Appendix — Catholic Charities of Sacramento, Inc. v. California
Supreme Court brief2004
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APPENDIX
Filed 3/1/04
IN THE SUPREME COURT OF CALIFORNIA
CATHOLIC CHARITIES OF
SACRAMENTO, INC.,
Petitioner,
¥,
THE SUPERIOR COURT OF
SACRAMENTO COUNTY,
Respondent;
DEPARTMENT OF MANAGED
HEALTH CARE et al.,
Real Parties in [nterest.
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S099822
Ct. App. 3 C037025
Sacramento County Super. Ct. No. 00AS03942
In this case, we address a church-affiliated employer’s
constitutional challenges to the Women’s Contraception
Equity Act (WCEA),’ under which certain health and
The WCEA comprises two laws, Health and Safety Code section
1367.25 (Stats. 1999, ch. 532) and Insurance Code section 10123.196
(Stats. 1999, ch. 538).
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disability insurance contracts must cover prescription
contraceptives. The plaintiff employer, which opposes
contraceptives on religious grounds, claims the statute
violates the establishment and free exercise clauses of the
United States and California Constitutions. (U.S. Const., Ist
Amend.; Cal. Const., art. I, § 4.) The lower courts rejected
the employer’s claims. We affirm.
I. Facts
The Legislature enacted the WCEA in 1999 to
eliminate gender discrimination in health care benefits and to
improve access to prescription contraceptives. | Evidence
before the Legislature showed that women during their
reproductive years spent as much as 68 percent more than
men in out-of-pocket health care costs, due in large part to the
cost of prescription contraceptives and the various costs of
unintended pregnancies, including health risks, premature
deliveries and increased neonatal care. Evidence also showed
that, while most health maintenance organizations (HMO’s)
covered prescription contraceptives, not all preferred provider
organization (PPO) and indemnity plans did. As a result,
approximately 10 percent of commercially insured
Californians did not have coverage for prescription
contraceptives.
The Legislature chose to address these problems by
regulating the terms of insurance contracts. The WCEA does
not require any employer to offer coverage for prescription
drugs. Under the WCEA, however, certain heaith and
disability insurance plans that cover prescription drugs must
cover prescription contraceptives. As an exception, the law
permits a “religious employer” to request a policy that
includes drug coverage but excludes coverage for
“contraceptive methods that are contrary to the religious
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992
emp Overs religious tenets.”- Health and Safety Code
section 1367. 25 governs group health care service plan
contracts;> Insurance Code section 10123.196 governs
individual and group disability insurance policies.’
. Health and Safety Code section 1367.25, subdivision (b);
Insurance Code section 10123.196, subdivision. (d).
3
Health and Safety Code section 1367.25 provides:
“(a) Every group health care service plan contract, except for a
specialized health care service plan contract, that is issued, amended,
renewed, or delivered on or after January |, 2000, and every individual
health care service plan contract that is amended, renewed, or delivered on
or after January 1, 2000, except for a specialized health care service plan
contract, shall provide coverage for the following, under general terms
and conditions applicable to all benefits:
“(1) A health care service plan contract that provides coverage
for outpatient prescription drug benefits shall include coverage for a
variety of federal Food and Drug Administration approved prescription
contraceptive methods designated by the plan. In the event the patient’s
participating provider, acting within his or her scope of practice,
determines that none of the methods designated by the plan is medically
appropriate for the patient’s medical or personal history, the plan shall
also provide coverage for another federal Food and Drug Administration
approved, medically appropriate prescription contraceptive method
prescribed by the patient’s provider.
(2) Outpatient prescription benefits for an enrollee shall be the
same for an enrollee’s covered spouse and covered nonspouse dependents.
“(b) Notwithstanding any other provision of this section, a
religious employer may request a health care service plan contract without
coverage for federal Food and Drug Administration approved
contraceptive methods that are contrary to the religious employer’s
religious tenets. If so requested, a health care service plan contract shall
be provided without coverage for contraceptive methods.
“(1) For purposes of this section, a ‘religious employer’ is an
entity for which each of the following is true:
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“(A) The inculcation of religious values is the purpose of the
entity.
“(B) The entity primarily employs persons who share the
religious tenets of the entity.
“(C) The entity serves primarily persons who share the religious
tenets of the entity.
“(D) The entity is a nonprofit organization as described in
Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as
amended.
“(2) Every religious employer that invokes the exemption
provided under this section shall provide written notice to prospective
enrollees prior to enrollment with the plan, listing the contraceptive health
care services the employer refuses to cover for religious reasons.
