Wednesday, May 20, 2015
Some reading to accompany pages 1-5 of Judge Posner's latest (and hopefully not long for our law) opinion on the contraceptives mandate
Judge Posner is back with another opinion rejecting Notre Dame's attempt to secure exemption from the contraceptives mandate, as required by the Religious Freedom Restoration Act. I couldn't make it past page five before desiring to post some readings to accompany his recitation of the case.
1. For a fuller explanation of the materials discussed in the paragraph on pages 2-3 that concludes with a recommendation to read the D.C. Circuit's Priests for Life opinion for "a compact and convincing summary of the benefits to society in general and women in particular of inexpensive access to contraception," take a look at Helen Alvaré, No Compelling Interest: The "Birth Control" Mandate and Religious Freedom, 58 Vill. L. Rev. 379 (2013). Note also the failure of Judge Posner's formulation here at the outset to map onto the level of specificity required by Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal.
2. For the claim on page 4 that the Administration formulated its religious employer exemption "mindful of the dictate of the Religious Freedom Restoration Act," look at the portion of the Federal Register cited by Judge Posner for support, which makes no mention of RFRA. As explained and documented in an amicus curiae brief I co-authored on behalf of Senator Hatch and other lawmakers who enacted RFRA, "the government ignored RFRA in formulating the narrow religious exemption at the outset and only attended to its requirements because of litigation and the reaction to public scrutiny."
3. For the claim that Notre Dame came within the scope of "the exemption" as a result of new regulations in 2013, take a look at the portion of the Federal Register cited by Judge Posner for support. Rather than expand the exemption to include religious employers like Notre Dame, these regulations provide an "accommodation" for these non-exempt religious employers. In response to commenters who argued that "the proposed definition of religious employer was too narrow and should be broadened to include all employers, both nonprofit and for-profit, that have a religious objection to providing contraceptive coverage in their group health plan," the promulgating Departments said that they were "finalizing without change the definition of religious employer in the proposed regulations." This definition was limited to houses of worship and integrated auxiliaries; it did not include Notre Dame.