Amicus Curiae Brief — Gonzales v. O Centro Espírita Beneficente União Do Vegetal

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| FILED

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No. 04-1084 3!

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IN THE | SUPREME COUR? Uo.

SUPREME COURT OF THE UNITED STATES

October Term, 2005

a ® ‘

ALBERTO R. GONZALES, Attorney General

of the United States, ef al,

Petitioners,

Vv.

O CENTRO ESPIRITA BENEFICIENTE

UNIAO DO VEGETAL, et al.,

Respondents

= , — _

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

ee

BRIEF OF THE UNITED STATES

CONFERENCE OF CATHOLIC BISHOPS

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

ee ee

MARK E. CHOPKO*

General Counsel

JEFFREY HUNTER MOON

Solicitor

UNITED STATES CONFERENCE

OF CATHOLIC BISHOPS

3211 Fourth Street, N.E.

Washington, DC 20017

(202) 541-3300

September 9, 2005 = *Counsel of Record

TABLE OF C NTS

PAGE

TABLE OF AUTHORITIES ..........ccccccccosssecssccscesscesscsessoesscees ii

INTEREST OF AMICUS CURIAE ..000.......cccccecccccesceeseeeeseeees l

SUMMARY OF ARGUMENT ....00.........cccccceccccesseeeeeeeeceeeeeees 2

TE ciletacidiihactaiciicsiiesinsinsvicininartesiintniaiensdinannaniiepiniaimnieceaine 4

I. The Underlying Deficiencies of Smith,

and their Impact on the Instant Case. ..................:.cccceseeee 5

Il. Jurisprudential Confusion Regarding Institutional

Free Exercise Rights Must Be Resolved by

Requiring Application of a Rigorous and

Individualized Compelling Interest Test......................... 13

III. In a Heavily Regulated Society,

Religious Institutions Are Increasingly

Subject to Government Requirements

Contrary to their Religious Principles....................... 18

eT iairnictinncsscsicdtistenninnsirenitanttigninmactnmninniiblamteindeietn 29

TABLE OF AUTHORITI

PAGE

CASES

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).......... 16

Bowen v. Roy, 476 U.S. 693 (1986)................0006 7,9

Bryce v. Episcopal Church in the Diocese of Colorado,

289 F.3d 648 (10" Cir. 2002)... seule 15

Cantwell v. Connecticut, 310 U.S. 296 (1940)................ 8, 26

Catholic Charities of Albany, et al.. v. Serio,

Docket No. 96221 (N.Y. App.)(pending)..................6: 28

Catholic Charities of Maine, Inc. v. City of Portland,

304 F.Supp. 2d 77 (D. Me. 2004)................. cece ees 28

Catholic Charities of Sacramento, Inc. v. Superior Court

for the State of California, 85 P.3d 67 (Ca.), cert. den.,

U.S. , 125 S. Ct. 53 (2004)... ceeeeee coceeees passim

Church of the Lukumi Babalu Aye v. Hialeah,

SOB U.S. FBO (BDGTS)...c000000000csecsccscessssssssnennsnnsnnnenes AEE

Combs v. Central Texas Annual Conference of the

United Methodist Church, 173 F.3d 343 (5" Cir. 1999).. 15

Cooper v. Eugene School District No. 4J,

(FF OEE 19

TABLE OF AUTHORITIES

. PAGE

CASES

Corporation of Presiding Bishop v. Amos,

EE 17, 25

County of Allegheny v. ACLU, 492 U.S. 573 (1989)..... 20, 21

Cutter v. Wilkinson, US. _, 125 S. Ct. 2113

SE iniasnnannadEniebensccesccesoceoocecoeccooces 12, 20

EEOC v. Townley Engineering, 859 F.2d 610

St 6

Employment Div. v. Smith, 494 U.S. 872 (1990)....... passim

cee ee OU Cit, am afd,

aT 26

Everson v. Board of Education, 330 U.S.1 (1941)..... 5, 17, 18

Gillette v. United States, 401 U.S. 437, (1971) ............. 14

Goldman v. Weinberger, 475 U.S. 503 (1986)........... 10, 20

Hernandez v. Commissioner, 490 U.S. 680 (1989)... 10

Hobbie v. Unemployment Appeals Comm. of Florida,

ae 10

Hurley v. Irish-American Gay, Lesbian &

Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). 16

Iv

TABLE OF AUTHORITIES

PAGE

CASES

Illinois ex rel. McCollum v. Board ad Education, 333

U.S. 203 (1948)... sacaumeatitismednuniiniuiniaasioe 18

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). passim

Kiryas Joel v. Grumet, 512 U.S. 687 (1994)............. 21

Lee v. Weisman, 505 U.S. 577 (1992)..........00200020000 7

Lemon v. Kurtzman, 403 U.S. 602 (1971).................. 25

Li v. Gonzales, F.3d , 2005 WL

RE 27

Locke v. Davey, 540 U.S. 712 (2004)....-.s--ee000. 9, 10

Lynch v. Donnelly, 465 U.S. 668 (1984)............000++++ 12

Lyng v. Northwest Indian Cemetery

Protective Association, 485 U.S. 439 (1988)........... 9

Marsh v. Chambers, 463 U.S. 783 (1983)...........-..+- 12

McDaniel v. Paty, 435 U.S. 618 (1978)...............+4+. 9

Mockaitis v. Harclerode, 104 F.3d 1522 (9" Cir. 1997) 8,9

Niemotko v. State of Maryland, 340 U.S. 268 (1951)....... 27

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) 17

TABLE OF AUTHORITIES

PAGE

CASES

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...... 10

Presbyterian Church in the United States v.

Mary Elizabeth Blue Hull Mem. Presbyterian

Church, 393 U.S. 440 (1969)..00 0.0... c cece cc ecececeeeeees 14

Prince v. Massachusetts, 321 F.2d 158 (1944)................. 18

Roberts v. United States Jaycees, 468 U.S. 609

re cviiepevsincmiatbiinaniaiainlabiinantdiadiaiemniiiaiiinsih alien iia 15, 16

Serbian Eastern Orthodox Diocese v. Milivojevich,

Re NE I nF 14

Sherbert v. Verner, 374 U.S. 398 (1963).................. 9,18

South Jersey Catholic School Teachers

Organization v.St. Teresa of the Infant

Jesus Church Elementary School, 696 A.2d

State of California, ex rel. Bill Lockyer, et al. v.

United States of America, et al., Civil Action

No. C-05-00328 JSW (N.D. Ca.\(pending)................... 28

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)........ 12

Thomas v. Review Board, 450 U.S. 707 (1981)............ 13

vi

T E 0

CASES

Tony & Susie Alamo Found. v. Secretary of Labor,

Fe Cea Se dcenccccnmnnsenidantniecisnnnnessenets

University of Great Falls v. National Labor

Relations Board, 278 F.3d 1335 (D.C. Cir. 2002)......

Walz v. Tax Commission of City of New York,

Pe tt cnnencseninesisenasentnnerennenesents

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872).......

West Virginia Board of Education v. Barnette,

es ctentinsccnienmneninenininanisinnsenenne

Wisconsin v. Yoder, 406 U.S. 205 (1972)............

Zorach v. Clauson, 343 U.S. 306 (1952).............

