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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 418

## Text

= —_—o

— 2
| FILED
| SEP 2 - 2605

No. 04-1084 3!

= ernsi arnt CLE Sk
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0070%3A14. Public record. Not legal advice.