Monday, May 3, 2021

The New York Court of Appeals Latest List

For the second time in one month, the State Commission on Judicial Nomination released a list of nominees for New York's highest court. Earlier last month, on April 8th, the Commission gave Governor Andrew Cuomo a list from which to replace Judge Leslie Stein who will be leaving the Court in June. (See The NY Court of Appeals List, April 12, 2021.) Late last week, on April 29th, the Commission reported another list from which to fill the vacancy created by Judge Paul Feinman's sudden resignation and death.

This second list, like the earlier one, has seven nominees. It was chosen from an applicant pool of 75. That pool included all the 45 applicants for the Judge Stein seat and an additional 30 who newly applied for the Judge Feinman vacancy. It is a strong list. And it is as curious as it is strong.

Of the seven applicants who made the earlier list—all of whom were again considered for this second list—five are now missing. Ellen Nachtigall Biben, Administrative Judge for Criminal Matters in the First Judicial District in Manhattan, is not on this new list. Kathy Hirata Chin, a partner in the Manhattan office of the Crowell & Moring law firm, is now absent. Valerie Brathwaite Nelson, a Justice on the Appellate Division, Second Department in Brooklyn, is not included on this list. Madeline Singas, the Nassau County District Attorney, did not make this list. And Shirley Troutman, a Justice on the Appellate Division, Fourth Department in Western New York, is not on the list either.

Without being privy to the Commission's deliberations, one can only speculate why those five, having been deemed worthy of a seat on the Court of Appeals in early April, were somehow viewed as less so later in the same month. Perhaps, the five new nominees on the list were viewed as even more highly qualified. That would seem to be what the Commission is officially indicating with this new list. (A different possibility, of course, is that the previous five were excluded for reasons unrelated to merit. Who knows?)

But let me offer some realistic possibilities—which, nevertheless, may well be off the mark. Ms. Chin, who was deemed well qualified by the Commission on three previous occasions, is in her late sixties and would only be able to serve on the Court for a couple of years because of the state's (moronic) mandatory retirement age of 70. Justice Nelson, who has plenty of judicial experience, including at the appellate level since 2016, is also in her late sixties and would likewise be forced to retire before long.

Judge Biben and District Attorney Singas, on the other hand, are considerably younger and would be able to serve on the Court for many years. But those two received lower ratings from the State Bar Association than any others on that first list—a bare "Qualified" rather than the "Well Qualified" received by all the others. Similarly, the Albany County Bar Association gave each of them a bare "Qualified" rating. The State Women's Bar Association "Approved" them while rating the others "Highly Qualified. And the State Criminal Defense Lawyers gave them its lowest rating: "Not Recommended." Whatever the merits of these ratings, it is hard to imagine that they did not cause the Commission some embarrassment and did not give the commissioners serious pause.

The fifth exclusion from this new list is the most curious—indeed, downright mystifying. Justice Troutman, in her early sixties, is as young as many other recent appointees to the Court, and she received the highest ratings from the various bar associations. So that can't be it.

To make that exclusion even more curious is the inclusion, this time, of Troy Karen Webber. Like Troutman, Webber is a Justice on the Appellate Division (the First Department in Manhattan) and is African-American. Also like Troutman, Webber was an applicant for both lists. Somehow, Troutman made only the first list; Webber made only the second. Moreover, with Justices Troutman and Nelson missing, Webber is the sole African-American on the list. 

Speaking of identity politics, with the departures of Judges Leslie Stein and Paul Feinman, there will be no Jewish or openly gay Judges on the Court. As for replacing Feinman, it is certainly no surprise that the Commission would try to include openly gay nominees on the list. And, in fact, there are two. 

