TABLE OF CONTENTS |
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Glossary | 1156 |
I. | Introduction | 1159 |
II. | Hobby Lobby and this case | 1160 |
III. | Background | 1160 |
A. | Regulatory Background | 1160 |
1. | The ACA Mandate and the Religious Employer Exemption | 1160 | ||
2. | The Accommodation Scheme for Religious Non–Profit Organizations | 1162 |
a. | EBSA Form 700 | 1163 | |||
b. | Alternative notice | 1163 |
3. | The Mechanics of the Accommodation for Insured Plans, Self–Insured Plans, and Self–Insured Church Plans | 1165 |
a. | Insured plans | 1165 | |||
b. | Self-insured plans | 1166 | |||
c. | Self-insured church plans | 1166 | |||
d. | Legal obligation to provide coverage after the accommodation | 1167 |
B. | The Plaintiffs | 1167 |
1. | Little Sisters of the Poor | 1167 | ||
2. | Southern Nazarene | 1168 | ||
3. | Reaching Souls | 1169 |
C. | Procedural History | 1169 |
1. | Little Sisters of the Poor | 1169 | ||
2. | Southern Nazarene | 1170 | ||
3. | Reaching Souls | 1171 |
IV. | Unusual Nature of Plaintiffs' Claim | 1171 |
V. | RFRA | 1173 |
A. | Legal Background | 1174 |
1. | Standard of Review | 1174 | ||
2. | RFRA and Free Exercise | 1174 | ||
3. | Elements of RFRA Analysis | 1175 | ||
4. | Courts Determine Substantial Burden | 1176 | ||
5. | Accommodations Can Lessen or Eliminate Burden | 1177 |
B. | Substantial Burden Analysis | 1178 |
1. | Plaintiffs' RFRA Arguments | 1178 | ||
2. | The Accommodation Scheme Eliminates Burdens on Religious Exercise | 1179 | ||
3. | The Accommodation Scheme Does Not Impose a Substantial Burden | 1180 |
a. | Opting out does not cause contraceptive coverage | 1180 | |||
b. | No substantial burden from complicity | 1190 | |||
c. | No burden from ongoing requirements | 1193 |
C. | Strict Scrutiny | 1195 | |
D. | Conclusion | 1195 |
VI. | First Amendment | 1195 |
A. | Free Exercise Clause | 1196 |
1. | Legal Background | 1196 | ||
2. | The Mandate and Accommodation Scheme are Neutral | 1197 | ||
3. | The Mandate and Accommodation Scheme are Generally Applicable | 1197 | ||
4. | The Mandate and Accommodation Scheme Have a Rational Basis | 1198 |
B. | Establishment Clause | 1199 |
1. | Organizational Distinctions Well–Established in Federal Law | 1199 | ||
2. | Organizational Distinctions and Respecting the Religion Clauses | 1200 | ||
3. | Organizational Distinctions Compatible with Larson and Colorado Christian | 1200 | ||
4. | Plaintiffs' Argument Based on the Departments' Rationale | 1201 |
C. | Free Speech Clause | 1202 |
1. | Compelled Speech | 1203 | ||
2. | Compelled Silence | 1204 |
VII. | Conclusion | 1205 |
In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest.
A group health insurance issuer that receives a copy of the self-certification or notification ... must (A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan; and (B) Provide separate payments for any contraceptive services required to be covered under § 147.130(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.
With respect to payments for contraceptive services, the [health insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate *1180 premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.
must provide to plan participants and beneficiaries written notice of the availability of separate payments for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or re-enrollment) in group health coverage that is effective beginning on the first day of each applicable plan year. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate payments for contraceptive services, and must provide contact information for questions and complaints.
[t]he general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.
a majority of justices [in Roy ] indicated that the requirement that applicants furnish a social security number was a different matter. Five justices either concluded or strongly suggested that the government could not require an applicant to provide the number on a benefits application if the applicant had a sincere religious objection to doing so.
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