Legislation requiring health insurance policies that provide coverage for prescription drugs to include coverage for contraception is valid, as applied, over claims by plaintiffs, faith-based organizations, that the legislation violates the Free Exercise Clauses of the New York and U.S. Constitutions, and the Establishment Clause.
-- Catholic Charities of the Diocese of Albany v. Serio
This blog is often concerned with federal constitutional law, but as is often the case, this ruling suggests the importance of state law. This was shown in the gay marriage cases in the two states they had some success. It is shown in loads of civil and criminal cases where state law ultimately decides, often in different ways than federal law would. This too is the case in New York -- see, e.g., the death penalty (our law declared unconstitutional on state grounds), school funding pursuant to our state constitution, and now this ruling.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.
-- Article I, § 3 of the New York Constitution
The ruling was well timed given the series in the NYT on the arguable excesses of religious exemptions. The Court of Appeals (the highest court in NY) used this case to clarify state constitutional rules pursuant to its freedom of religion provision. The Court would not follow "the inflexible rule" of the Smith case, which upheld all rules of general applicability, even if they seriously burdened religious exercise. But, it held "substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation."
As noted by the ruling: "Plaintiffs challenge the validity of legislation requiring health insurance policies that provide coverage for prescription drugs to include coverage for contraception." They are basically charities employing many people not of their faith (one that finds contraceptives sinful), "churches ministering to the faithful, but [who] are providers of social and educational services." They are not forced to supply health benefits. And, the neutral law at stake (not targeted toward any religion) is very important to women's health.
The security of religious freedom at stake is not absolute. It is not to be "inconsistent with the peace or safety" of the state. This includes securing health care to lay employees of religious institutions. Also, religious freedom works both ways -- employees of this nature have their own faiths to secure, faiths that often have as strong takes on contraceptives -- the other way.
[Update: See here for more. I orginally noted that a teacher at a religious school would be a harder case, but the law's exemptions (argued to be too narrow but so limited to address the situation of faith based charities like these, also an issue in federally funded charities) come into play here: inculcation of religious values is the purpose of the entity, one that primarily employs persons who shares its religious tenets, primarily serves persons who share its religious tenets and is a nonprofit. So, it would be an "easier" case -- likely to fail.]
The final point suggests this is not the best case to clarify the outer limits of New York free exercise law, even if the ruling notes that it is stating the basic rule for lower courts to follow for the first time. The law's importance and neutrality probably would pass medium level scrutiny, while the ruling suggests rational basis with teeth: "plaintiffs' religious practices is a serious one, but 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." Compulsion is an important factor in religious cases.
Though the ruling did not rely on it too much, clearly the effects on "lay" employees should be seen as key. As it notes, "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." Things might very well be different if "ministerial" matters were directly at stake, if "the right of a church to determine who it will employ to carry out its religious mission" was clearly involved.
Thus, it noted that even though they might be neutral, laws against kosher food, male priests, or ceremonial wine [peyote?] would abuse the "discretion" noted above. Clearly, the second matter is a controversial one raising "substantial interest in fostering equality between the sexes," suggesting the importance of some special discretion for religious believers. Justice Souter noted in the Santeria case that "neutrality" is an iffy proposition when it burdens religious believers more than others. In other words, de facto favoritism should be considered.
New York decided that such a rule should only be followed up to a point. Fair enough. Justice Scalia's concerns in the Smith case have merit -- making exceptions for religious faiths from general laws can have quite troublesome results, especially when non-believers of the faith in question are directly involved. Such is the case here, making it a somewhat easy case. Any number of employee rules might raise religious flags. Surely, as here, the rule supplies an out (no health care or use of religious personnel) that leaves something to be desired, but provide some balance even when non-believers are involved.
This "substantial deference" test might be too strict in practice, time will tell, but implications that matters of direct religious import (especially as to religious exercise itself) would be secured suggests the balance made is sound. I'd add that this case necessarily reminds one of federal policies, including funding of international aid agencies, that burden contraceptive use in favor of selective moral/religious ideals. This is clearly unsound.