STATUTES AND REGULATIONS

American Indian Religious Freedom Act,

42 U.S.C. §1996a (2000)............ececeeeeceeeceeeeeeeee

Controlled Substances Act,

ae ee HA cetnccischucnesesensncsninsininccnnt

Consolidated Appropriations Act, 2005,

Pub. L. No. 108-447, 118 Stat. 2809

~_ 5

—e

27

vii

Religious Freedom Restoration Act of 1993,

42 U.S.C. §2000bb, ef 8g... 0. oo. oe cee ee cee cee cee eee es = PASSION

es St ianinicnnsnnsinsnntsigenenntninianteatens 20

28 U.S.C. §6033(aK 2A) i) ...... 2... eceeeeceee eee ee 22

28 U.S.C. §6033(aK 2AM ili). .... 2.2.2... cece eee 22

Cal. Health and Safety Code

SEIDEN sndinnciinnadindntieemeeddnadandoaniaenineneitt 22

EE nncsctantecsmtncinsncesieieseimennbieneiin 22

Cal. Health and Safety Code

PTE iccbinenssndnndiensnepeasininesinebegeiniotes 27

Cal. Ins. Code

IT cncescuntsinincceiieniainatiiiateiieiinds 22

EP ipdiciicnsnadnasenienssnpineiaiieiabiainnines 22

Hawaii Rev. Stat.

EI EE cccccensscscsvesecsnensnapiensedbitnises 23

IP ecnntesriscntcrcnternigannnaitantiinte 23

215 Ill. Comp. Stat. 5/3562.4................0.eeeeeee 25

745 Ill. Comp. Stat. 70/1, ef seq.................0.+ | 25

De 8 19

OTHER AUTHORITIES/MISCELLANEOUS

Brady, Kathleen, Religious Organizations

and Free Exercise: The Surprising Lessons

of Smith, 2004 B.Y.U.L. Rev. 1633...............+6. 13

Vili

Brant, Irving, James Madison:

The Virginia Revolutionist (1941).................. 20000005 5,17

Brief of Amici Curiae The Tort Claimants’

ESLER Cr oe on eee LAE SO OO 12

Chopko, Mark E., Shaping the Church,

53 Cath. ULL. Rev. 125, (2003).......c00..scceeeeee 29

Hamburger, Phillip, //liberal Liberalism: Liberal

Theology, Anti-Catholicism, and Church Property

12 J. Contemp. Legal Issues 693 (2002). .......... 29

Jefferson, Thomas, 19 The Writings

of Thomas Jefferson (Memorial ed., 1904)................ 18

Protecting Religious Freedom After Boerne

v. Flores: Hearing Before the Subcomm. on

the Constitution of the House Comm. on the

Judiciary, 105" Cong. (July 14, 1997) (statement

of Mark E. Chopko, General Counsel,

United States Catholic Conference)......................... 6

Testimony in Support of Proposed

Legislative Solutions to Employment

Division v. Smith and City of Boerne

v. Flores: Hearing Before the Subcomm.

on the Constitution of the House Comm.

on the Judiciary, 105" Cong. (March 26, 1998)

(statement of Mark E. Chopko, General Counsel,

United States Catholic Conference)...,............000000+ 6

Madison, James, [X Writings of

James Madison (Hunt, ed., 1904).......................000ee 18

Pe en

ix

McConnell, Michael W., Accommodation

of Religion, 1985 Sup. Ct. Rev. 1.................0ce cece eee 11

McConnell, Michael W., The Origins and Historical

Understanding of Free Exercise of Religion,

103 Harv. L. Rev. 1409 (1990).................. cece cee ences 12

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2005

No. 04-1084

a8 |

ALBERTO R. GONZALES, Attorney General

of the United States, et ai.,

Petitioners,

v.

O CENTRO ESPIRITA BENEFICIENTE

UNIAO DO VEGETAL, et ai.,

Respondents

e

BRIEF OF THE UNITED STATES

CONFERENCE OF CATHOLIC BISHOPS

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

_

INTEREST OF AMICUS CURIAE

The United States Conference of Catholic Bishops

(“USCCB”) is a nonprofit corporation, the members of which

are the active Catholic Bishops of the United States.’ USCCB

advocates and promotes the pastoral teachings of the U.S.

Catholic Bishops in such diverse areas of the nation’s life as the

free expression of ideas, fair employment and equal opportunity

for the underprivileged, protection of the rights of parents and

children, the sanctity of life, and the importance of education.

Values of particular importance to the Conference are the

protection of the First Amendment rights of religious

' Pursuant to Supreme Court Rule 37.6, counsel for amicus state that they

authored this brief, in whole, and no person or entity other than the amicus

made a monetary contribution toward the preparation or submission of this

brief. All parties have consented to the filing of this brief. Letters of consent

are filed herewith.

2

organizations and their adherents, and the proper development

of this Court’s jurisprudence in that regard.

The consequences of the Court’s opinion in Employment

Division v. Smith, 494 U.S. 872 (1990), are varied and severe

for religious organizations. The demands of government

regulators collide with the practice of religion and the prospects

for accommodations improve in inverse proportion to the

strength of interest group politics. In point of fact the Religious

Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq., provides

important relief for religious organizations that find that

religious doctrine which does not reflect the cultural norm is

often treated with disdain in the legislature. Smith widened the

door to such treatment by removing the chances of meaningful

judicial review. It deserves further attention by the Court.

SUMMARY OF ARGUMENT

The adverse consequences of Employment Division v.

Smith, 494 U.S. 872 (1990), are deep and numerous for religion.

Casting aside a history and tradition of affirmative protection

for religious freedom, the ruling in Smith makes the Free

Exercise Clause a mere nondiscrimination rule, relegating the

protection of religion to the political process. In so doing, Smith

particularly disserved the interests of religious organizations,

which often require accommodation to be able to act

consistently with religious principles in a heavily regulated

society such as ours. This is vividly illustrated in this case, in

which the government’s fundamental position is that once the

legislature has decided that a substance belongs on one of the

schedules of the Controlled Substances Act, 21 U.S.C. §§ 801-

904, the Religious Freedom Restoration Act becomes a virtual

“dead letter”.

The UDV’s posture in this matter is the archetypal

situation where increased protection for religious exercise is

3

called for. No personal, subjective claim of a right to be

exempted from the general criminal laws, or to use hoasca tea

other than as part of a religious sacrament, is at issue. Rather,

the question is whether this religion’s right to administer its

sacraments during its religious services will be tested by

application of the compelling interest test Congress decided

would apply under the Religious Freedom Restoration Act. We

submit that institutional problems are a different subset of issues

than individualized claims for exemption. They are less

numerous but affect far more people. And the conflict with

well-established religious principles is often clear and

unequivocal.

Many of the same kinds of challenges faced by UDV

here are common to other religious organizations and activities

around the country. As detailed below, regulators believe they

can force religious hospitals to perform abortions, charities to

pay for insurance covering medical procedures they consider

sinful, and agencies to prove their governmentally-measured

religiosity. Religious entities are confronting a governmental

orthodoxy that assumes the power to coerce these entities to

subsidize conduct they teach is sinful. All are the result of

putatively neutral laws and all are intensely intrusive into the

very center of these organizations’ religious being.

“The long, unedifying history of the contest between the

secular state and the church is replete with instances of attempts

by civil government to exert pressure upon religious authority.”

Kedroff v. St. : icholas Cathedral, 344 U.S. 94, 124-25 (1952)

(Frankfurter, J., concurring). Justice Frankfurter’s observation

has greater impact since this Court’s ruling in Employment

Division v. Smith. By removing the preexisting balancing of

religious objections to government regulation, and ignoring the

difference be*ween objections based on constitutionally

protected religious principle and those based on simple personal

preference, the Court has opened the door to greater

4

governmental invasion of the very precincts and practices of

religious institutions. The Religious Freedom Restoration Act,

whose construction is at issue in the case at bar, is one attempt

to balance regulatory intrusions into religion, against the real

needs of the State. But the real source of the difficulty which

the Act attempts to remedy is Smith itself. In this brief the

Conference calls the Court’s attention to ways in which Smith

has been used to expand the authority of government at the

expense of religious principles. Although the Court is called

upon here only to construe the Act, plainly the conflicts

traceable to Smith will continue to fester until this Court restores

balance to the law affecting the rights of religious institutions in

a free society.

