Splinters in the 6-3 Supreme Court (Part 4: Clarence Thomas)

Credit: Evan Vucci/AP

Clarence Thomas is a different story from Amy Coney Barrett.

We've been seeing how Justice Barrett has emerged as an increasingly moderate voice on the Court. In some of the Court's most important cases, she has disagreed with the more politically conservative positions taken by the majority or by justices in dissent, and she has even sided with the Court's liberals.

[As mentioned in Part 3 of this series, this is now being noticed by other commentators, and some political conservatives are distressed. See the several commentaries cited in that post, as well as in another recent one: David Lat, Amy Coney Barrett Is the Most Interesting Justice on the Court, Bloomberg Law, July 2, 2025, https://news.bloomberglaw.com/litigation/amy-coney-barrett-is-the-most-interesting-justice-on-the-court .]

In sharp contrast, there seems to be no flexibility from Justice Thomas. If anything, his record demonstrates a deepening political conservatism and suggests a contempt for other political conservatives on the Court who sometimes stray from the party line.

One need only take a look at some of the cases in which Thomas wrote a dissenting opinion. Sometimes, one or two of the Court's other most politically conservative justices joined his dissent. Oftentimes, no one did.

Just connect the dots of Thomas's dissenting opinions in these recent cases:

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Dissenting alone in U.S. v. Rahimi, Thomas argued that the federal law, prohibiting firearm possession by someone subject to a restraining order for domestic violence, violated the 2nd Amendment. Thomas had written the majority opinion for the Court two years earlier in New York State Rifle and Pistol Assn. v. Bruen. There, he asserted that a gun restriction was invalid unless it had a historical antecedent at the time the 2nd Amendment was ratified. This domestic violator law had none.

Thomas's Bruen test differed from the so-called "strict scrutiny" test that the Court typically applies to protect a fundamental constitutional right--i.e., is the law necessary for a compelling reason? [Think mandatory smallpox vaccinations during an epidemic despite personal religious objections.] In Rahimi, the next major gun rights case after Bruen, Thomas lost the majority. In Rahimi, he protested that the rest of the Court was disregarding his historical test from Bruen. [As could well have been expected.] Alone in applying his Bruen test literally, Thomas insisted that prohibiting firearm possession by a domestic abuser was unconstitutional because such a law did not exist in 1792.

Writing for the Court in Rahimi, Chief Justice Roberts reasoned that there were analogous laws applicable to violent persons in existence historically. Moreover, such laws were confirmed by "common sense." That was not sufficient for Thomas.

Another gun rights case:

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In VanDerStock, as in Rahimi, Thomas dissented in a solo opinion. (Justice Alito also dissented, but he did not join Thomas's opinion.) Thomas insisted on a narrower meaning of "firearm" that would be subject to the congressionally authorized regulations of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In Thomas's view, it could not include weapons parts kits or "ghost guns."

Thomas protested that only an object that is already a “weapon” could constitute a regulable "firearm." Disagreeing with the majority opinion authored by Justice Gorsuch [Who is not exactly an enthusiast of gun restrictions.], Thomas argued that a weapon parts kit could not be viewed as a "firearm" until after it was converted into an operable gun--i.e., until it is “something to fight with.” Consequently, according to Thomas, the ATF had no authority under the Gun Control Act of 1968 to regulate "ghost guns" or anything else that was not already a functioning weapon.

In yet another gun case:

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Thomas issued another lone dissent in Snope. (Justices Alito and Gorsuch did not join Thomas; they simply noted that they dissented.) He would have granted certiorari in order to review the "surprising conclusion" of the 4th Circuit Court of Appeals that there was no fundamnetal right to possess so-called "assault rifles." Thomas argued that AR–15s are unquestionably “arms" within the meaning of the 2nd Amendment. There was no “historical regulation” that was sufficiently like Maryland’s ban which could serve as a constitutionally valid 2nd Amendment exception. 

In Thomas's view, "assault rifles" like AR–15s easily fall within the category of protected arms. He reasoned that "[t]ens of millions of Americans own AR–15s, and the “overwhelming majority” of them “do so for lawful purposes, including self-defense and target shooting.” That settled the question for Thomas. Accordingly, he would have reviewed and reversed the 4th Circuit's decision and invalidated the Maryland law.

As in Snope, Thomas wrote some of his most revealing dissenting opinions when the majority simply rejected a petition for certiorari--i.e., choose not to hear an appeal. Here's another one:

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Again in Allstates, Thomas wrote a lone dissenting opinion. Gorsuch noted that he also dissented, but neither he nor anyone else joined Thomas's dissent.

Allstates, a nationwide industrial general contractor that is required to comply with the workplace safety standards set by OSHA (the Occupational Health and Safety Administration)--and has been fined in the past for violations--challenged the agency's authority. Its legal claim was that Congress violated the Constitution by creating an agency to exercise legislative powers--i.e., to promulgate regulations.

The federal circuit court below upheld OSHA's authority to set workplace safety standards, and a 7-2 majority of the Justices rejected Allstates' petition to appeal. Congress's authority to delegate powers to independent agencies has been settled in numerous Court decisions since the New deal era. But it has recently come under attack by anti-regulatory groups, by their Republican allies, and even by some justices. Thomas is one of them.

He argued in dissent that the Court should hear the appeal and limit OSHA's workplace safety authority. According to Thomas, the Court's precedents violate "the Constitution’s allocation of legislative power to Congress." Hence, the Court needed to take the case to "reconsider [its] approach" to delegating regulatory authority to agencies such as OSHA.

Around the same time that Thomas sought to undo OSHA's workplace safety regulations, he dissented from the majority's generosity toward military veterans:

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In Rudisill, Thomas's dissenting opinion was joined by Alito. The Court's 7-2 majority, speaking through Justice Jackson, held that the governing statutes allowed veterans who are eligible for educational benefits under both the earlier "Montgomery" and later "Post 9/11" GI Bills to switch from the former to the more generous latter. Additionally, for those veterans being eligible under each of these GI Bills, the benefits would extend from the 36 month limitation appilicable to each one to a total aggregate period of 48 months. Jackson added that, in any event, the "pro-veteran canon" would apply if the statutory provisions were ambiguous.

