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Snippets: Little Sisters, Subsidies Cases Delayed, SSM Appeals

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By William Peacock, Esq. on September 10, 2014 1:10 PM

Can you feel it? Only 19 more days until the Court returns for its Big Fall Conference. The BFC will determine the fate of thousands of cert. petitions, including the growing pile of same-sex marriage appeals.

But the Obamacare cases may have to wait a bit. The D.C. Circuit, which ruled against federal Obamacare subsidies, granted en banc review, delaying that case's inevitable request for Supreme Court review. And the religious exemption cases are marching forward in the Tenth Circuit, with religious parties not satisfied with the latest revision to federal contraceptive coverage exemption paperwork.

Little Sisters Not Satisfied

The Little Sisters of the Poor were among the first to object to the Affordable Care Act's requirement of employer-provided coverage for contraception. The Court granted an injunction in that case, and after granting another injunction to Wheaton College, the feds responded by amending the exemption procedure.

Good enough? Not quite, says the Little Sisters. According to The Wall Street Journal, under the new procedures, objectors have to send a letter to the Department of Health and Human Services, which will contact the insurer and arrange contraceptive coverage on the feds' dime.

Counsel for the Little Sisters and other objectors stated that the new procedures "merely offer the Little Sisters another way to violate their religion and comply with the mandate."

This looks like it's going to wind its way through the Tenth Circuit, and inevitably, back to the cert. pool at some later date.

Subsidies Cert. Delayed?

With the D.C. Circuit granting en banc review in one of two parallel Obamacare subsidies cases, this shifts the timeline for SCOTUS review.

While the Fourth Circuit case could be appealed and granted cert. sooner, this seems unlikely, as the Court will likely want for the D.C. Circuit case to catch up, as it could provide a second perspective on the law (as the panel's opinion did).

However, odds are that the D.C. Circuit, sitting en banc, will rule as the Fourth Circuit did. Why? As we noted last week, Halbig v. Burwell got an unusually conservative panel out of an unusually liberal overall court (especially with Obama's recent appointments to the D.C. Circuit bench).

Two More States Seek Same-Sex Cert.

Add Indiana and Wisconsin to the pool, thanks to the Seventh Circuit's ridiculously quick turnaround on its same-sex marriage appeals -- nine days from oral arguments to a written opinion.

The states' lawyers moved even more quickly, requesting review in only five days, bringing the total number of SSM cert. petitions to seven -- Indiana, Wisconsin, Oklahoma, Utah, and three petitions from Virginia. The couples challenging Indiana and Wisconsin's laws immediately filed their responses as well. (SCOTUSblog has more coverage, as well as links to all of the filings.)

Add in the calls from 32 states for the Court to grant cert. and decide the issue of gay marriage once and for all, and the likelihood of a cert. grant has gone from 99 percent to 99.9 percent.

Timeline

Out of these, expect same-sex marriage to make the docket this year.

Subsidies? It'll depend on how quickly the D.C. Circuit rules, but if it makes the docket, it'll be late term/next term. Ditto for the religious exemption cases -- with the new procedures the Tenth Circuit still has to give panel review, and possibly en banc, before the case goes to SCOTUS. ETA: 2015.

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