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.