“(c) Nothing in this section shall be construed to exclude
coverage for prescription contraceptive supplies ordered by a health care
provider with prescriptive authority for reasons other than contraceptive
purposes, such as decreasing the risk of ovarian cancer or eliminating
Symptoms of menopause, or for prescription contraception that - is
necessary to preserve the life or health of an enrollee.
“(d) Nothing in this section shall be construed to deny or restrict
in any way the [D]epartment[ of Managed Care’s] authority to ensure plan
compliance with this chapter when a plan provides coverage for
prescription drugs.
“(e) Nothing in this section shall be construed to require an
individual or group health care services plan to cover experimental or
investigational treatments.”
4
Insurance Code section 10123.196 is essentially the same as
Health and Safety Code section 1367.26 (see fn. 3, ante), except that it
regulates disability insurance policies instead of health care service plan
contracts. For the sake of convenience, subsequent references to the
WCEA will include only the Health and Safety Code.
Sa
Plaintiff Catholic Charities of Sacramento, Inc.
(hereafter Catholic Charities) is a California nonprofit public
benefit corporation. (See Corp. Code, § 5110 et seq.)
Although independently incorporated, Catholic Charities
describes itself as “operated in connection with the Roman
Catholic Bishop of Sacramento” and as “an organ of the
Roman Catholic Church.” The nonprofit corporation
“offer[s] a multitude of social services and private welfare
programs to the general public, as part of the social justice
ministry of the Roman Catholic Church.” These services and
programs include “providing immigrant resettlement
programs, elder care, counseling, food, clothing and
affordable housing for the poor and needy, housing and
vocational training of the developmentally disabled and the
like.”
Catholic Charities offers health insurance, including
prescription drug coverage, to its 183 full-time employees
through group health care plans underwritten by Blue Shield
of California and Kaiser Permanente. Catholic Charities does
not, however, offer insurance for prescription contraceptives
because it considers itself obliged to follow the Roman
Catholic Church’s religious teachings, because the Church
considers contraception a sin, and because Catholic Charities
believes it cannot offer insurance for prescription
contraceptives without improperly facilitating that sin.
As mentioned, the WCEA permits a “religious
employer” to offer prescription drug insurance without
coverage for contraceptives that violate the employer’s
religious tenets. (Health & Saf. Code, § 1367.25, subd. (b).)
The act defines a “religious employer” as “an entity for which
each of the following is true: [{] (A) The inculcation of
religious values is the purpose of the entity. [§] (B) The
entity primarily employs persons who share the religious
tenets of the entity. [{] (C) The entity serves primarily
persons who share the religious tenets of the entity. [9] (D)
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The entity is a nonprofit organization as described in Section
6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986,
as amended.” (/bid.) The cited provisions of the Internal
Revenue Code exempt, from the obligation to file an annual
return, “churches, their integrated auxiliaries, and
conventions or associations of churches” (26 U.S.C.
§ 6033(a)(2)(A)(i)) and “the exclusively religious activities of
any religious order” (id., § 6033(a)(2)(A)(i) and (iti)).
Catholic Charities does not qualify as a “religious
employer” under the WCEA because it does not meet any of
the definition’s four criteria. (See Health & Saf. Code,
§ 1367.25, subd. (b)(1)(A)-(D).) The organization candidly
acknowledges this in its complaint, offering the following
explanation: “The corporate purpose of Catholic Charities is
not ine direct inculcation of religious values. Rather, [its] -
purpose ... is to offer social services to the general public
that promote a just, compassionate society that supports the
dignity of individuals and families, to reduce the causes and
results of poverty, and to build healthy communities through
social service programs such as counseling, mental health and
immigration services, low-income housing, and supportive
social services to the poor and vulnerable. Further, Catholic
Charities does not primarily employ persons who share its
Roman Catholic religious beliefs, but, rather, employs a
diverse group of persons of many religious backgrounds, all
of whom share [its] Gospel-based commitment to promote a
just, compassionate society that supports the dignity of
individuals and families. Moreover, Catholic Charities serves
people of all faith backgrounds, a significant majority of
[whom] do not share [its] Roman Catholic faith. Finally, ...
Catholic Charities, although an exempt organization under 26
U.S.C. § 501(c)(3), is not a nonprofit organization pursuant to
[slection 6033(a)(2)(A)(i) or (ili) of the Internal Revenue
Code of 1986. Consequently, ... Catholic Charities is not
entitled ... to an exemption from the mandate imposed by
[the WCEA].”