ARGUMENT

The instant case exemplifies the inevitable conflicts that

arise when the demands of religious conscience and belief, and

the demands of the state to regulate society, clash. The issue

becomes particularly significant where the government’s actions

do not merely have an incidental or unintentional effect on

religious practice, but rather where the government has

explicitly proscribed that which religion, equally explicitly,

prescribes. The Court in Employment Division v. Smith ruled

that such conflicts, unless discriminatory in some way, are no

longer remediable under the Free Exercise Clause. The result

has been the opening of regulatory doors to all sorts of new

initiatives that impair the legitimate rights of religious entities to

order their activities according to religious principles. Rather

than serving as an avenue of protection for religious

organizations (especially minority religions, in number or

philosophy), the Free Exercise Clause now seems largely

subject to the political process, a result which the Smith majority

candidly observed leaves those same minorities at a “relative

disadvantage.” Compare West Virginia Board of Education v.

5

Barnette, 319 U.S. 624, 638 (1943), with Smith, 494 U.S. at

890.

In policing the line between the appropriate precincts of

religion and the state, the pre-Smith jurisprudence supplied a

useful balancing test that recognized the affirmative protections

that the Free Exercise Clause — the “fundamental freedom” —

accorded to religion, and at the same time recognized that there

were situations where the government could take steps to

protect the populace from serious harm even if religious practice

was impinged upon. Smith abandoned a balancing test in which

the demands of the State could be evaluated in a way that

reflected the affirmative mandate of the Free Exercise Clause.

RFRA’s function was to revive that test, and in so doing is vital

to the protection of religious liberty. The current conflict over

the meaning and effect of RFRA is the logical result, in large

measure, of problems created by the decision in Smith.

Uncertainties about the reach of this Court’s law on institutional

religious freedom and its connection to Smith warrant attention

by this Court.

I. The Underlying Deficiencies of Smith, and Their

Impact on the Instant Case.

The Smith majority effectively reduced Free Exercise

jurisprudence, which had previously shown a benevolent

neutrality towards religious exercise, to a “one size fits all” rule

that no constitutionally cognizable injury to religious exercise

can occur from the imposition of a generally applicable, neutral

rule, no matter its impact. Smith, 494 U.S. at 878. It validates

putatively neutral regulation that unjustly has an impact on

? Everson v. Board of Education, 330 U.S. 1, 43 n.13 (1947) (Rutledge, J.,

dissenting (quoting Irving Brant, James Madison: The Virginia

Revolutionist 243 (1941))).

6

religion, and deprives religious exercise of an effective remedy.

While the pre-Smith law was not without flaw,’ there was a

hurdle to be surmounted before a state could prevent conduct

motivated by religion, in the form of the compelling interest

test. RFRA and similar measures are important tools for

religious organizations in their dialogue with, and when

necessary resistance to, government regulators.‘

Smith, on the other hand, permits regulators to mandate

conformity to particular political or cultural ideals even where a

religious accommodation would not cause grave harm to the

body politic. It allows the regulatory state to hide the anti-

religious effects of, or motives for, official actions. It removed

* Judge Noonan’s opinion in EEOC v. Townley Engineering 859 F.2d 610,

622-5 (9* Cir. 1988) (Noonan J., dissenting) catalogued the ways in which

religion had lost these encounters with the State. After RFRA, religion

prevailed to a greater extent than many thought. Protecting Religious

Freedom After Boerne v. Flores: Hearing Before the Subcomm. on the

Constitution of the House Comm. on the Judiciary, 105* Cong. (July 14,

1997) (statement of Mark E. Chopko, General Counsel, United States

Catholic Conference), found at http:/judiciary.house.gov/legacy/222307 htm

(last visited on August 31, 2005).

“Although much has been said about the litigation potential of RFRA, the

real power of the Religious Freedom Restoration Act, I believe, lay in its use

in negotiation and persuasion in numerous local and administrative disputes

across the country. The ability to have some legal basis on which religious

persons and organizations could depend as a starting point in negot.ations

was an enormous benefit in continuing to give life to our tradition that,

although our practices are diverse and plural, our devotion to the protection

of religious liberty remains singular and supreme. RFRA gave religious

people and their organizations the right to insist that accommodation, not

conformity, be the norm.” Testimony in Support of Proposed Legislative

Solutions to Employment Division v. Smith and City of Boerne v. Flores:

Hearing Before the Subcomm. on the Constitution of the House Comm. on

the Judiciary, 105" Cong. (March 26, 1998) (statement of Mark E. Chopko,

General Counsel, United States Catholic Conference), found at

http:/judiciary house.gov/legacy/222353.htm (last visited August 31, 2005).

7

a check upon government behavior that had previously provided

religion with a substantive test to which challenged government

actions could be put, which had offered hope for relief when

even “neutral” policies interfered with religious principles.

Religion is deeply personal, and religious belief varies

widely. In a United States becoming more religiously diverse,

there is a legitimate concern about the myriad and competing

demands placed on government. C/ Bowen v. Roy, 476 U.S.

693, 699 (1986) (plurality) (no right to insist that government

policies accord with religious belief). This concern is made

more difficult to balance because religion is not something that

can be or has been relegated to the realm of the purely personal.

Belief begets conduct reflecting that belief, and religious

believers joined with others into faith communities have the

right to practice what they preach through those communities.

Both private beliefs and organized, public, religious

activities are protected by the Religion Clauses.’ Writing for

four dissenting Justices in Lee v. Weisman, 505 U.S. 577, 633

(1992), Justice Scalia dismissed the notion that our Constitution

“restricts ‘preservation and transmission of religious beliefs . .

to the private sphere””. He identified a number of organized

public religious activities that have occurred throughout our

*“Wisconsin . . . argues that ‘actions’, even though religiously grounded, are

outside the protection of the First Amendment. But our decisions have

rejected the idea that religiously grounded conduct is always outside the

protection of the Free Exercise Clause .. . . [T]o agree that religiously

grounded conduct must often be subject to the broad police powers of the

state is not to deny that there are areas of conduct protected by the Free

Exercise Clause of the First Amendment and thus beyond the power of the

state to control, even under regulations of general applicability... . A

regulation neutral on its face may, in its application, nonetheless offend the

constitutional requirement for government neutrality if it unduly burdens the

free exercise of religion”. Wisconsin v. Yoder, 406 U.S. 205, 219-20 (1972).

8

history, and have been upheld by the Court’s own decisions. /d.

at 633-36. “Church and state would not be such a difficult

subject if religion were . . . some purely personal avocation that

can be indulged entirely in secret . . . in the privacy of one’s

room.” Jd. at 645. But it is not, which is why legal protection

for religious expression is important.

