1. COMPORTAMIENTO DEL IGBC EN EL MERCADO FINANCIERO COLOMBIANO Y EN
1.1 ESTRUCTURA DEL SECTOR FINANCIERO COLOMBIANO
The Supreme Court has applied equal protection principles tothe federal government under the Due Process Clause of the Fifth Amendment.194F
194
Usually, the Court makes a determination ofthe appropriate standard of review it will applytothechallengedstatute. The Court canapplythree standards:rational basis scrutiny,195F
195intermediate scrutiny,
196F
196and strict
scrutiny.197F
197 Each level of scrutinyentails aspecific test with increasingly
demanding requirements that must be satisfied if the challenged statute is to survive constitutional challenge.
The level of scrutiny that applies is important because if the statute is subject to strict scrutiny,the government will have to prove that the policy is narrowlytailored to serve acompelling state interest.198F
198 That is amuch
194. See generally Bollingv. Sharpe, 347 U.S. 497(1954). There has been ahistory of controversyover what is included in substantive due process under the Fourteenth Amendment. See, e.g., G. Edward White, Revisiting Substantive Due Process and Holmes’s
Lochner Dissent, 63 BROOK.L.REV. 87, 88–89 (1997). InAllgeyer v. Louisiana, the Supreme Courtinvalidatedastatelaw on substantive due process groundsforthe first time. 165 U.S.578,593(1897). Thisbegan what scholarscall the Lochner Era,inwhich theSupreme Court invalidated several laws on substantive due process grounds. See generally Bernstein,
supra note 59, at 1261–69. In Lochner v. New York,New York passed a law thatrestricted work in bakeries tosixtyhours aweek.See 198 U.S.45,45–46 (1905). Lochner,an ownerof a bakery, sued thestate and argued that thelaw burdened his right to contract, which was protected by substantive due process. See id. at 52–53. The state argued that the law was meant to protectpublic health and safety and soit was not unconstitutional. See id. at51. However,the Courtsidedwiththe plaintiffbecause it did not believethere wasa reasonable argument forthe hour restriction.Id. at 64–65. TheLochner Era seem to have ended when Court decidedNebbia v. New York, 291U.S. 502(1934).Inthat case, theCourtupheld astatute which fixedthe price ofmilk on the basis that the law was notunreasonable andthat the stateseemingly had a legitimate reason for the law. Id. at 504, 539.
195. E.g., FCC v. Beach Commc’ns, Inc., 508U.S. 307, 313(1993)(“In areasof social and economic policy,astatutoryclassification that neither proceeds along suspect linesnorinfringes fundamental constitutional rightsmustbe upheldagainst equal protection challengeifthere isanyreasonably conceivablestateoffactsthat could providearational basisfor the classification.”).
196. See, e.g.,Clark v. Jeter, 486 U.S.456, 461 (1988) (“To withstandintermediate scrutiny, a statutoryclassification mustbe substantiallyrelatedtoan importantgovernmental objective.”).
197. See, e.g., Cityof Cleburne v. Cleburne Living Ctr., 473U.S. 432, 440(1985) (Courts willuphold laws subjectedto the strict scrutinystandard“iftheyaresuitablytailored to serve a compelling state interest.”(citing McLaughlin v. Florida, 379 U.S. 184, 192 (1964))).
198. E.g., Reedv. Town ofGilbert, 135S. Ct. 2218, 2231(2015)(stating that because thetownimposedcontent-based restrictionson speech through itscode, the Court would
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higher standard than rational basis, which only requires a legitimate government interest.19F
199 Thus, it will be harder for the government to win
a case if the Court interprets the statute under strict scrutiny.20F
200 Therefore,
it follows that claimants will argue a statute should be subject to strict scrutiny, and the government will tryto argue astatute shouldbe subject to rational basis review.201 However, in most cases strict scrutiny only applies
to statutes dealing with race and national origin.02F
202 Intermediate scrutiny
appliesto gender discrimination cases.203F
203 Andrational basis reviewapplies
to cases dealing with most other classifications. Rational basisreview applies to laws that do not burden afundamental rightortarget asuspect class.204F
204
This means that to overcome an equal protection challenge, the statute must rationally relate to a legitimate governmental purpose.205F
205
As a result, religion falls under rational basis review. Additionally,the plaintiffs in both March for Life and Real Alternatives do not dispute this.206F
206 However, theydo dispute whether the ACA withonly the religious
upholdthespecific provisionsif theypassedstrict scrutiny,“which requirestheGovernment to prove that the restrictionfurthers a compelling interest andis narrowlytailoredtoachieve that interest” (quoting Citizens Unitedv. FEC, 558 U.S. 310, 340 (2010))).
