Earlier this year, two district courts blocked Trump Administration rules that create sweeping exemptions from the Affordable Care Act's contraceptive coverage requirement. Those decisions are now on appeal in the Third and Ninth Circuits. Yesterday, along with my colleague Talia Nissimyan at Kaplan Hecker & Fink, I filed an amicus brief on behalf of church-state scholars explaining that the administration's Religious Exemption Rule violates the Establishment Clause.  

Here's the introduction and summary of argument:

The United States has a long tradition of religious accommodation. When laws impose burdens on the free exercise of religion, government often provides accommodations out of respect for liberty of conscience. There are, however, well-established limits on the accommodation of religion. Under the Establishment Clause, government may not craft accommodations in ways that have the purpose of promoting religion above all other interests, or that shift substantial hardship to third parties. See Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (holding that the government is required to “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries”). As the Supreme Court explained in Estate of Thornton v. Caldor, “[t]he First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform to his own religious necessities.” 472 U.S. 703, 710 (1985)(internal citation omitted).

Religious conformity, however, is precisely what the government’s Religious Exemption Rule requires. That rule grants a categorical exemption to for-profit and non-profit corporations that object on religious grounds to paying for insurance that includes contraceptive coverage. The Religious Exemption Rule would force employees of objecting corporations into health care plans that impose costs on employees based on the religious convictions of their employers. As a result, and as two district courts have already concluded, tens of thousands of women across the country will be deprived of contraceptive coverage to which they are otherwise statutorily entitled. These women will be compelled to conform with—and pay for—the employers’ religious practice.

This is precisely the type of overt religious favoritism barred by the Constitution. Unlike the preexisting accommodation regime that the Supreme Court considered in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), Wheaton College v. Burwell, 573 U.S. 958 (2014), and Zubik v. Burwell, 136 S. Ct. 1557 (2016)—which guaranteed employees would receive contraceptive coverage from insurers—the Religious Exemption Rule ignores the interests of employees. In so doing, it manifests an unyielding preference for religious interests over any conceivable secular interest and foreseeably shifts serious burdens to third parties.

Appellants and their amici advance several arguments meant to defeat the application of the Establishment Clause. As we will explain, none succeeds. Under settled Supreme Court precedent, the Religious Exemption Rule is subject to—and in flagrant violation of—the rule that accommodations must be structured in a manner that accounts for third-party interests. For that reason, separate and apart from the APA arguments addressed by the parties, the preliminary injunction entered by the district court may be affirmed on the ground that the Religious Exemption Rule violates the Establishment Clause.

You can read the full brief here.

The brief was filed on behalf of Professors Micah Schwartzman, Nelson Tebbe, Fred M. Gedicks, Caroline Corbin, Katherine Franke, Sarah B. Gordon, Steven Green, Leslie Griffin, Andrew Koppelman, Chip Lupu, Richard Schragger, Liz Sepper, Nomi Stolzenberg, and Bob Tuttle.

Some of the arguments in the brief were developed in "Costs of Conscience," written by Professors Schwartzman, Tebbe, and Schragger. 

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