Tuesday, November 19, 2013
While many factors go into writing a truly persuasive brief, the best and earliest opportunity to convey the client’s case theory is the issue statement. In a recent Seventh Circuit appeal involving religion and the new federal health insurance laws, the briefs provide instructive examples of how to take fuller advantage of that opportunity—or not.
In Grote Industries v. Sebelius, the trial court denied a preliminary injunction to Catholic business owners who did not want to provide contraceptive health coverage to employees. Grote Industries and the United States framed the issues as follows. (The bold typeface is added here to emphasize the stronger thematic words.)
- Grote Industries: The Grote Family members are Catholic and operate their business, Grote Industries, in accordance with their faith, including the Catholic Church's teachings regarding the moral wrongfulness of abortifacient drugs, contraception, and sterilization. *** Can the government establish the high standard of strict scrutiny in support of implementing the Mandate against Grote, especially when the government exempts millions of other Americans and has a variety of alternative measures available?
- United States: Whether the Religious Freedom Restoration Act (“RFRA”) claim fails because RFRA does not allow a for-profit, secular corporation to deny federally required employee benefits on the basis of religion.
In an opinion released last week, the Seventh Circuit used its merits analysis to fire a warning shot past the Justice Department, and required the trial court to provide temporary relief. The Court predicted that based on the record so far, the United States will fail to articulate a compelling state interest for requiring religious business owners to provide contraceptive coverage in employee health plans. While the decision remains controversial, as evidenced by a vigorous dissent, the issue statements in the briefs seem to presage the government’s need for a clearer theory—and a more compelling story.
Next time: a deeper look into these issue statements for choices in structure, content, theme, and style. The Appellate Advocacy Blog will regularly examine briefs in high-profile cases for persuasive strategies. If you run across a striking example you’d like to share, contact us.
Hat tip to Lyle Denniston at SCOTUSBlog for the case.
Briefs and opinion: 2013 WL 5960692 (opinion), 2013 WL 816519 (Grote Ind. opening brief), 2013 WL 1208759 (U.S. response).