Thomas, while on the one hand saying that "the statute’s text [is] complicated," nevertheless insisted that it was "ultimately unambiguous" in denying a veteran's entitlement to a 48 month benefit period. Wading through the different subsections of the governing provisions, Thomas argued that, under §3327(d)(2)(A), a veteran who switches to Post 9/11 benefits is entitled only to "the amount [of time] he had remaining for his Montgomery benefits"-- despite separate entitlements to both GI Bills due to multiple periods of service.

Thomas concluded with the additional argument that, even if the statute were ambiguous--in his view it categorically was not [Does the 7-2 divide suggest otherwise?]--the pro-veterans canon of interpretation should not apply. He took issue with "whether this purported canon should ever have a role in our interpretation."

Thus far, in the five cases discussed, we've seen Thomas opposing laws that prohibit firearm possession by domestic violators, opposing the regulation of weapons parts kits or "ghost guns," opposing laws prohibiting the possession of assault rifles, opposing OSHA's workplace safety regulations, and opposing a generous interpretation of the GI Bills. Let's be clear, in none of these cases was there an unequivocal dictate that he take the positions he did. That being so, why?

This hardening ideological jurisprudence--which has increasingly separated Thomas to the right of other political conservatives on the Court--will be equally evident in the next installment in this series. We'll look at his dissenting opinions in several criminal cases and one involving a claim of religious discrimination. No one who follows the Court will be surprised at Thomas's positions in these cases.

One More Time: The Supreme Court Again Says Reconsider NY's Abortion Mandate!

Yes, once again, the New York courts suffered an embarrassing unanimous, summary overruling of their decisions which persistently upheld the imposition of the state's abortion coverage mandate upon religious objecting organizations, such as a Roman Catholic Diocese.

For years now, I've been discussing New York's mandate that employers include abortion coverage in their employee health insurance. I have not disguised my strong objections to the state government imposing this mandate upon religiously objecting institutions, nor my utter contempt for those rulings of the New York courts that have shown no regard for trampling on free exercise of religion. (It's only the First Amendment!)

For example, consider the first round of litigation, brought by the Albany Catholic Diocese, claiming that it was entitled to a religious exemption from the abortion mandate. The Court of Appeals, the state's highest court, summarily --i.e., without the full appellate process--dismissed the case. Here's the--hard to believe--ruling:

On the Court's own motion, appeal dismissed, 

without costs, upon the ground that no substantial

constitutional question is directly involved. [My emphasis.]

(Nov. 24, 2020.)

No substantial constitutional question?

But then, the Supreme Court, in its own summary, unanimous order--yes, all the conservative and liberals Justices--told the New York courts to try again. Here are the Justices' own words:

CERTIORARI -- SUMMARY DISPOSITIONS

20-1501 ROMAN CATHOLIC DIOCESE, ET AL. V. EMAMI, SHIRIN, ET AL.

The petition for a writ of certiorari is granted. The

judgment is vacated, and the case is remanded. [My emphasis.]

(Nov. 1, 2021.)

(For a more complete discussion and reference to previous related posts on New York Court Watcher, see, REPRISE: Religious Institutions Must Pay Abortion Coverage in NY, Nov. 1, 2021.)

In the second round of litigation on the very same matter, the New York courts again upheld the imposition of the abortion mandate upon religiously objecting institutions--i.e., holding that the religious institutions, such as a Catholic Diocese, were not entitled to the mandate's very narrow religious exemption. (New York only allows exemptions for churches and other analogous institutions, but not for faith-based organizations such as Catholic Charities.)

On this go round, the Court of Appeals at least did not say that there was no constitutional question worth its time. But the Court did, nevertheless, uphold the mandate as imposed on religiously objecting institutions. (See Roman Catholic Diocese of Albany v. Vullo, May 21, 2024.)  

Yesterday, the Supreme Court once again summarily and unanimously--yes, again, all the conservative and liberal Justices--granted the Albany Diocese's appeal (i.e., the writ for certiorari) and overruled the New York courts' insistence on upholding the abortion mandate against religious objectors and refusing to grant them an exemption.. Here it is:

ROMAN CATHOLIC DIOCESE, ET AL. V. HARRIS, ADRIENNE A., ET AL.

The petition for a writ of certiorari is granted. The

judgment is vacated, and the case is remanded to the Court of Appeals [My emphasis.]

June 16, 2025.) 

The Supreme Court ordered the Court of Appeals to reconsider the case, specifically in light of the Justices' decision earlier this month in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Comm'n. (June 4, 2025.) In that decision, the Supreme Court unanimously--yes, all the conservatives and all the liberals--overruled Wisconsin's refusal to grant a religious exemption to Catholic Charities. The state had a narrow exemption in its tax law for churches and analogous institutions whose purpose is religious practice. But the mission of Catholic Charities and similar faith-based organizations is to provide social services and perform other charitable works. It is not simply to engage in religious practices such as baptism, prayer, and proselytizing. So they were not entitled to religious exemptions. It made no difference that Catholic Charities and similar organizations are founded on religious convictions to help those in need.

The Supreme Court, in its unanimous reversal of the Wisconsin court, stressed the unremarkable constitutional principle that a state cannot pick and choose between religious beliefs and practices. As Justice Sonia Sotomayor put it for the Court, the problem with the Wisconsin law was that it

explicitly differentiat[ed] between religions based on theological practices. Indeed, [an institution's] eligibility for the exemption ultimately turns on inherently religious choices (namely, whether to proselytize or serve only co-religionists)...

Much like a law exempting only those religious organizations that perform baptisms or worship on Sundays, an exemption that requires proselytization or exclusive service of co-religionists establishes a preference for certain religions based on the commands of their religious doctrine.

In short, Wisconsin's denial of a religious exemption for Catholic Charities, like New York's denial of one to the Albany Catholic Diocese and other religious institutions, was based on unconstitutional criteria. It was effectively based on whether the state viewed the institution's religious practices to be religious enough--i.e., whether they fit the state's notion of religion.

