(Part 5) NY Chief Judge Wilson's Majority Opinions in Divided Cases

It is vital that we restore the Court

to its position of national preeminence.

--Chief Judge Rowan D. Wilson, Opening Remarks

Senate Confirmation Hearing, April 17, 2023 

 

At Columbia Law School

In previous posts in this series, we reviewed Rowan Wilson's eventual selection to sit on New York's highest court in 2016 by then-Governor Andrew Cuomo, and his nomination to be Chief Judge this past April by Governor Kathy Hochul. We then looked at a few of his dissenting opinions to get a sense of the legal principles that presumably are important enough to him to disagree publically with his colleagues, first in criminal cases and then civil. In the last post, we focused on his dissent from a particularly disconcerting decision of his Court applying its so-called "special duty" rule to reject any legal responsibility of a municipality, despite the dreadful consequences suffered by a victim because of the repeated failures of the municipality's officers.

Although we have emphasized Wilson's dissenting opinions--they are typically the most revealing about a judge--he has actually authored his fair share of majority opinions. During his tenure on the Court, he has averaged nearly eight signed opinions for the majority annually. Except for Chief Judge DiFiore, who wrote more than the others, the rest of his colleagues had virtually the same average during that period--some slightly less, some slightly more. 

So let's take a look at a few of Wilson's majority opinions. And more specifically, let's look at a few of the more revealing ones, where the Court was divided and his dissenting colleagues raised competing arguments which he necessarily rejected in favor of his own. First, a couple of Wilson's majority opinions in criminal cases:

People v Regan, Slip Op 01353 (March 16, 2023)

This is the decision for which Wilson was most vigorously criticized by Republican senators during his confirmation proceedings and which has been condemned by some sexual-assault victim advocates.

Speaking through then-Judge Wilson's majority opinion, the Court of Appeals reversed a conviction for rape and burglary on the basis of a violation of the state constitutional right to a prompt prosecution. The defendant was accused of raping the complainant in August 2009, but the prosecution waited more than four years to seek an indictment. In fact, the prosecution did not even seek a warrant to obtain the defendant's DNA until more than three years after the rape complaint. Beyond that, the prosecution, when asked, could not offer any justification for most of the delay. 

Two Judges on the Court, Michael Garcia and Madeline Singas, would have upheld the conviction. As Judge Singas put it in her lone dissenting opinion:

The People lack a credible justification for the 31–month delay in seeking a search warrant for defendant's DNA. But there is no evidence that their actions, or lack thereof, were taken in bad faith toward defendant, with the aim of prejudicing his ability to defend himself....[D]ue process does not require the drastic remedy of dismissing this case. Where the crime is of the utmost severity, defendant was not incarcerated, there was no public accusation, and defendant has shown no actual prejudice from the delay, dismissal of the accusatory instrument is unwarranted. 

Judge Wilson, writing for himself and three of his colleagues, had a different take on the state's constitutional law:

Because of the substantial delay—as to most of which the People offer no explanation whatsoever—the constitutional right to prompt prosecution, embodied in the due process clause of our state constitution, was violated. We must reverse. [Emphasis added.]

Reviewing the Court's prior decisions, Wilson noted that "we have been much more solicitous of the People when they offer even a colorable explanation for their delay." But, as he repeated several times in his opinion, "the record and the briefing in this case are devoid of any explanation for the People's delay, although the People had multiple opportunities to provide one."

Concluding his opinion, Wilson weighed the costs and, in the Court's view, the overriding benefits of the state's constitutional prompt prosecution policy:

Vacating any conviction on prompt prosecution grounds runs a genuine risk that a guilty person will not be punished, or, as in this case, not finish out his full sentence. However, vital societal interests can overcome that cost. Our jurisprudence ensures that trials are fair and accurate; it also spurs prosecutors to take crime seriously and give all parties the prompt closure they need to move on with their lives. 

The constitutional guarantee of a prompt prosecution places a burden on the state, when prosecuting crimes, to do so with alacrity... Our constitution allows for modest unexcused delays; it allows for lengthy justifiable delays. But it does not allow for lengthy unexplained or, as here, inexplicable delays caused by lethargy or ignorance of basic prosecutorial procedures. The constitutional prompt prosecution guarantee benefits defendants, victims and society at large, and it is the role of the courts to protect it. In this case, the police and prosecutors did not take defendant's constitutional rights or the complainant's sexual assault seriously; they did not act expeditiously with regard to either. [Emphasis added.]

No question, that was a tough one. For the purposes here, there are at least two salient characteristics of Wilson's position. First, as we have seen previously in his dissents in criminal cases, he vigorously supports the rights of the accused. Crime control versus due process? It's pretty clear he sides with the latter when the balance is close. Second, he adheres to New York precedent and state constitutional law where federal precedent would be less protective.

The same two patterns are apparent in the next case we review.

