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gay marriage

Amid Controversy, Same-Sex Marriage Is Legal in Ala.

Alabama was the source of a good bit of controversy surrounding same-sex marriage last week, after a federal judge declared the state's law prohibiting same-sex marriage unconstitutional. Right after that, however, the Alabama Supreme Court's Chief Justice Roy Moore issued his own order telling state judges and employees not to recognize same-sex marriages or issue licenses. Moore's conflicting order led to questions about who trumps whom when it comes to federal trial courts and state supreme courts, but the U.S. Supreme Court put the issue to rest by refusing to review the case. What's going on down in Alabama? Same-Sex Marriage Is Constitutional -- Maybe On January 23, a federal trial judge in Alabama struck down Alabama's same-sex marriage ban as unconstitutional. The state refused to allow one of the women in the case to adopt the other woman's son because it didn't recognize their marriage as valid. Citing to recent same-sex marriage decisions, including the U.S. Supreme Court's 2013 ruling in U.S. v. Windsor, Judge Callie V.S. Granade concluded that Alabama's law violated the Equal Protection Clause of the U.S. Constitution and ordered the state to no longer enforce the ban. Granade's order set the stage for Alabama to become the 37th state to permit same-sex marriage -- except that, on February 3, Alabama Supreme Court Chief Justice Roy Moore issued a memo to state probate court judges (who are in charge of marriages) indicating they weren't bound by the federal court decision, which Moore said was contrary to state law. On February 8, he ordered probate judges and state employees not to recognize same-sex marriages. Legal scholars tend to agree that Moore's opinion doesn't override a federal judge's opinion. Moore is no stranger to making controversial decisions. He was removed as chief justice in 2003 when he refused to obey a federal court order to remove a Ten Commandments monument from outside the courthouse, but Alabama voters returned him to office in 2012. The Supremes Decide Not to Weigh In The U.S. Supreme Court implicitly affirmed Granade's order on Monday, when it refused to grant an emergency petition by Alabama's attorney general to stay Granade's decision, which would have suspended the issuing of marriage licenses in the state. Justices Thomas and Scalia dissented, arguing that the state law should have been stayed to allow a federal appellate court to weigh in. The dissent also took time to criticize the Court's recent practice of not staying a federal appeals court's order when it finds a state law unconstitutional. With the U.S. Supreme Court out of the picture, Alabama counties began issuing marriage licenses -- well, most of them, anyway. According to The New York Times, some Alabama courts protested the decision by not conducting any marriages at all. Related Resources: Confusion in Alabama as Some Defy Court Order to Grant Gay Marriage Licenses (Los Angeles Times) Ark. and Miss. Gay Marriage Bans Struck Down (FindLaw's Law and Daily Life) Same-Sex Marriage Returns to Supreme Court: 3 Things You Should Know (FindLaw's Law and Daily Life) Gay Marriage Update: Kan., Mo., and 6th Circuit (FindLaw's Law and Daily Life)
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What’s the Difference Between Support Animals, Service Animals?