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As mentioned, the WCEA implicitly permits any
employer to avoid covering contraceptives by not offering
coverage for prescription drugs. But this option, according to
Catholic Charities, does not eliminate all conflict between the
law and its religious beliefs. Catholic Charities feels obliged
to offer prescription drug insurance to its employees under
what it describes as the “Roman Catholic religious teaching”
that “an employer has a moral obligation at all times to
consider the well-being of its employees and to offer just
wages and benefits in order to provide a dignified livelihood
for the employee and his or her family.”
Perceiving no option consistent with both its beliefs
and the law, Catholic Charities filed this action seeking a
declaratory judgment that the WCEA is unconstitutional and
an injunction barring the law’s enforcement. Defendants are
the State of California, the Department of Managed Health
Care and the Department of Insurance.° Catholic Charities’
challenges to the WCEA arise under the establishment and
free exercise clauses of the United States and California
Constitutions. (U.S. Const., Ist Amend.; Cal. Const., art. I,
§ 4.) The superior court, finding no reasonable likelihood
that Catholic Charities would prevail on the merits, denied its
motion for a preliminary injunction. Catholic Charities
sought review of this ruling by petition for writ of mandate,
which the Court of Appeal denied. We granted review of the
Court of Appeal’s decision.
Il. Discussion
Catholic Charities, in its brief to this court, asserts
eight constitutional challenges to the WCEA. All refer to the
: The Department of Managed Health Care regulates health care
service plans. (Health & Saf. Code, § 1341 et seq.) The Department of
Insurance and the Insurance Commissioner regulate disability insurance
policies. (See id., § 1343, subd. (e)(1), and Ins. Code, § 10290 et seq.)
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religion clauses of the federal and state Constitutions. (U.S:
Const., Ist Amend.; Cal. Const., art.I, § 4.) Catholic
Charities begins with a set of three arguments to the effect
that the WCEA impermissibly interferes with the autonomy
of religious organizations. (See p.7 et seq., post.) Next,
Catholic Charities claims the WCEA impermissibly burdens
its right of free exercise. As part of this claim, Catholic
Charities offers four arguments for subjecting the WCEA to
strict scrutiny, despite the United States Supreme Court’s
holding that the right of free exercise does not excuse
compliance with neutral, generally applicable laws.
(Employment Div., Ore. Dept. of Human Res. v. Smith (1990)
494 U.S. 872, 876-890; see p. 16 et seq., post.) Finally,
Catholic Charities contends the WCEA fails even the rational
basis test. (See p. 44 et seq., post.)
A. Religious Autonomy
1. Interference with matters of
religious doctrine and _ internal
church governance -
Catholic Charities contends the WCEA impermissibly
interferes with matters of religious doctrine and internal
church governance. In support of the contention, Cathotic
Charities invokes the rule that the state must accept the
decision of appropriate church authorities on such matters.
This is the rule of the so-called church property cases. (E.g.,
Serbian Orthodox Diocese v. Milivojevich (1976) 426 U.S.
696, 708-709; Presbyterian Church v. Hull Church (1969)
393 U.S. 440, 445-449; Kreshik v. St. Nicholas Cathedral
(1960) 363 U.S. 190, 191; Kedroff v. St. Nicholas Cathedral
(1952) 344 U.S. 94, 109-121; Gonzalez v. Archbishop (1929)
220 US. 1, 16-17; Watson v. Jones (1871) 80 U.S. 679, 727.)
That rule does not dispose of this case.
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The first church property case to reach the United
States Supreme Court, Watson v, Jones, supra, 80 U.S. 679
(Watson), articulates the rule and illustrates its proper
application. The case arose from a schism in the Presbyterian
Church during the Civil War. When the church’s national
governing body, the General Assembly, expressed its
opposition to slavery, various congregations responded by
declaring the General Assembly’s view heretical and
renouncing that body’s authority. The General Assembly, in
turn, dissolved the schismatic congregations. Civil disputes
ensued between rival congregations, each asserting a religious
claim to be the only true congregation entitled to use certain
local church property. The high court resolved the competing
religious claims by deferring to the decision of the General
Assembly, thus adopting the rule still in effect today:
“[W]henever ... questions of discipline, or of faith, or
ecclesiastical rule, custom, or law have been decided by the
highest of [the] church judicatories to which the matter has
been carried, the legal tribunals must accept such decisions as
final, and as binding on them, in their application to the case
before them.” (/d., at p. 727.) The rule’s modern formulation
is similar. (Serbian Orthodox Diocese v. Milivojevich, supra,
426 U.S. 696, 709.)
The high court in Watson, supra, 80 U.S. 679, offered
two reasons for deferring to religious authorities on religious
questions. The first justification was that civil courts are
simply “incompetent” to decide matters of faith and doctrine.