People v. Gordon, 36 NY3d 420 (2021)

In this search and seizure case, the police had observed incriminating drug activity inside the defendant's home. They then obtained a warrant to search “the person of [the defendant] and the entire premises.” The question before the Court arose, not from the officers' search of the defendant and his residence, but of the two cars on the property--one in the driveway and one in the backyard. 

The evidence found in the vehicles was suppressed by the trial judge. The affidavit for the warrant had made no mention of the vehicles or given any reason to believe that they were involved in criminal activity. The Appellate Division affirmed the trial court's decision.

At the Court of Appeals, the prosecution urged the Court to adopt the rule adopted in other courts, federal and state, that authority to search the premises reasonably includes searching vehicles on that property. In a 4-3 decision, the Court in Gordon rejected that rationale. The 3 dissenting Judges argued that the Supreme Court would allow a search of the vehicles and that the Court of Appeals had not previously adopted a more protective rule. 

Echoing the prosecution's reliance on the Supreme Court's decision in United States v. Ross (1982), the dissenters insisted that:

Where a search warrant authorizes the search of premises, a separate showing of probable cause is not required to search containers found on the designated premises, if the object of the search could be found therein...The [Supreme] Court broadly stated that a “lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search [and] this rule applies equally to all containers” [quoting Ross, again]...There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers...the central purpose of the Fourth Amendment forecloses such a distinction” [Ross again].

In sharp contrast, the majority opinion authored by Wilson relied on the Court of Appeals' own precedents. [I have omitted the citations in these excerpts.] As those numerous prior decisions cited throughout Wilson's opinion make clear:

The requirement that warrants must describe with particularity the places, vehicles, and persons to be searched is vital to judicial supervision of the warrant process. Warrants “interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and potential encroachments on the sanctity and privacy of the individual.” 

To further that role, our constitution assigns to the magistrate the tasks of evaluating whether probable cause exists to initiate a search and defining the subjects to be searched....The particularity requirement protects the magistrate's determination regarding the permissible scope of the search. Thus, to be valid, a search warrant must be “specific enough to leave no discretion to the executing officer.” So important is the role of the neutral and detached magistrate that we have in the past parted ways from federal constitutional jurisprudence when we believed that an emerging rule of federal constitutional law “dilute[s] ... the requirements of judicial supervision in the warrant process." [Emphasis added.] 

Among the Court of Appeals' precedents Wilson relied on were:

People v. Keta [1992] [declining to incorporate a federal rule permitting warrantless searches of business establishments in light of the paramount importance of “advance judicial oversight” under Article 1, Section 12 of the State Constitution]; P.J. Video [1986] [distinguishing federal constitutional law in part of the grounds that New York imposes a “rigorous, fact-specific standard of review ... upon the magistrate determining probable cause”].

Wilson added that, even in the absence of all those independent state precedents, the majority would still not adopt the less-protective Supreme Court jurisprudence embraced by the dissenters:

Even were we writing on a blank slate, we would not adopt the rule advocated by the People. The touchstone of the [New York] constitutional protection for privacy, under Article 1, Section 12 of the State Constitution, is whether a person has a reasonable expectation of privacy. Those expectations must at times give way to “compelling police interest[s].” Even then, the permissible “scope of a search has been carefully limited” by the requirement for probable cause and a particular description of the subjects to be searched. Those limits have not been honored in this case. [Emphasis added.]

Finally, directly addressing the dissenting opinion with Court of Appeals' precedents that stand for the opposite of what the dissenters argued, Wilson wrote:

[T]he dissent never addresses the fundamental tenets of our search warrant jurisprudence: it is the magistrate, and not the police officer, who determines the scope of the search conducted pursuant to a warrant...That determination must be based upon the factual allegations presented in the warrant application. To satisfy the constitutional requirement for particularity, the description setting forth the search must “leave no discretion to the executing officer[s].” If, as the dissent says, trafficking in drugs provides probable cause to search vehicles, the officers can set forth the results of their investigation...and make their case to the magistrate. If that proof is insufficient to convince the magistrate to authorize a search of the vehicles, allowing a search because the vehicles are located on a premises would constitute an unconstitutional bootstrapping. [Emphasis added.]

As we have seen in Wilson's other criminal law opinions, whether a dissent or a majority, he takes the rights of the accused seriously. Some, such as those Judges in the majority when he was in dissent, and vice-versa, believe he gives too little weight to the interests of law enforcement. In most criminal cases, the question is always about balancing. It has been in the criminal cases we have discussed here and previously. And these cases have shown that Wilson is less willing than others to compromise the rights of the accused in order to facilitate the interests of crime control.

Moreover, we have seen that he makes no apology for deciding constitutional issues in New York cases based on New York law and on New York Court of Appeals precedents. That may seem such an obvious role and responsibility of a state high court. But there are still those, in New York and in other states, among the judges as well as the lawyers who argue before them, that relying on independent state constitutional law should be the exception, and that applying less-protective Supreme Court case law is the default.

