In advance of next Tuesday’s oral argument in the HHS mandate cases, here’s an outline of posts of mine that bear on the major issues:
1. Does the HHS mandate substantially burden the plaintiffs’ exercise of religion?
a. Is a for-profit corporation categorically incapable of engaging in an exercise of religion for purposes of RFRA? [No]
EPPC Amicus Brief: The Free Exercise Clause and For-Profit Corporations
EPPC Amicus Brief on Meaning of “Exercise of Religion” in RFRA
EPPC Amicus Brief on Government’s Parade of Horribles
DOJ’s Round-Two Brief in HHS Mandate Cases—Part 1
b. Is the burden of which plaintiffs complain too attenuated and remote to be substantial? [No]
DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2
Garrett Epps’s Topsy-Turvy Misunderstanding of Religious-Liberty Precedents
c. Are the individual plaintiffs burdened by the HHS mandate? [Yes]
DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2 (last paragraph)
Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2 (last paragraph)
2. Can the government satisfy both prongs of the strict-scrutiny test? [No]
a. Does the HHS mandate further a compelling governmental interest? [No]
On the HHS Mandate’s “Sieve” of Exceptions
DOJ’s Reply Brief in Hobby Lobby—Part 2
b. Is the HHS mandate the least restrictive means of furthering the asserted governmental interests? [No]
DOJ’s Reply Brief in Hobby Lobby—Part 1
The HHS Contraception Mandate vs. RFRA—“Least Restrictive Means”
There are also some tangential issues that I’ve addressed in detail. On the irrelevance to the substantial-burden inquiry of the fact that large employers do not have a legal duty to provide health insurance, see:
Substantial Confusion on RFRA’s “Substantial Burden” Requirement?
On whether the drugs and devices that Hobby Lobby objects to can operate to kill human embryos, see: