Religious Institutions Must Pay Abortion Coverage in NY (Part 3)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

We've previously discussed how New York's highest court, when deciding Catholic Charities v. Serio in 2006, did so with the Supreme Court's 1990 decision in Oregon v. Smith as a backdrop. The Supreme Court in Smith significantly reduced the 1st Amendment protection for religious liberty, and the New York court in Catholic Charities did likewise as a matter of its own state constitutional law. (See Part 2.) Scalia's majority opinion in Smith disowned the "compelling interest/strict scrutiny" test for free exercise of religion under the nation's Constitution, and the New York Court of Appeals rejected that test as well under the state's own law.

The Scalia majority in Smith ruled that all "generally applicable" and "otherwise valid" laws defeat the 1st Amendment guarantee of religious freedom. In its Catholic Charities decision sixteen years later, New York's high court, though claiming it was rejecting Smith as "inflexible," nevertheless quickly stated that Smith "should be the usual" rule. Beyond that, New York's court relieved the state government of having to justify its interference with religious liberty. Instead, the court required those whose fundamental right was being abridged to prove that the admittedly "serious" interference was unreasonable.

Hence, in New York, as the state's high court put it in Catholic Charities:

The burden of showing that an interference with religious practice is unreasonable, and therefore requires an exemption from the statute, must be on the person claiming the exemption.

But!
Yes, as promised in the last installment in this series, there is a "But!"

There are a few lines, immediately following those just quoted, that don't quite fit the tenor of the rest of the Catholic Charities decision. Indeed, they seem to contradict or at least confuse the very rule just adopted.

"The burden [of showing that an interference with religious liberty is unreasonable], however, should not be impossible to overcome," the court added, seemingly softening the rule it had just announced. It then asserted that some "hypothetical laws," even though "facially neutral," would be "well beyond the bounds of constitutional acceptability." Among such laws that, apparently, would be clearly unconstitutional under New York's protection of religious liberty, the court listed:

• "a requirement that all witnesses must testify to facts within their knowledge bearing on a criminal prosecution [which] if applied without exception, could abrogate the confidentiality of the confessional"
• "a general prohibition of alcohol consumption [that] could make the Christian sacrament of communion illegal"
• "uniform regulation of meat preparation [that] could put kosher slaughterhouses out of business"

(The court was quoting from Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review [1990].)

Curiously though, laws of the sort the court had listed would not be particularly unreasonable. In fact, some would seem entirely reasonable. Moreover, applying such laws uniformly--i.e., generally applicable, without the granting of exemptions--would not be particularly unreasonable either. To be sure, they would be religiously objectionable to some. But "unreasonable?" A "requirement that all witnesses must testify [in] a criminal prosecution"--unreasonable? A "general prohibition of alcohol consumption," e.g., in any establishment not licensed to serve to the public--unreasonable?"[U]niform regulation of meat preparation" for health or ethical reasons--unreasonable?

And yet, the court in Catholic Charities insisted that such laws without religious exemptions would be "well beyond the bounds of constitutional acceptability [my emphasis]." So not merely unacceptable, but "well beyond" being acceptable? Would religious objectors, then, not have to show that such laws imposed an "unreasonable" interference? Would the interference from such laws be considered per se "unreasonable?" And why those such laws?

Was the court's point that such laws, applied without exemptions, would be too drastic from the perspective of the religions affected? So Catholics would view the intrusion upon confessional confidentiality as too drastic? Christians would view the denial of wine for Sunday services as similarly too drastic? And Jews would view the prohibition of kosher slaughtering as too drastic as well? Or, after Catholic Charities, will a majority of New York's high court now decide which particular interferences with which particular religions the court views as too drastic? Or in the court's language, "unreasonable?"

So, let's be clear. It's apparently not too drastic--or "unreasonable"--to force Catholics, and others with similar beliefs, to violate their religion by paying for contraceptive insurance coverage. Apparently, according to New York's high court in Catholic Charities, denying a religious exemption from the contraceptive mandate is not particularly drastic or "unreasonable." But, apparently, it would be too drastic or "unreasonable" to deny an exemption from a criminal witness law, or an alcoholic consumption law, or an animal butchering law.

Why? Because a contraceptive mandate is more important than a criminal witness law, or an alcoholic consumption law, or an animal butchering law? Or because exemptions from a contraceptive mandate are deemed less important to the religious objectors than exemptions from those other laws would be? Is the point that some laws are more critical than others? Or that some religious exemptions are more critical? Or that these considerations are to be balanced? Or what?

And to focus on the specific matter at hand, what about an abortion coverage mandate? Is that like a criminal witness law, or an alcoholic consumption law, or an animal butchering law--all of which would require religious exemptions? Or more like the contraceptive mandate that didn't?

Is it too drastic or "unreasonable" to require Catholics, and others who believe that abortion is akin to murder or otherwise gravely immoral, to pay for abortion insurance? Would it be too drastic or "unreasonable" to deny religious exemptions--just as it would be for those other laws that the court identified in Catholic Charities? Are religious exemptions to the abortion mandate critical? Or is the abortion mandate to be treated the same as the contraceptive mandate? That is, the mandate itself to be treated as critical, while the requested exemptions for the religious objectors to be treated as less so?

Well, those are the constitutional questions presented in Roman Catholic Diocese v. Vullo.

At the trial level, the judge saw absolutely no difference between the contraceptive and abortion coverage mandates. Hence, the judge rejected the constitutional religious liberty claims for exemptions:

The Court finds the constitutional claims challenged in this case to be the same as those raised in Catholic Charities. Given the Court of Appeals addressed and rejected the same arguments, Catholic Charities is binding precedent requiring dismissal of plaintiffs’ constitutional claims in this matter. (Roman Catholic Diocese of Albany v. Vullo [January 10, 2019, Albany County])

The intermediate appeals court, the Appellate Division, saw absolutely no difference as well. The Court of Appeals decision in Catholic Charities--regarding the state's contraceptive mandate--was to be applied jot for jot to the abortion coverage mandate:

[S]tare decisis...when applied to the precise issues presented by this appeal, proves decisive here in determining the constitutional claims advanced by plaintiffs that were addressed and rejected by the Court of Appeals in Catholic Charities....The factual differences in these cases are immaterial to the relevant legal analyses that are identical in both cases. (Roman Catholic Diocese of Albany v Vullo [Appellate Division, Third Department, July 2, 2020])

That intermediate court apparently saw no distinction between contraception and abortion. No distinction between religious objectors being forced to pay for what they believe to be morally wrong as opposed to paying for what they believe to be akin to murder or similarly grave.

So the intermediate court engaged in absolutely no analysis of the importance to the state of the abortion coverage mandate or the importance to the religious objectors of an exemption. More specifically, that court never considered the importance to the state of denying exemptions to the abortion mandate versus the importance to the religious objectors of being exempted.

The intermediate court never considered whether the abortion mandate without religious exemptions is like the laws that the Court of Appeals in Catholic Charities insisted would be "well beyond the bounds of constitutional acceptability." Whether the abortion mandate is like a criminal witness law, or an alcoholic consumption law, or an animal butchering law which would constitutionally require religious exemptions. Whether more like that sort of law that would be too drastic or "unreasonable" without religious exemptions, or like the contraceptive mandate for which exemptions were denied.

Indeed, the intermediate court never even acknowledged what New York's high court in Catholic Charities had emphasized. I.e., that its rule was not absolute. That some "generally applicable" and "facially neutral" laws would be unconstitutional without religious exemptions. That such laws would be "well beyond the bounds." That religious exemptions to some laws, even if those laws are  "generally applicable" and "facially neutral," are constitutionally imperative.

No, not even a whiff of that in the Appellate Division's decision.

