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.]

Supreme Shift (Part 3): More Barrett's Record

In the last post, we looked at two opinions of then-Judge Amy Coney Barrett while on the 7th Circuit Court of Appeals. They were dissents. One involved immigration, the other gun rights. 

Patrick Semansky/AP

Forget about originalism or strict construction or deference to the legislative branch or other species of "judicial restraint." (I feel compelled to keep repeating that.) If you simply considered how a social and political conservative would be expected to vote--or more specifically, how a conservative Republican politician would be expected to vote--you'd have guessed her positions correctly.

In those opinions--dissenting opinions, which are the most self-revealing--Barrett disagreed with her colleagues on immigration restrictions and on gun regulations. In one case, the majority invalidated some strict Trump administration restrictions on immigration; she thought they were fine. (Cook County v. Wolf, 2020.) In the other, the majority upheld federal and state laws prohibitiing firearm possession by convicted felons; she argued against those restrictions on gun rights. (Kanter v. Barr, 2019.)

Let's now look at two more of her dissenting opinions. One dealing with prisoner rights and one with rights of the accused. Again, consider how a social and political conservative would be expected to vote. Yep, you guessed right.

Prisoner Rights

In McCottrell v. White (2019), two inmates, peacefully eating lunch, were struck by buckshot. Two correction officers had fired shotguns into the dining hall, triggered by a scuffle between other inmates which, however, had already been quelled. The non-involved injured inmates instituted a lawsuit claiming that their 8th Amendment rights were violated.

The majority at the 7th Circuit ruled that the lawsuit could proceed. There was evidence to show that the correction officers had fired the shotguns directly into the dining hall in bad faith and for no legitimate purpose.

(Click to enlarge)

In her dissenting opinion, Barrett argued that the lawsuit againt the correction officers should have summarily been dismissed. To quote her directly, there was "no evidence to prove [that the guards] intentionally hit  anyone...The guards may have acted with deliberate indifference to inmate safety by firing warning shots into the ceiling of a crowded cafeteria in the wake of the disturbance. In the context of prison discipline, however, 'deliberate indifference' is not enough." [My emphasis.]

So, the majority held that the guards' firing into the dining hall in bad faith and without any legitimate purpose was enough to support the injured inmates' lawsuit. Barrett insisted that even criminal recklessness on the part of the guards would not suffice.

Fair Trial

In Sims v. Hyatte (2018), the defense learned in the course of a post-conviction hearing that the prosecution had withheld evidence. The prosecution's sole witness identifying the defendant had been hypnotized to enhance his recollection. That witness testified at trial as an eyewitness, but the prosection never disclosed the hypnosis.

Barrett's colleagues in the majority ruled that, because defense counsel could have used the hypnosis information to impeach the prosecution's witness, that information was Brady material (Brady v. Maryland, 1963) and, accordingly, the prosecution was obligated to disclose. Inasmuch as that information would have been beneficial to the defense in discrediting the state's only eyewitness, the majority ordered that the writ of habeas corpus be granted and the conviction reversed.

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In her dissent, Barrett acknowledged that "the undisclosed evidence of [the witness's] hypnosis constitutes a Brady violation." Nevertheless, she argued that it was not such a "clearly established" Brady violation that justified ruling for the defendant. According to Barrett, under current Supreme Court precedent, deference was owed to the state court below because that court applied the correct standard under Brady. The fact that the state court reached an erroneous conclusion was not enough to grant habeas corpus to the defendant.

So, Barrett disagreed with colleagues when they sided with innocent inmates who were injured by the recklessly indifferent actions of prison guards. And she disagreed with her colleagues when they reversed a conviction that had been obtained with a conceded constitutional--i.e., Brady--violation. Add that to what we discussed in the previous post--i.e., Barrett's dissent against immigration rights and dissent against restricting convicted felons' gun rights.

A pattern begins to emerge that is hard to miss. Dissenting to disfavor immigration, to restrict protection for inmates, to disregard a prosecutor's constitutional violation, and to support gun rights for convicted felons. Must it be repeated. This is hardly a matter of judicial restraint versus activism or any of the various permutations of either of those. This is support for the same positions one would generally expect of a socially and politically conservative politician or voter. Good or bad, wise or foolish, that is what it is.

We'll continue with then-Judge Barrett's record of revealing dissents in the next post.

Supreme Shift (Part 2): Barrett's Record

(Since the previous post, Amy Coney Barrett was confirmed by the Republican controlled Senate, without a single Democratic, and Republican President Trump who nominated her was defeated in the election by Democratic candidate Joe Biden.  Back to now-Justice Barrett.)