You may think that "support animals" are just another name from "service animals," but there's a fine legal distinction. A recent federal court decision put a fine point on the difference in a man's legal battle with a Florida homeowner's association. His HOA's "no pet" policy couldn't be applied to the man's service animal because service animals are not pets -- especially when they are trained to address a condition like PTSD. So when is an animal a "service animal" and when is it a "support animal"? ADA Definition of 'Service Animal' The legal foundation for allowing animals where pets aren't normally allowed is via accommodation for persons with disabilities. The Americans with Disabilities Act (ADA) covers accommodation for disabled persons in employment, transportation, and in government, with similar statutes covering housing and public accommodations. The U.S. Department of Justice has clarified its position on when ADA protections apply to animals or whether they are just pets. According to its guidance, "service animals" are: Only dogs Which are individually trained to do work or perform tasks For a person with a disability. Not every impairment is considered a disability under the ADA, but if it is a physical or mental impairment that substantially limits a person from participating in "major life activities," it probably qualifies. This includes psychological impairments like PTSD. Dogs or other animals which are not trained to do work or perform tasks for persons with these disabilities are essentially just pets. Support Animals Certainly it would be hard to deny that many untrained animals can give enormous support to those in pain. But these "support animals," regardless of their calming effects on their owners, are not necessarily ADA-compliant "service animals." Ask an Oklahoma woman who decided to get a "therapy kangaroo" -- not a service animal under the ADA. Since the ADA provides no rights or protections for animals outside the service animal mold, extra protections for "support" animals may be left to states, cities, or even individual businesses. Airlines have been somewhat looser in allowing support animals of all shapes and sizes onboard, much to the frustration of some passengers and crew. A cottage industry has also sprung up around service or support animal vests and tags, none of which are regulated by the ADA and many of which are misleading. But here's the bottom line: Service dogs are not pets, they work or perform tasks for people with disabilities. Related Resources: Blind Man's Dog Blamed for Flight Cancellation (FindLaw's Law and Daily Life) School to Pay $10K for Denying Disabled Student's Service Dog (FindLaw's Law and Daily Life) Legal to Ban a Customer's Service Animal? (FindLaw's Free Enterprise) Can My Dog be a Service Animal? (FindLaw's Law and Daily Life)
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Don’t Be a Victim in Your Divorce: 5 Empowering Legal Tips

Often in divorce, one ex-spouse can become shellshocked by the process. Paralyzed by fear over family and financial woes, these former partners can cast themselves in the roles of victims. Writing for ABC News, Laura Mattia of the Baron Financial Group believes that women often become financial victims during divorce because of the way they relate to their spouses during marriage. But divorcing spouses can empower themselves when it comes to financial and family situations, rather than taking a sideline in their own divorces. For both women and men, take note of these five empowering legal tips and avoid becoming a victim in your divorce: 1. Be Proactive About Finances. Be proactive about your finances from the start of your marriage through your divorce -- for example, by using a prenuptial agreement. One of the many benefits of a prenup is the ability to delineate who owns what in a marriage and afterward. Even if you're already married, a postnup can accomplish many of the same financial planning goals. 2. Pay Attention to Tax Returns. If you're going through a divorce, do not hand off the responsibility for filing your tax return to your soon-to-be-ex spouse. You should try to communicate with your partner about which tax options are the most beneficial for both of you (if necessary, through your attorneys or a mediator). Doing this will help you avoid being blindsided when you learn that your spouse claimed all your kids as his dependents. 3. Consider Your Long-Term Security. Mattia cautions against relying too heavily on alimony, as it may leave a divorcee financially dependent on her ex. Craft a divorce settlement that covers you and your family's long-term plans (even your kid's college tuition) and that doesn't leave you praying for a spousal support check every month. 4. Stay Smart on Social Media. Don't bad-mouth your ex on social media. Just don't. Not only will it give your former spouse fodder for trashing you in court, but it won't do much for your self esteem either. Instead, consider a social media clause in your prenup or postnup. 5. Hire an Attorney. You know what's the most empowering feeling? Knowing the law is on your side. And you'll only know that for sure with an experienced divorce attorney's help. You don't have to be a victim in your divorce. Use the law to rise above. Related Resources: 5 Things a Divorce Lawyer Can Do (That You Probably Can't) (FindLaw's Law and Daily Life) A 'Happy' Divorce? 7 Ways to Make It Less Stressful (FindLaw's Law and Daily Life) Facebook, Social Media Use Linked to Divorce Rates: Study (FindLaw's Law and Daily Life) Have a Happy, Healthy... Divorce? (FindLaw's Law and Daily Life)
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Gay Marriage Legal in Wisconsin and Indiana: 7th. Circuit