New York's narrow religious exemption--to which the Albany Catholic Diocese was not entitled--similarly picks and chooses between religious beliefs and practices and similarly violates 1st Amendment religious freedom. The state itself acknowledged this in its final brief to the Supreme Court after the Court's Wisconsin decision:

[W] agree that, in light of the Catholic Charities opinion, some of the subject accommodation’s criteria are likely unconstitutional as applied to at least some of the petitioners in this case...It is possible that the First Amendment challenge here could be resolved by extending the accommodation at issue to petitioners, or perhaps by simply severing objectionable aspects of the criteria.

So, it is now back to the Court of Appeals. New York's high court must now ensure that the exemptions from the abortion mandate are expanded to include religiously objecting institutions, without any unconstitutional picking and choosing based on what religious institutions are religious enough. 

Let's be absolutely clear. This has nothing to do with whether one favors a woman's right to choose and the broader right of bodily integrity. Which I do, and strongly so. Instead, this has to do with how serious we are about protecting a fundamental constitutional right against government interference, and specifically, the need for freedom of religion and conscience in a free society.

Finally, let's place all this back and forth about government interference with religious freedom, religious objections, and the denial of religious exemptions in context. This continuing, seemingly incessant difficulty and confusion in religious liberty cases. A predominant cause, if not the predominant one, is Justice Antonin Scalia's opinion for the Supreme Court in (Employment Division of...) Oregon  v. Smith, 1990. The Court held that the Indian Tribe in question was not entitled to an exemption from an Oregon anti-drug law, so they could continue to use peyote in their concededly sincere religious rituals. 

Whatever one thinks of the bottom-line decision in the case, the rule announced by Scalia to govern interference with religious freedom is an outrage. The Court did not hold that the state had a compelling reason to outlaw hallucinating drugs--that's what Justice O'Connor argued in a concurring opinion. Rather, Scalia's opinion for the Court asserted that the Constitution does not protect freedom of religion against an "otherwise valid law." So, unless a law violates some other constitutional right or invidiously discriminates, that law overrides the fundamental constitutional right of religious free exercise.

As O'Connor elaborated in her separate opinion, Scalia's opinion was utterly dishonest and stripped religious liberty of the traditional protection afforded to fundamental constitutional rights. Scalia denied that strict scrutiny applied to 1st Amendment free exercise of religion--i.e., the basic constitutional principle that the government must justify its interference with any fundamental right by proving that it is necessary to achieve a compelling interest--e.g., necessary for national security, to protect against an epidemic, military discipline, and the like. He also claimed that the Court had never granted religious exemptions to an otherwise valid law. Both of those assertions were lies. Period.

As a result, although several Justices want Oregon v. Smith overruled, the Court has to do end runs around that decision. It does so, for example, by finding some discrimination in the law in question (like the Court just did in the Wisconsin case), or by finding that a law is invalid only because it violates free speech (like the Court did in the recent case involving a business owner who did not want to create a website for a same-sex marriage: 303 Creative LLC v. Elenis, 2023).

The Supreme Court should return to a straightforward strict scrutiny: if religious freedom is being abridged, the government should have to prove that 1) it has a compelling purpose and 2) it has no other way to achieve that purpose. That is the test the Court has used for a long time to protect other fundamental constitutional rights and to protect against racial discrimination.

If Oregon v. Smith is not bad enough, the New York Court of Appeals compounded the problem in this state in Catholic Charities v. Serio, 2006. (That case involved religious objections to the state's contraceptive insurance mandate.) Not only did the Court of Appeals discard strict scrutiny protection for free exercise of religion, just like Scalia did in Smith. Beyond that, New York's high court discarded any requirement that the government had to justify its abridgment of religious liberty. Instead, it ruled that the religious objector must justify his complaint. The religious objector, the Court of Appeals held, bears the burden of proving that the law's interference with the objector's religious liberty is unreasonable. Another complete reversal of traditional constitutional protection of fundamental rights.

These two decisions, the ruling in Scalia's Smith opinion and the Court of Appeals ruling in Catholic Charities, have left the constitutional right of religious liberty adrift and left each of the two courts with a tortured jurisprudence for dealing with violations of one of our most basic rights.

The Supreme Court and the Court of Appeals need to overrule these atrocious precedents.

Disclosure: I have been providing whatever small assistance and advice I can on behalf of the Albany Diocese and Albany Catholic Charities.   

Capital Tonight: Previewing Some Major Cases This Supreme Court Term

CAPITAL TONIGHT

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https://spectrumlocalnews.com/nys/central-ny/politics/2022/10/03/2--blockbuster--cases-before-the-supreme-court-this-session?cid=share_clip

REPRISE: Religious Institutions Must Pay Abortion Coverage in NY

In a series of posts last year, I discussed the challenge to New York's abortion insurance mandate brought by religious objectors. Led by the Roman Catholic Diocese of Albany, the challengers sought an exemption on sincere religious grounds.

(See Religious Institutions Must Pay Abortion Coverage in NY (Part 1): More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion [July 6, 2020];

Religious Institutions Must Pay Abortion Coverage in NY (Part 2): More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion [July 22, 2020]; and

A Tale of Two Religious Liberty Decisions: SCOTUS Versus NY's Court of Appeals [Nov. 26, 2020].)

As I wrote in that latter post:

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.

So, in the New York State courts:

the trial judge denied the religious objection;

the Appellate Division (the state's intermediate court) affirmed that denial;

and the Court of Appeals (the state's highest court) deemed the case unworthy to hear.

Understanding full well that a serious question of religious free exercise was in fact at issue--despite the Court of Appeals dismissive contempt--the Albany Catholic Diocese petitioned the U.S. Supreme Court for certiorari (i.e., to review the case). Moreover, numerous scholars and various religious and religious liberty organizations submitted briefs to the Court in support of the Albany Diocese's constitutional argument which New York's highest court didn't consider worthy of an appeal.

Well...