(/d., at p. 732.) Courts have no expertise in religious matters,
and courts “so unwise” as to attempt to decide them “would
only involve themselves in a sea of uncertainty and doubt
wsee (Ibid.; see also Serbian Orthodox Diocese v.
Milivojevich, supra, 426 U.S. 696, 714-715 & fn. 8.) The
second reason was that the members of a church, by joining,
implictly consent to the church’s governance in religious
matters; for civil courts to review the church’s judgments
would “deprive these bodies of the right of construing their
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own church laws” (Watson, at pp. 733-734; see also id., at
pp. 728-729) and, thus, impair the right to form voluntary
religious organizations (id., at pp. 728-729; cf. Serbian
Orthodox Diocese v. Milivojevich, supra, at pp. 724-725).
Because Watson, supra, 80 U.S. 679, preceded the
First Amendment’s incorporation into the Fourteenth, the
court did not base its decision on the Constitution. In
subsequent cases, however, the court described Watson’s
reasoning as having a “ ’clear constitutional ring’ ” (Serbian
Orthodox Diocese v. Milivojevich, supra, 426 U.S. 696, 710,
quoting Presbyterian Church v. Hull Church, supra, 393 US.
440, 446; cf. Watson, at pp. 728-729) and Watson’s holding
as compelled by the religion clauses of the First Amendment
(Serbian Orthodox Diocese v. Milivojevich, supra, at pp. 724-
725; Kedroff v. St. Nicholas Cathedral, supra, 344 U.S. 94,
115-116; see also Employment Div., Ore. Dept. of Human
Res. v. Smith, supra, 494 U.S. 872, 877). The high court has
also held that legislatures are bound by the same
constitutional limitations Watson articulated for the courts.
(Kedroff v. St. Nicholas Cathedral, supra, at pp. 117-121.)
Catholic Charities asserts that the Legislature, in
enacting the WCEA, violated the rule of church property
cases by interfering with matters of internal church
governance and by rejecting the Catholic Church’s decision
that prescription contraceptives are sinful. These assertions
are incorrect. This case does not implicate internal church
governance; it implicates the relationship between a nonprofit
public benefit corporation and its employees, most of whom
do not belong to the Catholic Church. Only those who join a
church impliedly consent to its religious governance on
matters of faith and discipline. (Watson, supra, 80 U.S. 679,
729.) Certainly the WCEA conflicts with Catholic Charities’
religious beliefs, but this does not mean the Legislature has
decided a religious question. Congress has created, and the
high court has_ resolved, similar conflicts between
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employment law and religious beliefs without deciding
religious questions and without reference to the church
property cases. (E.g., Tony and Susan Alamo Foundation v.
Sec’y of Labor (1985) 471 U.S. 290, 303-306 [religious
organization must comply with federal minimum wage laws];
United States v. Lee (1982) 455 U.S. 252, 256-261 [Amish
employer must pay Social Security and unemployment
taxes].) Neither does this case require us to decide any
religious questions. Instead, we need only apply the usual
rules for assessing whether state-imposed burdens on
religious exercise are constitutional. (See Church of Lukumi
Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 531-533;
Employment Div., Ore. Dept. of Human Res. v. Smith, supra,
494 U.S. 872, 876-882.) This we do below, in the context of
Catholic Charities’ separate claims under the free exercise
clause. (See p.16 et seq., post.)
Catholic Charities also argues the Legislature, by
enacting the WCEA, deliberately intervened ‘n a conflict
within the Catholic Church on the side of those who disagree
with the Church’s teachings on contraception. In support of
the argument, Catholic Charities notes that one of WCEA’s
sponsors cited, on the floor of the state Senate, a New York
Times poll suggesting that not all Catholic women accept the
Church’s teachings on contraception, and that “someone who
practices artificial birth control can still be a good Catholic.”
Commenting on the poll, the senator said, “I agree with that.
I think it’s time to do the right thing.” Certainly the state may
not “lend its power to one or the other side in controversies
over religious authority or dogma ....” (Employment Div.,
Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872,
877.) However, the Legislature’s motivation cannot reliably
be inferred from a single senator’s remarks. Other legislators
who voted to enact the WCEA might well have done so
because they wished to reduce the inequitable financial
burden of health care on women, without regard to any
religious dispute over the propriety of artificial contraception.