So now, when/if New York's highest court hears the appeal, will it merely apply the bottom-line black-letter rule from Catholic Charities mechanically and superficially, like the intermediate court did? Will it merely apply the Supreme Court's "generally applicable" and "otherwise valid" standard from Scalia's Smith opinion as "usual rule"--as the New York court labelled it in Catholic Charities? Will it merely hold, with little analysis or explanation, that "[t]he burden of showing that an interference with religious practice is unreasonable" was not satisfied by the religious objectors to the abortion mandate, anymore than it was to the contraceptive mandate in Catholic Charities?

Will New York's highest court actually explain why some laws, if applied without religious exemptions--like a criminal witness law, or an alcoholic consumption law, or an animal butchering law--are "well beyond the bounds of constitutional acceptability." And why the abortion coverage mandate is or is not like one of those laws?

Will New York's highest court explain what religious objectors must do to show that the "interference" of a certain law is "unreasonable" and therefore that a religious exemption is constitutionally required? Stated otherwise, will the Court of Appeals explain when it is that the "usual rule" applies, and when the "well beyond the bounds" rule applies?

More specifically, whether the "usual rule" applies to the abortion mandate, or whether the "well beyond the bounds" rule applies is precisely the state constitutional law question presented in Roman Catholic Diocese v. Vullo. Neither the trial judge nor the intermediate court addressed that. We'll see if New York's highest court does.

Religious Institutions Must Pay Abortion Coverage in NY (Part 2)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

Prior to discussing the Supreme Court's three recent church-state decisions in the immediately preceding post (see Part 1a--addendum), we discussed the status of federal free exercise protections. Under the 1st Amendment--at least since Scalia's majority opinion in the 1990 Oregon v. Smith decision--religious liberty is protected only against those laws that target religion for disparate treatment or are illegal anyway. (I.e., "generally applicable" and "otherwise valid" laws defeat religious objections.) Under the Religious Freedom Restoration Act (RFRA), federal laws--not state ones--that burden free exercise of religion must pass the pre-Smith "compelling interest/strict scrutiny" test. (I.e., the interference with religious liberty must be necessary to achieve an extremely important government purpose.) (See Part 1.)

Now, with that as background for the minimalist 1st Amendment constitutional protection and the rigorous federal RFRA protection, we can better understand New York's religious liberty decisions. The 1st Amendment constitutional protection against New York laws that interfere with religious liberty is Scalia's opinion in Smith. And the rigorous statutory RFRA protection does not apply at all.

So, in the 2006 Catholic Charities v. Serio case, involving New York's mandatory contraceptive insurance coverage, the state's highest court understood full well that the 1st Amendment (as defined by Scalia's majority opinion in Smith) provided precious little, if any, protection for religious objectors who were seeking an exemption. The contraceptive mandate of the law (the Women's Health and Wellness Act), concededly required the objectors to violate their religious beliefs. But that was fine under the Scalia-formulated "generally applicable" and "otherwise valid" standard--i.e., the law did not target religion or any particular religion for special unfavorable treatment, and it did not appear to violate any other federal constitutional right or federal law. The New York high court also understood full well that federal RFRA did not apply to the state's law.

Consequently, the central issue in Catholic Charities v. Serio was whether New York State's own constitutional right of free exercise provided greater protection for the religious objectors than the Smith-downgraded 1st Amendment did. Indeed, in many areas of the law, the New York Court of Appeals has a tradition of independently protecting rights, as a matter of its own state constitutional law, more than the Supreme Court has required under the federal constitution. Free press, search and seizure, right to counsel, education, and assistance to the needy are prominent examples. The question, then, in Catholic Charities, was whether New York's highest court would do the same--or, actually, continue to do so--with regard to free exercise of religion.

Many other state courts, in the aftermath of the Supreme Court's Smith decision, had done just that. Those courts rejected Scalia's "generally applicable" and "otherwise valid" standard. As a matter of independent state constitutional decision-making, those courts retained the much more protective pre-Smith "compelling interest/strict scrutiny" test. In still other states, RFRA-like legislation was enacted to do the same thing as a matter statutory law.

In New York, neither of those has happened. Unlike many other state courts, New York's high court did not directly address the Supreme Court's Smith decision until the 2006 Catholic Charities case--16 years later. No, the Court of Appeals had neither embraced Scalia's "generally applicable" and "otherwise valid" standard, nor retained the "compelling interest/strict scrutiny" test as a matter of independent state constitutional law, nor adopted any other specific standard for resolving religious liberty questions. Moreover, unlike many other state legislatures, New York's had not enacted any RFRA-like statute.

Therefore, if the religious objectors in the Catholic Charities case were to obtain relief --specifically, a religious exemption from the state's contraceptive insurance mandate--the Court of Appeals would need to do something similar to what other state courts had done. New York's high court would need to protect religious free exercise as a matter of independent state constitutional law. Not surprisingly, the New York Court of Appeals had done just that many years earlier in its storied history.

In its 1943 decision in People v. Barber, New York's high court refused to follow the Supreme Court's narrow view of religious liberty at the time. Just the year before, the Supreme Court had held that the federal constitution did not entitle Jehovah Witnesses to an exemption from a generally applicable, but religiously objectionable local law. (Jones v. Opelika [1942].) The Court of Appeals, facing the same religious objection to the same sort of local law, reached the opposite result. In holding that the religious objectors were entitled to an exemption, the New York court made clear in no uncertain terms that it was not bound by the Supreme Court's ruling, but by a much more protective state standard.

In lines oft-quoted--and I've been doing so since I first began writing about New York's high court many years ago--Chief Judge Irving Lehman's unanimous opinion dismissed the government's Supreme Court-based argument:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [My emphasis.]

Notably, four short months thereafter, the Supreme Court cited the Barber decision and reversed its prior ruling. Following the Court of Appeals, it granted religious exemptions to similar laws. (Murdock v. Pennsylvania [1943].)

To be sure, when New York's high court was considering Catholic Charities v. Serio, it was aware of its six-decade old Barber landmark. Rather astonishingly, however, the court's opinion in Catholic Charities never even mentions Barber. The court's failure to even cite the heralded Barber decision speaks volumes about the general thrust and underlying perspective of the Catholic Charities ruling.

Noting that the Supreme Court's decision in "Smith is an insuperable obstacle" for the religious objectors to obtain an exemption under the 1st amendment, the Court of Appeals readily dismissed the federal free exercise claim. The court then claimed that it was rejecting Smith's "inflexible rule" as a matter of state constitutional law. But the court later back-tracked and asserted that the "generally applicable" "principle" in Smith "should be the usual" rule. And following the Supreme Court's abandonment of the "compelling interest/strict scrutiny" test in Scalia's Smith opinion, New York's high court explicitly rejected that test as well as a matter of its own independent state constitutional law.

Unlike other state high courts that have retained that protective test for religious liberty, the Court of Appeals in Catholic Charities embraced the view that "[s]trict scrutiny is not the right approach to constitutionally-based claims for religious exemptions." The court said it would "not read the New York Free Exercise Clause to require the State to demonstrate a 'compelling' interest" in order to defeat religious liberty and deny a religious exemption.

Well why not? And if not, what exactly is New York's state constitutional rule for protecting religious liberty?

Here's the rule the Court of Appeals newly announced in Catholic Charities:

We now hold that substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom. [My emphasis.]

Hmmm. So when a law interferes with free exercise of religion, deference must still be given to the legislature. There's a law that requires a violation of religious beliefs or prohibits a religious practice, and yet deference is still owed to the legislature, not the fundamental constitutional right. To be sure, legislation is normally presumed to be valid. But even for the application of that legislation where it interferes with the exercise of a fundamental right?

Isn't the government required to justify infringing on a fundamental right? Isn't the government required to show that the infringement is necessary? Isn't the government at least required to show that there's a particularly good reason that outweighs the fundamental right?

No! Not according to the Catholic Charities decision.

Rather, the person or group whose free exercise of religion is being infringed upon bears the entire burden--not the government that is infringing upon the fundamental constitutional right. And it's not enough for the person or group whose free exercise of religion is being infringed to prove that the infringement is unnecessary. Or to prove that the infringement doesn't even serve a particularly important government interest. No! The person or group whose free exercise of religion is being infringed upon is required to prove that the application of that challenged legislation--the denial of a religious exemption--isn't even reasonable.

Any first year law student knows that government interference with other fundamental constitutional rights is treated much differently. When government infringes upon free speech or free press or free assembly or another fundamental right, it is the government that bears the burden. Government must justify the infringement. Government must show that it has an extremely strong reason for doing so--i.e., a  "compelling interest." Government must show that the infringement is necessary to achieve that interest--i.e., that there is no non-infringing means for doing so. In other words, Government must satisfy the "compelling interest/strict scrutiny" test.

But in New York--after Scalia's majority opinion in Smith and then the New York Court of Appeals' decision in Catholic Charities--the burden is now on those whose free exercise of religion is being infringed by the state's law. And, to protect their constitutional guarantee of religious freedom, they must show that the law's infringement is actually unreasonable.

One is left to wonder--again, as after Smith--isn't a fundamental constitutional right supposed to be superior to legislation? Aren't fundamental constitutional rights--unless they are mere aspirational words--entitled to a higher status than that? The answer for other fundamental constitutional rights is yes. But apparently not for free exercise of religion.

Not at all surprisingly, New York's highest court in Catholic Charities, applying the rule it had just announced, concluded that the religious objectors were not entitled to an exemption from the contraceptive mandate. After declaring that the "principle" of Smith  "should be the usual" rule. After rejecting the "compelling interest/strict scrutiny test." After deferring to the legislature instead of the fundamental right. After placing the burden on those whose fundamental right was being infringed. After all that, the obstacles against the religious objectors' success were virtually "insuperable"--to use the court's own term when describing the standard in Smith.

Now, with Catholic Charities as the governing precedent, that's what has confronted the religious objectors to the state's abortion mandate. That's what the religious objectors have confronted in seeking an exemption from the insurance regulation requiring employers to provide abortion coverage. That's what seemed "insuperable" when the religious objectors presented their case in Roman Catholic Diocese of Albany v. Vullo and when the state's intermediate appellate court ruled against them earlier this month. And that's what might seem "insuperable" when [If?] New York's highest court hears the appeal.

But!
Yes, a "But!" there is. A few lines right in the Catholic Charities decision.

Those lines don't quite fit the tenor of the rest of the Court of Appeals' opinion. But they are there. They are definitively stated. And they offer hope to religious objectors seeking exemptions. Even exemptions to "generally applicable" laws that "only" incidentally infringe upon constitutionally guaranteed free exercise.

In the next and final post in this series, we'll discuss those lines, as well as this month's Appellate Division decision in Roman Catholic Diocese which seemed to disregard those lines entirely.

[Disclosure: As I've previously made clear, I do believe strongly in a woman's right to choose, but at least as strongly in freedom of religion and conscience. Moreover, I have enthusiastically provided whatever little assistance I can to the plaintiffs in both the Catholic Charities and Roman Catholic Diocese cases. 
I've also written about the abortion mandate issue before in New York Court Watcher: 
Religious Liberty vs. Abortion Coverage Mandate (Part 2), 5/21/16; Religious Liberty vs. Abortion Coverage Mandate (Part 1), 5/17/16.]

Religious Institutions Must Pay Abortion Coverage in NY (Part 1a--addendum)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

Before advancing to the New York decisions, it probably makes sense to first address the three rulings just handed down by the Supreme Court dealing with religion. One dealt with discrimination against religion, another with discrimination by religion, and the third one with a regulation accommodating religion. None of these affect what we've been discussing. But to avoid any possible confusion, let's clarify.

Recall that in Part 1, we reviewed the federal constitutional and statutory protections for free exercise of religion. First, the only 1st Amendment constitutional protection is Scalia's opinion in Oregon v. Smith. Under Smith, there is no protection at all if the law is "generally applicable" and "otherwise valid." So religious liberty is protected under the 1st Amendment only when the law singles out religion or religious organizations for disparate treatment, or when the law happens to be illegal for some other reason than religious liberty.

Second, the federal statutory protection for free exercise of religion is the Religious Freedom Restoration Act (RFRA). That legislation applies the "compelling interest/strict scrutiny" test to interference with religious liberty--i.e., the same test that had been applied under the 1st Amendment before Scalia's opinion in Smith denied that was so. Under that test, the government must prove that it has a really, really important reason ("compelling interest") to do what it's doing and that there is no other way to do it without burdening religious liberty. But remember, RFRA and its statutory "compelling interest/strict scrutiny" test does not apply to state laws.

Again, none of that has been changed by the three decisions just rendered by the Supreme Court?

So then, what exactly did the Court decide?
OK, here they are.

Discrimination against Religion
Espinoza v. Montana Dept. of Revenue, June 30, 2020.
The state of Montana was subsidizing tuition scholarships which, under its own law, could not be used to attend religious schools. In an opinion by Chief Justice Roberts, a 5 to 4 majority held that Montana was unconstitutionally discriminating on the basis of religion. The dissenters, on the other hand, viewed Montana's exclusion of religious schools as consistent with, and even compelled by, the constitutional separation of church and state.

The decision in Espinoza is the latest in a long line of Supreme Court precedents that have prohibited government from treating religious activities and institutions less favorably than others. For example, almost 40 years ago in Widmar v. Vincent (1981), the Court held that it was unconstitutional discrimination for a public school to allow all student activities to use its classrooms after hours, but not student groups that were religious. More recently, in Trinity Lutheran Church v. Comer (2017), the Court held the same for a state program that subsidized safety improvements in children's playgrounds, but not those owned by religious institutions.

In short, the Montana program in Espinoza even failed the minimal protection of Smith: the program was not "generally applicable" and "otherwise valid" because it singled out religion and did so for discriminatory treatment. (Whether such disparate treatment is actually permissible under the Constitution's non-establishment mandate, or even required to keep church and state separate, is another way the case could have been viewed--thus, the 4 dissenters.)

Discrimination by Religion 
Our Lady of Guadalupe School v. Morrissey-Berru, July 8, 2020.
Two teachers sued Catholic elementary schools for employment discrimination when they were fired. In an opinion by Justice Alito, a 7 to 2 majority dismissed the lawsuits on the basis of the so-called "ministerial exemption." That doctrine, emerging as far back as the Court's 1952 decision in Kedroff v. Saint Nicholas Cathedral, generally prohibits government from interfering in internal church affairs, including church employment decisions--think the Catholic Church's limiting the priesthood to men.

The majority in this latest decision extended the "ministerial exemption" to employment decisions about teachers whose responsibilities include religious instruction. Regardless of the age or disability discrimination that might have been involved in the firings, the Court explained that the 1st Amendment prohibited the entanglement with church governance that interfering with employment decisions would entail. (The 2 dissenters objected to the extension of the "ministerial exemption" to clear violations of employment anti-discrimination laws involving teachers who were not ministers.)

In short, the decision in Our Lady of Guadalupe School dealt with the extent to which the constitutional guarantees of non-establishment and free exercise restrict government intrusion into church decisions about who shall carry out its religious activities. The majority favored rigorous restrictions; the dissenters favored rigorous enforcement of laws prohibiting employment discrimination.

Contraceptive Coverage Exemptions
Little Sisters of the Poor, Saints Peter and Paul Home v. Pennsylvania, July 8, 2020.
The issue in this case was not whether religious objectors must be granted exemptions. Rather, it was whether recent federal regulations that do grant exemptions--and do so very broadly to all religious and moral objectors--are valid.

In an opinion by Justice Thomas, another 7 to 2 majority held that the federal agency that promulgated the regulations had the authority to do so under the Affordable Care Act, and that the agency did follow the proper procedures in doing so. (The 2 dissenters noted that "all agree" that the 1st Amendment does not require such exemptions, and they complained that the broad scope of the regulatory exemptions conflicts with the purpose of the Affordable Care Act's contraceptive coverage.)