Yuri Gripas/Abaca Press/TNS

In her three years as a federal appellate judge, Amy Coney Barrett established a distinct record. That is--need it be said again--distinctly politically conservative.

And need I repeat, not judicially conservative, as in judicial restraint, strict interpretation, adherence to stare decisis, deference to the laws and policies of the elected branches and the states, textualism, originalism, etc. But politically conservative, as in voting like a conservative Republican politician would vote on the those "hot-button" issues like guns, abortion, immigration, criminal law, etc. Whether that's good or bad, right or wrong, wise or foolish is not the point. It's just what her record is.

From the time she was nominated by President Trump and confirmed by the Senate to the 7th Circuit Court of Appeals in 2017, Barrett disagreed publicly with the majority of her colleagues on that court several times. That is, she dissented either in a separate opinion of her own or, at times, she voted to join a dissent written by others. When she did dissent, it was uniformly for the politically conservative legal result. And as judicial scholars understand, dissents are extremely revealing.

Dissents tell us what it is that a judge thought--oftentimes, felt--was very important. So important that it justified going public with a disagreement. Consider that the dissenting judge is announcing to the world, "I lost." The judge is announcing that, despite having lost the majority vote, "I feel compelled to register a public disagreement."

A public disagreement, that is, instead of going along with the majority. Instead of going along to get along. It entails expending collegial capital. Irritating and, yes, sometimes antagonizing the majority by telling the world that my colleagues on the court are so seriously wrong, about something that is so seriously consequential, that the public must know just how wrong they are and how their decision is so harmful to the law, society, or both.

Beyond that, if the judge who disagrees with the majority is actually authoring a dissenting opinion--i.e., not just voting to join someone else's dissenting opinion--that judge is personally choosing to expend time and effort and the resources of her chambers to engage in a public act of protest. She is not required to do so. There's no institutional requirement or obligatory directive that she must do so. This is purely a matter of personal choice. So too is casting a vote to join another dissenting colleague, even if not as exacting as writing one's own dissenting opinion.

That's a long way of restating that dissents are very revealing. Voting in dissent and, even more so, writing a dissenting opinion.

So let's start looking at then-Judge (now-Justice) Barrett's dissents. Let's consider the common threads. You know: connect the dots. 

Immigration

In several cases, Barrett joined the majority of her colleagues or actually wrote the majority opinion, ruling against immigrants and immigration rights--e.g., approving deportation, despite issues of due process or equal protection or the likelihood of torture upon return to the home country.

But she dissented in one case, Cook County v. Wolf (2020). The majority had ruled for the immigrant.

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In that case, the majority of Barrett's court rejected the Trump administration's expansion of the "public charge" rule. That Trump expansion would deny entry to any immigrant who might need any public assistance at any time. That expansive restriction on immigration was held by the majority to be well beyond the authorized bounds of governing immigration law.

Barrett authored a dissenting opinion. She approved the Department of Homeland Security's restrictive rule. She argued that the immigration law should be read to bestow very broad regulatory discretion to the Department, enabling it to decide who should be considered a "public charge" and, therefore, inadmissible.

Gun Rights

Barrett dissented in several cases involving various issues of criminal justice. In her dissenting opinions, she always argued against the accused, or the criminal defendant, or the inmate, or the convict--except once. That one case involved the gun rights of convicted felons.

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In that one case, Kanter v. Barr (2019), the convicted felon, following his release from prison, challenged the constitutionality of laws that prohibit his possession of firearms. The court upheld the federal and state laws in question. The majority held such laws to be reasonable regulations consistent with a non-absolute 2nd Amendment right to bear arms. According to the majority, both Congress and the Wisconsin legislature found that persons who have committed felonies, whether their crimes were violent or not, were more likely to abuse firearms.

Barrett disagreed. In her dissenting opinion--again, the only dissenting opinion or vote in which she sided with a criminally accused, a defendant, an inmate, or a convict--she sided with the convicted felon. According to her, the federal and state laws were unreasonable restrictions on gun rights. Declining to defer to Congress or the state legislature, she argued that such restrictions should only apply to persons proven to be dangerous, not merely convicted of felony that was non-violent.

We'll continue with  other cases involving criminal justice in the next post. But it already bears repeating after discussing only two cases: the point is not whether then-Judge Barrett's positions were right or wrong, wise or foolish, etc., etc. The point is the common thread--i.e., politically conservative. Not judicially conservative or restrained.

In the immigration case, Barrett declined to give a strict reading to a federal statute and, instead, approved an extremely broad reading by an administrative agency. In the gun rights case, she declined to defer to the other branches of the federal government or to the state--both of which had adopted what they believed to be reasonable restrictions.

This is not strict construction or deference to the politically accountable branches and the states. Not judicial restraint. It's today's political conservativism.