Thursday, October 22, 2020

Supreme Shift: Ginsburg to Barrett (Part 1)

The magnitude of the shift was certainly not matched by a magnitude of serious deliberation.

Justice Ruth Bader Ginsburg died on September 18th. President Trump nominated Judge Amy Coney Barrett to fill the resulting vacancy a mere eight days later. One and a half weeks later, on October 5th, Senator Lindsey Graham scheduled a four day confirmation hearing. It began the next week.

Democrats decried the hypocrisy of the Republicans who had refused to hold a hearing during an election year when President Obama nominated Judge Merrick Garland. The Democrats also sounded alarms about the likely ramifications of an ideologically conservative Barrett replacing liberal Ginsburg. Republicans, not surprisingly, insisted that there was no such hypocrisy. They also lauded Barrett's avowed judicial restraint in decision-making, while insisting that her asserted embrace of originalism and textualism had nothing to do with any perceived ideological bent. After four days, the pre-ordained result seemed nothing but pre-ordained.

Whatever the partisan wrangling and dissembling may otherwise suggest--about the Barrett nomination and Barrett herself--there are some simple realities. Ruth Bader Ginsburg was selected by Democratic President Bill Clinton. She was heralded for her successful litigation on behalf of equal rights for women, and her record on the Court over 27 years was unmistakably liberal across the wide swath of issues from abortion rights to affirmative action to gender equality to immigration to LGBTQ rights to racial justice to the rights of the accused, etc.

By contrast, Amy Coney Barrett was selected by Republican Donald Trump. Her nomination was urged by supporters because of her ideological leanings that are distinctly contrary to those of Ginsburg, and for her judicial record which, albeit brief, reflects a polar opposite jurisprudence. In short, by all accounts, she is very ideologically conservative.

So let's take a look at the change that's in store--a change for the Court with a Justice Barrett who presumably would behave consistently with her record as Judge Barrett.

Here's what the ideological line-up of the Justices looked like in the immediately past term, with Ginsburg still on the Court:

(click to enlarge)

When considering those issues where there is a clear divide between liberals and conservatives, there is a clear breakdown of the Justices. As depicted above, the liberal or "left" wing of the Court has included Justices Sonya Sotomayor and Ruth Bader Ginsburg, as well as Stephen Breyer and Elena Kagan whose records have been slightly--and just slightly--more ideologically mixed. On the Court's conservative or "right" wing are Justices Clarence Thomas and Samuel Alito, followed closely by Neil Gorsuch and, somewhat less ideologically consistent, Brett Kavanaugh. More ideologically mixed, yet still conservative--especially when contrasted with the Court's liberals--is the Chief Justice, John Roberts.

But what about the terms "liberal" and "conservative"--how exactly are those terms being used? Well, not at all as synonymous with so-called judicial "activism" versus "restraint," loose versus strict interpretation, adherence to precedents and deference to the elected branches versus the opposite. No, none of that. Those dichotomies tell us precious little about judges being ideologically "liberal" or "conservative."

Rather, just think about liberal Democratic politicians and their supporters contrasted with conservative Republican politicians and theirs. Think about those issues where those two camps generally and usually vehemently divide. Think separation of church and state, gun rights, LGBTQ rights, affirmative action, abortion rights and other women's rights, voting rights, immigration, the death penalty, environmental regulations, worker rights versus business, campaign finance, and, of course, Trump. When considering those "hot button" issues and how the Justices vote on them, there are clear patterns. That's what's depicted in the line-up, and that's how we popularly and pretty accurately characterize the Justices.

So it's certainly no surprise that on those issues just listed, as well as other similarly "hot button" matters, Justices Sotomayor and Ginsburg rarely, if ever, voted on the same side as Justices Thomas and Alito. Indeed, all four liberal Justices were almost always on the opposite side of Thomas and Alito. Moreover, it was uncommon for any of the the four liberals to be on the same side as any of the four most conservative Justices. And among the Court's conservatives, only the Chief Justice--at least during the past two terms--sided with the liberals on a somewhat regular, if not usual, basis.