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While the church property cases thus do not invalidate
the WCEA, the constitutional principles that underlie those
cases may place an outer limit on the statute’s constitutional
application. Relying on the church property cases, lower
federal courts have held that the First Amendment bars courts
from reviewing employment decisions by religious
organizations affecting employees with the religious duties of
ministers. (McClure v. Salvation Army (Sth Cir. 1972) 460
F.2d 553, 558-561; see also Gellington v. Christian Methodist
Episcopal Church (11th Cir. 2000) 203 F.3d 1299, 1301-
1304; Combs v. Cen Tx Ann Conf United Methodist Church
(Sth Cir. 1999) 173 F.3d 343, 345-350.) The rule that
emerges from these decisions is sometimes called the
“ministerial exception,” because it operates as a nonstatutory,
constitutionally compelled exception to title VII of the Civil
Rights Act of 1964. (42 U.S.C. § 2000e et seq., hereafter title
VIT.)_
The Fifth Circuit first recognized the ministerial
exception in McClure v. Salvation Army, supra, 460 F.2d
553. The plaintiff, a former officer of the Salvation Army,
alleged that her termination was motivated by sex
discrimination violating title VII. To avoid doubts about title
VII’s constitutionality as applied to religious organizations,
the court construed the law as not governing the relationship
between a church and its ministers. Judicial review of a
minister’s salary and duties, the court reasoned, would
“intrude upon matters of church administration and
government which have so many times before been
proclaimed to be matters of a singular ecclesiastical concern.”
(McClure v. Salvation Army, supra, at p. 560.) Although the
United States Supreme Court has not spoken on the
ministerial exception, the lower federal courts have widely
embraced it, applying it both to ministers and to a variety of
nonordained employees with duties functionally equivalent to
those of ministers. (E.g., Alicea-Hernandez v. Catholic
Bishop of Chicago (7th Cir. 2003) 320 F.3d 698, 700-704
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[Hispanic communications manager for Archdiocese of
Chicago, responsible for “shaping the message that the
Church presented to the Hispanic community”]; E.E.0.C. v.
Roman Catholic Diocese of Raleigh, NC (4th Cir. 2000) 213
F.3d 795, 802-805 [cathedral choir director required to assist
in planning liturgies]; E.E.0.C. v. Catholic University of
America (D.C. Cir. 1996) 83 F.3d 455, 461 [professor of
canon law at religious university].)
Because the case before us does not involve title VII,
the ministerial exception as currently articulated does not
apply. Although the constitutional reasoning underlying the
ministerial exception might bar the State from applying the
WCEA to ministers or clergy employed by a bona fide
religious organization that for whatever reason did not qualify
under the act’s exemption for religious organizations (Health
& Saf. Code, § 1367.25, subd. (b); cf. Schmoll vy. Chapman
University (1999) 70 Cal.App.4th 1434, 1438-1444
[recognizing a ministerial exception to the Cal. Fair
Employment and Housing Act, Gov. Code, § 12900 et seq.]),
we need not decide the question because Catholic Charities
does not claim that any of its employees have the religious
duties of ministers. Indeed, as noted above, most are not even
members of the Catholic Church. In short, the ministerial
exception does not dispose of this case. Catholic Charities
acknowledges as much.
2. Distinction between religious and
secular activities
Catholic Charities next argues that the First
Amendment forbids the government to “premis[e] a religious
institution’s eligibility for an exemption from government
regulation upon whether the activities of the institution are
deemed by the government to be ‘religious’ or ‘secular’... .”
The argument is directed against the four statutory criteria an
employer must satisfy to claim exemption from the WCEA as
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a “religious employer.” (Health & Saf. Code, § 1367.25,
subd. (b)(1)(A)-(D); see p.5, ante.) The argument ‘acks
merit.
The exception to the WCEA accommodates religious
exercise by relieving statutorily defined “religious
employers” (Health & Saf. Code, § 1367.25, subd. (b)) of the
burden of paying for contraceptive methods that violate their
religious beliefs. The United States Supreme Court has long
recognized that the alleviation of significant governmentally
created burdens on religious exercise is a permissible
legislative purpose that does not offend the establishment
clause. (Corporation of Presiding Bishop v. Amos (1978) 483
U.S. 327, 334-335; Hobbie v. Unemployment Appeals
Comm’n of Fla. (1987) 480 U.S. 136, 144-145; cf.
