Thursday, September 29, 2016

Early DiFiore Court Patterns (Part 1- Who's Dissenting?)

(Summer's gone, the Saratoga meet has ended, and the fall semester is well underway.
New York's highest court is back from it's summer break. So let's start to look at where it's been since Janet DiFiore assumed the center seat.)

We'll begin our review of the DiFiore Court to date by looking at who has been dissenting--writing dissenting opinions and joining those written by others.

The following graph reflects every divided decision rendered by the Court of Appeals, New York's highest tribunal, since Janet DiFiore was appointed Chief Judge in February of this year. Including those separate concurring opinions which disagree with the majority on a significant substantive issue, the total of such divided decisions to date is 17.

Take a look.
(click on graph to enlarge)

Perhaps the most salient figures reflected on the graph are the highs and lows. Judge Jenny Rivera has authored the most dissenting opinions. Her 10 dissents significantly exceeds the number written by any other member of the Court. The same is true for the total number of dissenting votes she has cast, 15.

Looking beyond Rivera's numbers, what we shall see in subsequent posts is that her dissenting votes reflect a record that is strongly ideologically liberal--i.e., siding with the accused in criminal cases and with injured and vulnerable plaintiffs in civil cases.

At the other end of the spectrum--the dissenting spectrum, that is--Chief Judge DiFiore has neither authored nor joined a single dissenting opinion. While others on the Court have dissented in numbers far lower than that of Judge Rivera, none come close to DiFiore's record of having never been in dissent.

Looking beyond that mere number of zero, however, belies some likely misperceptions. As we shall see in subsequent posts, DiFiore's zero dissenting record is not simply the result of her casting in with the majority. Indeed, she herself has created the majority in many of those cases. Certainly that is true for the 8 cases thus far in her tenure where the Court was divided 4 to 3. While the bare numbers cannot reveal whether or not she was actually responsible for wielding the influence to form the majority in such cases. What is true is that, in every one of those 8 bare-majority cases, a change in her vote would have changed the Court's decision.

There's obvious lots more underlying the figures for both DiFiore and Rivera, as well as for the other members of the Court. We shall deal with much of this in future posts.

Tuesday, June 21, 2016

Part 2: Dissents--The (very early) DiFiore Court [with graphs!]

The Court of Appeals has a back and forth recent history on dissents. Chief Judge Judith Kaye said she was not a big fan. Her successor, Jonathan Lippman welcomed them.

Kaye sought to avoid fractured decisions and unpleasant divisions by encouraging consensus. Lippman welcomed dissenting views that pushed the majority to address real disagreements among the Judges. Kaye preferred the Court to speak with one voice. Lippman favored clarity and boldness rather than reaching some blurry common ground.
[My agreement with Chief Judge Lippman may be evident. In any event, I have made my view on the matter pellucid--love that word. One of the finest NY Times pieces on the Court of Appeals, written by one of the finest legal journalists of our time, explores this very topic, see William Glaberson's "Dissenting Often, State’s Chief Judge Establishes a Staunchly Liberal Record," Oct. 9, 2011.]

Now what about Chief Judge Janet DiFiore and her Court? Embracing the Kaye or the Lippman view?

Let's first see who has been dissenting--both writing and joining dissenting opinions--since DiFiore took the center seat in February. Take a look:


Once again, as we saw with ideological voting patterns [See Part 1], Judge Jenny Rivera's record stands out. She has been the most prolific author of dissenting opinions (9), and the most frequently dissenting voter (13).

Beyond that, in every one of Rivera's dissenting opinions and votes, in cases with distinct ideological positions, she supported the "liberal" side of the issue. (E.g., in criminal cases: pro-due process vs pro-crime control, pro-accused vs pro-prosecution; in civil cases: pro-worker vs pro-business, pro-injured plaintiff vs pro-civil defendant, etc.)

Notably, Rivera was alone in 5 of her dissenting opinions. That is more than the total number of dissenting opinions written by any of the other Judges. In those cases where she was together in dissent with another Judge--in her opinion or theirs--she was most frequently together with Judge Sheila Abdus-Salaam (3 times). On the other hand, she was never in a dissent with Republican, Pataki-appointed, Judge Eugene Pigott, whether she or he or someone else wrote the opinion. She was, however, joined in 1 of her dissenting opinions by the other Republican, but Cuomo-appointed, Judge Michael Garcia. [Significantly, that opinion, which brought together those two ideologically opposite colleagues, argued for application of the attorney-client privilege in a case which did not entail distinct liberal versus conservative positions.]

At the other end of the dissenting-frequency spectrum is the Chief Judge. To date, DiFiore has neither written a dissenting opinion nor joined one authored by anyone else on the Court. Viewed from a different perspective, all of her opinions thus far have been either unanimous or majority, and she has never voted on the losing side of a case.