Of course, that unfortunately common notion is directly contrary to an axiom of our federal system of government in which states are sovereign to have their own laws and make their own decisions. The limitation--again, of course--is that they must not violate federal law. In the criminal cases we have been discussing, that simply means that a state court decision must not violate a federal constitutional right by affording less protection to the accused than the Supreme Court requires. But there is certainly no requirement whatsoever that a state court adopt a less-protective federal Supreme Court standard. 

I have spoken and written a great deal about the axiomatic right and responsibility of state courts in our federal system to engage in independent state-based decision-making. (See e.g., Supreme State Courts: Protecting Rights and Liberties Despite the Supreme Court, 85 Albany Law Review (2022).) More importantly, many years ago, the Court of Appeals itself made the point unqualifiedly clear. In People v. Barber [289 N.Y. 378 (N.Y. 1943)], rejecting the argument that it should follow a recent decision of the Supreme Court, the Court of Appeals protected religious liberty more than Supreme Court precedent required. Speaking through Chief Judge Irving Lehman, the Court of Appeals reminded advocates:

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. [Emphasis added.]

It certainly seems from these majority opinions of now-Chief Judge Wilson, as well as in his criminal law dissents that we reviewed previously, that he understands the Court of Appeals' right and responsibility "to exercise independent judgment."

In the next post, we'll look at a couple of Wilson's majority opinions in civil cases.

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.]

NY's Court of Appeals in the Era of Trump

New York's highest court must step up.

The reactionary direction in so many areas of national policy and, perhaps most especially, the effect that the two newest appointees to the Supreme Court will have on federal constitutional and statutory protections, require heightened vigilance by state high courts.

As the final arbiters of their individual state's own constitution and laws, state courts have the authority, opportunity, and obligation to independently insure that fundamental civil rights and liberties are enforced, regardless of what the federal high court does under federal law. As has often been true throughout its history, the New York Court of Appeals should take a--if not the--leadership role.

Seventy-five years ago, Chief Judge Irving Lehman made clear the role and responsibility of New York's high court:

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.

In that case, People v. Barber (1943), the Court of Appeals refused to adopt the Supreme Court's narrow view of free speech and religious liberty and, instead, did not hesitate to protect both as a matter of New York's own constitution law. Significantly, the federal Supreme Court--a mere four months later--followed the Court of Appeals' lead and overruled its prior rights-denying decision. (Murdock v. Pennsylvania [1943], overruling Jones v. Opelika [1942].)

Today's NY Court of Appeals

That sort of leadership and influence by state courts and, in particular, by the New York Court of Appeals is needed today.

Twenty years later, in People v. Donovan (1963), involving the self-incrimination privilege and the right to counsel, then-Judge Stanley Fuld reminded the government of the Court of Appeals' independent tradition and function in our federal system of dual sovereignty:

[W]e find it unnecessary to consider whether or not the Supreme Court of the United States would [rule the police conduct to be] a violation of the defendant's rights under the Federal Constitution....[T]o quote from our opinion in Waterman (9 N Y 2d, at p. 565), [the violation in this case] "contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime."

Indeed, New York's high court relied solely on New York's own constitutional protections and precedents in that case and in so many others where, in the words of Chief Judge Charles Breitel, it reaffirmed its commitment to "extend[ing] constitutional protections...under the State Constitution beyond those afforded by the Federal Constitution." People v. Hobson (1976).

That sort of willingness to be bold and independent by state courts and, in particular, by the New York Court of Appeals is needed today.

Then, throughout the tenure of Lawrence Cooke, both as Judge and eventually Chief Judge, the Court of Appeals refused to "pay[] mere lip service to the principle of due process" (People v. Isaacson [1978]). It led the country in the rigorous enforcement of constitutional protections in both civil and criminal cases as a matter of New York state law, independent of the Supreme Court's rulings under corresponding federal law. (E.g., People v. Isaacson [1978], "traditional notions of justice and fair play;" Sharrock v. Dell Buick [1978], civil due process requirements of notice and opportunity to be heard; People v. Skinner [1980], right to counsel.)

That sort of steadfast guardianship and rigorous enforcement of constitutional principles by state courts and, in particular, by the New York Court of Appeals is needed today.

Not long thereafter, when the Court seemed at risk of losing its moorings, then-Judge Judith Kaye felt compelled to remind some of her colleagues of the propriety and obligation of a state high court to render independent judgment:

[A]t some point the decisions we make must come down to judgments as to whether a particular protection is adequate or sufficient, even as to whether constitutional protections we have enjoyed in this State have in fact been diluted by subsequent decisions of a more recent Supreme Court....A state court decision that rejects Supreme Court precedent, and opts for greater safeguards as a matter of state law, does indeed establish higher constitutional standards locally. [But even] the Supreme Court as well as its individual Justices have reminded state courts not merely of their right but also of their responsibility to interpret their own constitutions.[R]ejecting Supreme Court precedents [reflects] both the role of the Supreme Court in setting minimal standards that bind courts throughout the nation, and the role of the state courts in upholding their own constitutions. (People v. Scott, concurring opinion [1992].)