The Supreme Court today granted the Albany Diocese's petition for certiorari, summarily vacated the decision of the New York courts, and sent the case back to New York's Appellate Division for reconsideration. Here's the order:

MONDAY, NOVEMBER 1, 2021

CERTIORARI -- SUMMARY DISPOSITIONS

20-1501 ROMAN CATHOLIC DIOCESE, ET AL. V. EMAMI, SHIRIN, ET AL.

The petition for a writ of certiorari is granted. The

judgment is vacated, and the case is remanded to the Appellate

Division, Supreme Court of New York, Third Judicial Department

for further consideration in light of Fulton v. Philadelphia,

593 U. S. ___ (2021). Justice Thomas, Justice Alito, and

Justice Gorsuch would grant the petition for a writ of

certiorari.

So...

The Supreme Court unanimously--that includes all three liberal justices: Breyer, Sotomayor, and Kagan--vacated the rulings of the New York courts which had denied the religious exemption to the state's abortion insurance mandate. A six-justice majority voted to summarily remand the case back to the New York courts for reconsideration. And three justices, Thomas, Alito, and Gorsuch--who have previously made clear that (Employment Division...of) Oregon v. Smith has to go--wanted the Supreme Court to proceed with a full appeal, presumably to overrule that precedent.

[N.B., Oregon v. Smith is the Supreme Court decision which, in Justice Scalia's dreadful and dishonest majority opinion--no, I'm not pulling any punches, any more than did Justice O'Connor--ruled against the religious liberty claim of The Native American Church on the truly incredible ground that any "otherwise valid law" defeats constitutional free exercise of religion. Yep, legislation defeats a fundamental constitutional right!

I've written and spoken at length about the Smith decision and its impact on religious liberty. See e.g., Justice Scalia's Record (Part 1), 2/18/16; Religious Liberty--commentary, interview, video, presentation [updated 5/15/13]; Religious Liberty: Fundamental Right or Nuisance, 14 U. St. Thomas L.J. 650 (2018); The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). Ironically, but not surprisingly, conservatives today are much more supportive of free exercise of religion than previously, and liberals much less so, because recent cases have involved majority and fundamental religions objecting to abortion rights, LGBTQ rights, and other rights favored by political liberals.]

Now...

The question is, what will the New York courts do with the case in light of the Supreme Court's summary vacatur? It's doubtful that the Appellate Division this time around will be so dismissive of the Albany Diocese's religious liberty claim for an exemption. It's also doubtful that the Court of Appeals this time around--however the Appellate Division rules--will treat this fundamental constitutional claim so contemptuously.

I guess we shall see.

[Disclosure: I have been assisting counsel for the Albany Diocese in this case, just as I did in Catholic Charities v. Serio (2006), involving New York's contraceptive insurance mandate.

Regardless of my strong support for the right to use contraceptives and for the right to choose, I believe that the free exercise of religion, like other fundamental constitutional rights, must not be lightly disregarded and, rather, should be limited only when actually necessary to protect important health, safety, national security, and other critical concerns. And that's hardly a unique or radical position. In fact, it is the most basic principle of constitutional law.]

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.]

Religious Institutions Must Pay Abortion Coverage in NY (Part 3)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

We've previously discussed how New York's highest court, when deciding Catholic Charities v. Serio in 2006, did so with the Supreme Court's 1990 decision in Oregon v. Smith as a backdrop. The Supreme Court in Smith significantly reduced the 1st Amendment protection for religious liberty, and the New York court in Catholic Charities did likewise as a matter of its own state constitutional law. (See Part 2.) Scalia's majority opinion in Smith disowned the "compelling interest/strict scrutiny" test for free exercise of religion under the nation's Constitution, and the New York Court of Appeals rejected that test as well under the state's own law.

The Scalia majority in Smith ruled that all "generally applicable" and "otherwise valid" laws defeat the 1st Amendment guarantee of religious freedom. In its Catholic Charities decision sixteen years later, New York's high court, though claiming it was rejecting Smith as "inflexible," nevertheless quickly stated that Smith "should be the usual" rule. Beyond that, New York's court relieved the state government of having to justify its interference with religious liberty. Instead, the court required those whose fundamental right was being abridged to prove that the admittedly "serious" interference was unreasonable.

Hence, in New York, as the state's high court put it in Catholic Charities:

The burden of showing that an interference with religious practice is unreasonable, and therefore requires an exemption from the statute, must be on the person claiming the exemption.

But!
Yes, as promised in the last installment in this series, there is a "But!"

There are a few lines, immediately following those just quoted, that don't quite fit the tenor of the rest of the Catholic Charities decision. Indeed, they seem to contradict or at least confuse the very rule just adopted.

"The burden [of showing that an interference with religious liberty is unreasonable], however, should not be impossible to overcome," the court added, seemingly softening the rule it had just announced. It then asserted that some "hypothetical laws," even though "facially neutral," would be "well beyond the bounds of constitutional acceptability." Among such laws that, apparently, would be clearly unconstitutional under New York's protection of religious liberty, the court listed:

• "a requirement that all witnesses must testify to facts within their knowledge bearing on a criminal prosecution [which] if applied without exception, could abrogate the confidentiality of the confessional"
• "a general prohibition of alcohol consumption [that] could make the Christian sacrament of communion illegal"
• "uniform regulation of meat preparation [that] could put kosher slaughterhouses out of business"

(The court was quoting from Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review [1990].)

Curiously though, laws of the sort the court had listed would not be particularly unreasonable. In fact, some would seem entirely reasonable. Moreover, applying such laws uniformly--i.e., generally applicable, without the granting of exemptions--would not be particularly unreasonable either. To be sure, they would be religiously objectionable to some. But "unreasonable?" A "requirement that all witnesses must testify [in] a criminal prosecution"--unreasonable? A "general prohibition of alcohol consumption," e.g., in any establishment not licensed to serve to the public--unreasonable?"[U]niform regulation of meat preparation" for health or ethical reasons--unreasonable?

And yet, the court in Catholic Charities insisted that such laws without religious exemptions would be "well beyond the bounds of constitutional acceptability [my emphasis]." So not merely unacceptable, but "well beyond" being acceptable? Would religious objectors, then, not have to show that such laws imposed an "unreasonable" interference? Would the interference from such laws be considered per se "unreasonable?" And why those such laws?