Wisconsin and Indiana gay couples were vindicated today by a Seventh Circuit ruling that found both states' gay marriage bans unconstitutional. In a unanimous decision, the federal appellate court found that neither state was able to provide a rational basis for the same-sex marriage prohibition, leaving it to unconstitutionally deny gay couples equal protection of the laws. The Associated Press notes that with this new decision, the number of states with legalized gay marriage jumps from 19 to 21. What else is important about this gay marriage decision? Gay Marriage Now? In June, both Wisconsin and Indiana had their states' gay marriage bans ruled unconstitutional in federal court. In both states, marriages began shortly after each respective federal district court decision, allowing hundreds of gay and lesbian couples to wed. However, upon accepting both appeals, the Seventh Circuit had stayed these decisions, effectively putting marriages on hold until it came to a decision. Now the Seventh Circuit has come to a decision, so it appears that -- absent an emergency stay from the Supreme Court -- gay marriages can begin again in either state. New Test for Discrimination The traditional test for finding a law unconstitutional for violating the Fourteenth Amendment's guarantee of equal protection was to turn to the three levels of constitutional scrutiny. Many courts have chosen to elevate gays and lesbians to a quasi-suspect class, giving laws which discriminate against them a higher level of scrutiny. Others have chosen to apply the lowest level of scrutiny (rational basis) and still find the laws lacking. In its opinion, the Seventh Circuit sought to clear the air with a new inquiry for testing whether laws are unconstitutionally discriminatory: Does it discriminate against a historically prejudiced group, resulting in harmful, unequal treatment? Is the discrimination based on immutable or tenacious characteristics? Does the law provide an important offsetting benefit to society as a whole? Is the law overinclusive or underinclusive in providing that benefit? In answering these questions with regard to Indiana and Wisconsin's laws, the Seventh Circuit found they discriminated against a group that has been historically prejudiced (gays), who cannot and should not change their orientations. It also found that both states' reasons for denying gays marriage (childrearing and possible future harms) were either illusory or were poorly tailored in light of the reality of families in both states. Near the tail end of its opinion, the Court reminded America that "[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law." Related Resources: Appeals court nixes Indiana, Wisconsin gay marriage bans (USA Today) Ky.'s Gay-Marriage Ban Struck Down; Judge Stays Own Ruling (FindLaw's Law and Daily Life) Idaho's Gay Marriage Ban Struck Down; Gov. Vows to Appeal (FindLaw's Decided) Ind. and Wis. Same-Sex Marriage Cases Preview, Hearing Rescheduled (FindLaw's U.S. 7th Circuit Blog)
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Legal How-To: Getting Back Pay That’s Owed to You

If your employer has violated federal or state employment laws, you may be owed back pay. Back pay is typically the remedy for wage or hour violations, making up the difference between what an employee was actually paid and what he or she should have been paid. How can you get your hands on back pay that may be owed to you? Here are a few general considerations: Fair Labor Standards Act Violations One common source of back pay awards are violations of the Fair Labor Standards Act (FLSA). The FLSA sets federal rules for working conditions and generally also set the minimum standard for states' own employment guidelines. According to the Department of Labor, back pay can be recovered for violations of the FLSA by way of Wage and Hour Division enforcement, a lawsuit, an injunction brought by the Secretary of Labor, or a private lawsuit. In one recent example, the social networking company LinkedIn agreed pay almost $6 million in back pay and damages to employees to 359 employees who were allegedly denied overtime pay in violation of FLSA. In that case, the company agreed to a settlement after an investigation by the Department of Labor discovered the violations. Workers who have a complaint about possible wage and hour violations can submit confidential reports to the Department of Labor's Wage and Hour Division by phone or online. State Law Claims Back pay may also be awarded for violations of state employment laws, which like federal employment law, may typically be enforced by filing a complaint with state labor authorities or pursuing a private lawsuit. Case in point: a cheerleader for the NFL's Oakland Raiders who filed a lawsuit earlier this year alleging violations of California's minimum wage law and a California employment law that requires workers be paid at least twice a month. The lawsuit claimed that cheerleaders were paid less than $5 an hour for work they were contractually obligated to perform in addition to their game-day duties --such as appearances and photo shoots -- and weren't paid at all until after the season was over. If successful, the disgruntled Raiderette could recover damages including both penalties and back pay for the difference between her wage and California's minimum wage as well as any unpaid overtime she was obligated to work. Need More Help? If you believe that you are entitled to back pay, an employment attorney can help ensure that you get everything you're owed. Are you facing a legal issue you'd like to handle on your own? Suggest a topic for our Legal How-To series by sending us a tweet @FindLawConsumer with the hashtag #HowTo. Related Resources: Who Has the Highest Minimum Wage? (FindLaw's Law and Daily Life) Second Raiderette Joins Wage and Hour Lawsuit (FindLaw's California Case Law Blog) Walmart Sued by Temporary Workers for Wage and Hour Violations (FindLaw's Courtside) Chickie's & Pete's Settlements: $8.5M for Wage, Tip Violations (FindLaw's Decided)
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La.’s Gay Marriage Ban Upheld by Federal Judge

