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
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.]