Recall that in its 2014 decision in Hobby Lobby v. Burwell, the Court held that certain religious objectors were entitled to an exemption under RFRA. According to the majority in that case, the federal government had failed to satisfy that RFRA's "compelling interest/strict scrutiny" test to justify burdening the objectors' religious freedom. This new Little Sisters of the Poor case was not about that. It was about the new regulations which provided for exemptions beyond those that the Court had required in Hobby Lobby--or what, if any, would be required under Scalia's "generally applicable/otherwise valid" standard in the Smith decision.


So, you ask, what does all this mean?

Well, none of this alters the minimal 1st Amendment constitutional protection for religious freedom set forth in Scalia's opinion in Smith. And non of this extends the reach of the much more rigorous statutory protection in RFRA.

What these decisions do, however, is to demonstrate that the current Supreme Court is more sympathetic to claims of religious liberty--or, flip side, less sympathetic to other competing interests. In these decisions, the majority of the Justices have extended the precedents that prohibit the disparate treatment of religion and religious institutions--or, flip side, diluted the precedents that prohibit government aid to them. The majority have extended precedents that insulate religious institutions from government interference--or, flip side, weakened laws that protect against employment discrimination. And the majority have approved expansive regulatory exemptions for religious objectors--or, flip side, undermined the ready availability of contraceptive health care.

There are always competing interests in cases that reach the Supreme Court. Oftentimes, those interests that compete are each quite compelling. One possible decision might be more consistent with legal provisions or precedents than another. A different decision might be more consistent with overriding principles or simply wiser. Every once in a while, the Court's decision is just dead wrong. It might be patently dishonest or downright foolish or otherwise contrary to those overriding principles that should guide all Court decisions. But most of the time, these cases are close, and they're tough to resolve. Someone who denies that--who is constantly insisting that the right answer is clear in these close cases--is likely clouded by a hyper-partisan or over-ideological perspective.

OK, enough of my sermon, which likely reveals a nagging uncertainty about most things. Or as extolled by Learned Hand: The spirit of liberty is the spirit which is not too sure that it is right.

Now, while I'm claiming Judge Hand's imprimatur, let's proceed in the next post to the ultimate destination of this series--this month's decision by New York's Appellate Division in Roman Catholic Diocese of Albany v. Vullo, with the 2006 ruling of New York's highest court, the Court of Appeals, in Catholic Charities v. Serio, as the background.

Religious Institutions Must Pay Abortion Coverage in NY (Part 1)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

Last week, in Roman Catholic Diocese of Albany v. Vullo, a New York appellate court rejected religious objections to paying for abortion coverage.

The state's Appellate Division, Third Department, voted unanimously to deny the Albany Catholic Diocese, as well as other religious groups, an exemption from New York's administrative regulation that mandates abortion coverage in employer provided health insurance.

Despite the objectors' religious belief that abortion is--or is akin to--the killing of a human being, the appeals court held that an earlier decision of the state's highest court, the Court of Appeals, was controlling authority to deny a exemption. In that 2006 ruling, Catholic Charities v. Serio, the state's contraceptive mandate was at issue. Although the Court of Appeals acknowledged the sincerity of the religious objections, it nevertheless concluded that the burden on free exercise of religion was permissible.

In last week's case, the Appellate Division, the state's intermediate court, applied the Catholic Charities precedent to hold that the state was not required to grant any exemption to the religious objectors. The constitutional guarantee of religious liberty, that court held, provides no protection for the religious objectors. They are entitled to no exemption. They must violate their religion and pay for what they sincerely believe is--or is akin to--murder.

But wait, you might say. Wasn't there a Supreme Court decision not too long ago that said that the government could not force religious objectors to pay for contraceptive coverage? Wouldn't that decision apply to abortion coverage as well? And New York can't violate a Supreme Court decision, right?

Well, yes (Hobby Lobby v. Burwell, 2014), yes, and yes. BUT...

The Supreme Court's protection of religious freedom in that case simply does not apply to New York or to any other state. What, you ask, can that really be? Doesn't the Constitution's 1st Amendment rights apply to New York and other states? Aren't New York and other states required to obey Supreme Court decisions about the Constitution?

Again, yes, yes, and yes. BUT...

That's where Antonin Scalia's dreadful--yes, and disgraceful and dishonest--opinion in the 1990 decision in Oregon v. Smith comes in. [The full formal name of the case is actually Employment Division, Department of Human Resources of Oregon v. Smith. I'll stick with Oregon v. Smith.]

The late Justice, in his opinion for the Court, insisted that the 1st Amendment did not protect religious liberty from laws that were "otherwise valid." So as long as a law does not violate some other constitutional right, it's permissible for that law to interfere with freedom of religion. As Scalia further explained, as long as a law is "generally applicable"--i.e., it does not deliberately target or discriminate against a religion--it makes no difference if the law abridges religious liberty. And no, according to Scalia's opinion, the law doesn't even have to be a particularly important one. And no, it doesn't even matter if the government can do what it wants to do in some other way that doesn't interfere with freedom of religion.

Just in case there are doubts that Scalia, who apparently was a devout Roman Catholic, could actually dilute freedom of religion so drastically, here are his own words:

[I]f prohibiting the exercise of religion . . . is not the object of the [law], but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. [My emphasis]

Not surprisingly, the Court in Smith was deeply divided.

Four of the Justices disagreed vehemently with Scalia. Justice Sandra Day O'Connor agreed with the ultimate result reached by the majority, but she condemned Scalia's evisceration of constitutional religious freedom, as well as his dishonesty about the Court's prior decisions. She catalogued a long line of decisions that had protected the 1st Amendment right

by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest...The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order. [My emphasis]

Justice O'Connor was justly upset with Scalia's dishonest devaluation of religious liberty. In fact, as she spelled out in her separate concurring opinion, the Supreme Court had repeatedly scrutinized interference with religious liberty very strictly. The Court had repeatedly required government to show that an interference with religious liberty was necessary for a compelling purpose. And the Court had repeatedly exempted sincere religious objectors from "generally applicable" and "otherwise valid" laws. The Jehovah's Witnesses' objection to pledging allegiance to the flag, the Seventh Day Adventists' objection to working on their Saturday Sabbath, the Amish objection to their children completing high school--all of these and other religious objections were held to be entitled to exemptions from generally applicable, otherwise valid laws in landmark Supreme Court decisions. (See respectively, West Virginia v. Barnette, 1943; Sherbert v. Verner, 1963; Wisconsin v. Yoder, 1972.)

At issue in Oregon v. Smith was a Native American religious ritual that included smoking peyote, which was illegal under the state's anti-drug law. Justice O'Connor concluded that the government's prohibition of the religious ritual was justified, but only because prohibiting the use of hallucinogens was a compelling interest. Scalia, on the other hand, denied that religious liberty was even entitled to the compelling interest/strict scrutiny test. He did so despite the well-established Supreme Court landmarks affirming that test, and despite that test's unquestioned application to every other right in the 1st Amendment. (The 3 dissenting liberal Justices agreed entirely with Justice O'Connor's recitation of the constitutional law of religious liberty, but not that prohibiting the religious use of peyote was justified under the compelling interest/strict scrutiny test.)

[I've written and spoken at length about the Smith decision and it's impact on religious liberty. See e.g., Justice Scalia's Record (Part 1), 2/18/16; Religious Liberty--commentary, interview, video, presentation [updated 5/15/13]; Religious Liberty: Fundamental Right or Nuisance, 14 U. St. Thomas L.J. 650 (2018); The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). Ironically, but not surprisingly, conservatives today are much more supportive of free exercise of religion than previously, and liberals much less so, because recent cases have involved majority and fundamental religions objecting to abortion rights, LGBTQ rights, and other rights favored by political liberals.]