Was the court's point that such laws, applied without exemptions, would be too drastic from the perspective of the religions affected? So Catholics would view the intrusion upon confessional confidentiality as too drastic? Christians would view the denial of wine for Sunday services as similarly too drastic? And Jews would view the prohibition of kosher slaughtering as too drastic as well? Or, after Catholic Charities, will a majority of New York's high court now decide which particular interferences with which particular religions the court views as too drastic? Or in the court's language, "unreasonable?"

So, let's be clear. It's apparently not too drastic--or "unreasonable"--to force Catholics, and others with similar beliefs, to violate their religion by paying for contraceptive insurance coverage. Apparently, according to New York's high court in Catholic Charities, denying a religious exemption from the contraceptive mandate is not particularly drastic or "unreasonable." But, apparently, it would be too drastic or "unreasonable" to deny an exemption from a criminal witness law, or an alcoholic consumption law, or an animal butchering law.

Why? Because a contraceptive mandate is more important than a criminal witness law, or an alcoholic consumption law, or an animal butchering law? Or because exemptions from a contraceptive mandate are deemed less important to the religious objectors than exemptions from those other laws would be? Is the point that some laws are more critical than others? Or that some religious exemptions are more critical? Or that these considerations are to be balanced? Or what?

And to focus on the specific matter at hand, what about an abortion coverage mandate? Is that like a criminal witness law, or an alcoholic consumption law, or an animal butchering law--all of which would require religious exemptions? Or more like the contraceptive mandate that didn't?

Is it too drastic or "unreasonable" to require Catholics, and others who believe that abortion is akin to murder or otherwise gravely immoral, to pay for abortion insurance? Would it be too drastic or "unreasonable" to deny religious exemptions--just as it would be for those other laws that the court identified in Catholic Charities? Are religious exemptions to the abortion mandate critical? Or is the abortion mandate to be treated the same as the contraceptive mandate? That is, the mandate itself to be treated as critical, while the requested exemptions for the religious objectors to be treated as less so?

Well, those are the constitutional questions presented in Roman Catholic Diocese v. Vullo.

At the trial level, the judge saw absolutely no difference between the contraceptive and abortion coverage mandates. Hence, the judge rejected the constitutional religious liberty claims for exemptions:

The Court finds the constitutional claims challenged in this case to be the same as those raised in Catholic Charities. Given the Court of Appeals addressed and rejected the same arguments, Catholic Charities is binding precedent requiring dismissal of plaintiffs’ constitutional claims in this matter. (Roman Catholic Diocese of Albany v. Vullo [January 10, 2019, Albany County])

The intermediate appeals court, the Appellate Division, saw absolutely no difference as well. The Court of Appeals decision in Catholic Charities--regarding the state's contraceptive mandate--was to be applied jot for jot to the abortion coverage mandate:

[S]tare decisis...when applied to the precise issues presented by this appeal, proves decisive here in determining the constitutional claims advanced by plaintiffs that were addressed and rejected by the Court of Appeals in Catholic Charities....The factual differences in these cases are immaterial to the relevant legal analyses that are identical in both cases. (Roman Catholic Diocese of Albany v Vullo [Appellate Division, Third Department, July 2, 2020])

That intermediate court apparently saw no distinction between contraception and abortion. No distinction between religious objectors being forced to pay for what they believe to be morally wrong as opposed to paying for what they believe to be akin to murder or similarly grave.

So the intermediate court engaged in absolutely no analysis of the importance to the state of the abortion coverage mandate or the importance to the religious objectors of an exemption. More specifically, that court never considered the importance to the state of denying exemptions to the abortion mandate versus the importance to the religious objectors of being exempted.

The intermediate court never considered whether the abortion mandate without religious exemptions is like the laws that the Court of Appeals in Catholic Charities insisted would be "well beyond the bounds of constitutional acceptability." Whether the abortion mandate is like a criminal witness law, or an alcoholic consumption law, or an animal butchering law which would constitutionally require religious exemptions. Whether more like that sort of law that would be too drastic or "unreasonable" without religious exemptions, or like the contraceptive mandate for which exemptions were denied.

Indeed, the intermediate court never even acknowledged what New York's high court in Catholic Charities had emphasized. I.e., that its rule was not absolute. That some "generally applicable" and "facially neutral" laws would be unconstitutional without religious exemptions. That such laws would be "well beyond the bounds." That religious exemptions to some laws, even if those laws are  "generally applicable" and "facially neutral," are constitutionally imperative.

No, not even a whiff of that in the Appellate Division's decision.

So now, when/if New York's highest court hears the appeal, will it merely apply the bottom-line black-letter rule from Catholic Charities mechanically and superficially, like the intermediate court did? Will it merely apply the Supreme Court's "generally applicable" and "otherwise valid" standard from Scalia's Smith opinion as "usual rule"--as the New York court labelled it in Catholic Charities? Will it merely hold, with little analysis or explanation, that "[t]he burden of showing that an interference with religious practice is unreasonable" was not satisfied by the religious objectors to the abortion mandate, anymore than it was to the contraceptive mandate in Catholic Charities?

Will New York's highest court actually explain why some laws, if applied without religious exemptions--like a criminal witness law, or an alcoholic consumption law, or an animal butchering law--are "well beyond the bounds of constitutional acceptability." And why the abortion coverage mandate is or is not like one of those laws?

Will New York's highest court explain what religious objectors must do to show that the "interference" of a certain law is "unreasonable" and therefore that a religious exemption is constitutionally required? Stated otherwise, will the Court of Appeals explain when it is that the "usual rule" applies, and when the "well beyond the bounds" rule applies?

More specifically, whether the "usual rule" applies to the abortion mandate, or whether the "well beyond the bounds" rule applies is precisely the state constitutional law question presented in Roman Catholic Diocese v. Vullo. Neither the trial judge nor the intermediate court addressed that. We'll see if New York's highest court does.

