Monday, January 13, 2014

Me and Will Ferrell: Together again

And this is why:

In reality, Justice Sotomayor only stayed the court of appeals’ denial of Little Sisters’ request for an injunction; in other words, her ruling only temporarily stops the government from enforcing the regulation against Little Sisters and its co-plaintiffs. How the case will ultimately turn out is far from clear.
Part of the problem with this case, from the beginning, was the sloppiness of the reporting.  "Change the facts, change the outcome," my Torts professor taught me (and that's about all I remember from Torts class, which I attended about 30 years ago now....!).  But don't get me started down that road; I've learned it is better to read many articles over many days, rather than rely on any one for a report on what cases are before the Court and why.  As I said below, this case really rests on the question of standing:

 Which means that if Little Sisters signs the self-certification that it opposes providing coverage for contraception, its employees will not receive such coverage.  In this respect, any possible connection between the Little Sisters’ religious objection and their employees’ use of contraception would be even more attenuated than Notre Dame’s.  Indeed, it’s not at all obvious why the plaintiff has standing to object to the self-certification requirement:  How could the Little Sisters be complicit in their employees’ use of contraceptives if those employees will not receive reimbursement for those services? (emphasis added)
And why aren't they covered?  Why isn't this a RFRA case at all?  Another acronym explains:  ERISA:

 Simply put, the Employee Retirement Income Security Act, or ERISA, contains an exemption for "church plans"—pension or insurance plans that are for the benefit of employees of churches or other religious organizations. If "church plans" are exempt from ERISA, they are exempt from the contraception coverage because, in essence, the government has no authority to force the employers to comply, beyond filling out the "self-certification" forms, which will not result in any actual insurance coverage for contraception. But Little Sisters is arguing first, that filling out the "self-certification" forms make it complicit in sinful activity and second, that the government might change the rules at some point down the road. 
Sarah Posner concludes her analysis this way:

 According to Politico this morning, an unnamed White House official is "confident that our final rules strike the balance of providing women with free contraceptive coverage while preventing non-profit religious employers with religious objections to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage." In the case of employers with "church plans," though, it seems like their employees will be out of luck, by the government's own admission. I'm not sure which part is more inexplicable: that the government didn't figure this out sooner, or that the religious objectors are still complaining about it.
The answer to the first part is:  politics is all about perception.  Easier for the White House to carve out an exception, very publicly, that is legally pointless, than to explain ERISA and IRS interpretations of the law (read Posner's analysis) to the White House Press Corps (MEGO, in other words, explains all).  As for the latter, that's the part that bewilders me:  not that  the Becket Fund is pushing this useless effort, but that the Supreme Court is participating in it (rather than dismissing the case out of hand.  This is why a single Justice reviews a case before passing it on to the full Court).

Where are my crazy pills?

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