OK then, but what about that 2014 Hobby Lobby case mentioned earlier? Didn't the Supreme Court hold that Obamacare violated the rights of religious objectors and, therefore, that those objectors did not have to pay for contraceptive coverage? Didn't the Court rule that the religious objectors were entitled to an exemption from the law? And yet, isn't the Obamacare contraceptive mandate--in words that Scalia used in Smith--a generally applicable and otherwise valid law which, according to Scalia's majority opinion in Smith, defeats 1st Amendment religious liberty?

Yes, absolutely right. BUT...

Congress--both Democrats and Republicans, liberals and conservatives; as well as the overwhelming majority of constitutional scholars--was appalled by Scalia's opinion. So Congress passed a law, with almost unanimous support, to overrule Smith and to reimpose the "compelling interest/strict scrutiny" test. That legislation, the Religious Freedom Restoration Act (RFRA), however, applies only to federal laws. Not to state laws. Why? Well, without getting into the weeds here, the Supreme Court ruled shortly thereafter that the statutory protection of RFRA cannot overrule the constitutional decision in Smith. Consequently, the 1st Amendment's protection of free exercise of religion is still what it was defined to be in Scalia's Smith opinion, and that--not RFRA--is the federal protection for religious freedom against state laws. (See Boerne v. Flores, 1997.)

So let's be clear. The Supreme Court's decision in Hobby Lobby, protecting religious objectors from the contraceptive mandate of Obamacare, was an application of the statutory "compelling interest/strict scrutiny" protection of RFRA against a federal law. It was not about 1st Amendment constitutional protection, and it was not about a state law. In fact, if the case were about constitutional protection, or if it was about a state law, the religious objectors would have lost! That's because Scalia's "generally applicable" and "otherwise valid" standard would have applied, and the contraceptive mandate would have defeated any religious liberty objections.

Now, with that as background--the minimalist 1st Amendment constitutional protection (i.e., Scalia's opinion in Smith) and the rigorous federal statutory protection (RFRA, which does not apply to state laws)--we can better understand New York's religious liberty decisions. The only 1st Amendment constitutional protection against New York laws is Scalia's opinion in Smith. And the statutory RFRA protection--i.e., the Hobby Lobby decision--does not apply.

We'll look at those New York decisions--the Court of Appeals in Catholic Charities (2006) and the Appellate Division in last week's Roman Catholic Diocese--in the next post.

[Disclosure: Readers may be curious and deserve to know that I strongly believe in a woman's right to choose; I do not share the religious belief that human person-hood begins at conception and therefore that abortion is always wrong; but I do believe that freedom of religion and conscience are extremely vital to a free society (although I am not much of a religious believer myself) and I think that Scalia's opinion in Smith was dishonest and disgraceful and has dreadful consequences for 1st Amendment free exercise of religion.]

Religious Liberty vs. Abortion Coverage Mandate (Part 2)

As discussed in Part 1, the Catholic Diocese of Albany, together with other religious organizations, has filed suit challenging a New York State regulation that mandates abortion coverage in employee health insurance policies. These organizations object to the mandate because it requires them to violate one of the most fundamental tenets of their religion or moral conscience. They argue that applying the mandate to them violates their constitutional right to free exercise of religion.

As also discussed, any 1st Amendment protection for religious freedom is minimal under current Supreme Court case law. In Oregon v. Smith (1990), the controlling federal precedent [which happened to involve a Native American religion], the Court shocked religious liberty scholars by holding that “any otherwise valid law” defeats free exercise of religion. Then, when Congress enacted RFRA (the Religious Freedom Restoration Act) to overrule the Smith decision and to restore the heightened protection for religious liberty that earlier landmarks had required, the Supreme Court in City of Boerne v. Flores (1997) held that RFRA could not be applied to state laws.

With that as a backdrop, New York’s highest court, the Court of Appeals, dismissed religious objections to the state’s contraceptive mandate for employee health policies. In Catholic Charities v. Serio (2006), the Court denied the request for an exemption sought by organizations with religious and moral objections to contraception. But the Court did not do so on the ground that the state had some very important reason that actually necessitated applying the mandate to the religious objectors. No. Instead, the Court explicitly rejected the so-called “compelling interest”/”strict scrutiny” test, just like the Supreme Court had done in Smith.

What the New York court did do was to adopt an extremely low level of protection for religious freedom. The Court held that, as a matter of the state’s constitutional law, the guarantee of free exercise of religion protects objectors whose religious freedom is being infringed only when they, the religious objectors, can prove that the "interference with religious practice is unreasonable, and therefore requires an exemption.”

Since the Catholic Charities decision is the controlling precedent in New York, and thus will govern the newly filed Catholic Diocese litigation (unless, of course, it is overruled or “distinguished”), let’s take a closer look.

To begin with, the rule applied in Catholic Charities—regardless of one’s favorable or unfavorable view of it--is a drastic reversal of traditional constitutional principles. The reversal is as drastic as the rule the Supreme Court adopted in Smith. It is the opposite of what the rules are for other fundamental constitutional rights.

Whether free speech, free press, racial equal protection, parental rights, or some other fundamental right is being infringed, basic constitutional law places the burden on the government to prove that the infringement is justified. More than that, basic constitutional law demands that the justification for the infringement be “compelling.” (The terms “paramount” and “overriding” are used as well.) But under the rule applied by the Court of Appeals in Catholic Charities, the justification for interfering with religious freedom need only be reasonable. And the religious objector bears the burden of proving that it isn’t.

Consequently, when the Supreme Court’s and the Court of Appeals’ decisions are combined, the result is precious little protection for free exercise of religion under either federal or state constitutional law. Assuming the Supreme Court does not overrule its Smith decision any time soon, [although there does seem to be support among some of the Justices to return to the earlier more protective 1st Amendment landmarks,] religious objectors in New York courts, such as those who have brought the Catholic Diocese litigation, must confront the state constitutional rule set forth by the Court of Appeals in Catholic Charities.

On its face, that Catholic Charities rule subordinates free exercise of religion to any law that interferes with it—unless that interference is proven to be “unreasonable.” Not surprisingly, when the Court of Appeals applied that [abysmally low and rather amorphous] standard for "protecting" religious liberty in that case, it had little difficulty rejecting the religious objectors’ challenge to the state’s contraceptive coverage mandate.

Of course there is nothing particularly unreasonable about a law generally requiring contraceptive coverage in health insurance. Of course there is nothing particularly unreasonable about applying that requirement to all employers. Of course there is nothing particularly unreasonable about the state government insuring contraceptive coverage in an expeditious manner. Of course there is nothing particularly unreasonable about state government wishing to avoid the administrative inefficiencies and complications of determining qualification for exemptions.

On the other hand, a perfectly workable accommodation for religious objectors might have been available in the Catholic Charities case. Protecting religious freedom and yet still insuring the availability of contraceptive coverage for employees who want it might well have been entirely feasible. [The Supreme Court concluded exactly that in its 2014 Hobby Lobby decision, requiring an exemption for religious objectors to the Obamacare contraceptive mandate. Of course, as previously noted, that Supreme Court ruling was based on the federal RFRA statute which does not apply to state laws.]

But the feasibility of accommodating religious objectors seemed irrelevant to the Court of Appeals' decision in Catholic Charities. The focus was on the legitimate legislative policy behind contraceptive coverage generally. The Court actually made light of the religious objections to paying for contraceptive coverage and, thus, gave little consideration to available accommodations.

So, in applying the Catholic Charities rule to the newly filed Catholic Diocese litigation, the religious liberty question is whether the abortion coverage mandate, as applied to those who view abortion as gravely violative of their most fundamental religious beliefs and moral conscience, is an "interference with religious practice [that] is unreasonable.” And the burden is on the religious objectors to prove that it is.

But here’s the question, about that question: what exactly did the Court of Appeals mean by “unreasonable" interference? That was not made clear in the slightest in the Catholic Charities decision. Was the Court referring to the law that creates the interference, or to the interference itself? And if that's not clear--which it isn't--then what about the factors that are relevant in determining “unreasonable" interference? Who knows?