Religious Institutions Must Pay Abortion Coverage in NY (Part 2)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

Prior to discussing the Supreme Court's three recent church-state decisions in the immediately preceding post (see Part 1a--addendum), we discussed the status of federal free exercise protections. Under the 1st Amendment--at least since Scalia's majority opinion in the 1990 Oregon v. Smith decision--religious liberty is protected only against those laws that target religion for disparate treatment or are illegal anyway. (I.e., "generally applicable" and "otherwise valid" laws defeat religious objections.) Under the Religious Freedom Restoration Act (RFRA), federal laws--not state ones--that burden free exercise of religion must pass the pre-Smith "compelling interest/strict scrutiny" test. (I.e., the interference with religious liberty must be necessary to achieve an extremely important government purpose.) (See Part 1.)

Now, with that as background for the minimalist 1st Amendment constitutional protection and the rigorous federal RFRA protection, we can better understand New York's religious liberty decisions. The 1st Amendment constitutional protection against New York laws that interfere with religious liberty is Scalia's opinion in Smith. And the rigorous statutory RFRA protection does not apply at all.

So, in the 2006 Catholic Charities v. Serio case, involving New York's mandatory contraceptive insurance coverage, the state's highest court understood full well that the 1st Amendment (as defined by Scalia's majority opinion in Smith) provided precious little, if any, protection for religious objectors who were seeking an exemption. The contraceptive mandate of the law (the Women's Health and Wellness Act), concededly required the objectors to violate their religious beliefs. But that was fine under the Scalia-formulated "generally applicable" and "otherwise valid" standard--i.e., the law did not target religion or any particular religion for special unfavorable treatment, and it did not appear to violate any other federal constitutional right or federal law. The New York high court also understood full well that federal RFRA did not apply to the state's law.

Consequently, the central issue in Catholic Charities v. Serio was whether New York State's own constitutional right of free exercise provided greater protection for the religious objectors than the Smith-downgraded 1st Amendment did. Indeed, in many areas of the law, the New York Court of Appeals has a tradition of independently protecting rights, as a matter of its own state constitutional law, more than the Supreme Court has required under the federal constitution. Free press, search and seizure, right to counsel, education, and assistance to the needy are prominent examples. The question, then, in Catholic Charities, was whether New York's highest court would do the same--or, actually, continue to do so--with regard to free exercise of religion.

Many other state courts, in the aftermath of the Supreme Court's Smith decision, had done just that. Those courts rejected Scalia's "generally applicable" and "otherwise valid" standard. As a matter of independent state constitutional decision-making, those courts retained the much more protective pre-Smith "compelling interest/strict scrutiny" test. In still other states, RFRA-like legislation was enacted to do the same thing as a matter statutory law.

In New York, neither of those has happened. Unlike many other state courts, New York's high court did not directly address the Supreme Court's Smith decision until the 2006 Catholic Charities case--16 years later. No, the Court of Appeals had neither embraced Scalia's "generally applicable" and "otherwise valid" standard, nor retained the "compelling interest/strict scrutiny" test as a matter of independent state constitutional law, nor adopted any other specific standard for resolving religious liberty questions. Moreover, unlike many other state legislatures, New York's had not enacted any RFRA-like statute.

Therefore, if the religious objectors in the Catholic Charities case were to obtain relief --specifically, a religious exemption from the state's contraceptive insurance mandate--the Court of Appeals would need to do something similar to what other state courts had done. New York's high court would need to protect religious free exercise as a matter of independent state constitutional law. Not surprisingly, the New York Court of Appeals had done just that many years earlier in its storied history.

In its 1943 decision in People v. Barber, New York's high court refused to follow the Supreme Court's narrow view of religious liberty at the time. Just the year before, the Supreme Court had held that the federal constitution did not entitle Jehovah Witnesses to an exemption from a generally applicable, but religiously objectionable local law. (Jones v. Opelika [1942].) The Court of Appeals, facing the same religious objection to the same sort of local law, reached the opposite result. In holding that the religious objectors were entitled to an exemption, the New York court made clear in no uncertain terms that it was not bound by the Supreme Court's ruling, but by a much more protective state standard.

In lines oft-quoted--and I've been doing so since I first began writing about New York's high court many years ago--Chief Judge Irving Lehman's unanimous opinion dismissed the government's Supreme Court-based argument:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [My emphasis.]

Notably, four short months thereafter, the Supreme Court cited the Barber decision and reversed its prior ruling. Following the Court of Appeals, it granted religious exemptions to similar laws. (Murdock v. Pennsylvania [1943].)

To be sure, when New York's high court was considering Catholic Charities v. Serio, it was aware of its six-decade old Barber landmark. Rather astonishingly, however, the court's opinion in Catholic Charities never even mentions Barber. The court's failure to even cite the heralded Barber decision speaks volumes about the general thrust and underlying perspective of the Catholic Charities ruling.

Noting that the Supreme Court's decision in "Smith is an insuperable obstacle" for the religious objectors to obtain an exemption under the 1st amendment, the Court of Appeals readily dismissed the federal free exercise claim. The court then claimed that it was rejecting Smith's "inflexible rule" as a matter of state constitutional law. But the court later back-tracked and asserted that the "generally applicable" "principle" in Smith "should be the usual" rule. And following the Supreme Court's abandonment of the "compelling interest/strict scrutiny" test in Scalia's Smith opinion, New York's high court explicitly rejected that test as well as a matter of its own independent state constitutional law.

Unlike other state high courts that have retained that protective test for religious liberty, the Court of Appeals in Catholic Charities embraced the view that "[s]trict scrutiny is not the right approach to constitutionally-based claims for religious exemptions." The court said it would "not read the New York Free Exercise Clause to require the State to demonstrate a 'compelling' interest" in order to defeat religious liberty and deny a religious exemption.

Well why not? And if not, what exactly is New York's state constitutional rule for protecting religious liberty?

Here's the rule the Court of Appeals newly announced in Catholic Charities:

We now hold that substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom. [My emphasis.]