A Free Exercise Clause that ngorously protects religion

only when singled out for adverse treatment is an eviscerated

right, even if a protected one. Cantwell v. Connecticut, 310

U.S. 296, 303 (1940). Cantwell exempted religious exercise

from a rule which prohibited solicitation of funds for religious,

charitable or philanthropic causes unless approved by a state

authority. The statute did not purport to regulate religious belief

or proselytism, and on its face only prevented unlicensed

solicitations and applied to all fundraising for every religious,

charitable or philanthropic cause. It appears “neutral” and

“generally applicable”. But the Court decided that “to condition

the solicitation of aid for the perpetuation of religious views or

systems upon a license, the grant of which rests in the exercise

of a determination by state authority as to what is a religious

cause, is to lay a forbidden burden upon the exercise of liberty

protected by the Constitution”. Cantwell, 310 U.S at 307. The

Cantwell Court allowed the state only to “define and punish

specific conduct . . . constituting a clear and present danger to a

substantial interest of the State”. /d .at 311. The Smith rule

would permit a different result in Cantwell.°

The circumstances of Mockaitis v. Harcleroad, 104 F.3d

* As Smith noted, 494 US. at 881, Cantwell’s claim also involved Free

Speech issues. The Cantwell majority does not treat the issues separately but

effectively borrows the Free Speech rubric and applies it to religious

intolerance but tyranny. Cantwell, 310 U.S. at 310.

9 |

1522 (9™ Cir. 1997), exemplify this point. There, a District

Attorney caused a suspect’s sacramental confession to a priest,

while in jail, to be tape-recorded and transcribed for use in the

investigation, and presumably for use at trial. After

unsuccessful litigation in the State courts, a federal challenge

was filed. The Ninth Circuit held that the taping of the

confession violated RFRA and that use of the least restrictive

means to advance a compelling government interest had not

been shown. It remanded with directions to enter declaratory

and injunctive relief. Mockaitis, 104 F.3d at 1530-31. But for

the application of RFRA’s compelling interest test, the state

would have succeeded in violating not only the suspect’s, but

also the priest’s and the Church’s, free exercise rights based on

its policy that all jailhouse exchanges were uniformly taped for

investigative reasons having no relation to religion. /d. at 1525.

been subject to vigorous Free Exercise review under the

compelling interest test. In Wisconsin v. Yoder, 406 U.S. 205

(1972), the Court decided that even Wisconsin’s undoubted

interest in furthering the education of children did not outweigh

the interest of Amish parents in exercising their religious beliefs

against the public schooling of children beyond the eighth

grade. The Court in Yoder applied the compelling interest test

developed, in Sherbert v. Verner, 374 U.S. 398 (1963), in the

context of a denial of unemployment benefits due to a

religiously-based refusal by a Seventh-day Adventist to accept

Saturday work. See also McDaniel v. Paty, 435 U.S. 618, 628

(1978).” As described by the Court in Locke v. Davey, 540

” Before the Smith decision, the Court's determination not to apply the

compelling interest test in Free Exercise cases had been limited to those

narrow circumstances like Bowen v. Roy, 476 U.S. 693 (1986), and Lyng v.

Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988),

where plaintiffs argued that the Free Exercise Clause “require{s] the

government itself to behave in ways that the individual believes will further

his or her spiritual development . . . [and] require[s] the Government to

10

U.S. 712, 720 (2004), criminal sanctions are a substantial

burden. Indeed, as Justice O'Connor pointed out in her

concurrence in Smith, the imposition of criminal sanctions for

religiously motivated conduct “burdens that individual’s free

exercise of religion in the severest manner possible, for it results

in the choice to the individual of either abandoning his religious

principle or facing criminal prosecution”. Smith, 494 U.S. at

898 (O’Connor, J., concurringemphasis supplied). This is a

particularly draconian consequence where, as here, it is the very

core of the UDV religion, the participation in its central

sacrament, that UDV faithful must forego to comply with the

Controlled Substance Act, and that the church itself may not

pursue.

It was for this reason, among others, that Justice

O’Connor in Smith rejected the same substantive argument the

government makes in the instant case. The government argues

that it may penalize UDV, not as a result of any individualized

assessment of the facts and circumstances presented in this case,

but because Congress included a substance vital to the UDV

religion in a general statute. Justice O’Connor wrote that:

the sounder approach — the approach more consistent

with our role as judges to decide each case on its

individual merits — is to apply this test in each case to

determine whether the burden on the specific plaintiffs

conduct its own internal affairs in ways that comport with the religious

beliefs” of particular litigants, an argument the Court rejected. Bowen, 476

U.S. at 699. And in certain other cases, like Goldman v. Weinberger, 475

U.S. 503 (1986), and O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), the

government was found to be entitled to a more deferential standard of review

because the military and prisons were administered and tightly regulated by

the government. These were exceptions, not the rule, as the

contemporaneous and subsequent application of a compelling interest Free

Exercise test shows. Hobbie v. Unemployment Appeals Comm. of Florida,

480 U.S. 136 (1987); Hernandez v. Commissioner, 490 U.S. 680 (1989)...

11

before us is constitutionally significant and whether the

particular criminal interest asserted by the State before

us is compelling. Even if, as an empirical matter, a

government’s criminal laws might usually serve a

compelling interest in health, safety or public order, the

First Amendment at least requires a case-by-case

determination of the question, sensitive to the facts of

each particular claim.

Smith, 494 U.S. at 899 (O’Connor, J., concurring) (emphasis

supplied). This is because religion is, in our constitutional

framework, a preferred value, and affirmatively protected by the

Free Exercise Clause," and a specific and particularized

assessment of the claimed governmental interests weighed

against the religious burden on the plaintiffs should be required

before interference with a religious practice.

If it were a sufficient answer to say, as the majority

suggests in Smith, that all citizens are equally subject to criminal

laws and so minority religions are simply unavoidably

disfavored by the law and have no recourse, then in substance

the Free Exercise Clause can no longer be seen as preserving

religious liberty at all, but rather as imposing simple majority

rule. Under Smith — and as the government argues here — the

courts will no longer examine particular burdens on religious

exercises imposed on particular litigants by particular

government rules, and then decide on a case-by-case basis

which are legitimate. It abdicates that role to the judgment of

legisl wr tains Oe ion of politically or

religiously powerless minorities from majoritarian control.

As the instant case demonstrates, even when the

legislature has acted, as in RFRA, to protect religious ious exercise.

ty ten McConnell, Accommodation of Religion, 1985 Sup. Ct.

12

that very legislative action is ignored or devalued, or subjected

to unwarranted attack.” In addition, there are limits to the very

legislative process that the majority in Smith outlines as the

“preferred” alternative to litigation. While the recent decision in

Cutter v. Wilkinson, _ U.S. __, 125 S.Ct. 2113 (2005), does

clarify the law somewhat, the line between a_ valid

accommodation and an invalid preference is not clear, and every

legislative exemption still has to be defended against

Establishment Clause challenges. Texas Monthly, Inc. v.

Bullock, 489 U.S. 1 (1989). As Justice Souter wrote, genuine

substantive neutrality, “in addition to demanding a secular

object, would generally require government to accommodate

religious differences by excepting religious practices from

formally neutral laws”. Church of the Lukumi Babalu Aye v.

Hialeah, 508 U.S. 520, 562 (1993) (Souter, J., concurring).

This Court has consistently stated it depends on history

for guidance in interpreting constitutional text, especially the

Religion Clauses. Lynch v. Donnelly, 465 U.S. 668, 673-78

(1984); Marsh v. Chambers, 463 U.S. 783, 786-92 (1983). But

the majority opinion in Smith ignored history and tradition in

reconstructing the Free Exercise Clause. In The Origins and

Historical Understanding of Free Exercise of Religion, 103

Harv. L. Rev. 1409 (1990), then-Professor, now Judge, Michael

McConnell demonstrates that anecdotal, documentary,

legislative, and judicial history point to one overarching theme

of the Religion Clauses: in a clash between the dictates of

conscience and the dictates of government, the religious

conscience is to be given the benefit of every doubt. History

and tradition show that when legislatures burden religion, the

judiciary must be empowered to provide relief. /d.