Employment Div., Ore. Dept. of Human Res. v. Smith, supra,
494 U.S. 872, 890.) Such legislative accommodations would
be impossible as a practical matter if the government were, as
Catholic Charities argues, forbidden to distinguish between
the religious entities and activities that are entitled to
accommodation and the secular entities and activities that are
not. In fact, Congress and the state legislatures have drawn
such distinctions for this purpose, and laws embodying such
distinctions have passed constitutional muster. (E.g.,
Corporation of Presiding Bishop v. Amos, supra, 483 U.S.
327, 334-340 [upholding statutory exemption of “religious”
employers from liability for religious discrimination, 42
U.S.C. § 2000e-1(a)]; East Bay Asian Local Development
Corp. v. State of California (2000) 24 Cal.4th 693, 704-718
[upholding state laws exempting “religiously affiliated”
organizations from landmark preservation laws, Gov. Code,
“§§ 25373, subds. (c) & (d), 37361, subd. (c)].)
Catholic Charities’ argument to the contrary largely
depends on a single lower federal court decision, Espinosa v.
Rusk (10th Cir. 1980) 634 F.2d 477 (Espinosa). In that case,
the court invalidated an antisolicitation ordinance because,
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among other things, it “involve[d] municipal officials in the
definition of what is religious.” (/d., at p. 481.) But whatever
Espinosa might purport to hold, the decision could not
supersede the United States Supreme Court’s repeated
holding that the government may constitutionally exempt
religious Organizations from generally applicable laws in
order to alleviate significant governmentally imposed burdens
on religious exercise. (Corporation of Presiding Bishop v.
Amos, supra, 483 U.S. 327, 334-335: Hobbie vy.
Unemployment Appeals Comm'n of Fla., supra, 480 U.S.
136, 144-145; Employment Div., Ore. Dept. of Human Res. v.
Smith, supra, 494 U.S. 872, 890.) In any event, the court in
Espinosa addressed the different problem of content-based
prior restraints on speech. The court struck down an
ordinance that gave municipal officials, in effect, the power
to decide in advance which messages the city’s residents
would be permitted to hear by requiring the officials, before
granting a permit, to determine that the applicant’s purpose
for soliciting funds was truly religious. The ordinance thus
violated Cantwell v. Connecticut (1940) 310 U.S. 296, 305-
307, which permits the government to regulate the time, place
and manner of religious solicitations but not to censor them
altogether based on an assessment of the content of speech.
(Espinosa, at pp. 480-482.) The WCEA, which places no
restrictions on speech, does not present the problem
addressed in Cantwell v. Connecticut and Espinosa.
Our conclusion that the government may properly
distinguish between secular and religious entities and
activities for the purpose of accommodating religious
exercise does not mean that any given statute purporting to
draw such distinctions necessarily passes muster under the
free exercise clause. “[A] law targeting religious beliefs as
such is never permissible,” and a court “ ‘must survey
meticulously the circumstances of governmental categories to
eliminate, as it were, religious gerrymanders.’” (Church of
Lukumi Babalu Aye, Inc. v. Hialeah, supra, 508 U.S. 520,
l6a
533-534, quoting Walz v. Tax Commission (1970) 397 USS.
664, 696 (conc. opn. of Harlan, J.).) We address below
Catholic Charities’ separate argument that the WCEA’s
definition of “religious employer” in fact embodies a
legislative effort to target Catholic organizations for
unfavorable treatment. (See p. 23 et seq., post.)
a Excessive entanglement
Catholic Charities contends that the WCEA’s
exemption for “religious employer[s]” (Health & Saf. Code,
§ 1367.25, subd. (b)) violates the establishment clause by
mandating an entangling inquiry into the employer’s religious
purpose and into its employees’ and clients’ religious beliefs.
The argument refers to the first three of the four statutory
criteria for identifying a “religious employer,” namely,
whether “[t]he inculcation of religious values is the purpose
of the entity” (id., subd. (b)(1)(A)), whether “[t]he entity
primarily employs persons who share the religious tenets of
the entity” (id., subd. (b)(1)(B)), and whether “[t]he entity
serves primarily persons who share the religious tenets of the
entity” (id., subd. (b)(1)(C)). A law that fosters an excessive
governmental entanglement with religion can for that reason
violate the establishment clause. (Lemon v. Kurtzman (1971)
403 U.S. 602, 612-613.) ° Moreover, recent judicial opinions
have criticized rules and laws that invite official “trolling
through a person’s or institution’s religious beliefs.”