Fortunately, and in large measure owing to Judith Kaye's influence and veritable tutoring on judicial federalism, the Court of Appeals exercised its independent judgment and avoided merely following lockstep with whatever the Supreme Court decided under federal law, however questionable.

Understanding and embracing the axiomatic principles of federalism, including the independent role of state courts--as emphatically restated by Judith Kaye--is needed today by state courts and, in particular, by the New York Court of Appeals.

Nevertheless, in the later years of Kaye's tenure as Chief Judge, the Court of Appeals failed to heed those principles and did lose its moorings for a spell. Consequently, during that period the Court produced some very unworthy decisions. Among them was one of the Court of Appeals most regrettable rulings in the modern era, Hernandez v. Robles (2006), rejecting the right to marry for same-sex couples.

As Chief Judge Kaye wrote in her passionate dissent, the majority's refusal to recognize marriage equality was an embarrassing break with the Court's tradition of leadership in safeguarding fundamental rights:

This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition....
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
I am confident that future generations will look back on today's decision as an unfortunate misstep.

 And, of course, Chief Judge Kaye was right. The Court's reluctance to safeguard constitutional rights to the fullest under New York law was, at the very very least, "an unfortunate misstep." Indeed, it has proven to be a quite shameful ruling. It placed the Court among the nation's most backward, callous, and timid tribunals. And it required New York's governor and legislature to protect equal rights because the Court had failed to do so.

That sort of timidity and underenforcement of the most fundamental constitutional mandates of equal treatment and due process, by a state court and by the New York Court of Appeals in particular, must be avoided today.

A few years hence, with Chief Judge Jonathan Lippman at the helm, the Court's national stature as a leader among state high courts rebounded. (Indeed, several chief justices of state courts around the country actually volunteered that to me during the time.)

The Court of Appeals once again began boldly to protect basic rights as a matter of state law, independent of how the federal Supreme Court might decide the same issues. So, for example, in People v Weaver (2009), the Court declared that the technological surveillance in question was a search requiring probable cause and a warrant. Whether federal Supreme Court doctrine--as embraced by the dissenters--would have dictated a different result was beside the point.

Writing for the majority, the Chief Judge made clear that a potentially contrary federal Supreme Court ruling was irrelevant:

What we articulate today may or may not ultimately be a separate standard. If it is, we believe the disparity would be justified. The alternative would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy and, in this modern age where criminal investigation will increasingly be conducted by sophisticated technological means, the consequent marginalization of the State Constitution and judiciary in matters crucial to safeguarding the privacy of our citizens.

Notably, three years later in U.S. v. Jones (2012), the Supreme Court--despite its narrow, rigidly, and regressively textualistic opinion by Justice Scalia--reached the same result as did the Court of Appeals. Significantly, a majority of the Justices, in separate concurring opinions, actually adopted the very same privacy analysis articulated by Chief Judge Lippman.

The sort of confident fidelity to a state court's independent role in protecting fundamental rights, as reflected in the Court of Appeals' decision in Weaver, is needed today.

The current Court of Appeals--with all its members having been appointed in recent years--is still a young court, with little institutional memory, and is seemingly still finding its way. At the least, it has not yet made its mark. It has yet to establish itself as an heir of the earlier courts, of carrying forth the historic tradition of the Court of Appeals as a force for vigorously protecting constitutional rights and liberties and fundamental fairness, and of doing so entirely independent of what the federal Supreme Court has done or might do.

Other state high courts around the country--the supreme courts of Iowa, Massachusetts, Oregon, Vermont, and Washington being among them--have been in the forefront of producing landmark rulings as a matter of independent state law. The Court of Appeals was conspicuously and uncharacteristically absent from any such list during a recent period. As previously mentioned, however, the Court subsequently regained considerable national stature while Lippman was Chief Judge.

New York Court of Appeals

It still remains to be seen where the Court of Appeals, with Chief Judge Janet DiFiore presiding, will eventually land. It remains to be seen how faithful this current Court will be to the historic tradition of bold, independent vigilance in the protection of constitutional rights and fundamental fairness. Indeed, that tradition has of late been manifesting itself primarily in the dissenting opinions--in the dissents penned by Judges decrying the majority's indifference to some injustice left unredressed.
(See the previous discussion in Dissents, Disappointments, and Open Questions, Part 1 and Part 2.)

In this era of Trump and of the federal Supreme Court he is remaking, the fundamental role and obligation of state courts and, in particular, of the New York Court of Appeals could not be more compelling. That role and obligation is to be ever mindful of the dual sovereignty of our federal system of government, and to stand as a bulwark in the protection of civil rights and liberties and basic justice, independent of regressive federal law and jurisprudence.

This is no time for timidity or indifference or passive acquiescence to injustice on the altar of some interpretive method. The Court of Appeals must step up.