But in Smith, a bare majority apparently reduced the Free

* See, Brief of Amici Curiae The Tort Claimants’ Committee, ef ai.,

previously filed herein.

13

Exercise Clause to “no more than an antidiscrimination

principle”. Lukumi, 508 U.S. at 578 (Blackmun, J., concurring).

This shift makes it easier for courts, legislators, and executives

simply to ignore sincere religious claims in particular cases, as

the government argues it is entitled to do in the instant case.

Under Smith, religion, long thought the “First Freedom,” is

treated “like everything else.” Smith is bad law and bad policy,

and should be reconsidered.

Il. Jurisprudential Confusion Regarding Institutional

Free Exercise Rights Must Be Resolved By

Requiring Application of a Rigorous and

Individualized Compelling Interest Test.

The Free Exercise Clause promises that religion is free

to “flourish according to the zeal of its adherents and the appeal

of its dogma.” Zorach v. Clauson, 343 U.S. 306, 313 (1952).

An overwhelming majority of this Court has stated that “the

Free Exercise Clause. . ., by its terms, gives special protection to

the exercise of religion,” not merely to belief in a vacuum.

Thomas v. Review Board, 450 U.S. 707, 713 (1981) (emphasis

added). In Smith, this Court recognized the special needs of

religious institutions, citing favorably to major opinions in

which the Free Exercise rights of religious institutions were

recognized and protected.'° This case involves institutional, not

just individual, concerns, and may be thought of as a clash

between the law and the ability of a religion to practice what it

preaches in its own institutions.

The facts of Smith presented whether an individual,

based on his own religious preferences, could simply decide for

himself what laws to comply with, “in effect to permit every

citizen to become a law unto himself”. Smith, 494 U.S. at 879

'° Scholars argue that Smith should properly be read to affirm the rights of

religious organizations. Kathleen Brady, Religious Organizations and Free

Exercise: The Surprising Lessons of Smith, 2004 B.Y.U.L. Rev. 1633.

: 14

(citation omitted). The Smith majority also feared that

recognizing individual, personalized objections to generally

applicable laws would mean that there would be no standards by

which various and different religious objections to a legal

requirement could be distinguished. /d. at 880. Cf Gillette v.

United States, 401 U.S. 437, 457-8 (1971). These manifestly

are not the same questions as whether religious institutions are

protected in the exercise of their religious principles and choice

of sacraments, by the application of a rigorous compelling

interest test. The Free Exercise Clause “prohibits misuse of

secular government programs ‘to impede the observance of one

or all religions * * * even though the burden may be

characterized as being only indirect.” /d. at 462 (internal

citation omitted).

The Smith Court’s analysis begins, however, 494 U.S. at

877, with approving reference to the very line of cases that

clearly protects the autonomy of religious organizations, Kedroff

v. St. Nicholas Cathedral, 344 U.S. 94 (1952), Presbyterian

Church in the United States v. Mary Elizabeth Blue Hull Mem.

Presbyterian Church, 393 U.S. 440 (1969), and Serbian Eastern

Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). In

Kedroff, for example, \« Court protected the right of a church

to decide for itself questions of church governance as well as

those of religious doctrine, based on the Free Exercise Clause.

Kedroff, 344 U.S. at 115-16. This same “spirit of freedom for

religious organizations, especially in matters of faith and

doctrine,” is nourished here by the lower courts’ decisions that

the government’s burder on UDV would be tested by a

“compelling interest” standard pursuant to RFRA.

One of the seminal cases in American jurisprudence

relating to religious organization, Watson v. Jones, 80 U.S. (13

Wall.) 679 (1872), protects a religious denomination’s liberty to

conduct and structure itself in accord with its own religious

principles “free from the invasion of the civil authority”.

15

Watson, 80 U.S. at 730. Religious organizations themselves,

not just individuals, have Free Exercise rights that are secured

from governmental intrusion.

This recognition of group religious rights and the interest

in protecting even religious conduct perceived to be out of step

with the political or cultural mainstream from “suppression by

the majority” is precisely what application of an individualized

and rigorous compelling interest test here promoted, and is

conversely what the government’s position rejects. The

government suggests that once the categorical decision to place

a substance on Schedule | has been made, then all religious

expression involving its use can be suppressed. The subsequent

Congressional decision to protect religious conduct by putting

the government to its proof under RFRA is effectively nullified

by the substance’s Schedule | status.

Numerous courts interpreting Smith have explained that

it “does not undermine the principles of the church autonomy

doctrine”. Bryce v. Episcopal Church in the Diocese of

Colorado, 289 F.3d 648, 656 (10" Cir. 2002); Combs v. Central

Texas Annual Conference of the United Methodist Church, 173

F.3d 343, 348-50 (5™ Cir. 1999) (describing Smith as oriented to

'' In Smith, the Court not only cited favorably to a long line of institutional

autonomy cases, but also made reference to other cases recognizing a

constitutional right to pursue organizational goals, end among others,

religious goals. Roberts v. United States Jaycees, 468 U.S. 609 (1984).

Smith, 494 U.S. at 882. “According protection to collective efforts on behalf

of shared goals is especially important in preserving political and cultural

diversity and in shielding dissident expression from suppression by the

majority . . . Consequently, we have long understood as implicit in the right

to engage in activities protected by the First Amendment a corresponding

right to associate with others in pursuit of a wide variety of political, social,

SS Roberts, 468 U.S. at

16

individual violator’s claims for exception from laws, not

directed to a church’s institutional Free Exercise rights). But

even the law here is ambiguous: some courts tend to view

institutional claims as worthy of protection only in two narrow

sets of circumstances, those involving conflicting views of

doctrine or claims by ministers against churches, leaving aside

that the regulatory arena creates the greatest impact on religious

belief as practiced through religious institutions. Compare,

Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67,

77-80 (Ca. 2004), with id. at 99-102 (Brown, J. dissenting).

Churches and other religious organizations seem caught in the

“intolerable tension in free-exercise law” which Smith has

created. Lukumi, 508 U.S. at 574 (Souter, J., concurring in part

and concurring in the judgment).

While institutions are constitutionally entitled to decide

their values and beliefs, whether they can act in accordance with

them on whether and how Government regulates those

actions.” In relation to religious institutions specifically, this

right is a necessary counterpart to individual Free Exercise

rights since religious worship typically involves group activity

and individuals depend upon their churches, temples, and other

religious entities to provide the framework for the religious

activity, rituals, and sacraments of their belief system.’

'? The right of private organizations to determine their own mission and

purpose, to decide who they are, and be that and not something else, has

repeatedly been sustained by the Court in analogous First Amendment

settings. Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Hurley v.

Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S.

557 (1995).

* See also discussion of Roberts, supra note 11. Whether the institutional

right is the sum of the individuals’ rights or something entirely different may

depend on one’s ecclesiology and theology. It would not be correct,

necessarily, to presume that if no individual rights are violated, that ends the

inquiry. But see Tony and Susan Alamo Found. v. Secretary of Labor, 471

U.S. 290, 303-4 (1985).

17

Religion has a special status in our legal system, and protection

for a religious group’s rights is not out of the ordinary, or an

“exception”, but the rule. NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979). This sometimes calls for governmental

accommodation in favor of a religious organization. In Walz,

for example, the Court saw the provision of a tax exemption to

churches as having the beneficial effect of reducing the

involvement of government with religion, and it is a goal of the

Religion Clauses to avoid “the active involvement of the

sovereign in religious activity”. Walz v. Tax Commission of

City of New York, 397 U.S. 664, 668 (1970). When government

becomes the decision-maker about what constitutes acceptable

religious activity, then it can effectively (re)define religious

activity by deciding what to regulate.