One, Michael S. Bosworth, has a truly extraordinary resume: Princeton undergrad, Yale for law, prestigious federal clerkships including one with Supreme Court Justice Stephen Breyer, experience as an assistant U.S. Attorney, Special Counsel to the FBI, Deputy Counsel to President Obama, and a partnership at Latham & Watkins in Manhattan. Although his career seems more fitting for a federal judgeship, there is no quibbling about its impressive quality and, if Governor Cuomo focuses on identity, Bosworth would fill both the Jewish and openly gay gaps.

The other openly gay nominee on this new list is Anthony Cannataro, the Citywide Administrative Judge of New York City Civil Court. A graduate of Columbia University and New York Law School, he began his career in Corporation Counsel's Office in New York City and then clerked at the Court of Appeals for Judge Carmen Ciparick. Having served as a judge on several different courts in the state, in addition to serving as a clerk on New York's highest court, he has a breadth of experience and knowledge of the state judiciary.

Another name on the new list is Judith J. Gische, a Justice on the Appellate Division, First Department in Manhattan. Gische is no stranger to Court of Appeals lists. This is her fourth time. A graduate of SUNY Buffalo for both undergrad and law, she has been a permanent, well-regarded fixture in the state judiciary for over 30 years. Unfortunately, because of the (again, moronic) mandatory 70-age retirement, she would only be able to serve on the Court for a few years.

Similarly, Denise A. Hartman, a graduate of Cornell undergrad and Syracuse law, enjoys a strong reputation as a judge in the state judiciary. She litigated as an Assistant State Solicitor General for three decades and, since 2015, has served on the state trial bench as a Court of Claims Judge and Acting Supreme Court Justice. Unfortunately, because of the (once more, moronic) mandatory 70-age retirement, she too would only be able to serve on the Court for a few years.

That leaves two nominees on this new last. They were both on the previous list as well. In fact, both Caitlin J. Halligan and Erin M. Peradotto have been on Court of Appeals lists four times before. Regardless of the year, the vacancy, the membership or leadership of the Commission on Judicial Nomination, these two have consistently been viewed as worthy of appointment to New York's highest Court. The various statewide and local bar associations have agreed. The State Bar Association, the Albany County Bar Association, and others have given both Halligan and Peridotto their highest ratings. To be blunt, it would have been a travesty if either of these two did not make both the previous list and this one.

Halligan, a partner at Selendy & Gay in Manhattan, is a graduate of Princeton and Georgetown Law. She clerked for Judge Patricia Wald of the D.C Circuit and for Supreme Court Justice Stephen Breyer. She litigated many years in both state and federal courts in the State Attorney General's Office and, ultimately, as the Solicitor General of New York. She has a reputation for brilliance and exceptional skill in the courtroom.

Peradotto, a graduate of SUNY Buffalo for undergrad and law, worked in private practice as a trial attorney and later in the State Attorney General's Office. She was elected to State Supreme Court in 2004 and, shortly thereafter, was elevated to the Appellate Division, Fourth Department (Western New York). She enjoys the very highest reputation as an appellate judge among other judges and court watchers —regardless of party or ideology.

As I previously mentioned, it would have been a travesty if Halligan and Peradotto did not make both lists. To some, myself included, it would also belie the notion that this appointment system is about merit if neither of these two was appointed to fill either of the two vacancies.

A final comment on the composition of this newest list. Once again the Commission has offered up a very diverse one. Six different law schools are represented: Yale, New York Law, SUNY Buffalo (twice), Georgetown, Syracuse, and NYU—alas, no Albany Law this time. There are federal and state, trial and appellate clerkships among the resumes. There is private practice and government litigation. Trial and appellate judgeships. And multi-cultural? There's Black and White; Gay and Straight; Catholic, Protestant, Jewish, African-American, and (at least based on surnames) Irish-American, Italian-American, and German-American.

The Governor is required by law to select from the list no later than 30 days from April 29 when the list was reported to him. Let's hope he makes his selection—from this list, as well as from the previous one—based on what is best for the Court and the people of the State.