Court of Appeals Nominee Rowan Wilson: Open Questions

The confirmation hearing for Governor Andrew Cuomo's latest pick for the Court of Appeals, the state's highest court, is scheduled for tomorrow, Monday, February 6, 2017. The Committee's Chair, Senator John J. Bonacic, has been conscientious, fair, well-prepared, and non-partisan in presiding over the hearings for Cuomo's previous 6 nominations.
[A far cry from the circus of partisanship and inanities that have characterized the confirmation hearings at the U.S. Senate for Supreme Court nominees.]

Nevertheless, given the mere one hour set aside for the Wilson hearing, it would seem extremely difficult for the Committee to get any real insight into the kind of Judge that Rowan Wilson might be. At the very least--the very very least--it would be good to know what his views are about the judicial role, especially that of a judge on a state's high court and, specifically, on the New York Court of Appeals. Indeed, to know how much thought he has given to that.

There are different views on those matters. In fact, conflicting views. And those different, conflicting views result in very different, conflicting modes of decision-making and, in turn, different, conflicting decisions.

Beyond that, some of the views often espoused about the judicial role, and often declared by judicial nominees, are...to be kind...pure nonsense. Most notably, for example, that judges don't or shouldn't make law. Whether we call it law or rule or policy or precedent or some other name, the unquestionable, irrefutable truth is that judges, especially on high courts such as the U.S. Supreme Court and the NY Court of Appeals, make law.

They necessarily do so because the very cases they decide present unresolved issues of law, conflicting laws, competing "interpretations" of the law, legitimate legal arguments on both sides, etc. The judges must choose between the possibilities and, in doing so, they set precedent--i.e., a law (or rule or policy or whatever the palatable name)--that henceforth governs all the cases that follow and the actions of the other branches.

The great judges in our history all recognized and acknowledged that judges necessarily make law. Cardozo didn't even think it a question! As he once put it: "I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life." Holmes, Frankfurter, and other greats of American law were also explicit on that point.
[Contrast that with--I'm trying to be kind--the pure nonsense we recently heard from President Trump's nominee to the Supreme Court: "It is the role of judges to apply, not alter, the work of the people’s representatives."
There would, of course, be no landmarks in American law if the great justices of the past adhered to that view. Every single landmark that Americans cherish did exactly the opposite of what Trump's nominee espoused.]

But to focus specifically on the nominee for New York's high court, we must do so realizing that there seems little in Rowan Wilson's public background that provides a good sense of his views about the judicial role or, even more specifically, of his view of the role of the Court of Appeals. At least 2 basic questions come to mind. The first is about judicial philosophy or, at its most elemental, how should a judge make decisions? The second is about the Court of Appeals. In particular, how should a judge on New York's high court decide cases in light of the Court's position in our federal system of government, and as the final arbiter of the state's law?

Rowan Wilson has no previous judicial experience. That is not in itself any problem. (See The No Judicial Experience Bugaboo.) But it does mean that he has no judicial track record. In fact, he has no record as a government official. So, unless he reveals as much at the confirmation hearing--volunteering it or responding to inquiries--we will not know much about Rowan Wilson that is really essential to knowing what kind of a Judge he may be.

JUDICIAL PHILOSOPHY
Does Rowan Wilson believe in "originalism?"
Does he believe that constitutional provisions and statutes should be limited to their specific meaning at the time of their enactment--and only that?
So, "equal protection" was originally intended to protect the newly freed Black slaves. It was NOT intended to protect women, let alone gays or non-marital children or anyone else, and it should be applied in accordance with that original intention. [Yes, that is what originalists like Justice Scalia believed.]
Moreover, as for Blacks, it was NOT intended to prohibit racial segregation. Separate but equal was fine.
Also, free speech would not include "sedition" [as in the Alien and Sedition Laws] or blasphemy or casual vulgarity.
And as for "cruel and unusual" punishments, the 8th Amendment was only intended to forbid burning at the stake, dismemberment, and the like. But gratuitously painful punishments were not themselves prohibited.
Etc.
Or does he believe in a "living Constitution" and laws?
Does he believe that specific original intentions should give way to more contemporary views about the same concepts?
Hence, "equal protection" should be extended to prohibit discrimination based on gender and birth and sexual orientation, etc?
"Equal protection" should also be construed to prohibit racial segregation?
And "cruel and unusual" should be construed to prohibit all punishments considered barbaric in today's civilized society--not just crucifixion, etc?