This is the same underlying rationale behind the Court’s

decision in Corporation of Presiding Bishop v. Amos, 483 U.S.

327 (1987), where the Court took a proper view of the burdens

that Title VII of the Civil Rights Act of 1964 would otherwise

place on religious organizations, whether directly or indirectly,

by subjecting them to religious anti-discrimination rules. Such

rules run headlong into religious autonomy principles. These

burdens were lifted by Congress’s exemption. Amos, 483 U.S.

at 336. “[R]eligious organizations have an interest in —

in ordering their internal affairs, so that they may be free to . .

define their own doctrines . . _and run their own organizations”.

Id. at 341 (Brennan, J., concurring in the judgment)(internal

quotation marks omitted). Accord, Kedroff v. St. Nicholas

Cathedral, 344 U.S. at 116.

There is no denying the preferential value the Founders

placed on religious freedom. “Madison looked upon .. .

religious freedom . . . as the fundamental freedom.” Everson v.

Board of Education, 330 U.S. 1, 34 n.13 (Rutledge, J.,

dissenting) (quoting Irving Brant, JAMES MADISON: THE

VIRGINIA REVOLUTIONIST 243 (1941). Jefferson recognized it

18

as “the most inalienable and sacred of all human nghts.” 19 THE

WRITINGS OF THOMAS JEFFERSON 414-17 (Memorial ed., 1904) ,

quoted in /Ilinois ex rel. McCollum v. Board of Education, 333

U.S. 203, 245 n.11 (1948) (Reed, J., dissenting). Madison

argued that government should not interfere in religion “beyond

the necessity of preserving public order, & protecting each sect

agst. Trespasses on its legal rights by others.” [IX WRITINGS OF

JAMES MADISON 484, 487 (Hunt, ed., 1904), quoted in Everson,

330 U.S., at 40 n.28 (Rutledge, J., dissenting). See also Prince

v. Massachusetts, 321 U.S. 158, 164 (1944) (liberties

guaranteed by the First Amendment have a “preferred position

in our basic scheme”). Madison’s view that government should

not interfere in religion “beyond the necessity of preserving

public order” is mirrored in the compelling interest test adopted

in Sherbert v. Verner, supra. This case poses that question in a

different form — does the “necessity of preserving public order”

require individuals not to use Schedule | substances, but permit

organizations to make limited sacramental use of one such

substance unless the government can demonstrate that the

compelling interest test has been met in relation to this

substance in the context of this particular denomination’s use of

it? This distinction between an individual demanding an

accommodation and a religious institution seeking the right to

operate in accord with religious doctrine for the benefit of its

adherents is explicit in the Court’s treatment of religion and

should control here. The interference with UDV goes to the

core of its religious practices for its faithful. These intrusions

must be subjected to the most rigorous scrutiny if religious

autonomy is to continue to have vigor.

Ill. Ina Heavily Regulated Society, Religious Institutions

Are Increasingly Subject to Government

Requirements Contrary to Their Religious

Princip!

The tendency of a highly regulated society is to seek

19

conformity and override divergent views, particularly of

minority religions and those expressing views that do not accord

with prevailing public sentiment. Absent a reversal of the Smith

rule or the expansion of statutory remedies, in a heavily

regulated society religious organizations and individuals may

have no alternative to legislative assistance to lift burdens the

government has placed on their free exercise of religious

principles. The consequence is, in many cases, simply to be

forced to violate their own religious principles, or cease to exist,

or find some way to live under the new regulatory regime. See

Kedroff v. St. Nicholas Cathedral, 344 U.S. at 123-4

(Frankfurter, J., concurring). The failure of legislative

accommodation — indeed, the expansion of government

authority itself — is compromising religious liberty in ways that

adversely affect our Society.

After Smith, government benevolence and

accommodation was never more important.'* A signal example

of the need for this sort of governmental protection of religious

practice is provided by the executive’s, and subsequently the

legislature’s, accommodation of sacramental peyote use for the

Native American Church and its faithful. The Food and Drug

Administration exempted the religious use of peyote by way of

21 C.F.R. §1307.31 (listing of peyote as Schedule 1 controlled

substance held not to apply to use in religious ceremonies of the

NAC). Thereafter, in the American Indian Religious Freedom

* The availability of a compelling interest test is far from being a panacea

protecting all religious conduct. A compelling interest analysis may result in

a decision in favor of the government regulation involved. South Jersey

Catholic School Teachers Organization v. St. Teresa of the Infant Jesus

Church Elementary School, 696 A.2d 709 (N.J. 1997) (state interest in labor

peace and enforcing collective bargaining rights outweighs burden on

religious school’s Free Exercise rights). See also, note 16, infra. And

clearly, laws that impinged on religious exercise were sustained even before

Smith was decided. Cooper v. Eugene School District No. 4J, 723 P.2d 298,

313 (Or. 1986).

20

Act, 42 U.S.C. §1996a (2000), Congress barred state and federal

government entities from interfering with peyote use as a

sacrament in the NAC. Had it not been for these enactments,

the logical result of Smith, analogous to the position taken by

the government in this case, would have been that believers in

the Native American Church would simply have to forego one

of the central sacraments of their religion, or become scofflaws

and accept the consequences.

Cutter v. Wilkinson, _ U.S. __, 125 S.Ct. 2113

(2005), both underscores the need for governmental

accommodation of religion where the government’s own rules

have prevented religion from being freely exercised, and shows

that #overnment can legitimately act to lift burdens on religious

practice. The Court in Cutter noted that the government had

accommodated religious practice in the military by passing

legislation which permitted Orthodox Jews to wear yarmulkes

indoors while in uniform, 10 U.S.C. §774, even though the

Army’s uniform regulations which prohibit that had previously

been sustained in the face of a Free Exercise challenge.

Goldman v. Weinberger, 475 U.S. 503 (1986). Thus, even

though the uniform rule was constitutional and relatively narrow

(since it applied only when a service member was indoors, on

duty and in uniform), the legislature could legitimately act to lift

that burden since only by doing so could the religious needs of

Orthodox service members be accommodated. The situation

faced by UDV is of course much more extreme. There simply is

no way for UDV faithful to participate in their sacraments under

any circumstances, at any time, in the government’s view.

Unless RFRA and similar vehicles are taken seriously and

vigorously enforced, accommodation will often be a pipedream

and litigation will be conducted against long odds.

The reason why such regulatory exemptions are often

necessary in our society was aptly put by Justice Kennedy in

County of Allegheny v. ACLU. Writing for himself, Chief

21

Justice Rehnquist and Justices Scalia and White, he explained:

In this century, as the modern administrative state

expands to toucn the lives of its citizens in such diverse

ways and redirects their financial choices through

programs of its own, it is difficuit to maintain the fiction

that requiring government to avoid all assistance to

religion can in fairness be viewed as serving the goal of

neutrality.

County of Allegheny v. ACLI, 492 U.S. 573, 657-58 (1989)

(Kennedy, J., concurring in judgment and dissenting in part).

As Justice Kennedy pointedly noted concurring in Kiryas Joel v.

Grumet, 512 U.S. 687, 730 (1994):

Religion flourishes im community, and the

Establishment Clause must not be construed as some

sort of homogenizing solvent that forces unconventional

religious groups to choose between assimilating to

ee eee ee

rights.

