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.