Saturday, May 1, 2021

Supreme Shift (Part 4): Final on Barrett's Past Record

As Nick raised his glass, Father Keller said out loud, "Finally."
—from WHERE HAVE YOU GONE WITHOUT ME, by Peter Bonventre

Yes, "Finally," Part 4.

Chip Somodevilla/Getty Images
Late last year, in the previous installments in this series, we saw a pretty clear pattern. We were looking at now-Justice Amy Coney Barrett's record while a judge on the 7th Circuit Court of Appeals. Specifically, we were reviewing the disagreements she had with her colleagues, in cases she felt so strongly about that she chose to go public, and to expend the time and effort to write a dissenting opinion.

In the dissenting opinions that we have reviewed, she argued against the majority's protection of inmates, in support of drastic restrictions on immigration, in favor of gun rights for convicted felons, and to overlook a prosecutor's constitutional violation, (See Part 2 and Part 3 in this series.) 

As noted previously, these are the positions to be expected of an immigration resistant, law & order, pro-gun rights, conservative politician or voter. Good or bad, that is what it is. Now let's finish with her other, revealing dissents.

Sentencing
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In U.S. v. Uriarte (2020), the defendant claimed that, under the so-called First Step Act (2018), the trial judge was wrong to impose an enhanced recidivist sentence. A majority of the 7th Circuit panel agreed because the defendant's previous sentence, which the trial judge considered as the predicate for determining recidivism, was illegal and had already been vacated. Judge Barrett, on the other hand, argued in dissent that the previous illegal sentence should still count and that the enhanced sentence in question should be upheld.

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In another case, United States v. Rutherford (2019). Judge Barrett similarly dissented to argue against reviewing a sentence. In that case, the defendant had asked the trial judge to reconsider his sentence. When the trial judge declined, the defendant appealed. The majority of Barrett's colleagues, applying the traditional rule that motions to reconsider extend the time to appeal, permitted the defendant to seek their review. But Barrett dissented, arguing that the traditional rule was no longer valid (under the Federal Rules of Criminal Procedure) and that any opportunity the defendant had to appeal had expired.

Right to Counsel
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Judge Barrett dissented in one other criminal case we have not yet discussed. Same result: against the defendant. In this case, Schmidt v. Foster (2018), the trial judge called the defendant and his attorney into chambers. The judge then proceeded to question the defendant about his defense, while not permitting the attorney to advise his client or to participate in the question and answer in any way. The majority of the appellate panel ruled that the judge had violated the defendant's right to counsel. But Barrett dissented, arguing that there was no right to counsel during the judge's questioning because it took place without the prosecutor and, therefore, it was not a "critical stage" of the criminal proceeding.
(Subsequently, the entire 7th Circuit [en banc] reconsidered the ruling and, in a deeply divided decision, held that the right to counsel might have been violated, but the violation was not so clear as to require reversing the trial judge.) 

Abortion
Judge Barrett dissented two more times while on the 7th Circuit. In each of these cases, she cast her vote to join a dissenting opinion written by one of her colleagues. Each of these two cases involved abortion. After what we've already reviewed about her record, is there any doubt which side she took on abortion rights?

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In Planned Parenthood of Indiana & Kentucky v. Commissioner of Indiana State Dept. of Health (2018), a panel of the 7th Circuit invalidated a state law that restricted the reasons for which the right to choose might be exercised. Because the law applied to early, as well as later-term abortions, the panel held that the law violated Supreme Court precedents that established a clear right to choose prior to viability. When the 7th Circuit as a whole (en banc) declined to reconsider that decision, Barrett dissented. She cast her vote with the dissenting opinion which urged a narrower view of pre-viability abortion rights.

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Similarly, the following year, in Planned Parenthood of Indiana & Kentucky v. Box (2019), a panel had invalidated a state law that required an ultrasound at least 18 hours prior to any abortion. The panel held that this 18-hour waiting period, together with the two trips to the facility that it would require, was an unjustified burden ("undue burden") on a woman's right to choose. The 7th Circuit declined to reconsider that ruling en banc, just as it had declined with regard to the ruling the year before. Barrett again joined the dissenting opinion, this time arguing that the state's law should be allowed to take effect because the issue was not clear.