Is the centrality or criticality of the religious tenet in question a factor? So, for example, does it make a difference that abortion is involved in the Catholic Diocese litigation rather than contraception? That what is involved is the objectors' most fundamental religious belief in the sanctity of human life and that abortion is the equivalent or akin to killing a human being?

Along similar lines, is the relative importance of the competing interests at stake a factor? So, for example, religious liberty versus the universal (or near universal) availability of abortion coverage? And more specifically, religious objection to subsidizing abortion, which is believed to be the same as or akin to killing a human being, versus the societal benefit of widespread affordable access to abortion through insurance coverage?

What about the actual need to interfere with religious freedom, or the lack thereof--a factor? So, for example, does it make a difference if religious objectors to the abortion mandate can readily be accommodated? That is, if some alternative to providing abortion coverage for the employees of religious objectors can be readily devised?

Is the degree or directness of the interference with religious free exercise a factor? So, for example, requiring religious objectors to pay for abortion coverage would constitute a greater intrusion than requiring them simply to notify employees that there are alternate means for obtaining it. On the other hand, requiring religious objectors to pay for health insurance that happens to include abortion coverage would constitute a lesser intrusion than actually requiring them to perform or assist or accommodate abortion.

And so forth and so on. A list of possible factors would be very long. But the Court of Appeals in Catholic Charities gave little guidance other than repeating the terms “unreasonable" and "interference.” And that standard is capable of morphing into just about anything the Court might choose in future cases.

Indeed, the Court in Catholic Charities did seem to understand exactly that. It seemed fully aware--or at least some members of the Court seemed concerned--that the standard as stated was somewhat amorphous and entirely susceptible of variously conflicting interpretations. In fact, the Court injected into its opinion a list of certain intrusions on free exercise of religion that, in its view, would amount to “unreasonable" interference. Here’s what the Court said:

“‘[A] requirement that all witnesses must testify to facts within their knowledge bearing on a criminal prosecution . . . if applied without exception, could abrogate the confidentiality of the confessional. Similarly, a general prohibition of alcohol consumption could make the Christian sacrament of communion illegal, uniform regulation of meat preparation could put kosher slaughterhouses out of business, and prohibitions of discrimination on the basis of sex or marital status could end the male celibate priesthood.’ We find these hypothetical laws to be well beyond the bounds of constitutional acceptability.” [Quoting Michael V. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review (1990).]

But the Court gave no explanation as to why those laws would amount to “unreasonable" interference. In fact, most of the laws identified are themselves perfectly reasonable. Requiring witnesses to testify? Health and animal cruelty regulations on slaughtering? Restricting alcoholic beverage service to regulated establishments?

Each of those laws serves legitimate government interests. None of them targets a religion. Any interference with a religion would be purely incidental to the general health, safety, and welfare purposes of those laws. Nevertheless, the Court insisted that applying such laws to religious objectors would be unconstitutional. And yet, no explanation was given.

The "unreasonable" interference standard is even less clear than that. Recall that the complete standard speaks of  "interference with religious practice [that] is unreasonable." Did the Court mean to say that the protection for religious liberty--whatever the "unreasonable" standard might mean--applies only to religiously required conduct, but not religious beliefs?

Did the Court use the term "practice" deliberately to mean that religious ceremonies, rituals, and other exercises could be protected, but not religious convictions, tenets, or conscience? So, e.g., the Catholic Mass, Jewish bris, and Jehovah Witness door-to-door proselytizing might receive protection from generally applicable laws; but belief that abortion is murder, that work should not be done on the Sabbath, or that the Bible is the word of God are not entitled to any accommodation. Is that what the Court meant to signify by its reference to "practice?"

In short, there seems to be quite a bit unsettled in the "interference with religious practice [that] is unreasonable" standard. That would seem to allow considerable wiggle room and discretion in its application. [That’s just a nicer way of saying that the Catholic Charities rule is cryptic and amorphous.] Future cases will give lower courts, and ultimately the Court of Appeals, the opportunity to refine its meaning. 

Perhaps the Catholic Diocese litigation, with the religious objectors seeking an exemption from New York's abortion coverage mandate, will prove to be just the right opportunity. And hopefully, any refinement will take religious objections more seriously, and will breathe some renewed life into the protection for the fundamental constitutional right to free exercise of religion.

[Disclosure: Again, I am pro-choice. But I am also pro-religious liberty, which I view as a bedrock of a free society. I have provided some assistance in the preparation of the complaint in the newly filed Catholic Diocese litigation, and I provided some assistance as well on the side of the religious objectors in the Catholic Charities case. Any services I’ve provided have been entirely pro-bono.]

Religious Liberty vs. Abortion Coverage Mandate (Part 1)

The Roman Catholic Diocese of Albany, New York, together with numerous other religious organizations, has filed suit against the State of New York for requiring abortion coverage in its employee health insurance policies. (Catholic Diocese of Albany v. Vullo [filed May 4, 2016].) The lawsuit is directed primarily at the state agency responsible for issuing the abortion coverage mandate--i.e., the State Department of Financial Services, which includes the former Department of Insurance. The religious organizations challenge the requirement as applied to them and seek an exemption.

These organizations argue that applying the abortion mandate to them violates their free exercise of religion as guaranteed under both the United States and New York State Constitutions. The mandate requires employers to pay for abortion coverage in the health insurance they provide to their employees. For the organizations who brought this lawsuit, as well as others with religious and conscientious objections to abortion, the mandate requires them to subsidize what they view as akin to murder or other grave evil. The mandate, in short, requires them to violate a most, if not the most, fundamental tenet of their religion or moral conscience.

In 2006, New York's highest court, the Court of Appeals, rejected a similar challenge brought by some of the same plaintiffs against the state's analogous contraceptive mandate. (Catholic Charities of Albany v. Serio [2006].) That decision is an essential backdrop to this newly filed lawsuit. And to understand the Catholic Charities decision, it is necessary, in turn, to understand 2 previous U.S. Supreme Court rulings that have allowed the Court of Appeals—as well as courts in other states--to decide the way it did against the religious liberty claims.

The Supreme Court rulings were Oregon v. Smith (1990) and City of Boerne v. Flores (1997). Those 2 decisions literally stripped free exercise of religion of virtually any 1st Amendment protection and of other federal legal protection against encroaching state laws. Yes, that may sound like some gross exaggeration. But constitutional scholars--whether they oppose that development or favor it--know that is precisely what the Supreme Court did in those cases.

[And no, it wasn't the liberal Justices who did it. Instead, it was the conservative Justices who were unsympathetic to objections raised by minority religions. See e.g., Justice Scalia's Record (Part 1), New York Court Watcher, Feb. 18, 2016; The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). More recently, with majority or fundamental religions having objections to laws enforcing minority rights, conservatives are much more supportive of free exercise of religion, and liberals much less so.]

In its Smith decision, the Supreme Court rejected the claim of religious objectors for an exemption to a generally applicable state law. In a ruling that bitterly and profoundly divided the Justices, the Court held that "any otherwise valid law" defeats a claim of free exercise of religion. To the surprise--no, shock--of most religious liberty scholars, the majority insisted that the 1st Amendment did not require the government to have 1) some particularly good reason that 2) actually made it necessary to interfere with religious freedom.

In fact, that rejected requirement, the so-called "compelling interest" or "strict scrutiny" test, had been the Supreme Court’s standard for protecting free exercise of religion in several previous landmark decisions. Indeed the “compelling interest"/"strict scrutiny" test is still the standard for protecting other 1st Amendment rights, as well as other fundamental constitutional rights. But the Court's majority in Smith, speaking through Justice Scalia, rejected that test for religious liberty. As a result, free exercise of religion became, and remains, the least protected of fundamental constitutional rights.

[Oh, by the way, the losing religious objectors in the Smith case just happened to be Native Americans.]