Does Rowan Wilson believe in "textualism" or "strict construction?"
Does he believe that constitutional provisions and statutes mean only what is explicit?
So, there is no right to privacy, or right to choose, or right to know your rights before being interrogated, or right to have a lawyer if you can't afford one when you're being prosecuted? None of those are explicit.
Likewise, there is no right to get married or be intimate with your spouse or even kiss your spouse, or right to be a parent, or right to raise your children or even play with them, or right to have a friend, or right to join a group with friends, etc., etc., etc. Not explicit.
And, because the 14th Amendment (which is the provision that guarantees "due process" against state violation) does not mention free speech, or religious freedom, or search and seizure, or right to counsel, or any other right in the Bill of Rights, does that mean that those rights should not be protected against state governments?
So too, because the Constitution protects free "speech," does that mean that only actual speaking is protected, but not any other forms of peaceful expression?
Etc.
Or does he believe that it is the underlying principles that should be protected?
Does he believe that the overarching principles and purposes of constitutional and statutory provisions should be given effect?
Hence, fundamental rights--those that are implicit in the concept of "ordered liberty" [to use Cardozo's eternal phrase] and the essential ingredients of being free--are protected by the Constitution's guarantee of "liberty," whether or not such rights are specifically mentioned.
That, of course, would also include the most intimate and private choices in one's personal and familial life, which are nowhere mentioned in the Constitution.
Similarly, rights such as free speech are to be construed to include more than just talking, the right to counsel more than being able to have a lawyer but only if you can afford one, a fair trial to include (the unmentioned) proof beyond a reasonable doubt, and "cruel and unusual" to also include punishments that are grossly excessive.
Etc.

Does Rowan Wilson believe that the judiciary should defer to the other branches?
Does he believe that the courts should approve whatever the executive and legislative branches do, except when clearly unconstitutional?
So if there is a legitimate question about the validity of legislation or of executive action, the courts should approve what the other branches have done; they should not interfere unless the other branches did something that is unquestionably invalid.
Accordingly, judicial interpretation and application of the law should mirror what the other branches have done, unless their actions are entirely irreconcilable with constitutional and other legal requirements.
Or does he believe that the judiciary should give constitutional rights and other commands their fullest possible effect?
Does he believe that the judiciary's interpretation and application of constitutional rights should be independent of what the other branches believe or have done? Independent of what the other branches prefer or what is popular?
So that constitutional rights and commands are vigorously enforced.
So that intrusions on constitutional rights and commands are only tolerated when justified by the most compelling government and societal needs.

These are among the most important questions for a nominee to a high court. At the very least, they are questions that a judicial nominee ought to have thought about. And they are questions that go to the very heart of a judge's role--answers to which those who confirm a nominee ought to be satisfied.

Then there is the nominee's view and understanding of the role of a state's high court and, specifically, of the Court of Appeals itself. Additionally, the nominee's knowledge of the historic landmarks of the Court, and of the body of case law that constitutes the Court of Appeals' jurisprudence. Briefly, for example:

How familiar is Rowan Wilson with the Court's landmark decisions and the jurisprudence that they underscore?
Is he familiar with the Court's precedents in areas as fundamental as free speech and press, right to counsel and search and seizure, due process and personal privacy, and so many others?
That these precedents are separate, independent, and different from those of the Supreme Court?
That these precedents form the foundation of much of Court of Appeals--and therefore New York--jurisprudence?
That these landmarks are a large part of the reason that the Court of Appeals has historically been one of the nation's finest and most influential courts?

How familiar is Rowan Wilson with the Court's tradition of independent state decision-making? What are his views about it?
Is he familiar with the Court of Appeals' tradition of protecting constitutional rights and liberties independent of U.S. Supreme Court decisions?

That the Court's historic protection of constitutional rights and liberties, separate from and beyond Supreme Court precedents, has proceeded under the Court's view of its responsibility to independently construe the state's law?

That when confronted with arguments based on Supreme Court precedents, many of the Court's greatest Judges were explicit in stressing the Court of Appeals' duty of independent adjudication.

As Chief Judge Lehman put it over 70 years ago, when the Court disregarded Supreme Court precedent to the contrary:

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. (People v. Barber, 1943)

Lehman's successors--including Chief Judges Fuld, Breitel, Cooke, Kaye, and Lippman--all echoed the same.

Is Rowan Wilson familiar with that traditional concept of the Court of Appeals' independent duty?

Is he aware that this "judicial federalism" is recognized and practiced by most of the nation's finest state high courts and, in fact, repeatedly affirmed by the Supreme Court itself as a basic attribute of our federal system of government?

Is he aware that the Court of Appeals has historically been a national leader in independent decision-making?

All of these foregoing matters are crucial to the work of a judge on a high court--whether the supreme court of a state or of the United States. And more specifically, they are crucial to the work of a Judge on New York's Court of Appeals.

I wish we had Rowan Wilson's answers to these questions and had some sense of his views on the judicial role, on judicial decision-making, and on the role of the Court of Appeals. I do wish him well and, if I had to guess, I think he will do very well on the high court.

Based on his education, experience and achievements, he certainly seems to be more than capable of being a very fine Judge. But without some answers to the questions I've raised, it's really anybody's guess what kind of Judge he'll be.