(Mitchell v. Helms (2000) 530 U.S. 793, 828 (plur. opn. of
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The court in Lemon v. Kurtzman, supra, 403 U.S. 602, “gleaned
from [its prior] cases” three tests for determining whether a statute
violates the establishment clause: “First, the statute must have a secular
legislative purpose; second its principal or primary effect must be one that
neither advances nor inhibits religion ...; finally, the statute must not
foster ‘an excessive governmental entanglement with religion.” ” (/d., at
pp. 612-613, quoting Walz v. Tax Commissior, supra, 397 U.S. 664, 674.)
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Thomas, J.); University of Great Falls v. N.L.R.B. (D.C. Cir.
2002) 278 F.3d 1335, 1342-1348.)
The argument might have merit as applied to a
hypothetical employer that sought to qualify under the
WCEA’s exemption for religious employers (Health & Saf.
Code, § 1367.25, subd. (b)) but objected on establishment
clause grounds to an entangling official effort to verify that its
purpose was the inculcation of religious values, and that ‘it
primarily employed and served persons who shared its
religious tenets. But Catholic Charities candidly alleges in its
complaint that it does not qualify under the exemption
because it does not satisfy any of the four criteria. More
specifically, Catholic Charities concedes that its purpose is
not the inculcation of religious values, that it does not
primarily hire and serve Catholics, and that it does not fall
within either of the relevant provisions of the Internal
Revenue Code (26 U.S.C. § 6033(a)(2)(A)(i) and (iii), cited
in Health & Saf. Code, § 1367.25, subd. (b)(1)(D)).
Consequently, no entangling inquiry into Catholic Charities’
purpose or beliefs, or the beliefs of its employees and clients,
has occurred or is likely to occur. Therefore, even if in some
other case the statute might require an entangling inquiry, in
this case, as applied to Catholic-Charities, the establishment
clause offers no basis for holding the statute unconstitutional.
B. Free Exercise of Religion
Catholic Charities argues the WCEA violates the free
exercise clauses of the federal and state Constitutions (U.S.
Const., Ist Amend.; Cal. Const., art. I, § 4) by coercing the
organization to violate its religious beliefs, in that the WCEA,
by regulating the content of insurance policies, in effect
requires employers who offer their workers insurance for
prescription drugs to offer coverage for prescription
contraceptives. Catholic Charities wishes to offer insurance,
18a
but may not facilitate the use of contraceptives without
violating its religious beliefs.
Any analysis of Catholic Charities’ free exercise
claim must take into consideration the United States Supreme
Court’s decision in Employment Div., Ore. Dept. of Human
Res. v. Smith, supra, 494 U.S. 872 (Smith). In Smith, the high
court articulated the general rule that religious beliefs do not
excuse compliance with otherwise valid laws regulating
matters the state is free to regulate. (/d., at pp. 877-882.) The
government may not regulate religious beliefs as such by
compelling or punishing their affirmation. (/d., at p. 877.)
Nor may it target conduct for regulation only because it is
undertaken for religious reasons. (/bid.) But “the right of
free exercise does not relieve an individual of the obligation
to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or
proscribes).’ ” (Smith, at p. 879, quoting United States v. Lee,
supra, 455 U.S. 252, 263, fn. 3 (conc. opn. of Stevens, J.).)
To permit religious beliefs to excuse acts contrary to law, the
Smith court reasoned, “ ’would be to make the professed
doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto
himself.’ ” (Smith, at p. 879, quoting Reynolds v. United
States (1879) 98 U.S. 145, 167.)
Before Smith, supra, 494 U.S. 872, the high court had
taken a variety of approaches to assessing the
constitutionality of laws claimed to burden the free exercise
of religion. In some cases, notably Sherbert v. Verner (1963)
374 U.S. 398, 403-409 (Sherbert) and Wisconsin v. Yoder
(1972) 406 U.S. 205, 220-229, the court had examined such
laws under strict scrutiny, reasoning that a law substantially
burdening religious practice must be narrowly tailored to
serve a compelling state interest. In other cases, both before
and after Sherbert, the court had upheld laws and
3
4
4
F:
4
uli oat
19a
governmental actions challenged under the free exercise
clause without applying strict scrutiny.’