Almost immediately, Congress sought to overrule the Smith decision. It enacted the Religious Freedom Restoration Act (RFRA) to restore the "compelling interest"/"strict scrutiny" test for free exercise of religion. However, a few years later in City of Boerne, the first major case involving RFRA, the Supreme Court ruled that Congress had no power under the Constitution--only the Court itself did--to impose that high level of protection for religious liberty against state laws. Congress could only do so against federal laws.

Soooooo, as a result of the Supreme Court's Smith and City of Boerne decisions, there is virtually no federal constitutional or statutory protection of free exercise of religion against infringing state laws. As long as a state law is "otherwise valid," any religious objection fails. No exemption for religious objectors need be made. A state may, with nearly uninhibited impunity, require objectors to violate their most sincere religious beliefs. That is so, even if an accommodation is perfectly feasible. That, at least, is the Supreme Court's current 1st Amendment jurisprudence.

[N.B. The Supreme Court's 2014 Hobby Lobby decision, requiring an exemption for the religious objectors to the Obamacare contraceptive mandate--which, of course, is a federal law, not state --was based on RFRA's "compelling interest"/"strict scrutiny" test. No such exemption would have been granted under the 1st Amendment because of Smith's "otherwise valid law" standard. And the Supreme Court’s decision this week in the Little Sisters of the Poor case (Zubik v. Burwell), directing several circuit courts (federal appeals courts) to consider the possible accommodations between the federal government and the religious objectors, also involved RFRA, not the 1st Amendment.]

What all of this ultimately means is that state courts are largely free to adopt, or to reject, any protection for free exercise of religion under their own state laws. They can adopt the "compelling interest"/"strict scrutiny" test which the Supreme Court applied in the past. (Some state high courts have done that.) They can adopt a somewhat lesser protection. (Some of them have done that.) Or they can adopt a minimal, largely illusory protection--such as the Supreme Court's "otherwise valid law" standard. (And some have done that.)

But virtually any protection for religious liberty, or any lack thereof, that a state court chooses will almost certainly either equal or exceed the Supreme Court's standard. So virtually any level of protection, regardless of how low, will almost certainly be permissible under federal constitutional law.

This is the federal constitutional background in which New York's highest court decided the 2006 Catholic Charities case mentioned previously. The Court of Appeals was free to adopt virtually any standard of its own, high or low.

The New York court actually did have its own heralded religious liberty landmark, People v. Barber (Lehman, C.J., 1943). In Barber, the Court of Appeals made clear that New York would strongly and independently protect free exercise of religion under its own constitution. That is exactly what the Court of Appeals did in that case. It carved out an exemption for religious objectors from a generally applicable, valid law. And it did so despite the Supreme Court’s failure to do so under the 1st Amendment in a nearly identical case decided the previous year. (Jones v. Opelika [1942].)

[Notably, the Supreme Court reversed itself very shortly thereafter in Murdoch v. Pennsylvania (1943), citing the Court of Appeals Barber decision.]

Hence, in the Catholic Charities case, New York’s high court had a clear choice: follow its own proud precedent of safeguarding religious freedom, or follow the path taken by the Supreme Court in Smith and minimize the protection for religious liberty. The New York court chose to do the latter.

In a ruling very similar to the Supreme Court’s decision in Smith, and not at all like its own proud Barber landmark, the Court of Appeals in Catholic Charities adopted an extremely low religious freedom standard of its own.

The Court of Appeals in Catholic Charities expressly rejected the “compelling interest”/”strict scrutiny” test. It held that New York State government had no burden to show that there was any compelling reason (or even any important reason) to abridge free exercise of religion. Nor did it require the government to show that the abridgment was necessary. No, neither of those.

Instead, the New York court placed the burden on the religious objector--even one whose religious freedom is unquestionably abridged. The objector, whose fundamental right to religious free exercise is clearly being abridged, bears the burden of proving that the abridgment is “unreasonable.” That’s right: the government that is interfering with religious liberty has no burden of justifying its action. The objector, whose religious liberty is being abridged, bears the burden of proving that there is no justification.

[That is literally the opposite of what it is for other fundamental rights.]

Applying those rules, the Court of Appeals had little difficulty upholding the contraceptive mandate as applied to the religious objectors. In a unanimous decision in the Catholic Charities case, the Court rejected the free exercise challenge and denied the requested religious exemption.

In the next post, we will continue examining the Catholic Charities decision—which is less clear and more amorphous than it seems at first blush--and the implications of that decision for the newly filed Catholic Diocese litigation.

[Disclosure: I am pro-choice. But I am also pro-religious liberty, which I view as a bedrock of a free society. I have provided some assistance in the preparation of the complaint in the newly filed Catholic Diocese litigation, and I provided some assistance as well on the side of the religious objectors in the Catholic Charities case. Any services I’ve provided have been entirely pro-bono.]

Supremely Awful Arguments: Constitutional Nonsense (Part 4--"Activism")

Criticizing [that awful, illegitimate, undemocratic] "Judicial Activism"

(Yes, it's been a while. Corruption trials, the selection process for a new Chief Judge, commentary and presentations on that and the courts (i.e., lots of talking). That on top of classes, students, and a crazy, hectic semester overall. But, concededly, loving it all.)

Now, on to the nonsense about "judicial activism." That is, the customary condemnation of it.

It's as though the judicial branch is supposed to exercise its role halfheartedly. Less fully and vigorously than the other branches. Why has this nonsense--yes, again, it's nonsense--gained currency?

Are there stupid decisions? Yes. Deceptive decisions? Yes. Unintelligible decisions? Yes. Unsupported and unjustified decisions? Yes. But criticize the Supreme Court, or any other court, for vigorously--"actively"--exercising the judicial role? Especially when the judicial role is exercised in the service of fundamental principles of American free government?

Let's consider some of the most "activist" and, at the time, maligned decisions of the Supreme Court. And let's ask which ones were wrong? Which ones were illegitimate exercises of raw, unbridled judicial power that should be curbed? Which ones should be undone?

Brown v. Board of Education (1954): outlawing racial segregation.
That decision overruled precedent that had endorsed the "separate but equal" doctrine. (I.e., Plessy v. Ferguson [1896] and the numerous decisions that followed.)
That decision invalidated state laws that kept the races segregated.
That decision rejected a narrow, "restrained," "originalist" interpretation of the Constitution's 14th Amendment equal protection guarantee, which never would have been ratified in 1868 if its express intention was to end segregation.
That decision's companion (Bolling v. Sharp, decided the same day) invalidated segregation in the District of Columbia and the federal government generally, even though the Constitution's only equal protection clause explicitly applies only to the states.
That decision did what the Congress and many of the states were unable or unwilling to do through the democratic process.
That decision overturned the longstanding, societal status quo in this country.
That decision gave full force and effect to the constitutional principle of equal treatment, despite the equal protection clause's much more limited specific purpose.
That decision was so unpopular in many parts of the country that President Eisenhower had to send in the troops--including the 101st Airborne--to enforce it.

In short, that decision was as "activist" as an activist decision can be.
Does that make it a bad decision?
An illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?
An America without the Brown decision?

Let's try another.
Gideon v. Wainwright (1963): guaranteeing the right to counsel in all criminal trials.
That decision overruled precedent (Betts v. Brady [1942]) in which the Court had rejected any such right to the assistance of counsel in non-capital cases.
That decision invalidated state laws that guaranteed the assistance of a lawyer only when a defendant faced the death penalty or in other limited circumstances.
That decision extended the term "due process"--applicable to the states through the 14th Amendment--to include the right to counsel in all criminal cases, even though that Amendment does not mention any such guarantee.
That decision gave full force and effect to the right to counsel as a fundamental right, recognized by Justice Cardozo in dictum in Palko v. Connecticut (1937) as being implicit in the American scheme of ordered liberty, because essential to fairness in criminal prosecutions.
That decision was extremely unpopular in several states, especially in the South, and was among the series of criminal justice rulings in the 1960's for which "law and order" politicians condemned the Court as being activist, pro-criminal, and violative of state prerogatives.

Another bad activist decision?
Another illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?