So, the line-up has been 4 liberals and 5 conservatives on the Court--again, with the Chief Justice's voting record being more moderate or centrist than the other conservatives, at least within the Court's ideological spectrum. Let's look at that line-up once more before looking at the change that's in store if Judge Barrett is confirmed. 
(click to enlarge)

Now, let's remove Ginsburg from the depiction and add Barrett:
(click to enlarge)

Based upon the politically conservative groups that urged the nomination of Judge Amy Coney Barrett, the promises President Trump has made about the kind of judges and Justices he would nominate, the support Barrett has been receiving from politically conservative Republican Senators, her academic writings and lectures, her record as a federal appellate judge--based on all of that evidence, there is every reason to believe that a Justice Barrett would be positioned firmly within the politically conservative wing of the Court. That is, there is every reason to believe that she would be voting with the politically conservative Justices on the politically conservative side of the liberal versus conservative, "hot button" issues.

Based on the previously listed evidence, it is safe to assume that her ideological bent is no less conservative than that of Trump's first two nominees, Gorsuch and Kavanaugh. Indeed, she might well be even more ideologically aligned with most conservative among the conservative Justices--i.e., Thomas and Alito.

At the least, her appointment to the Court would alter the previous 5 to 4 politically conservative majority on the Court--or the arguable 4 to 4 ideological balance with Chief Justice Roberts as the "'swing" vote. That would change to a 6 to 3 conservative majority--or arguably a 5-4 conservative majority with Roberts splitting his votes between the Court's two ideological wings. Putting the change more starkly, Judge Barrett's addition to the Court, filling the Ginsburg vacancy, would mean twice as many politically conservative Justices on the Court as liberals. Even more stark? The politically conservative Justices would still constitute a majority without Roberts' vote. The liberals on the Court would need two of the politically conservative Justices to vote their way to ever reach a majority.

To be sure, it is within the realm of possibility that Judge Barrett might experience an ideological and jurisprudential conversion over her tenure on the Court. It has certainly happened to others. Republican appointees have sometimes transitioned to staunch jurisprudential liberals. Nixon appointee Harry Blackmun, Ford appointee John Paul Stevens, and Bush (41) appointee David Souter come readily to mind. And Reagan appointees Sandra Day O'Connor and Anthony Kennedy, even if never quite liberals, both became "swing votes" during their tenures, joining their liberal colleagues on some major social issues.

Absent such a dramatic ideological transformation, however, Judge Barrett's addition to the Court will result in a dramatic ideological transformation of the Court itself. Amy Coney Barrett replacing Ruth Bader Ginsburg? That is dramatic. 

One more note before concluding. Imagine for a moment that remote chance that the Barrett nomination were to fail. What would the Court look like if a President Biden, rather than President Trump, were to fill the Ginsburg vacancy? Take a look:

(click to enlarge)

A Biden appointee to fill the Ginsburg vacancy would not change the ideological line-up of the Court from what it has been. Presumably, Biden would nominate a political liberal, someone in the mold of a Ginsburg or Sotomayor--or Breyer or Kagan. His nominee would certainly not be in the politically conservative mold of a Thomas or Alito or Gorsuch or Kavanaugh--or even Roberts. But such a nominee, if successfully appointed and then aligned with the other liberal Justices, would merely keep the Court's ideological line-up as it was before: 5 politically conservative Justices to 4 liberals, or 4 to 4 with the Chief Justice as the swing vote.

In short, with Trump's pick--a dramatic ideological shift to the right. With a Biden pick--status quo ante; no liberal tilt.

In the next post, we'll consider Barrett's record as a federal appellate judge on the 7th Circuit.

Monday, August 3, 2020

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.
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.

Wednesday, July 22, 2020

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 applicableand "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 applicableand "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 applicableand "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.

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.]

Sunday, July 12, 2020

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.

Monday, July 6, 2020

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 applicableand "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.]