We have now reviewed all of the dissents--opinions and votes--of Amy Coney Barrett while an appellate judge on the 7th Circuit Court of Appeals, just prior to her appointment to the Supreme Court. Remember, the purpose here is not to label her decisions and arguments right or wrong, wise or foolish, etc. But it is to connect the dots and discern any patterns. 

And one pattern could not be more clear: she took positions one would expect of a social and political conservative. Remember also, she took those positions when she felt so strongly that she was willing to disagree with the majority of her colleagues publicly, openly proclaim that they were wrong, expend collegial capital by risking offense and, when writing the dissenting opinion, expend the time and effort and resources of her chambers to do so.

Just consider a public official who took the opposite positions of then-Judge Barrett in all those cases. Consider a public official who sided with injured inmates against correctional officials, with an accused against a prosecutor who failed to disclose helpful evidence, with an accused against a judge who questioned him without the advice of counsel, with defendants who challenged harsh sentences, with restricting gun rights, but against restrictions on immigration, and against limitations on abortion rights. Clearly a social and political liberal.

There would be little hesitancy in so-labeling a politician who took those positions. And there is little reason for hesitancy in characterizing now-Justice Barrett's record as an appellate judge: it's just like that of a socially and politically conservative politician. 

It is of course possible that she will undergo some dramatic transformation--she would not be the first--or that there is some other reason to suspect that her past record is not necessarily prologue. Otherwise, the strong probability at this point is that Amy Coney Barrett will significantly increase the ideologically conservative direction of the Supreme Court.

Monday, April 12, 2021

The NY Court of Appeals List

 (Emerging from the pandemic-related delays and extra work preparing for remote teaching, etc.
Anyway, back to Court Watcher.)
Last week, the Commission on Judicial Nomination released its list of nominees to fill the vacancy on the state's highest court which will arise on June 4th--the day on which Judge Leslie Stein had previously announced she would retire. The Commission received 45 applications, interviewed 17 of the applicants, and presented Governor Andrew Cuomo with a list of seven on April 8th. Under the state law, the Governor must select his nominee for the Court from that list, and he is supposed to do so within 30 days.

So, what about that list?

Well, the headline is that list is composed entirely of women. First time? Yep. But....the first time for an all one-gender list? Not even close!

Indeed, among the prior 32 lists, fully 1/2 had either no women or only one. The first list in 1979 had no women. Of the first 8 lists, only 2 had a woman. As late as the 24th list in 2008--to replace the first woman on the Court, Judge and then Chief Judge Judith Kaye--there was not a single woman among the seven recommended! Adding up all the numbers, of the 216 total names on the previous 32 lists, only 51--or fewer than 1/4--were women.

To be sure, it's inconceivable that the Commission did not find any men, among all the applicants from this state--the legal capital of the world--to be exceptionally qualified for the list and the Court. Of course, it's also inconceivable that, in the past, so few women were deemed worthy of the list or the Court. This is not to say that an all-woman list is justified as a pay back for the many all-men, or nearly all-men lists in the past. But, in choosing the best applicants for the list, the Commission no doubt did--and should have--considered what was best for the Court itself. And having more than just 2 women remaining on the Court seems a pretty compelling need.

So, what to make of this all-women list?

Well, as for gender, it's pretty obvious that the Commission did think it compelling that Judge Stein be replaced by another woman. Otherwise, the 7-member Court would be left with only 2 women, Chief Judge Janet Defiore and Judge Jenny Rivera. Now that would be embarrassing, hardly representative of the state or the legal profession, and would once again marginalize the women on the Court to a less than 1/3 minority.

So, beyond gender, what?