After Rivera, the most frequent dissenter on the Court has been Judge Eugene Fahey. As with Rivera, Fahey was not averse to authoring sole dissenting opinions (3). Very interestingly, in one of those sole dissents, he sided with the prosecution in a case involving the rape of a minor. In another, he sided with a minor suffering from lead-poisoning in a lawsuit against a landlord. In the third, he sided with seasonal workers whose per diem wages were reduced. Each of those dissents reflects a particular compassion for children and other vulnerable persons that has been a hallmark of Fahey's judicial career. [See Judge Fahey's Tendencies.]

Also notable are the dissenting records of the two previously mentioned Republicans on the Court. Of Pigott's 3 dissenting opinions and Garcia's 2, they joined each other 4 times. To date, that is the highest dissenting agreement on the Court. Moreover, 3 of those cases involved distinct ideological positions, and Pigott and Garcia took the clearly conservative, pro-prosecution side in each of them.

Before closing, let's take a look at the recent history of dissents at the Court, and how the early record with DiFiore as Chief Judge compares with that of the Court under her 3 immediate predecessors. First, here is a graph of the annual number of decisions with dissent, beginning with the last years of Chief Judge Sol Wachtler's tenure; then the early, middle and final years of Kaye's tenure; and ending with the early years of Lippman as Chief Judge:

As shown in the graph, the number of non-unanimous decisions remained fairly stable from the end of Wachtler's tenure through the first few years of Kaye's. Shortly thereafter, however, the number dropped precipitously (following then-Governor Pataki's public criticism of the Court for being too "liberal"), and it stayed quite low for several years. The number later rose somewhat in the final years of Kaye's tenure (when a majority of the Judges were Pataki appointees), and it then rose dramatically when Lippman became Chief Judge (and welcomed dissents as beneficial).

For a more visually digestible look at the same data, here they are reorganized as annual averages over several 3-year periods:
Again, the changes and trends over the years in the number of decisions with dissent, from Wachtler to Kaye to Lippman, are clear and, in fact, clearly dramatic. But our focus in this series is on the early DiFiore Court. So what about that Court? How does it fit in this scheme?

Well.....the total number of decisions with dissent to date in the DiFiore Court is 23. (I.e., Pigott's 3 dissents + Rivera's 9 + etc. = 23.) Projecting that number by approximate extrapolation would equal a total of 52 non-unanimous decisions for a full year. (I.e., 23 dissents is the number for 18 session days of arguments from which cases have already been decided, out of the 43 such session days scheduled for the entire 2016 calendar year. So doing the grade school math gives a ballpark projection: 43/18 x 23 = 52.)

Now, juxtaposing that ballpark projection into the graph gives the following:

At the least, what can be concluded at this very early point in the DiFiore Court is that the number of decisions with dissent already exceeds that of the annual total for much of the Kaye era. In fact, unless the pace of dissents screeches to a halt, the number of non-unanimous decisions in the first year of the DiFiore Court will far exceed that of any year while Kaye was Chief Judge. Likewise, unless the pace slows considerably, the annual number will exceed the numbers for the Wachtler era.

On the other hand, the pace of dissents would have to accelerate for the DiFiore Court in its inaugural year to match the numbers reached while Lippman was Chief Judge.That might, of course, happen. But the pace may even slow. Who knows at this point?

What we do know, however, and what the raw data does tell us, is that the Judges of the Court are dissenting--a few of them with some fair regularity. Indeed, there would need to be an abrupt and dramatic change in the culture of the Court, which was nurtured by Chief Judge Lippman throughout his 7 year tenure, for there to be a significant reduction in the number of non-unanimous decisions in the early months or even years of the DiFiore era.


Next in this series, we will look at some of the notable--important and revealing--opinions of each of the Court's 7 Judges.

Monday, June 20, 2016

The (very early) DiFiore Court--Part 1: Voting Patterns [with graphs!]

Janet DiFiore assumed the center seat of New York's highest court this past February. Since that time, she has presided over 4 monthly sessions of appeals, and the Court has already rendered decisions for 3 of those dockets.

In replacing Jonathan Lippman (who was forced to retire because of New York's moronic mandatory age-70 retirement), the new Chief Judge joins the 7-member Court of Appeals that has been almost entirely recomposed in just a few years. Eugene Pigott, an appointee of then-Governor George Pataki, has sat on the high court since 2006. But every other member of the state's court of last resort is a recent appointee of current Governor Andrew Cuomo.

Jenny Rivera and Sheila Abdus-Salaam were appointed by Cuomo in 2013. Leslie Stein and Eugene Fahey in 2015. And Michael Garcia, like DiFiore, earlier this year.
(For some background on each of the Judges, see, on DiFiore: Parts 1, 2, & 3; on Pigott: Criminal LeavesJudicial OutputIndependent; on Rivera: The Rivera Hearings; on Abdus-Salaam: Love Fest; on Stein: Stein's 'Tendencies'; on Fahey: Fahey's 'Tendencies'; on Garcia: Michael Garcia.)

