New York's Highest Court Adopts Mystery Scrutiny as the Test Under the State Constitution's Free Exercise Clause:

Catholic Charities v. Serio, decided today, rejects both Sherbert/Yoder strict scrutiny and Smith rational basis scrutiny in religious exemption cases, and instead says:

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.... [T]he principle stated by the United States Supreme Court in Smith — that citizens are not excused by the Free Exercise Clause from complying with generally applicable and neutral laws, even ones offensive to their religious tenets — should be the usual, though not the invariable, rule....

[But] a rule that the Constitution never requires a religious exemption from generally applicable laws could lead to results plainly inconsistent with basic ideas of religious freedom: "Under the no-exemptions view . . . religious believers and institutions cannot challenge facially neutral legislation, no matter what effect it may have on their ability or freedom to practice their religious faith. Thus, 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." [Quoting then-Professor, now-Judge Michael McConnell.]

We find these hypothetical laws to be well beyond the bounds of constitutional acceptability. And we by no means exclude the possibility that, even in much less extreme cases, parties claiming an exemption from generally applicable and neutral laws will be able to show that the state has interfered unreasonably with their right to practice their religion.

The court then went on to conclude that in this case — which involved religious charities' objection to a law mandating that employers who provide prescription drug coverage include contraceptives — no exception was required, because of a mix of factors, including that "[though t]he burden the [law] places on plaintiffs' religious practices is a serious one, [the law] does not literally compel them to purchase contraceptive coverage for their employees, in violation of their religious beliefs; it only requires that policies that provide prescription drug coverage include coverage for contraceptives," that "[t]he employment relationship is a frequent subject of legislation, and when a religious organization chooses to hire non-believers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit," and that "the State [has a] substantial interest in fostering equality between the sexes, and in providing women with better health care."

I generally think such a free-form, case-by-case decisionmaking process is indeed suitable — in fact, commonplace — when done as part of a common-law-making process, and would be proper for the legislature to authorize. Some state RFRAs could be read as effectively authorizing such a process (though, as I argue here, their use of the language of strict scrutiny poses some problems). Under the RFRAs, courts make decisions about exemptions considering (as with the making of the common law of torts, property, contracts, and the like) a wide range of factors; and then legislatures may revise those decisions if they think the various factors ultimately point in the other direction.

Where constitutional decisionmaking is considered, such a free-form approach strikes me as more troublesome; but it's hard to tell for sure until we get some better sense of how courts end up applying it. Sounds like New York is on the threshold of what could be an interesting religious accommodation experiment.

Thanks to How Appealing for the pointer.

Of the formulating of "tests" in this area there is no end, but I have yet to be convinced that such tests, including the much-maligned Lemon test, have much to do with actual outcomes.
10.19.2006 6:53pm
Fern R (mail) (www):
Is that what this new level of scrutiny is called? Mystery scrutiny? All these various levels of scrutiny make the Constitution almost incomprehensible to anyone without some sort of post-secondary legal training. I wish the courts would just pick one level of scrutiny (preferably anything other than rational basis) and apply it across the board.
10.19.2006 9:20pm
logicnazi (mail) (www):
While as a matter of policy I tend to agree that well formulated tests are to be prefered, if for no other reason than to limit the ability of rogue judges to twist cases to their preference, I would argue that a historical understanding of the constitution favors exactly the common law approach you describe.

Given that the model of judicial deciscion making the founders were familiar with was the common law case by case analysis that you describe doesn't it seem reasonable that this is the sort of model that the constitution implicitly provides for judicial interpratation?

Just because I know it is going to come up yes I realize that the framers did not consider the enforcement of the constitution to rest wholly with the judiciary but neither, I would submit, do we now. If the 9 justices got together and declared themselves supreme rulers for life or literaly tried to fabricate law (say imposed a tax on fruit and demanded it be used to pay their salaries) we would expect the other branches to abide by the constitution and ignore these rulings (packing the bench if necessery). It seems totally consistant with the Framer's intent to allow judges to decide which law prevails when two come into conflict, which is exactly what happens when an unconstitutional law is passed by the legislature.
10.19.2006 9:44pm
There is great danger, in such a subjective regime, of judges approving exemptions only for religious beliefs they happen to like, from laws they happen to dislike.

This particular result may reflect that. Or it may not. We'll really don't have any way of knowing.
10.19.2006 11:25pm
Houston Lawyer:
My understanding is that the vast majority of female contraceptives are very cheap, that is below $5.00 per month. The typical co-pay on prescriptions is $20.00 per subscription. So it seems that the law was enacted more as a political gesture than to satisfy some real need.

I guess Catholic Charities is now free to stop providing any health insurance coverage for its employees.
10.20.2006 11:56am
Cardozo Student:
I'm going to have to ask Judge Smith about this case next week in class.
10.20.2006 2:43pm
tioedong (mail) (www):
This is not an isolated case, you know...As a doc, I hate to tell you that this has little to do with contraceptive coverage (Which is quite cheap) and everything to do with an agenda that aims to undermine Catholic morality.

You see, for the last twenty years there have been court cases and now there are state laws state forcing Catholic hospitals to perform sterilizations and give both contraceptive and abortifactant medicines.

In the medical field, historically many smaller towns had no hospitals so arranged nuns to start one...and often it is the only place in town. I once applied to one hospital in Montana(in the 1980's) that was fighting an order to do sterilizations as the only hospital...nowadays, the "threat" of Catholic morality is spreading due to mergers between other private hospitals and Catholic ones, with the Catholics demanding that their institutions/the joint institutions refrain from procedures forbidden by Catholic law.

The progressive/feminist groups are active in opposing this...thru courts and now thru state laws... However, such militancy might backfire, as one state found out when a law threatened to force Catholic hospitals that take public money to either do procedures (it was either abortions or sterilizations) against Catholic morality, one Cardinal said fine, he'd shut all the Catholic hospitals down first..

And in this case, I suspect the end result if the bishop has guts is to stop paying for prescription drug coverage of any sort.

The fight used to be about sterilizations and abortion in Catholic hospitals, but these procedures are now done as out patient procedures. So the fight has shifted to the "morning after pill"...which doesn't work very well anyway, but states are mandating the docs give it out in Catholic E.R.'s for "rape victims" (as a woman doc I have seen a lot of these women: most women who come into the ER asking for the morning after pill were too lazy to put on a condom, not raped...and Yes, I see "real" rape, and do use the medicine... but did you know that over half the time sex is incomplete in rape...and most could easily get the pill elsewhere.

However, waiting in the wings is euthanasia, so expect the court cases to continue and get nastier with time.(Some HMO's in Oregon covered "physician assisted suicide" drugs, but poorly funded end of life care when the law was passed...I believe things are now better, but it made me think).

So, this is not really about contraceptive coverage, but about denying a private institution permission to think and act differently than the state decides what is politically correct.

And by the way, since when does the states interest in mandating "equality of the sexes" mean to make women into male eunuchs? Essentially they are saying that it is in the state's interest to mandate women not conceive, in the name of equality? Or did I read this wrong?
10.22.2006 5:23am