Religious Liberty vs. Abortion Coverage Mandate (Part 2)

As discussed in Part 1, the Catholic Diocese of Albany, together with other religious organizations, has filed suit challenging a New York State regulation that mandates abortion coverage in employee health insurance policies. These organizations object to the mandate because it requires them to violate one of the most fundamental tenets of their religion or moral conscience. They argue that applying the mandate to them violates their constitutional right to free exercise of religion.

As also discussed, any 1st Amendment protection for religious freedom is minimal under current Supreme Court case law. In Oregon v. Smith (1990), the controlling federal precedent [which happened to involve a Native American religion], the Court shocked religious liberty scholars by holding that “any otherwise valid law” defeats free exercise of religion. Then, when Congress enacted RFRA (the Religious Freedom Restoration Act) to overrule the Smith decision and to restore the heightened protection for religious liberty that earlier landmarks had required, the Supreme Court in City of Boerne v. Flores (1997) held that RFRA could not be applied to state laws.

With that as a backdrop, New York’s highest court, the Court of Appeals, dismissed religious objections to the state’s contraceptive mandate for employee health policies. In Catholic Charities v. Serio (2006), the Court denied the request for an exemption sought by organizations with religious and moral objections to contraception. But the Court did not do so on the ground that the state had some very important reason that actually necessitated applying the mandate to the religious objectors. No. Instead, the Court explicitly rejected the so-called “compelling interest”/”strict scrutiny” test, just like the Supreme Court had done in Smith.

What the New York court did do was to adopt an extremely low level of protection for religious freedom. The Court held that, as a matter of the state’s constitutional law, the guarantee of free exercise of religion protects objectors whose religious freedom is being infringed only when they, the religious objectors, can prove that the "interference with religious practice is unreasonable, and therefore requires an exemption.”

Since the Catholic Charities decision is the controlling precedent in New York, and thus will govern the newly filed Catholic Diocese litigation (unless, of course, it is overruled or “distinguished”), let’s take a closer look.

To begin with, the rule applied in Catholic Charities—regardless of one’s favorable or unfavorable view of it--is a drastic reversal of traditional constitutional principles. The reversal is as drastic as the rule the Supreme Court adopted in Smith. It is the opposite of what the rules are for other fundamental constitutional rights.

Whether free speech, free press, racial equal protection, parental rights, or some other fundamental right is being infringed, basic constitutional law places the burden on the government to prove that the infringement is justified. More than that, basic constitutional law demands that the justification for the infringement be “compelling.” (The terms “paramount” and “overriding” are used as well.) But under the rule applied by the Court of Appeals in Catholic Charities, the justification for interfering with religious freedom need only be reasonable. And the religious objector bears the burden of proving that it isn’t.

Consequently, when the Supreme Court’s and the Court of Appeals’ decisions are combined, the result is precious little protection for free exercise of religion under either federal or state constitutional law. Assuming the Supreme Court does not overrule its Smith decision any time soon, [although there does seem to be support among some of the Justices to return to the earlier more protective 1st Amendment landmarks,] religious objectors in New York courts, such as those who have brought the Catholic Diocese litigation, must confront the state constitutional rule set forth by the Court of Appeals in Catholic Charities.

On its face, that Catholic Charities rule subordinates free exercise of religion to any law that interferes with it—unless that interference is proven to be “unreasonable.” Not surprisingly, when the Court of Appeals applied that [abysmally low and rather amorphous] standard for "protecting" religious liberty in that case, it had little difficulty rejecting the religious objectors’ challenge to the state’s contraceptive coverage mandate.

Of course there is nothing particularly unreasonable about a law generally requiring contraceptive coverage in health insurance. Of course there is nothing particularly unreasonable about applying that requirement to all employers. Of course there is nothing particularly unreasonable about the state government insuring contraceptive coverage in an expeditious manner. Of course there is nothing particularly unreasonable about state government wishing to avoid the administrative inefficiencies and complications of determining qualification for exemptions.

On the other hand, a perfectly workable accommodation for religious objectors might have been available in the Catholic Charities case. Protecting religious freedom and yet still insuring the availability of contraceptive coverage for employees who want it might well have been entirely feasible. [The Supreme Court concluded exactly that in its 2014 Hobby Lobby decision, requiring an exemption for religious objectors to the Obamacare contraceptive mandate. Of course, as previously noted, that Supreme Court ruling was based on the federal RFRA statute which does not apply to state laws.]

But the feasibility of accommodating religious objectors seemed irrelevant to the Court of Appeals' decision in Catholic Charities. The focus was on the legitimate legislative policy behind contraceptive coverage generally. The Court actually made light of the religious objections to paying for contraceptive coverage and, thus, gave little consideration to available accommodations.

So, in applying the Catholic Charities rule to the newly filed Catholic Diocese litigation, the religious liberty question is whether the abortion coverage mandate, as applied to those who view abortion as gravely violative of their most fundamental religious beliefs and moral conscience, is an "interference with religious practice [that] is unreasonable.” And the burden is on the religious objectors to prove that it is.