Louisiana's gay marriage ban has been upheld in a federal court, bucking a year-long trend of federal rulings against same-sex marriage bans. In Robicheaux v. Caldwell, U.S. District Court Judge Martin L. C. Feldman ruled Wednesday that Louisiana's prohibition on gay marriage did not violate same-sex couples' constitutional rights because the law implicates no fundamental rights and has a rational basis. As noted by The Huffington Post, Judge Feldman is the first federal judge to uphold a gay marriage ban since the U.S. Supreme Court's ruling in Windsor in 2013. Why did Louisiana's gay marriage ban get upheld when so many others have been struck down? Judge Finds Rational Basis for Ban Although the result may be surprising, Judge Feldman is not the first judge to apply rational basis review to state gay marriage laws. This lowest level of constitutional scrutiny only asks that the challenged law have a rational basis -- meaning a rational link between a legitimate interest and the law. Unlike other levels of judicial scrutiny, the burden is on those challenging the law to prove that it lacks any rational basis in order for it to be found unconstitutional. Other federal courts have used this low level of scrutiny but with opposite effect, finding that a state's law barring gays from marrying lacked any rational basis. However, this trend has been based on these courts rejecting arguments which had been successful in court one decade prior: that opposite-sex couples are better at child-rearing. And while a panel of the 7th U.S. Circuit Court of Appeals recently gave a public tongue-lashing to those who espouse those views, it was crucial in this Louisiana decision. Judge Feldman wrote, "This Court is persuaded that Louisiana has a legitimate interest... whether obsolete in the opinion of some, or not, in the opinion of others... in linking children to an intact family formed by their two biological parents." Although this kind of social rationale has often been dismissed as crockery since California's Prop 8 case, there is no controlling federal ruling that prevents it from being accepted as a rational basis. Appeal to 5th Circuit This decision doesn't change much for Louisiana's same-sex couples, but it is still likely to be appealed to the 5th U.S. Circuit Court of Appeals for review. The 5th Circuit is also scheduled to review Texas' gay marriage decision, which struck down the law as unconstitutional in February. Related Resources: Federal judge upholds La. gay-marriage ban (The Associated Press) Utah's Gay Marriage Ban Is Unconstitutional: Federal Judge (FindLaw's Decided) Tenn. Court Upholds Gay Marriage Ban: Is 'Pro-Gay' Trend Over? (FindLaw's Decided) Oregon's Gay Marriage Ban Struck Down, Effective Immediately (FindLaw's Law and Daily Life)
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Ed. Dept. Wants ‘Borrower-Focused’ Student Loan Servicers

The U.S. Education Department made a student-friendly move on Friday, announcing it would renew focus in its contracts with student loan servicers on being "borrower-focused." Undersecretary of Education Ted Mitchell noted in an interview that the new student loan servicers would be put "on notice" that they have to be more consumer friendly, reports The Wall Street Journal. The new federal contracts even provide quarterly bonuses for servicers who have lower rates of borrower delinquency. What does this shift mean for America's student loan borrowers? Fighting Default With Better Loan Service Part of the reason for this shift in federal policy is the alarming increase in both student debt and default rates. According to New York Federal Reserve data (as reported by the WSJ), approximately one in four borrowers who have loans are "at least 90 days behind on student loan bills." Combine that with the fact that over half of Americans are still paying off their student loans, and you have a recipe for disaster. Trying to stem this tide of defaults, the Education Department has announced it has renegotiated contracts with major student loan servicers in order to incentivize working with borrowers to avoid default. According to a recent press release, these incentives include: Increasing the weight of borrower customer satisfaction in performance metrics for servicers; Payment structures which are tied to servicers' success in keeping borrowers in on-time repayment and avoiding default; and "Additional incentives" aligned with reducing payment delinquency across each servicer's portfolio. Secretary of Education Arne Duncan noted that borrowers "deserve high-quality support from their federal loan servicer[s]," and hopefully these changes will help provide better service. What Should Borrowers Do? The renegotiation of federal servicer contracts includes big names like Nelnet Servicing, LLC and Pennsylvania Higher Education Assistance Agency. Even if you don't have either of these servicers, watch your inbox and check out your servicer's website to make sure you aren't missing out on an easy way to reduce your payments or avoid default. Related Resources: Feds Overhaul Servicing Contracts (Inside Higher Education) Legal How-To: Getting Student Loans Forgiven (FindLaw's Law and Daily Life) 5 Strategies to Manage Your Student Loans (FindLaw's Law and Daily Life) Why Settling Student Loan Debt Is So Difficult (FindLaw's Law and Daily Life)
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Who Qualifies for an H-1B Visa?