Well, the list is very diverse, as well as very strong. There is a impressive amount and array of experience, proven talent, and general background on this list. Here are just a few noteworthy characteristics about the seven:
  • 3 are Appellate Division Judges (Valerie Brathworth Nelson, 2nd Dept. [Brooklyn], Andrew Cuomo appointee;  Erin M. Peradotto, 4th Dept. [Western NY], Pataki appointee;  and Shirley Troutman, 4th Dept., Andrew Cuomo appointee).
  • 4 have experience as trial judges (Nelson; Peradotto; Troutman; and Ellen Nachtigall Biben [Court of Claims and Acting Supreme Court Justice])
  • 5 have worked in a District Attorney's office or for the Attorney General of the State (Biben [DA of NY and AG];  Caitlin J. Halligan [DA of NY and AG (and served as Solicitor General)];  Peradotto [AG];  Madeline Singas [DA of Queens and of Nassau (and currently is the Nassau County DA)];  and Troutman [DA of Erie and AG (as well as Asst. U.S.Atty for WDNY).
  • 2 are currently litigators in private law firms (Kathy Hirata Chin [Crowell & Moring, NYC];  and Halligan [Selendy & Gay]).
  • 3 others have previously worked in private practice (Biben; Nelson; and Peradotto).
  • 7 different law schools (Biben [USC];  Chin [Columbia];  Halligan [Georgetown]; Nelson [GW];  Peradotto [Buffalo];  Singas [Fordham];  Troutman [Albany]).
  • Very Multi-ethnic and racial ([skipping the "-American"] Jewish, Asian, Irish, Black [2], Italian, and Greek--how's that for a healthy--if incomplete--swath of America!) 
  • 3 are list-repeaters (Chin [3rd time];  Halligan [4th time];  Peradotto [4th time]).
A few other notables about each nominee on the list:
  • Hon. Ellen Nachtigall Biben--law clerk to Judge Alan Nevas, U.S. District of Connecticut, 1992-94; Special Deputy Attorney General of NY for Public Integrity, 2007-11.
  • Kathy Hirata Chin, Esq.--Member, New York City Commission to Combat Police Corruption, 2003-present; actively involved in pro bono matters, including assisting families of uniformed personnel who perished on 9/11.
  • Caitlin J. Halligan, Esq.-- Law clerk to Supreme Court Justice Stephen Breyer, 1997-98; to Judge Patricia Wald, United States Court of Appeals, D.C. Circuit, 1995-96.
  • Hon. Valerie Brathwaite Nelson--Law clerk, Occupational Safety and Health Review Commission, 1978-79; attorney, National Labor Relations Board, 1979-86.
  • Hon. Erin M. Peradotto--Member, New York State Ethics Commission for the Unified Court System, 2011-present; Member, Attorney Grievance Committee, 8th Judicial District, 2001-03.
  • Hon. Madeline Singas--Supervisor of Training, Narcotics Trial Bureau, Queens County DA, 1999; Deputy Chief of that Bureau, 2000-06.
  • Hon. Shirley Troutman--Currently, Co-Chair of the Franklin Williams Commission, advising the New York Court System on issues affecting employees and litigants of color; currently, President-Elect of the National Association of Women Judges, New York Chapter.
That's the list. Of course there's much more about each of the nominees, but hopefully the foregoing gives a sense of the strength and the diversity of the list the Commission has provided to Governor Cuomo.

Under the Judiciary Law, Cuomo is now required to choose from the list no sooner than April 23 and no later than May 8--i.e., between 15 and 30 days from the release of the list to him on April 8. The state Senate then has 30 days from the time of the Governor's selection--which this Governor has not always made within the time set by law--to confirm or reject by a majority vote.

When Cuomo's selection is made, we'll analyze it here on New York Court Watcher.

But next up, we'll return to the newest Supreme Court Justice, Amy Coney Barrett, and finish the series begun when she was first nominated.

Thursday, November 26, 2020

A Tale of Two Religious Liberty Decisions: SCOTUS Versus NY's Court of Appeals

(This is a brief detour to address significant decisions just rendered by the Supreme Court and New York State's Highest court.)