So it's a very new court, with a very new presiding judge. And yet, and yet, patterns are already developing.

Without further delay, let's see. To start, let's look at ideological voting patterns:

[Based on divided decisions rendered as of mid-June on appeals heard by the Court since the February session--the first with DiFiore as Chief Judge. "Politically Liberal" is used as it is in common parlance and as is traditional in judicial studies, e.g., pro-due process vs pro-crime control, pro-accused vs pro-prosecution, pro-worker vs pro-business, pro-injured plaintiff vs pro-civil defendant, etc. "Politically conservative" would be the opposite. There have been 17 non-unanimous decisions to date with clear liberal vs conservative positions.]

What is immediately obvious is that there is a clear ideological spectrum on the Court. At the least, what has emerged thus far in the very early DiFiore Court is clear.

Judge Rivera's voting places her at one end of the Court's spectrum, and Judge Garcia's at the other. Moreover, the contrast between their voting records is stark. In the 17 cases with distinct "liberal" versus "conservative" positions that divided the Judges, Rivera voted for the liberal position 88% of the time. Garcia never voted for such a position.
[Neither the graph nor this discussion are intended to suggest that "liberal" is good, correct, wise, etc. Or that "conservative" is the opposite. For ease of discussion, we will speak of liberal votes and voting. Conservative votes and voting are simply the opposite--e.g., 88% liberal = 12% conservative. Nevertheless, this post will conclude with a graph reflecting the same data, but with conservative percentages.]

To be sure, the ideological leanings of Judges Rivera and Garcia would not be terribly surprising to those who follow the Court. Rivera's previous experience and academic publications evinced an ardent liberal and critical perspective on legal and societal issues. Garcia, by contrast, is a Republican who worked in the administration of President George W. Bush, and who served as a federal prosecutor, including as the U.S. Attorney (for the SDNY), and developed a strong reputation for being tough on crime and corruption.

So, for example, Rivera sided with the accused in cases dealing with such matters as confronting adverse witnesses, incriminating evidence obtained through eavesdropping, guilty plea allocutions, DNA analysis, sex offender classification, ineffective counsel, and the powers of a special prosecutor, Garcia sided with the prosecution in all of those cases.

Notable also from these early patterns are the records of Judges Pigott and Abdus-Salaam. Pigott, the only Republican on the Court other than Garcia, has compiled a record closest to Garcia's on the Court's ideological spectrum. His 18% liberal voting record, reflecting only 3 such votes in the 17 divided cases, may not be as striking as Garcia's. But it still places him unmistakably on the far opposite, more conservative wing of the Court. His record, like Garcia's, stands in stark contrast to that of Judge Rivera--and in sharp contrast to that of Abdus-Salaam as well.

Indeed, Judge Abdus-Salaam's 65% liberal voting record is the closest on the Court to Rivera's. And although her record is not as overwhelmingly liberal as Rivera's, it nevertheless does place her unmistakably on the Court's more liberal wing. Among other things, that record reflects her voting with Rivera on some of the issues previously mentioned, including confronting adverse witnesses, incriminating evidence obtained through eavesdropping, and the powers of a special prosecutor--as well as in civil cases involving government tort liability, and excusing a late notice of claim.

As for the remaining members of the Court, Judge Stein's record of 19% liberal voting reflects the positions she took in 3 of 16 cases. [She did not participate in 1 of the 17 cases.] That record of only 3 liberal votes places her on the more conservative wing of the Court and, in fact, equals that of Pigott. But Stein's 3 liberal votes were not the same as Pigott's. She actually disagreed with him in 2 of them--one having to do with an accused's right of confrontation, and the other with ineffective counsel.

Judge Fahey's record places him on the more liberal wing of the Court. His 56% liberal voting is very similar to that of Abdus-Salaam, not only numerically, but substantively as well. They were typically on the same side of the divided decisions, both criminal and civil.

Finally, Chief Judge DiFiore's record to date places her in the very middle of the Court's ideological record. Her 36% liberal voting is close to midway between the Rivera and Garcia extremes--i.e., the average of Rivera's 88% and Garcia's 0% = 44% liberal. Similarly, her record is close to being the average of her 6 colleagues--i.e., the average of 88+65+53+19+18+0 = 41% liberal.

Interestingly, her record is identical to that of the Court as a whole. Although not shown on the graph above, this identicality results from DiFiore's being in the majority in every case thus far. Stated otherwise, she has not been in dissent in any case to date. Coincidentally, [Well, not really at all.] we will turn our attention to dissents--who's writing them, who's joining them, and how many--in the next post.

But before we conclude, here is a graph reflecting all the same data we have been discussing, but displayed in terms of conservative voting percentages:


Again, as just mentioned, the next post will deal with dissents in the (very) early DiFiore Court.

Saturday, May 21, 2016

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.]

Tuesday, May 17, 2016

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.]