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Confine & Conquer
The California supreme court and religious freedom.


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Earlier this week, the supreme court of California announced that “Catholic Charities of Sacramento,” although an “organ of the Roman Catholic Church,” is not a “religious employer.” Accordingly, that organization is required by California law to include prescription contraceptives in its employees’ health-insurance plans, notwithstanding its claim and religious conviction that “it cannot offer insurance for prescription contraceptives without improperly facilitating…sin.”

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Given recent decisions and developments, the court’s ruling in Catholic Charities of Sacramento, Inc., v. Superior Court of Sacramento County comes as no surprise. It is no less regrettable, though, and should be no less troubling, for being predictable. Indeed, Professor Douglas Laycock–one of the nation’s leading constitutional-law scholars–has observed that the decision is a “shocking interference with internal church affairs.” It presents, in the words of Justice Janice Rogers Brown, the court’s lone dissenter, “an intentional, purposeful intrusion into a religious organization’s expression of its religious tenets and sense of mission.” The Catholic Charities case is not just another effort to navigate what Justice Brown called the “whimsical and somewhat erratic path” of religious-freedom jurisprudence. Rather, it involves an effort by government to define–and, thereby, to confine–the nature and scope of religious belief, obligation, and faith.

California’s “Women’s Contraception Equity Act” was enacted, the court reported, to “eliminate gender discrimination in health care benefits and to improve access to prescription contraceptives.” Under the act, “certain health and disability insurance contracts must cover prescription contraceptives.” However, “religious employers” are exempt from the law’s requirements, and are permitted to exclude coverage for “contraceptive methods that are contrary to [their] religious tenets.” The scope of this exemption is quite narrow: Under the act, a “religious employer” is an entity (1) whose “purpose” is “the inculcation of religious values”; (2) that “primarily employs persons who share [its] religious tenets”; (3) that “serves primarily persons who share [those tenets]“; and (4) that qualifies as a “church” under a particular section of the federal tax laws.

The problem for Catholic Charities–which describes itself as “operated in connection with the Roman Catholic Bishop of Sacramento” and its work as “part of the social-justice ministry of the Roman Catholic Church”–is that, by its own admission, it meets none of these criteria. Its “corporate purpose…is not the direct inculcation of religious values,” but rather “to offer social services to the general public that promote a just, compassionate society that supports the dignity of individuals and families[.]” It “does not primarily employ persons who share its Roman Catholic religious beliefs.” It “serves persons of all faith backgrounds.” And, for federal-tax purposes, Catholic Charities is a “nonprofit organization,” not a church.

Unwilling to avoid the act’s contraception-related mandates by denying its employees prescription-drug coverage altogether–after all, “an employer has a moral obligation at all times to consider the well-being of its employees and to offer just wages and benefits”–Catholic Charities challenged the law as a violation of the religious-freedom provisions of both the United States and California constitutions.

The opinions in the case are complex and detailed. Unraveling and evaluating the court’s interpretation and application of the relevant precedents and principles are tasks that should keep legal scholars busy for months to come. In a nutshell: Catholic Charities argued that the act infringes its free-exercise rights, by requiring it to violate Catholic teaching on contraception and complicity, and also that the law impermissibly interferes with the “autonomy of religious organizations.” The supreme court of California rejected these arguments. As the justices observed, the United States Supreme Court announced more than a decade ago, in Employment Division v. Smith, that the First Amendment’s free-exercise guarantee “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,’” simply because “the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Put differently, that the act burdens the religious beliefs or regulates the religiously motivated practices of Catholic Charities does not make the law unconstitutional, because the act’s requirements “apply neutrally and generally to all employers, regardless of religious affiliation, except to those few who satisfy the statute’s strict requirements for exemption on religious grounds.”

The court also rejected Catholic Charities’ argument that the act–and, more specifically, the “religious employer” exemption’s criteria–unconstitutionally interferes with “matters of religious doctrine and internal church governance.” In the justices’ view, “[t]his case does not implicate internal church governance; it implicates the relationship between a nonprofit public benefit corporation and its employees most of whom do not belong to the Catholic Church.” “Certainly,” they conceded, “the [act] conflicts with Catholic Charities’ religious beliefs, but this does not mean the Legislature has decided a religious question.” As for the complaint that the “religious employer” exemption hinged on a distinction between the “inculcation of religious values” and Catholic Charities’ social-justice work–a distinction that government is neither permitted nor qualified to draw–the court stated that “legislative accommodations [of religion] would be impossible as a practical matter if the government were…forbidden to distinguish between religious entities and activities that are entitled to accommodation and the secular entities and activities that are not.”

Many more things can and no doubt will be said both about the majority’s analysis and Justice Brown’s powerful, eloquent dissent. For example, it is noteworthy that the justices refused to decide whether California’s own constitution provides greater free-exercise protection to believers, and imposes more exacting restraints on government, than does the First Amendment to the United States Constitution. (In their view, the act would satisfy even the “strict scrutiny” proposed by Catholic Charities, because it serves a “compelling interest” in “eliminating gender discrimination” and is “narrowly tailored” to that end). Nor did the majority engage Justice Brown on the “fundamental” question whether and how the Smith decision applies to religious organizations, as opposed to individuals. And, the court may have too quickly dismissed Catholic Charities’ allegations–which enjoy some support in the act’s legislative history–that the exemption for “religious employers” was drafted specifically to exclude Catholic hospitals and social-service agencies, that some legislators were motivated by impatience with Catholic teaching on contraception, and that California had “deliberately intervened in a conflict within the Catholic Church on the side of those who disagree with the Church’s teachings on contraception.”

But perhaps the most provocative and unsettling feature of the California law–and of the majority’s constitutional defense of it–is the distinction that it both presumes and polices between “the inculcation of religious values” and (mere?) works of mercy. Justice Kennard confessed, in a short concurring opinion, “I have serious doubt that the First Amendment…allows California to limit its religious employer exemption to religious entities that have as their purpose the inculcation of religious values, denying that exemption to religious entities…that are organized for the purpose of feeding the hungry, caring for the sick, and providing shelter to the homeless.” As well she should. The court’s opinion, in Justice Brown’s words, begs a crucial question: “may the government determine which parts of bona fide religious organizations are religious and which parts are secular…in order to infringe the religious freedom of that portion of the organization the government characterizes as secular?” Justice David Souter’s concerns–expressed in Lee v. Weisman, a Supreme Court case about prayers at graduation–seem applicable here: “I can hardly imagine,” he observed, “a subject less amenable to the competence of [government officials], or more deliberately to be avoided where possible,” than “comparative theology.”

The problem with the distinction that the act presumes is not simply that state actors are incompetent to draw and administer it. More fundamentally, we should worry that, by determining for its own purposes the meaning and significance of religious organizations’ work, and by allocating burdens and benefits on the basis of state-crafted distinctions between “religious” and “secular” activities, the government can subtly but powerfully reshape and domesticate the content and challenge of faith. As Justice Brown put it, through the act, “the government is not accidentally or incidentally interfering with religious practice; it is doing so willfully by making a judgment about what is or is not religious.” In a sense, the act’s “religious employer” exemption’s criteria reflect, and reinforce, a controversial, sectarian, privatized notion of what religion is, and what religious communities do: Religion is about belief and values, not service, sacrifice, and engagement. By requiring, as a condition of participation in public life, that Catholic Charities acquiesce to this notion, California is not only taking sides in an irreducibly religious debate about human sexuality. It also, in Justice Brown’s words, “impoverish[es] our political discourse and imperil[s] the foundations of liberal democracy.”

Richard W. Garnett is an associate professor at Notre Dame’s law school.



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