Hmmm. So when a law interferes with free exercise of religion, deference must still be given to the legislature. There's a law that requires a violation of religious beliefs or prohibits a religious practice, and yet deference is still owed to the legislature, not the fundamental constitutional right. To be sure, legislation is normally presumed to be valid. But even for the application of that legislation where it interferes with the exercise of a fundamental right?

Isn't the government required to justify infringing on a fundamental right? Isn't the government required to show that the infringement is necessary? Isn't the government at least required to show that there's a particularly good reason that outweighs the fundamental right?

No! Not according to the Catholic Charities decision.

Rather, the person or group whose free exercise of religion is being infringed upon bears the entire burden--not the government that is infringing upon the fundamental constitutional right. And it's not enough for the person or group whose free exercise of religion is being infringed to prove that the infringement is unnecessary. Or to prove that the infringement doesn't even serve a particularly important government interest. No! The person or group whose free exercise of religion is being infringed upon is required to prove that the application of that challenged legislation--the denial of a religious exemption--isn't even reasonable.

Any first year law student knows that government interference with other fundamental constitutional rights is treated much differently. When government infringes upon free speech or free press or free assembly or another fundamental right, it is the government that bears the burden. Government must justify the infringement. Government must show that it has an extremely strong reason for doing so--i.e., a  "compelling interest." Government must show that the infringement is necessary to achieve that interest--i.e., that there is no non-infringing means for doing so. In other words, Government must satisfy the "compelling interest/strict scrutiny" test.

But in New York--after Scalia's majority opinion in Smith and then the New York Court of Appeals' decision in Catholic Charities--the burden is now on those whose free exercise of religion is being infringed by the state's law. And, to protect their constitutional guarantee of religious freedom, they must show that the law's infringement is actually unreasonable.

One is left to wonder--again, as after Smith--isn't a fundamental constitutional right supposed to be superior to legislation? Aren't fundamental constitutional rights--unless they are mere aspirational words--entitled to a higher status than that? The answer for other fundamental constitutional rights is yes. But apparently not for free exercise of religion.

Not at all surprisingly, New York's highest court in Catholic Charities, applying the rule it had just announced, concluded that the religious objectors were not entitled to an exemption from the contraceptive mandate. After declaring that the "principle" of Smith  "should be the usual" rule. After rejecting the "compelling interest/strict scrutiny test." After deferring to the legislature instead of the fundamental right. After placing the burden on those whose fundamental right was being infringed. After all that, the obstacles against the religious objectors' success were virtually "insuperable"--to use the court's own term when describing the standard in Smith.

Now, with Catholic Charities as the governing precedent, that's what has confronted the religious objectors to the state's abortion mandate. That's what the religious objectors have confronted in seeking an exemption from the insurance regulation requiring employers to provide abortion coverage. That's what seemed "insuperable" when the religious objectors presented their case in Roman Catholic Diocese of Albany v. Vullo and when the state's intermediate appellate court ruled against them earlier this month. And that's what might seem "insuperable" when [If?] New York's highest court hears the appeal.

But!
Yes, a "But!" there is. A few lines right in the Catholic Charities decision.

Those lines don't quite fit the tenor of the rest of the Court of Appeals' opinion. But they are there. They are definitively stated. And they offer hope to religious objectors seeking exemptions. Even exemptions to "generally applicable" laws that "only" incidentally infringe upon constitutionally guaranteed free exercise.

In the next and final post in this series, we'll discuss those lines, as well as this month's Appellate Division decision in Roman Catholic Diocese which seemed to disregard those lines entirely.

[Disclosure: As I've previously made clear, I do believe strongly in a woman's right to choose, but at least as strongly in freedom of religion and conscience. Moreover, I have enthusiastically provided whatever little assistance I can to the plaintiffs in both the Catholic Charities and Roman Catholic Diocese cases. 
I've also written about the abortion mandate issue before in New York Court Watcher: 
Religious Liberty vs. Abortion Coverage Mandate (Part 2), 5/21/16; Religious Liberty vs. Abortion Coverage Mandate (Part 1), 5/17/16.]

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.

Religious Institutions Must Pay Abortion Coverage in NY (Part 1)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

Last week, in Roman Catholic Diocese of Albany v. Vullo, a New York appellate court rejected religious objections to paying for abortion coverage.

The state's Appellate Division, Third Department, voted unanimously to deny the Albany Catholic Diocese, as well as other religious groups, an exemption from New York's administrative regulation that mandates abortion coverage in employer provided health insurance.

Despite the objectors' religious belief that abortion is--or is akin to--the killing of a human being, the appeals court held that an earlier decision of the state's highest court, the Court of Appeals, was controlling authority to deny a exemption. In that 2006 ruling, Catholic Charities v. Serio, the state's contraceptive mandate was at issue. Although the Court of Appeals acknowledged the sincerity of the religious objections, it nevertheless concluded that the burden on free exercise of religion was permissible.

In last week's case, the Appellate Division, the state's intermediate court, applied the Catholic Charities precedent to hold that the state was not required to grant any exemption to the religious objectors. The constitutional guarantee of religious liberty, that court held, provides no protection for the religious objectors. They are entitled to no exemption. They must violate their religion and pay for what they sincerely believe is--or is akin to--murder.

But wait, you might say. Wasn't there a Supreme Court decision not too long ago that said that the government could not force religious objectors to pay for contraceptive coverage? Wouldn't that decision apply to abortion coverage as well? And New York can't violate a Supreme Court decision, right?

Well, yes (Hobby Lobby v. Burwell, 2014), yes, and yes. BUT...

The Supreme Court's protection of religious freedom in that case simply does not apply to New York or to any other state. What, you ask, can that really be? Doesn't the Constitution's 1st Amendment rights apply to New York and other states? Aren't New York and other states required to obey Supreme Court decisions about the Constitution?

Again, yes, yes, and yes. BUT...

That's where Antonin Scalia's dreadful--yes, and disgraceful and dishonest--opinion in the 1990 decision in Oregon v. Smith comes in. [The full formal name of the case is actually Employment Division, Department of Human Resources of Oregon v. Smith. I'll stick with Oregon v. Smith.]