If you're interested in filing paperwork for an H-1B visa -- a temporary work permit the U.S. government issues to highly skilled foreign workers -- make sure to submit your paperwork sooner rather than later. The application season begins April 1. But before all else, you need to get familiar with the process and find out whether you qualify for an H-1B visa. Here are five basic requirements to apply for an H-1B visa: You must have an employer-employee relationship with the petitioning employer. In general, a valid employer-employee relationship is determined by the extent to which the U.S. employer has control over the H-1B worker -- namely, whether the U.S. employer can hire, pay, fire, supervise, or otherwise control the work of the H-1B worker. You have a "specialty occupation." H-1B visas are granted to foreign nationals who will work in the United States in a "specialty occupation." On a very general and basic level, you must meet two requirements. First, the job must require a specific bachelor's degree -- such as accounting or engineering -- or the equivalent in combined education and experience. Second, you (the foreign national employee) must have a relevant degree or the equivalent. Though it sounds straightforward, it can actually become pretty complicated. Specific wage payments. Employers must pay H-1B employees a certain wage. Your employer will need to file a Labor Condition Application with the Department of Labor to certify that you will pay the sponsored H-1B employee the higher of the "actual wage" at your workplace or the "prevailing wage" in the industry, whichever is higher. You must have an H-1B visa number. H-1B visas are capped at 65,000 visas each fiscal year, and they go quickly. You must have an H-1B visa number available at the time of filing the petition, unless the petition is exempt from the visa cap. The first 20,000 petitions filed on behalf of workers with a U.S. master's degree or higher are exempt from the cap. Those employed by an institution of higher education, a nonprofit research organization, or a government research organization are also exempt from the cap. You must apply for a visa/admission. Once your employer's Form I-129 petition has been approved, you must apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). You must then apply to U.S. Customs and Border Protection for admission to the United States in H-1B classification. For additional guidance on the H-1B visa process, you might want to consult an experienced immigration attorney near you. Related Resources: U.S. Visa Overview (FindLaw) Employment Based Visas (FindLaw) H-1B Visa Application Window Opening in April (FindLaw's Free Enterprise) 1st Green Card for Gay Spouse Approved (FindLaw's Law and Daily Life)
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Legal How-To: Getting a Tax Filing Extension