And what about this next one?
Loving v. Virginia (1967): guaranteeing the right to marry to interracial couples.
That decision overruled precedent (Pace v. Alabama [1883]) in which the Court had upheld laws that criminalized marriage and sexual relations between whites and non-whites.
That decision invalidated state laws (16 such anti-miscegenation statutes in the South), such as Virginia's so-called "Racial Integrity" law, which the couple had violated in this case.
That decision was another that rejected a narrow, "restrained," "originalist" interpretation of the 14th Amendment's equal protection guarantee, which never would have been ratified in 1868 if its express intention was to allow interracial marriage.
That decision overturned the longstanding, societal status quo in the Southern states and, as a de facto matter, in much of the country.
That decision contravened "states rights."
That decision was contrary to overwhelming public opinion in the country, with only 20% approving marriage between blacks and whites at the time (according to Gallup).

Another one of those bad, illegitimate, activist decisions?
Country would be better off without it?
Should be undone?

What about these--just to mention a few more that make (what I believe to be) the incontrovertible point?
Pierce v. Society of Sisters (1925): protecting parents' right to send their children to private religious schools rather than public ones--interpreted "due process" and "liberty" to include the right of parents to raise their children, which the Constitution nowhere mentions; invalidated all state laws requiring that children attend public, not private schools; simultaneously overrode the popular anti-immigrant sentiment (white supremacist, anti-Catholic, anti-Semitic, etc.) underlying those laws; rejected the claimed power of states to dictate all education retirements; disregarded (and effectively overruled) precedents that the 14th Amendment did not protect any implicit rights or liberties against state governments.
NAACP v. Alabama (1958): protecting the right to associate with others--invalidated state laws interfering with the freedom to join groups with like-minded persons; recognized a freedom of association nowhere mentioned in the Constitution; broadly interpreted free speech as including a fundamental right to associate with others for the purpose of advancing beliefs and ideas; broadly interpreted "liberty" and "due process" in the 14th Amendment as including such rights to be applicable against the states; in short, recognized an unenumerated  right to join groups with like-minded individuals.
Reed v. Reed (1971): invalidating gender discrimination against women--overruled a long line of precedents (e.g., Bradwell v. Illinois [1973], which allowed states to prohibit women from becoming lawyers);  invalidated countless state laws that treated women unequally; rejected a narrow, "restrained," "originalist" interpretation of the equal protection guarantee; rejected the longstanding, societal status quo that confined women to traditional roles; and effectively adopted the gender equality mandate of the ultimately-failed ERA (Equal Rights Amendment) as a matter of constitutional case law.
Lawrence v. Texas (2003): recognizing the right of adults to engage in consensual sex in private, absent some counterbalancing legitimate government interest--invalidated state laws that criminalized "sodomy" (i.e., anything but vaginal intercourse), based solely on moral, religious, and biblical condemnation; overruled precedent (the shameful Bowers v. Hardwick [1986] decision) that had upheld such "sodomy" laws as applied to same-sex couples, again based solely on moral, religious, and biblical condemnation; rejected a narrow, "restrained," "originalist" interpretation of "liberty" that would limit it to freedom from physical restraint; rejected popularly enacted restrictions on intimate private conduct, absent some legitimate government/societal interest in health, safety, or welfare.
(Yes, there are those who view homosexuality as wrong for moral, religious or other reasons, and those who support laws against homosexual conduct. But whatever one's views on that specific issue, the sole principle enforced in the Lawrence decision--that the government has no business interfering with the most private aspects of our lives without some good reason--is nothing less than one of the essential foundations of American free society.)

And there are countless other examples where the Court gave effect to what we cherish most about being American. Rights that we take for granted today, but which became reality only because of "activist" decisions that were typically unpopular at the time.

Make no mistake, "activist" decisions are hardly confined to politically liberal outcomes. Just a couple of recent ones (actually 3) makes the point.
Citizens United v. Federal Election Commission (2010): recognizing a right to finance the production and distribution of a political communication--invalidated federal law (and similar state laws) that limited independent campaign spending; overruled precedent that had approved campaign finance restrictions; rejected a narrow, "restrained," "strict" interpretation of the 1st Amendment's protection of "speech;" protected spending money on political communications as a 1st Amendment right; repudiated popular and democratically enacted measures intended to curb campaign corruption.
McDonald v. City of Chicago (2010) and District of Columbia v. Heller (2008): recognizing an individual right to bear arms assertable against the federal and state governments--invalidated numerous federal and state laws limiting gun ownership; overruled precedent that had confined gun rights to the context of state militias and that held that 2nd Amendment rights were not assertable against state governments; broadly interpreted "liberty" and "due process" in the 14th Amendment as including individual gun rights.

One more thing about which to make no mistake. Whatever one might think about the foregoing politically conservative examples of judicial activism, there are certainly "activist" decisions that are part of the junk heap of discredited rulings. Just as "activism" doesn't necessarily result in a bad decision, it hardly insures a good one either.

A few examples? Check these out.
Lochner v. New York (1905): denying the power of states to adopt health regulations setting maximum hours for workers--invalidated New York's (and by implication any other state's) health laws that limited the number of hours employees [in this case, bakers] could work; broadly interpreted "liberty" and "due process" in the 14th Amendment as including the "right of free contract" that largely prevented states from regulating working conditions; repudiated the health concerns underlying the law that had been affirmed by the state's highest court.
(N.B., Justices John Marshall Harlan and  Oliver Wendell Holmes each wrote dissenting opinions and, for that and other reasons, it is not surprising that this decision was eventually overruled.)
Hammer v. Dagenhart (1918): denying the power of Congress to place limitations on child labor--invalidated the federal Child Labor Act of 1916 that enforced restrictions on child labor; adopted a novel, tortured reading of the interstate commerce power as not reaching manufacturing; rejected popular, democratically enacted health and safety protections for children, in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and another dissent of Justice Holmes was vindicated.)
Adkins v. Children's Hospital (1923): denying the power of government to set minimum wages--invalidated the federal (and by implication any state's) law setting minimum wages for workers; broadly interpreted "liberty" and "due process" in the 5th Amendment as including the "freedom of contract" that largely prevented the federal government from regulating working conditions; adopted a tortured distinction between the (by then) accepted governmental power to set maximum hours and the disallowed power to set minimum wages; rejected popular, democratically enacted labor protections [in this case for women and children] in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and yet another dissent of Justice Holmes was vindicated.)

Finally, the point of all this is that the judicial "activism" argument is nonsense. Whether a decision is "activist" or not does not necessarily have a whit to do with whether it's a good or bad one, wise or foolish, enduring or fleeting, cherished or discredited.

A judicial decision may overrule precedent or not; may invalidate legislation or not; may be contemporaneously popular or not; may adopt a strict or "loose" interpretation, a traditional or novel one; etc., etc., etc. But none of those characteristics of "activism" or "restraint" are very helpful in assessing a judicial decision. Decisions with any combination of those qualities may be good ones or bad ones.

As is usually true for most serious matters, the whole question cannot be resolved with simplistic dichotomies. I did my best to address the matter a few years ago.  I'm not sure I can improve upon my admittedly unoriginal and not wholly satisfactory sentiments at the time. So, in conclusion, here they are:

To deny that bold exercises of judicial activism have produced some of our proudest and wisest landmarks...is either blind ideology, woeful ignorance, or some other specie of nonsense. The American experience with judicial review emphatically demonstrates that activism and restraint are not helpful as dividing lines between good and bad judges, worthy and flawed decisions. 

[W]hen we talk about judges, when we talk about decisions, the qualities that count are wisdom, foresight, discretion, a sense of history, an appreciation of the possible, pragmatism, fairness to the parties, promotion of the common good, and dedication to the fundamental principles of the American constitutional republic. That, of course, is what judging is all about; those are the kinds of qualities that make a good judge and a worthy decision. 

(Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense, Albany Law Review, Vol. 68, No. 3, 2005 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142071])