The late Justice, in his opinion for the Court, insisted that the 1st Amendment did not protect religious liberty from laws that were "otherwise valid." So as long as a law does not violate some other constitutional right, it's permissible for that law to interfere with freedom of religion. As Scalia further explained, as long as a law is "generally applicable"--i.e., it does not deliberately target or discriminate against a religion--it makes no difference if the law abridges religious liberty. And no, according to Scalia's opinion, the law doesn't even have to be a particularly important one. And no, it doesn't even matter if the government can do what it wants to do in some other way that doesn't interfere with freedom of religion.

Just in case there are doubts that Scalia, who apparently was a devout Roman Catholic, could actually dilute freedom of religion so drastically, here are his own words:

[I]f prohibiting the exercise of religion . . . is not the object of the [law], but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. [My emphasis]

Not surprisingly, the Court in Smith was deeply divided.

Four of the Justices disagreed vehemently with Scalia. Justice Sandra Day O'Connor agreed with the ultimate result reached by the majority, but she condemned Scalia's evisceration of constitutional religious freedom, as well as his dishonesty about the Court's prior decisions. She catalogued a long line of decisions that had protected the 1st Amendment right

by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest...The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order. [My emphasis]

Justice O'Connor was justly upset with Scalia's dishonest devaluation of religious liberty. In fact, as she spelled out in her separate concurring opinion, the Supreme Court had repeatedly scrutinized interference with religious liberty very strictly. The Court had repeatedly required government to show that an interference with religious liberty was necessary for a compelling purpose. And the Court had repeatedly exempted sincere religious objectors from "generally applicable" and "otherwise valid" laws. The Jehovah's Witnesses' objection to pledging allegiance to the flag, the Seventh Day Adventists' objection to working on their Saturday Sabbath, the Amish objection to their children completing high school--all of these and other religious objections were held to be entitled to exemptions from generally applicable, otherwise valid laws in landmark Supreme Court decisions. (See respectively, West Virginia v. Barnette, 1943; Sherbert v. Verner, 1963; Wisconsin v. Yoder, 1972.)

At issue in Oregon v. Smith was a Native American religious ritual that included smoking peyote, which was illegal under the state's anti-drug law. Justice O'Connor concluded that the government's prohibition of the religious ritual was justified, but only because prohibiting the use of hallucinogens was a compelling interest. Scalia, on the other hand, denied that religious liberty was even entitled to the compelling interest/strict scrutiny test. He did so despite the well-established Supreme Court landmarks affirming that test, and despite that test's unquestioned application to every other right in the 1st Amendment. (The 3 dissenting liberal Justices agreed entirely with Justice O'Connor's recitation of the constitutional law of religious liberty, but not that prohibiting the religious use of peyote was justified under the compelling interest/strict scrutiny test.)

[I've written and spoken at length about the Smith decision and it's impact on religious liberty. See e.g., Justice Scalia's Record (Part 1), 2/18/16; Religious Liberty--commentary, interview, video, presentation [updated 5/15/13]; Religious Liberty: Fundamental Right or Nuisance, 14 U. St. Thomas L.J. 650 (2018); The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). Ironically, but not surprisingly, conservatives today are much more supportive of free exercise of religion than previously, and liberals much less so, because recent cases have involved majority and fundamental religions objecting to abortion rights, LGBTQ rights, and other rights favored by political liberals.]

OK then, but what about that 2014 Hobby Lobby case mentioned earlier? Didn't the Supreme Court hold that Obamacare violated the rights of religious objectors and, therefore, that those objectors did not have to pay for contraceptive coverage? Didn't the Court rule that the religious objectors were entitled to an exemption from the law? And yet, isn't the Obamacare contraceptive mandate--in words that Scalia used in Smith--a generally applicable and otherwise valid law which, according to Scalia's majority opinion in Smith, defeats 1st Amendment religious liberty?

Yes, absolutely right. BUT...

Congress--both Democrats and Republicans, liberals and conservatives; as well as the overwhelming majority of constitutional scholars--was appalled by Scalia's opinion. So Congress passed a law, with almost unanimous support, to overrule Smith and to reimpose the "compelling interest/strict scrutiny" test. That legislation, the Religious Freedom Restoration Act (RFRA), however, applies only to federal laws. Not to state laws. Why? Well, without getting into the weeds here, the Supreme Court ruled shortly thereafter that the statutory protection of RFRA cannot overrule the constitutional decision in Smith. Consequently, the 1st Amendment's protection of free exercise of religion is still what it was defined to be in Scalia's Smith opinion, and that--not RFRA--is the federal protection for religious freedom against state laws. (See Boerne v. Flores, 1997.)

So let's be clear. The Supreme Court's decision in Hobby Lobby, protecting religious objectors from the contraceptive mandate of Obamacare, was an application of the statutory "compelling interest/strict scrutiny" protection of RFRA against a federal law. It was not about 1st Amendment constitutional protection, and it was not about a state law. In fact, if the case were about constitutional protection, or if it was about a state law, the religious objectors would have lost! That's because Scalia's "generally applicable" and "otherwise valid" standard would have applied, and the contraceptive mandate would have defeated any religious liberty objections.

Now, with that as background--the minimalist 1st Amendment constitutional protection (i.e., Scalia's opinion in Smith) and the rigorous federal statutory protection (RFRA, which does not apply to state laws)--we can better understand New York's religious liberty decisions. The only 1st Amendment constitutional protection against New York laws is Scalia's opinion in Smith. And the statutory RFRA protection--i.e., the Hobby Lobby decision--does not apply.

We'll look at those New York decisions--the Court of Appeals in Catholic Charities (2006) and the Appellate Division in last week's Roman Catholic Diocese--in the next post.

[Disclosure: Readers may be curious and deserve to know that I strongly believe in a woman's right to choose; I do not share the religious belief that human person-hood begins at conception and therefore that abortion is always wrong; but I do believe that freedom of religion and conscience are extremely vital to a free society (although I am not much of a religious believer myself) and I think that Scalia's opinion in Smith was dishonest and disgraceful and has dreadful consequences for 1st Amendment free exercise of religion.]