Viewed from a Free Exercise perspective, neutral, generally

applicable laws are necessarily “drafted . . . from the perspective

of the non-adherent”. Lukumi, 508 U.S. at 577 (Souter, J.,

concurring in part and concurring in judgment). The “modern

administrative state” is inherently antagonistic to any particular

religious viewpoint at all. That is why the needs of religious

persons and institutions are so often ignored, sending what

Justice Kennedy described as a “clear message of disapproval”.

County of Allegheny, 492 U.S. at 657.

Recent litigation provides a textbook example of the

nature of the regulatory problems encountered by religious

groups. Catholic Charities of Sacramento, Inc. v. Superior

Court, 85 P.3d 67 (Ca.), cert. denied, US. __, 125S.Ct.

22

53 (2004). California requires that all employers’ insurance

plans that provide coverage for prescription drugs “shall include

coverage for . . . prescription contraceptive methods.” Cal.

Health and Safety Code §1367.25(a1 (2001), and Cal. Ins.

Code §10123.196(a1)(2001). These statutes were held to be

neutral and generally applicable. Catholic Charities of

Sacramento, 85 P.3d at 82. Under the Smith rule, no Free

Exercise claim against these statutes could be stated. /d.

These statutes do contain an exemption, available only

to a “religious employer” as defined by the legislature, which

“may request a [policy] without coverage for . . . contraceptive

methods that are contrary to the religious employer’s religious

tenets”. Cal. Health & Safety Code §1367.25(b), and Cal. Ins.

Code §10123.196(d). But this exemption was constructed in a

way that prevents most religious entities from qualifying for it,

since only if the “inculcation of religious values is the purpose

of the entity”, and the “entity primarily employs persons who

share the religious tenets of the entity”, and it “serves primarily

persons who share the religious tenets of the entity” and it is

exempt from filing a Form 990 will this exemption apply. 'S Id

Catholic Charities of Sacramento makes its social service

programs widely available to all without regard to the religion

of the recipient. It provides and manages the Church’s social

ministry in the community, and employs many who do not share

Roman Catholic religious beliefs. The California Supreme

Court rejected the claim that the exemption opened the law to

strict scrutiny under Smith. Catholic Charities of Sacramento,

'* The Form 990 information return to the Internal Revenue Service has

exemptions under 28 U.S.C. §§6033 (a) (2) (A) (i) and (iii) for churches and

narrow exemption to organizations that conduct only worship services, and

not even all of them. Nearty all church auxiliary organizations are excluded

from the exemption.

23

85 P.3d at 83.'°

Since the largest number of religious entities which

Oppose contraception on moral grounds are Catholic, the effect

of the law and the crabbed exemption impacts these agencies

most. They face the “Hobson's choice” of either having to pay

for actions they consider sinful, or of refusing to provide health

insurance benefits they consider themselves religiously

obligated to provide to their employees. Or, the agency could

withdraw from public ministry and seek the narrow

“exemption” by altering its mission, workforce, and ministry of

community service. Efforts to persuade the legislature to enact

a broader exemption were unsuccessful, based in part on the

assertion that neutral rules were valid even if they burdened

religion. As this example demonstrates, the government's

extensive regulation of employer insurance coverage issues in

the State of California, and its asserted power legislatively to

determine what is “religious” and what is not, id., effectively

empowers the government to permit (or refuse to permit) any

religious exercise.'’

'° The California Supreme Court rejected a series of church autonomy claims

religious workplace in accord with religious principles. /d at 79-80. In the

same way the court reyected other arguments based on hybrid rights and the

state constitution. itut) In the end the court did conclude the law served a

ine i Me , tay Cone of | proffered

California). /d. at 92-4. by

'” Hawaii Revised Statutes §431:10A-116.6 and 10A-116.7 similarty require

all employers providing health insurance plans to cover the provision of

contraceptive products and services, and by artfully constructed language

define away the availability of a “religious employers” exemption,

§431:10A-116.7(a), even for the church itself. Even if the exemption applies,

§431:10A-116.7(b), (c) and (e) require that the employee must be allowed to

purchase = coverage himself, ~~ employee may be denied such

coverage for contraceptive products, the religious employer must

the employee written notice of how to obtain such coverage, and ioce

be more expensive than the pro rata cost to the employer of such coverage

24

A case raising similar issues is Catholic Charities of

Albany, et al. v. Serio, now pending in the Supreme Court of the

State of New York Appellate Division, Third Department

Appellate Division Docket No. 96221 (sub judice). In this case

a group of Baptist and Catholic entities challenged a

contraceptive mandate. The New York plaintiffs each fail the

same regulatory criterion by which a “religious employer” is

determined: they each serve the public without regard to

religious affiliation. In these situations, a government’s general

power to make insurance law clashes with genuine religious

(but in this society, minority) views on contraception. Catholic

Charities of Sacramento, 85 P.3d at 103 (Brown, J., dissenting)

(noting that the Catholic Church’s views on contraception are

“disparage{d] as archaic.”) This legislation forces religiously-

based social service organizations to decide between

alternatives, each of which is entirely objectionable for religious

reasons. “The question then is whether the coercive force of the

law may be brought to bear to compel a religious organization

that holds an alternative view, based on religious scruples, to

support a hostile vision of the good.” /d. The Smith rule

enables such regulation, and that is wrong. /d. at 99. (“By

protecting religious groups from gratuitous state interference,

we convey broad benefits on individuals and society. By

underestimating the transformative potential of religious

organizations, we impoverish our political discourse and imperil

the foundations of liberal democracy.”)

The effect is that all denominations are at greater risk of

either being forced to make a State-mandated regulatory choice

~ controlled, in many cases, by those interest groups having the

exempt religious employers, as defined, to advise their employees how to

obtain msurance for contraceptive services they consider sinful, and to

subsidize the purchase of these services and supplies through overhead

payments and premsums borne by all employers.

25

greatest influence over the legislature involved — or to forego

their legitimate autonomy.'* Forcing religious organizations to

subsidize the very thing they preach against strikes at the very

heart of the organization’s ability to pursue the church’s

message and mission. See Corporation of Presiding Bishop v.

Amos, 483 U.S. at 341 (Brennan, J., concurring in the

judgment)(recognizing a right on the part of religious

organizations to order their own affairs and run their own

institutions). The decision in Catholic Charities of Sacramento

also threatens to reorder authority within the Church, and gives

each employee of Catholic Charities the power to decide

whether Catholic Charities, notwithstanding its religious

convictions, will pay for contraceptives. This, in effect, allows

employees’ personal preferences to trump the organization’s

free exercise rights.

Equally troubling in both Catholic Charities cases was

the legislature’s explicit attempt, in crafting a limited exception,

to define which religious organizations it considers religious or

not. Plainly, the state may not decide “what is or is not secular,

what is or is not religious.” Lemon v. Kurtzman, 403 U.S. 602,

at 637 (1971) (Douglas, J., concurring). Under these insurance

statutes, the state decides that organizations are truly religious

only if they teach, serve, and employ only their co-religionists,

and has imposed special penalties on those it considers

insufficiently religious. “[S]uch a crabbed and constricted view

of religion . . . would define the ministry of Jesus Christ as a

secular activity.” Catholic Charities of Sacramento, 85 P.3d at

106 (Brown, J., dissenting). Although definitions of religiosity

differ among religions, it is not the place of the state to

'* In 2004, Illinois also mandated that employers provide insurance coverage

encompassing contraceptive services. 215 Ill. Comp. Stat. 5/356z.4. This

legislation provides no exemption for religious organizations that purchase

insurance for their employees, despite the Illinois Health Care Right of

Conscience Act, 745 Ill. Comp. Stat. 70/1, et seq.