But here’s the question, about that question: what exactly did the Court of Appeals mean by “unreasonable" interference? That was not made clear in the slightest in the Catholic Charities decision. Was the Court referring to the law that creates the interference, or to the interference itself? And if that's not clear--which it isn't--then what about the factors that are relevant in determining “unreasonable" interference? Who knows?

Is the centrality or criticality of the religious tenet in question a factor? So, for example, does it make a difference that abortion is involved in the Catholic Diocese litigation rather than contraception? That what is involved is the objectors' most fundamental religious belief in the sanctity of human life and that abortion is the equivalent or akin to killing a human being?

Along similar lines, is the relative importance of the competing interests at stake a factor? So, for example, religious liberty versus the universal (or near universal) availability of abortion coverage? And more specifically, religious objection to subsidizing abortion, which is believed to be the same as or akin to killing a human being, versus the societal benefit of widespread affordable access to abortion through insurance coverage?

What about the actual need to interfere with religious freedom, or the lack thereof--a factor? So, for example, does it make a difference if religious objectors to the abortion mandate can readily be accommodated? That is, if some alternative to providing abortion coverage for the employees of religious objectors can be readily devised?

Is the degree or directness of the interference with religious free exercise a factor? So, for example, requiring religious objectors to pay for abortion coverage would constitute a greater intrusion than requiring them simply to notify employees that there are alternate means for obtaining it. On the other hand, requiring religious objectors to pay for health insurance that happens to include abortion coverage would constitute a lesser intrusion than actually requiring them to perform or assist or accommodate abortion.

And so forth and so on. A list of possible factors would be very long. But the Court of Appeals in Catholic Charities gave little guidance other than repeating the terms “unreasonable" and "interference.” And that standard is capable of morphing into just about anything the Court might choose in future cases.

Indeed, the Court in Catholic Charities did seem to understand exactly that. It seemed fully aware--or at least some members of the Court seemed concerned--that the standard as stated was somewhat amorphous and entirely susceptible of variously conflicting interpretations. In fact, the Court injected into its opinion a list of certain intrusions on free exercise of religion that, in its view, would amount to “unreasonable" interference. Here’s what the Court said:

“‘[A] requirement that all witnesses must testify to facts within their knowledge bearing on a criminal prosecution . . . if applied without exception, could abrogate the confidentiality of the confessional. Similarly, a general prohibition of alcohol consumption could make the Christian sacrament of communion illegal, uniform regulation of meat preparation could put kosher slaughterhouses out of business, and prohibitions of discrimination on the basis of sex or marital status could end the male celibate priesthood.’ We find these hypothetical laws to be well beyond the bounds of constitutional acceptability.” [Quoting Michael V. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review (1990).]

But the Court gave no explanation as to why those laws would amount to “unreasonable" interference. In fact, most of the laws identified are themselves perfectly reasonable. Requiring witnesses to testify? Health and animal cruelty regulations on slaughtering? Restricting alcoholic beverage service to regulated establishments?

Each of those laws serves legitimate government interests. None of them targets a religion. Any interference with a religion would be purely incidental to the general health, safety, and welfare purposes of those laws. Nevertheless, the Court insisted that applying such laws to religious objectors would be unconstitutional. And yet, no explanation was given.

The "unreasonable" interference standard is even less clear than that. Recall that the complete standard speaks of  "interference with religious practice [that] is unreasonable." Did the Court mean to say that the protection for religious liberty--whatever the "unreasonable" standard might mean--applies only to religiously required conduct, but not religious beliefs?

Did the Court use the term "practice" deliberately to mean that religious ceremonies, rituals, and other exercises could be protected, but not religious convictions, tenets, or conscience? So, e.g., the Catholic Mass, Jewish bris, and Jehovah Witness door-to-door proselytizing might receive protection from generally applicable laws; but belief that abortion is murder, that work should not be done on the Sabbath, or that the Bible is the word of God are not entitled to any accommodation. Is that what the Court meant to signify by its reference to "practice?"

In short, there seems to be quite a bit unsettled in the "interference with religious practice [that] is unreasonable" standard. That would seem to allow considerable wiggle room and discretion in its application. [That’s just a nicer way of saying that the Catholic Charities rule is cryptic and amorphous.] Future cases will give lower courts, and ultimately the Court of Appeals, the opportunity to refine its meaning. 

Perhaps the Catholic Diocese litigation, with the religious objectors seeking an exemption from New York's abortion coverage mandate, will prove to be just the right opportunity. And hopefully, any refinement will take religious objections more seriously, and will breathe some renewed life into the protection for the fundamental constitutional right to free exercise of religion.

[Disclosure: Again, I am pro-choice. But I am also pro-religious liberty, which I view as a bedrock of a free society. I have provided some assistance in the preparation of the complaint in the newly filed Catholic Diocese litigation, and I provided some assistance as well on the side of the religious objectors in the Catholic Charities case. Any services I’ve provided have been entirely pro-bono.]