Friday, July 27, 2012
RFRA and Ripeness
I suppose we could have a blog devoted solely to responding to the New York Times and have enough content and then some, but I think it's important to set a positive tone. All the same...This editorial regards the decisions in some recent HHS mandate cases to dismiss the cases on ripeness grounds as obviously correct (one suspects that dismissals on standing grounds of claims in other civil rights contexts would not be so enthusiastically endorsed by the Times). But MOJ-friend Kevin Walsh (Richmond) has an interesting post here on what Kevin terms "litigation-induced clarity" (with illustration from litigation in which President Clinton personally intervened) and how forcing the government to articulate answers at oral argument to questions pertinent to the ripeness inquiry might be worthwhile (eg, as Kevin poses in his post, "Will an entity's health plan be exempt from the mandate or not? Is the government’s attempt at accommodation based on their recognition that the mandate is a substantial burden on the exercise of religion? Why did the government finalize its exemption if it aims to expand that exemption? Why didn’t the government consider other alternatives before, rather than after, finalizing its exemption?").
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/07/rfra-and-ripeness.html
Comments
You can follow this conversation by subscribing to the
comment feed
for this post.
Well, here's DOJ's brief in support of their motion to dismiss in the case brought by a private for profit company in which the DOJ maintains, inter alia, "Plaintiffs’ free exercise claim fails at the outset because, as explained above, for-profit, secular employers generally, and Hercules Industries in particular, do not engage in any exercise of religion protected by the First Amendment."
That's a relatively bold claim, it seems to me. Citizens United held that corporations have speech rights protected by the First Amendment. It would seem that, by extension, corporations would also enjoy free exercise rights. Otherwise one would lose one's conditional protections simply by engaging in an activity in the corporate form.