In Light of Tandon and Fulton, Do Exemptions to Anti-Discrimination Laws Undermine The Government’s Compelling Interest To Burden The Free Exercise of Religion?
In 2017, I began writing a paper titled Compelling Interests under the First Amendment. I argued that “if the state carves out exemptions from a policy, the case for a compelling interest is undermined.” This issue arose in Hobby Lobby. The Court–to keep Justice Kennedy’s 5th vote–would only “assume that the interest in guaranteeing cost-free access” to contraception was compelling for purposes of RFRA. However, this assumption was very precarious given the fact that HHS carved out so many non-religious exemptions to the mandate, such as grandfathered policies. Solicitor General Verrilli dodged Chief Justice Roberts’s questions on grandfathering. Here is an excerpt from Chapter 16.4 of Unraveled, pp. 231-232:
But the biggest point of contention during oral arguments concerned the grandfather clause. Health insurance plans that were in existence before the mandate came into effect were grandfathered, and were not subject to the mandate unless they were changed. (Ironically, Hobby Lobby’s plan lost its grandfather status after the Greens removed coverage of Plan B, which in turn made them subject to the mandate to cover Plan B). How could the government’s interest be so compelling, Hobby Lobby argued, if thousands of grandfathered plans nationwide were exempted? One of the lawyers for Hobby Lobby told me that when the government has a compelling interest, you don’t exempt over half of the people that it applies to. And if the interest is not compelling, under the RFRA analysis, Hobby Lobby would be entitled to a religious accommodation. The government took that argument very seriously. A senior DOJ attorney acknowledged that “we didn’t have an iron-clad answer on grandfathering.
Chief Justice Roberts exploited this liability with a series of questions. Roberts asked the solicitor general, “Can you make a representation to us about how long the grandfathering is going to be in effect?” In other words, how long would the grandfathered plans – that are not subject to the mandate – stick around? Verrilli would not answer the question. “I can’t give you a precise figure, [but] there’s a clear downward trajectory.” Ironically enough, the president’s false promise that people can keep their plans provided the basis for the solicitor general’s answer. Every year, more and more old, noncompliant plans would be cancelled. Invariably, as plans were changed, t
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