199. See Beach Commc’ns, Inc., 508 U.S. at 313–14.
200. Therationalbasisstandardconfers“astrongpresumption of validity”ona challenged statute. Heller v. Doe, 509 U.S. 312, 319 (1993). The government has“no obligation toproduce evidencetosustain the rationality”ofthe challenged statute. Id. at 320. Instead, a plaintiff challenging the statute must “negative everyconceivable basis whichmightsupportit.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.356, 364 (1973) (quotingMadden v. Kentucky, 309 U.S. 83, 88(1940)).
201. See ErwinChemerinsky,The Rational Basis Test Is Constitutional (and Desirable), 14 GEO.J.L.&PUB.POL’Y 401, 402, 410 (2016). Some scholars such as Erwin Chemerinsky argue that the rational basis standard is a formof review thatis “almost empty”and “enormously deferential.” Id. However, in rare circumstances, a court maystrikedown a challengedstatute eventhoughrational basis applies, andstrict scrutinydoesnot, ifthe court speculates animus. KatieR. Eyer, The Canon of Rational Basis Review, 93NOTRE
DAME L. REV. 1317, 1319 (2018).
202. See CityofRichmond v.J.A. CrosonCo.,488U.S. 469,493 (1989) (plurality opinion) (“[T]hepurposeofstrictscrutinyisto‘smokeout’illegitimateuses ofrace by assuring that thelegislative body ispursuinga goal importantenough towarrant use ofa highlysuspect tool.”).
203. See Miss. Univ. for Women v. Hogan, 458U.S. 718, 720, 733 (1982) (applying strictscrutiny in striking downthe single-sexadmissions policy ofa state-fundednursing school); Craig v. Boren, 429 U.S.190, 191–92, 210 (1976) (striking down an Oklahoma statute that prohibitedthe sale of‘“nonintoxicating’ 3.2% beertomales under the age of 21 and to females under the age of 18” under intermediate scrutiny).
204. Beach Commc’ns, Inc., 508 U.S. at 313. 205. See id.
206. Real Alts., Inc. v. Sec’yHHS, 867 F.3d 338, 348(3d Cir. 2017); March forLife v. Burwell, 128 F. Supp. 3d116, 125–26 (D.D.C. 2015).
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exemption passes arational basis review.207F
207 This section argues that it does
not.
Under a rational basis review, a court gives the government alot of deference in providing some explanation of a legitimate purpose for a statute.208F
208 For example, a statute that is underinclusive and overinclusive
is acceptable under a rational basis review.209F
209 Evenifthegovernment
does not articulate a legitimatereason for the statute,the statute can still passarational basis review so long as the court can comeup with a legitimate reason afterthe fact.210F
210 However, a statutedoes not pass a rational basis
reviewif thereisnoconceivablereasonforthedifferenceintreatment created by the statute.21F
211
The court inMarch for Life arguesthatthe HHShad nolegitimate reason for the difference in treatment regarding nonreligious organizations and religiousorganizations.12F
212 In contrast, the court in Real Alternatives reasoned
that the HHS does have alegitimate reason because there has historically been respect for the autonomyof religion.213F
213 The court also relied on the
holding from United States Railroad Retirement Board v. Fritz tohold thatthereligiousexemptioncanstillpassarational basis review even if the government did not state alegitimate reason for treating nonreligious and religious organizations differently.214F
214
In Fritz, Congress passed astatute that eliminated certain railroad employees’ benefitsdependingon theiremployment history.215F
215 The statute dividedthe
employeesinto different classes based on their employment history and gave out benefits accordingly.216F
216 Agroup of plaintiffs sued the Railroad Retirement
207. Compare Real Alts., Inc., 867F.3d at 353, with March for Life, 128 F. Supp. 3d at 134.
208. See, e.g.,Heller v. Doe, 509U.S. 312, 319 (1993) (stating that under therational basis standard, courtsgive “astrong presumptionofvalidity” in regard toachallengedstatute.).