For most individuals filing taxes, April 15 is the deadline. However, if you're a procrastinor -- or if you were unable to file your taxes by the deadline for other reasons -- the IRS may give you an extension. If you're running late, here's how to get a tax filing extension, along with a few words of caution: File Form 4868 To receive an extension on filing your federal income tax, you must fill out and file Form 4868 (Application for Automatic Extension of Time To File U.S. Individual Income Tax Return) by April 15. By filing the form, you'll get an automatic six-month extension to file your taxes. However, the form gives you an extension on filing, not an extension on paying owed taxes. So you must pay any taxes you owe by the April 15 deadline even if you don't file your taxes by that date. Taxpayers Living Outside of the United States U.S. citizens and resident aliens living abroad can get an automatic two-month extension to file their tax returns. To get that extension, you must attach a statement to your return that explains why you qualify for the extended time. In general, those who qualify are: Individuals living outside of the states and Puerto Rico because their main place of business or post of duty is outside of the country; Active duty naval and military personnel outside of the states and Puerto Rico. Taxpayers living abroad can also get a six-month extension to file their returns by filling out Form 4868 (discussed above). Individuals Serving in a Combat Zone Special extensions and allowances apply to individuals serving in a combat zone. For those individuals, the deadline for filing and paying owed taxes is automatically extended for at least 180 days from the last day they're in a combat zone, or the last day they were hospitalized for an injury from service in the combat zone. A Final Reminder... With the exception of those serving in a combat zone, individuals who receive a tax filing extension still must pay their owed taxes by April 15. The IRS will charge you interest on any amounts of underpayment or non-payment owed by the due date. So estimate how much you owe before the deadline. If you overpay, the IRS will credit you. If you run into trouble, never fear -- an experienced tax lawyer is just a click or phone call away. Are you facing a legal issue you'd like to handle on your own? Suggest a topic for our Legal How-To series by sending us a tweet @FindLawConsumer with the hashtag #HowTo. Related Resources: Seven Things about Getting More Time to File your Tax Return (IRS) 3 Tricks Identity Thieves Use During Tax Season (FindLaw's Law and Daily Life) Who Doesn't Have to File Income Taxes? (FindLaw's Law and Daily Life) Sign Up for Our Free Legal Planning Newsletter (FindLaw's Legal Heads-Up)
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What Is the Religious Freedom Restoration Act?

What is the Religious Freedom Restoration Act? It's at the center of two Obamacare-related U.S. Supreme Court cases scheduled for oral argument Tuesday. While the First Amendment guarantees persons the free exercise of religion, there are other legal protections for religious rights -- including the Religious Freedom Restoration Act, which has been the subject of recent court cases. So what exactly is the RFRA? Passed to Protect Religious Liberty Congress passed the RFRA in 1993 in response to a 1990 U.S. Supreme Court decision, Employment Division v. Smith. The Smith case involved a Native American church in Oregon that was denied unemployment benefits for because of members' use of peyote, a hallucinogenic drug, as part of a religious ceremony. The U.S. Supreme Court ruled that despite the protections of the Free Exercise Clause of the First Amendment, Oregon could legally deny those church members unemployment benefits because of their peyote use. This worried lawmakers about the future of religious freedom in the workplace. The RFRA applies when a law "substantially burdens" an individual or religious group's free exercise of religion. For the burdensome law to apply to the person or group, the government must show it has a "compelling interest" in applying the law, and that the law uses the "least restrictive means" to achieve that interest. (This standard was used in religious exercise cases prior to Smith; RFRA's purpose was to continue to apply this standard -- even for laws which apply generally to all persons.) Laws like the Affordable Care Act, better known as Obamacare, are now being tested by claims under RFRA. But while the RFRA applies to individuals and religious groups, does it also apply to corporations? Can Corporations Sue Under the RFRA? Two corporations that object to Obamacare's contraceptive mandate have made claims under the RFRA, alleging Obamacare violates a corporation's right to free exercise of religion. On Tuesday, craft-store chain Hobby Lobby plans to argue before the High Court that its religious freedom is burdened by the requirements of Obamacare, and that the company has a right to judicial remedy under the RFRA. Lawyers for Conestoga Wood Specialties Corp., a kitchen-cabinet manufacturer, are expected to make similar arguments. Federal courts have disagreed about whether corporations are "people" intended to be protected by the RFRA -- a question the U.S. Supreme Court is now poised to consider. The Court has previously affirmed that corporations have free speech rights (see Citizens United), but can a corporation really have religious freedom rights? Justice are being asked to determine whether the RFRA applies to corporations, small closely-held companies, or merely to a company's individual executives and employees. The U.S. Supreme Court's decision may change how we view religious freedom and the RFRA for years to come. Related Resources: 5 questions about the Supreme Court cases on requiring contraceptive coverage (Pew Research Center) Top 5 Obamacare Court Rulings (FindLaw's Decided) Corp. Can't Assert Free Exercise in Mandate Claim, But People Can: D.C. Cir. (FindLaw's D.C. Circuit Blog) Birth Control Mandate Cases Reaching Critical Mass; Possible Outcomes (FindLaw's U.S. Supreme Court Blog)
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