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 .) 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 .)
[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.]