209. See, e.g.,Williamson v. LeeOpticalof Okla.,Inc., 348U.S. 483,487–88(1955).In thiscase,theCourt heldthatanOklahoma law that allowed only doctors tofixthe frames of glasses was constitutional. Id. at 485, 487–88. Although the law created a lot of administrative waste,thelegislaturemayhaveconcluded thatthelawwasmeant tohelp promote the public good. Id. at487. The Courtreasonedthat a law thatcreateswaste isnotautomatically unreasonable; the law must onlybe minimally rational. See id. at 491.
210. See, e.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). 211. See id.
212. See March for Life, 128 F. Supp. 3d at 125.
213. See Real Alts., Inc. v. Sec’y HHS, 867 F.3d 338, 350 (3dCir. 2017). 214. Id. at 351–52.
215. See Fritz, 449 U.S. at 171–72. 216. See id.
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Board alleging the statute treated themdifferentlyfrom other employees, which violatedtheDueProcess Clause.217F
217 The district court held the statute
did not pass rational basis reviewbecauseit was unclear whether the government had areason for dividing the employees in the first place.218F
218
However,the SupremeCourtreversedthe districtcourt’sholding, stating that the statute passed rational basis reviewbecause one could reasonablyconceive thatthegovernmentdividedtheemployeesintodifferent groupsto ensure the solvency of the entire retirement system.219F
219
The HHS does notallow nonreligious organizations like March for Life and Real Alternatives that are againstthe use of certain contraceptives to claimthe exemption. The HHS justifies thisdistinction through a historically recognized respect for the autonomyof religion. This fails fortwo reasons.
First,the underlying reasonsjustifying theprotection ofreligious beliefs alsojustifytheprotection ofnonreligiousbeliefs.20F
220 Protecting religioncan
mean respecting sincere beliefs that mayor maynot include arelationship with a higherbeing. Religionis protected for two commonreasons: individuals feel that their obligations totheir beliefs outweigh their obligations to the government21F
221and individuals value their personal autonomy.
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222 Inthe
caseof Real Alternatives, its loyaltyto its moral beliefs is more important than its obligation to the government. So important, that it was willing to forgo complying with amandated provision. Additionally, Real Alternatives’ sincerelyheld belief that abortion is wrong promotes personal autonomy. If the government allows organizations to freelypractice their religious beliefs, whyshould it not allow organizations that hold moral beliefs to do the same.
Second, aspreviouslyargued,increating a religious exemption, the HHS wanted to protect individuals that it believed areless likelythan other individualsto want contraceptives.23F
223 If thisistrue,then it seems like there
is no conceivablereason for thedifference in treatment betweennonreligious
217. See id. at173. 218. See id. at174.
219. See id. at 168–69, 179–80. All ofthe payroll taxes andotherearmarked incomes are depositedin the Social Securitytrust fund. Policy Basics: Understanding the Social Security Trust Funds, CTR. ON BUDGET &POL’Y PRIORITIES, https://www.cbpp.org/research/social- security/policy-basics-understanding-the-social-security-trust-funds [https://perma.cc/2257- T8RG](last updated July23, 2018). Additionally, Social Securityis a pay-as-you-go system.
Id. Thismeansthatthebenefitsbeneficiariesarecurrentlyreceiving are funded bythe payroll taxes collectedfrom people workingtoday. Id. However,reportspredictthe Social Security trust fund is expected to be completelydepleted in2034. Id. In recent years, there is more moneyleaving the trust fund than being deposited intoit. Id.
220. See discussion supra SectionIV.A.2.b.
221. See, e.g.,1GREENAWALT, supra note 186, at 400–01. 222. See, e.g.,id.
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organizations and religiousorganizations. In that sense, the application of United States Railroad Retirement Board v. Fritz in theReal Alternatives
caseseemsmisplaced because, although rational basis reviewdoes not require the government to articulate its reasons for enacting astatute, there still must be a conceivable reason for the difference intreatment created by the statute.24F
224
In Fritz, theconceivable reason for thedifferencein treatment was ensuring the solvencyof the entire retirement system.25F
225 InMarch for Life andReal
Alternatives,the HHS claimed the conceivable reason for the difference in treatment was the historical respect for the autonomyof religion.26F
226
However,unlike in Fritz, the HHS’s own statements regarding the purpose of the religious exemption negated its conceivable reason. Therefore, the difference in treatment regardingnonreligious organizations and religious organizations by the religious exemption to the Contraceptive Mandate does not pass rational basis review.