One tribunal, the Supreme Court, took constitutionally protected free exercise of religion seriously. Perhaps, the Court even went overboard in doing so.

By the sharpest contrast, another tribunal, New York's highest court, the Court of Appeals, seemed entirely indifferent to that fundamental right. That court refused even to hear an appeal sought by religious objectors who are being required to violate their most sacred beliefs.

The contrast is just the latest consequence of the Supreme Court's 1990 decision in Oregon v. Smith, which effectively reduced free exercise of religion to second class status. The majority opinion, authored by Antonin Scalia, ruled against a Native American religious ritual on the ground that the state law in question was "generally applicable." According to Scalia's opinion for the Court, as long as a state law is "otherwise valid"--does not volate some other constitutional right or does not discriminate against religion--federal constitutional religious liberty does not entitle sincere religious objectors to any religious exemption. 
(I've often discussed this decision--dishonest and dreadful in my view, as well as in the view of Justice Sandra Day O'Connor, who authored a separate opinion in that case, and of virtually all religious liberty scholars. See e.g., Religious Institutions Must Pay Abortion Coverage in NY [Part 1] )

In this week's recent Supreme Court decision, Roman Catholic Diocese of Brooklyn v. Cuomo [November 25, 2020], a 5-4 majority halted the enforcement of New York State's "very severe restrictions on attendance at religious services." In an unsigned Per Curiam opinion, the majority agreed with the religious objectors that the pandemic-triggered "regulations treat houses of worship much more harshly than comparable secular facilities." Accordingly, because "the challenged restrictions are not 'neutral' and of 'general applicability,'" they fail even the reduced free exercise protection remaining from Oregon v. Smith. In short, the restrictions, in the majority's view, discriminated against religion.

Notably, the majority--comprised of Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett--chose not to follow two decisons of the Court earlier this year that had upheld similar restrictions. In both South Bay United Pentacostal Church v. Newsom [May 29, 2020] and Calvary Chapel v. Sisolak [July 24, 2020], the Court had rejected the religious objections from churches in California and Nevada, respectively, and kept the pandemic restrictions in place. In those cases, also 5-4, Chief Justice Roberts had joined with the Court's four liberals--Justices Ginsburg, Breyer, Sotomayor, and Kagan--to form the bare majority. As Roberts put it in his concurring opinion in the California case, the Justices "lack[] the background, competence, and expertise to assess public health" and, therefore, ought not to be "second guessing" the judgments of officials regarding the "safety and the health of the people.”

But now, with Ruth Bader Ginsburg replaced by Amy Coney Barrett, the dissenters in the California and Nevada cases have a majority. And the Chief Justice, together with the remaining three liberals, is in the minority. 

Right or wrong, wise or foolish, the fact is that a current majority at the Supreme Court has weighed the scales heavily in favor of religious liberty, refusing to defer to the health and safety judgments of elected state officials, and disallowing intrusions on free exercise. Add that to the several decisions in favor of free exercise of religion the last two terms. (See e.g., Religious Institutions Must Pay Abortion Coverage in NY [Part 1a--addendum].) In those cases, Chief Justice Roberts was part of the majority to advance religious liberty. So the signals are clear. The current Supreme Court is taking the constitutional free exercise of religion very seriously.

Then there's the New York Court of Appeals. In a case involving the state's regulation requiring employers to provide abortion insurance coverage, New York's highest court wouldn't even hear an appeal. In Roman Catholic Diocese of Albany v. Vullo, religious objectors--to whom abortion is, for some, the equivalent of killing a human being and, for others, akin to it--were seeking an exemption on tha basis of religious liberty. But apparently, the Judges of New York's highest court didn't even think that the fundamental right of free exercise of religion is serious enough to deserve a hearing. 

