom line of a case — who won and who lost,” and that “who won or lost is not all that important in Supreme Court cases, because it is the legal principle laid down by the majority that must be followed by the lower courts.”  At The Economist, Steven Mazie suggests that the Court “quietly pave[d] the way for big changes” in the future, and he predicts that questions involving same-sex marriage are likely to return to the Court very soon.  The ACLU released its list (in a pdf) of major civil liberties decisions of the Term, while MoloLamken (also in a pdf) summarized major business cases of the Term.  Continue reading »

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UPDATED Monday 11:28 a.m.  The application has been docketed as 14A19.  The Court has now switched its numbering system for filings to the October Term 2014.   This post also has been updated to reflect the current situation in Pennsylvania.

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Arguing that the Supreme Court has made clear that it does not want any same-sex marriages to go forward until it gets a chance to rule on the constitutionality of state bans, a county clerk in Pennsylvania has asked the Court to put a stop to those marriages in her state.  The plea by Theresa Santai-Gaffney, the Schuylkill County clerk, also seeks the right to pursue her challenge even though lower courts excluded her.

The same-sex marriage situation in Pennsylvania at this stage is similar to that in other states where a ban has been struck down in court, but state officials declined to appeal to get it reinstated.  The Court has once moved in to temporarily ban such marriages, in Utah, and the Schuylkill County clerk asked it to do so in Pennsylvania.

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In granting Wheaton College an injunction against the contraception mandate, the Supreme Court issued an order, accompanied by a one-sentence concurrence by Justice Scalia “in the result,” and a lengthy dissent by Justice Sotomayor joined by Justices Ginsburg and Kagan.  Following its usual practice in such matters, there was no mention of how the other Justices voted, including Justice Breyer.  (Marty Lederman and I debate the effect of the order here and here.)

The dissent argued that the injunction was procedurally inappropriate and inconsistent with the Court’s very recent opinion in Hobby Lobby.  That decision was five to four.  The dissenters were the three dissenting Justices identified in Wheaton College, plus Justice Breyer.  That raises two questions:  did Justice Breyer join the Wheaton College majority; and if so, why?

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This week at the Court

By on Jul 6, 2014 at 12:01 am

The Court is in its summer recess.

 
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I think Marty’s post below on the accommodation issue in the Wheaton College case is very interesting.  But I think that the issues he raises are resolved more simply than his post suggests.

As I understand it, here is the nub of the potential problem.  Presently, a religiously affiliated entity secures an accommodation from the contraception mandate by filling out and submitting the Department of Labor’s “Form 700.”  That form has a specific legal consequence:  it deems the entity’s health insurer to be a “plan administrator” under ERISA.  That is important, because the government can only require a plan administrator – not every insurer – to provide free contraception coverage.

Here is Marty’s concern.  Under the Court’s opinion, Wheaton College will not fill out Form 700.  It will instead identify itself to the government as religiously affiliated.  So as things stand, Wheaton’s insurer will not be deemed a plan administrator.  So the government cannot require its insurer to provide free contraception coverage.

There seems to be a simple answer:  Form 700 is not so special.  The relevant regulation (29 C.F.R. § 2510.3-16(b)) says that the entity’s “self-certification” will deem its insurer a plan administrator.  Another regulation (29 C.F.R. § 2590.715-2713A) says that a self-certification will be submitted in “a form and manner specified by” the government.

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As Lyle has explained, by a 6-3 vote yesterday afternoon, the Supreme Court issued this interim order in an “ACA contraceptive coverage” case brought by a religious nonprofit organization, Wheaton College:

If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review.  To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

Moreover, and critically, in the Court’s view, “[n]othing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.”

In other words, the Court apparently believes that its interim order will, like its resolution of Hobby Lobby on Monday, result in a “win-win” situation, in which the plaintiff does not have to do the thing that it claims would violate its religion (namely, submit Form 700), and yet its employees (and its students, too) will still be able to receive cost-free contraception coverage from the third-party administrators (TPAs) of Wheaton’s self-insured health plan: Blue Cross/Blue Shield (BC/BS) and Companion Life Insurance Co.

But the Court might be wrong about that.  If my understanding of the law—and of Wheaton’s religious objection—is correct, it may be very difficult to square the circle here, to accommodate both parties’ asserted interests simultaneously.  Nevertheless, the Court’s own opinions in Hobby Lobby and Wheaton College may themselves contain a seed of a solution.  (Caveat:  The following analysis is necessarily tentative, based upon my reading of the briefs and a rudimentary reading of the Employee Retirement Income Security Act (ERISA) and relevant regulatory provisions.  I will amend it if and when I learn more.)

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Petition of the day

By on Jul 3, 2014 at 10:10 pm

The petition of the day is:

Missouri Gas Energy v. Kansas Division of Property Evaluation
13-1216

Issue: Whether a state may, consistent with the dormant Commerce Clause, impose an ad valorem tax on natural gas that is being transported through interstate commerce but temporarily stored in the state by a common carrier, even though the taxpayer has no control over where the gas is stored and no other connection with the state.

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