The encroachment of antidiscrimination laws on civil liberties has become so commonplace that new examples of the phenomenon usually elicit yawns. But even the jaded may find their breath taken away by Monday’s stunning decision of the California supreme court holding that Catholic Charities could be compelled to violate Catholic doctrine by offering its employees insurance coverage for contraceptive products.
The case, Catholic Charities of Sacramento, Inc., v. Superior Court of Sacramento County, tested the constitutionality of the Women’s Contraception Equity Act (WCEA), a law that requires California employers to provide coverage for contraceptives as part of a health-insurance package. The California legislature had found that ten percent of health plans did not offer such coverage, and attributed this deficiency to discrimination against women. WCEA was intended to remedy this discrimination.
WCEA exempted “religious employers” from its coverage. Catholic Charities, however, did not meet the statutory definition of “religious employer” because it offers social services to the general public as part of a religious mission, rather than trying to directly inculcate religious values. Catholic Charities claimed that WCEA’s failure to exempt it violated the free-exercise clauses of the United States and California constitutions.
In a 6-1 decision, the California supreme court disagreed, giving short shrift to Catholic Charities’s constitutional claims. The court relied on the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith for the proposition that sincerely held religious objections “do not excuse compliance with otherwise valid laws regulating matters the state is otherwise free to regulate.”
Justice Janice Brown, nominated by President Bush to the federal D.C. Circuit Court of Appeals, wrote the masterful dissent. She noted that Smith applied directly only to individual religious claimants, not to the religious conduct of religious organizations. Religious organizations are clearly entitled to an exemption from government regulation when they are engaged in “ministerial” activities central to their religious mission. One could hardly imagine, for example, that the government could force the Catholic Church to hire female priests without violating the Church’s free-exercise rights.
Indeed, the California legislature exempted churches from WCEA, implicitly acknowledging that church activities are constitutionally protected from government regulation. However, WCEA was drafted to ensure it covered Catholic Charities and other religious social-service agencies. By failing to exempt Catholic Charities from WCEA, the legislature implicitly determined that ministering to the poor is not central to Catholicism, a conclusion the Church itself would undoubtedly dispute.
It is hardly consistent with either the free-exercise clause or the American tradition of the separation of church and state for the government to be determining which parts of the Catholic Church are sufficiently “religious” to deserve exemption from antidiscrimination laws. As Brown put it, the government has no business “pars[ing] a bona fide religious organization into ’secular’ and religious’ components solely to impose burdens on the secular potion.”
The only remaining question, then, is whether the government’s infringement of Catholic Charities’ free-exercise rights can be justified by the government’s “compelling interest” in eradicating invidious discrimination against women. Brown concedes this compelling interest, but doubts that “the desire to force conformity on a single employer that objects to contraception on religious grounds” is also a compelling state interest. Brown rejects the view that this case involves invidious discrimination. Catholic Charities does not discriminate in refusing to cover contraception because of an animus against women. Rather, Catholic teaching opposes all “unnatural” forms of birth control, whether for men or women, whether prescription, over-the-counter, surgical, mechanical, or oral.
“In the whole scheme of things,” Brown concludes, “the risk associated with allowing government to impose a stifling orthodoxy in pursuit of the good society may greatly outweigh the small harm of tolerating heterodoxy in this circumstance.”
Unfortunately, Justice Brown is swimming against the tide, and not just in California. Several federal courts have rejected free-exercise defenses claimed by conservative church schools sued for sex discrimination by teachers fired for getting pregnant out of wedlock. Similarly, religious universities have been required under antidiscrimination principles to extend full recognition and funding to gay-rights organizations that advocate ideas contrary to the universities’ religious missions.
With antidiscrimination laws consistently running roughshod over freedom of religion, it is time that Justice Brown’s judicial colleagues pay her concluding thought in Catholic Charities some heed: “Equality is one of those words, like justice, like freedom, which no one is against. But the invocation of the ‘equality’ often reduces analysis to empty platitudes. It is important to remember that in America we seek equality because it is a concomitant of freedom.”
–David E. Bernstein is a professor of law at George Mason University and the author of You Can’t Say That! The Growing Threat to Civil Liberties from Anti-Discrimination Laws.