Here is the entirety of the Court of Appeals' ruling:
On the Court's own motion, appeal dismissed,
without costs, upon the ground that no substantial
constitutional question is directly involved.
Motion for leave to appeal denied with one hundred
dollars costs and necessary reproduction
disbursements.
Chief Judge DiFiore and Judges Rivera, Stein,
Garcia, Wilson and Feinman concur.
Judge Fahey dissents and votes to retain the appeal.
(Mo. No. 2020-549, Nov. 24, 2020) [My emphasis added.] 
 "No substantial constitutional question." And "On the Court's own motion." It is difficult to see anything but contempt on the part of the court for sincere, central religious beliefs and for genuine claims that constitutional religious liberty is being violated. Regardless of how the court would or should ultimately have ruled after an appeal, the refusal to even hear the appeal seems inexcusable.
[Disclosure: As those who follow New York Court Watcher are aware, I have been assisting counsel for the Catholic Diocese in religious liberty cases. Though I support the right to choose and I am not a religious believer, I do believe that protecting free exercise of religion is vital to a free society, and that intrusions should be permitted only when in conflict with the most compelling societal needs--e.g., eliminating invidious discrimination and dangers to the public health and safety. See e.g., Religious Institutions Must Pay Abortion Coverage in NY (Part 2).]

To be sure, religious objectors in New York face formidable precedential obstacles. First, under Scalia's majority opinion in Oregon v. Smith,  1st and 14th Amendment federal constitutional religious liberty provides no protection from any "otherwise valid" law. Because New York's abortion mandate does not violate any other federal constitutional right and it is "generally applicable"--i.e., it does not treat religion less favorably--it is perfectly constitutional under Smith.

Second, under the Court of Appeals' 2006 decision in Catholic Charities v. Serio  (7 N.Y.3d 510), New York state constitutional law is no more favorable to religious liberty--maybe even less so. In that case, religious objectors to the state's contraceptive insurance mandate lost a unanimous decision. New York's highest court ruled that those seeking to protect their sincere free exercise rights must bear the burden of showing that the "interference" with their religious liberty is "unreasonable."

So in New York, the government need not justify its conceded intrusion on freedom of religion. It need not show that there is some compelling or even important reason to interfere with religious liberty. Rather, the entire burden is placed on those who seek to vindicate their fundamental right of religious freedom to show that the state's law is "unreasonable." As has been pointed out by numerous constitutional scholars--and by myself in these pages, in articles, in presentations, etc.--no other fundamental constitutional right is treated so poorly.

Every 1st year law student learns that government must justify infringements on fundamental constitutional rights. Government must satisfy the so-called strict scrutiny test--i.e., that there is a "compelling" interest being served and there is no other way to serve it that is less intrusive on the fundamental right. But under Oregon v Smith and Catholic Charities v. Serio, both the Supreme Court and the New York Court of Appeals chose to treat religious free exercise much less favorably.

Currently, however, the Supreme Court has been treating religious liberty with great favor. It has been finding ways to protect free exercise despite its Smith decision. Primarily it has been doing so by finding discrimination against or hostility to religion. There are even rumbles of overturning Smith and returning to the strict scrutiny test for intrusions on free exercise. 

At the same time, New York's highest court won't even consider a serious religious liberty case. While the Court of Appeals has a tradition of protecting constitutional rights more than the Supreme Court requires--even, in the past, for freedom of religion (see e.g., People v. Barber, 1943)--it now appears to have considerably less regard for free exercise of religion than the Supreme Court.

Unfortunately, the Supreme Court in recent years hears very few appeals--~60 each year. Nevertheless, because a majority of the Court today is increasingly protective of free exercise of religion, it is possible that some of the Justices may feel very strongly about reviewing and reversing Roman Catholic Diocese of Albany v. Vullo. As one who rarely chooses the Supreme Court over the New York Court of Appeals, I am doing that in this case. 
[Again, disclosure: I am assisting counsel for the Catholic Diocese of Albany. Indeed, I am urging a petition to the Supreme Court for certiorari.]