46 Pages Posted: 6 Feb 2014
Date Written: January 28, 2014
This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.
Amici on the brief are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).
Catherine Weiss, Natalie Kraner, Michael J. Hampson, Joseph A. Fischetti & Meg Slachetka of Lowenstein Sandler LLP served as counsel to the Amici.
Keywords: Affordable Care Act, accommodation of religion, Conestoga Wood, contraception mandate, Establishment Clause, Free Exercise Clause, Hobby Lobby, permissive accommodation of religion, religious exemptions, Religious Freedom Restoration Act, religious liberty, Title VII
Suggested Citation: Suggested Citation
Gedicks, Frederick Mark, Brief of Amici Curiae Church-State Scholars in Support of the Government in Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius (January 28, 2014). Available at SSRN: https://ssrn.com/abstract=2387895 or http://dx.doi.org/10.2139/ssrn.2387895
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