26

determine which are genuine.'”

The government’s power to define is frequently also its

power, intentionally or not, to restrict and prohibit. In Espinosa

v. Rusk, 634 F.2d 477, 479-82 (10" Cir.), sum. aff'd, 456 U.S.

951 (1982), a city ordinance that required “secular” but not

“evangelical missionary or religious” activities to obtain city

permits before operating, was applied to a Seventh-day

Adventist charity drive supporting church activities after city

officials determined the drive to be “secular”. The ordinance

was struck down for free exercise reasons based on Cantwell,

because “an administrative determination as to what was

religion or religious” was constitutionally objectionable, and

“necessarily a suspect effort”. /d at 481. This attempted

definition of what was religious failed the compelling interest

test. Jd at 482. Without having to meet such a test, civil

authority may with impunity define into illegality religious

conduct, with no significant weight being given to the protection

of free exercise values.”” “Definition may be just as pernicious

'® Religious institutions’ free exercise rights were similarly implicated in

University of Great Falls v. National Labor Relations Board, 278 F.3d 1335,

1341-42 (D.C. Cir. 2002) (rejecting NLRB’s assertion of jurisdiction based

on claim that college lacked “substantial religious character”). The NLRB

had purported to decide that a Catholic college was actually a “secular

institution” because it admitted non-Catholics as students, hired non-

Catholics as faculty, and respected other denominations’ religious

expressions. The D.C. Circuit held that “to limit .. tae omg ee

jurisdiction] to religious institutions with hard-nosed proselytizing ...

unnecessarily stunted view of the law, sabeutansonataiedintenel

the most basic command of the Establishment Clause - not to prefer some

religions (and thereby some approaches to indoctrinating religion) to others.”

University of Great F alls, 278 F.3d at 1346.

© In a recent decision, the Fifth Circuit rejected a religious persecution claim

from a Chinese Christian, notwithstanding evidence of imprisonment,

physical punishment, and loss of his job as a result of belonging to an

unauthorized church. The panel held that he was not persecuted for what he

believed, but for his conduct of belonging to an unregistered church, which

27

as ongoing monitoring if its purpose is to suppress or burden

religious conduct.” Catholic Charities of Sacramento, 85 P.3d

at 102 (Brown, J., dissenting).”"

For example, a California state statute requires all health

care facilities, even Catholic health care facilities, to perform

abortions if a “medical emergency situation” is thought to exist.

California Health and Safety Code §12342D(d). This law is

neutral_and generally applicable, and so is not assailable under

the Smith rule. In contrast, the Hyde/Weldon Amendment to

the Consolidated Appropriations Act, 2005, Pub. L. No. 108-

447, Div. F, §508(d), 118 Stat. 2809, 3163 (2004), provides a

conscience clause. It is intended to ensure that federal funds are

not made available to support health programs that discriminate

against religious healthcare organizations by requiring them to

provide, pay for, or refer for abortions. This specific statutory

protection for the rights of institutions, like RFRA, is necessary

precisely because the Smith approach does not provide such

organizations with effective protections against being required

to perform activities that they consider gravely wrong. In fact,

the serious need for such protection for institutional religious

the court said the Chinese government was free to criminalize or otherwise

regulate. Violating a law of general applicability regulating religious practice

resulting in physical and economic punishment did not constitute religious

persecution. Li v. Gonzales, 2005 WL 1870773, *6 (5* Cir. 2005).

*! Where government officials had the discretion, even under an apparently

religion-neutral regulatory scheme, to decide whether the convening of Bible

study meetings in a public park could be interpreted to constitute “disorderly

conduct” within the meaning of a state statute, that v' ‘sted both the First and

Fourteenth Amendments. Niemotko v. State of Mar nd, 340 U.S. 268,272

(1951). This is particularly so when minority religiou views are implicated,

as in Niemotko, and the state has purported to define certain religious

activities as criminal when others are not so defined. /d \'nder Smith,

unpopular views suffer the most. and the result will likely be unjust. The use

of the pre-Smith balancing test provided some standards by which

government could be held accountable on judicial review to explain their

actions.

28

exercise is underscored by the fact that the State of California

has now sued the United States to enjoin the implementation of

the Hyde/Weldon Amendment, as unconstitutional. State of

California ex rel. Bill Lockyer, et al. v. United States, et al., Civ.

No. C-05-00328 JSW (N.D.Ca.).

Other attempts at government “reengineering” of church

organizations have succeeded. In Catholic Charities of Maine,

Inc. v. City of Portland, 304 F. Supp. 2d 77 (D. Me. 2004), a

district court upheld the constitutionality of a Portland, Maine,

ordinance that no organization could receive City Housing and

Community Development (“HCD”) funds for social service

programs, unless the organization provided the unmarried

partners of their employees with the same health and fringe

benefits as they would provide to the spouses of their married

employees. Although it had long provided social services using

HCD funds, Catholic Charities refused to agree to provide such

benefits on religious grounds, and sued the City of Portland

when it withdrew its funding for those social service programs.

The court rejected Catholic Charities’ federal free exercise

claim that the city government had thereby unconstitutionally

burdened Catholic Charities’ religious practices, based on the

proposition that “neutral laws of general applicability are

constitutional. even if they incidentally burden religious beliefs

or practices.” /d. at 94. Again, a religious organization was left

by the courts in the untenable position of being forced by

government action to cease to provide services that it was

religious compelled to provide, or to forego the governmental

assistance it would otherwise have been accorded, or to act

contrary to its own moral and religious principles.

These threats to the institutional free exercise rights of

religious organizations are real, not hypothetical. For this

reason, legislative efforts like RFRA, and judicial efforts to

scrutinize government conduct are vital to the protection of

religious liberty, and consequently, the important place of

29

religious institutions in our Society. One thing is clear, however. -

Unless the Court acts decisively to renew protections for

religious institutions, these examples will only become more

numerous.

CONCLUSION

In the Nineteenth Century, in an effort to “democratize”

the Catholic Church in accord with then-prevailing political

sentiment, the State of New York passed laws requiring that

religious property could only be held by trustee corporations,

along the lines of congregational churches. Philip Hamburger,

Illiberal Liberalism: Liberal Theology, Anti-Catholicism, and

Church Property, 12 J. Contemp. Legal Issues 693, 710 et seq.

(2002). Whether this blatant interference in religious

governance would be tested under strict scrutiny as

discriminatory today would depend on how the statute was

phrased and intended. Cf. Lukumi, 508 U.S. at 533. A broadly

written statutory scheme to do this would today be defended

under Smith. In the Twenty-first Century, the “long, unedifying

history” of attempts of government to re-form religion

continues: but it is over beliefs which some regard as archaic or

harmful to individual political interests. Catholic Charities of

Sacramento, 85 P.3d at 103 (Brown, J., dissenting); Mark E.

Chopko, Shaping the Church, 53 Cath. U. L. Rev. 125, 144-5 &

n. 109 (2003). The pre-Smith law was not perfect but at least

there was a place for religious organizations to stand to resist

the pressures to conform to the cultural norm. Smith insulates

those inclined towards the application of governmental pressure,

from effective judicial review. While RFRA and legislative

efforts to protect religious exercise are vital, more basically, this

Court should assure that whatever Smith portends in the future,

it not insulate regulators from the Constitution.

The judgment below should be affirmed.

September 9, 2005

30

Respectfully submitted,

Mark E. Chopko *

General Counsel

Jeffrey Hunter Moon

Solicitor

United States Conference of

Catholic Bishops

3211 Fourth Street, N.E.

Washington, D.C. 20017

(202) 541-3300

* Counsel of Record