Eight years before Smith, supra, 494 U.S. 872, Justice
Stevens wrote that most of the court’s holdings were better
explained not by the strict scrutiny test of Sherbert, supra,
374 U.S. 398, as by “a standard that places an almost
insurmountable burden on any individual who objects to a
valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his
religious prescribes (or proscribes) ....” (United States v.
Lee, supra, 455 U.S. 252, 263, fn. 3 (conc. opn. of Stevens,
J.).) After Lee, the court again upheld laws claimed to burden
free exercise, either without mentioning Sherbert, or while
mentioning Sherbert but declining to apply its test.® This
>
Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S.
439 (Native American free exercise challenge to governmental logging
and road construction activities); O'Lone v. Estate of Shabazz (1987) 482
U.S. 342 (prison regulations); Goldman v. Weinberger (1986) 475 U.S.
503 (military dress regulations); Gillette v. United States (1971) 401 U.S.
437 (selective service law); Braunfeld v. Brown (1961) 366 U.S. 599
(Sunday closing law); Prince v. Massachusetts (1944) 321 U.S. 158 (child
labor law); Jacobson v. Massachusetts (1905) 197 U.S. 11 (compulsory
vaccination law); Reynolds v. United States, supra, 98 U.S. 145
(polygamy law).
; Lyng v. Northwest Indian Cemetery Prot. Assn., supra, 485 U.S.
439, 450-453; O’Lone v. Estate of Shabazz, supra, 482 U.S. 342, 348-353;
Goldman v. Weinberger, supra, 475 U.S. 503, 506-510.
In Bowen v. Roy (1986) 476 U.S. 693, the high court did not
decide whether the free exercise clause barred the federal government
from requiring Native American welfare applicants, over their religious
objections, to provide Social Security numbers. In separate opinions, six
justices expressed the view that Sherbert would govern the question. (/d.,
at pp. 715-716 (opn. of Blackmun, J., conc. in part); id., at p. 722 & fn. 17
(opn. of Stevens, J., conc. in part); id., at p. 728 (opn. of O’Connor, J.,
cone. in part, with Brennan and Marshall, JJ., conc.); id., at p. 733 (dis.
opn. of White, J.).) Three justices disagreed. (/d., at p. 708 (plur. opn. of
Burger, C.J., with Powell and Rehnquist, JJ., conc.).)
20a
inconsistency ended with Smith, in which the high court
repudiated the Sherbert test and expressly adopted the
standard Justice Stevens had articulated. (Smith, at pp. 879,
882-890.) More recently, the court has reaffirmed Smith and
reiterated “the general proposition that a law that is neutral
and of general applicability need not be justified by a
compelling government interest even if the law has the
incidental effect of burdening a particular religious practice.”
(Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, 508
U.S. 520, 531.)
The general rule affirmed in Smith, supra, 494 U.S.
872, would at first glance appear to dispose of Catholic
Charities’ free exercise claim. The WCEA’s requirements
apply neutrally and generally to all employers, regardless of
religious affiliation, except to those few who satisfy the
statute’s strict requirements for exemption on religious
grounds. (Health & Saf. Code, § 1367.25, subd. (b).) The act
also addresses a matter the state is free to regulate; it
regulates the content of insurance policies for the purpose of
eliminating a form of gender discrimination in_ health
benefits. The act conflicts with Catholic Charities’ religious
beliefs only incidentally, because those beliefs happen to
make prescription contraceptives sinful. Accordingly, it
appears Catholic Charities may successfully challenge the
WCEA only by demonstrating an exception to the general
rule.
To demonstrate an exception to the general rule is, in
fact, precisely what Catholic Charities seeks to do. On four
separate grounds, Catholic Charities argues we should
examine the WCEA under strict scrutiny despite the holding
of Smith, supra, 494 U.S. 872. Specifically, Catholic
Charities argues that the WCEA is not neutral and generally
applicable (see Church of Lukumi Babalu Aye, Inc. v.
Hialeah, supra, 508 U.S. 520, 533-547), that it constitutes a
religious “gerrymander” (see id., at p.534), and that it
2la
violates so-called hybrid rights (cf. Smith, supra, 494 US. at
pp. 881-882). Finally, Catholic Charities argues that the
California Constitution requires us to apply strict scrutiny in
any event, and that the WCEA fails that test. We address
each of these arguments below.
l. Neutrality and general applicability
Catholic Charities offers two arguments why the
WCEA should be not considered neutral or generally
applicable and should, thus, be subject to strict scrutiny under
an exception to the rule of Smith, supra, 494 U.S. 872. First,
Catholic Charities contends the face of the statute
demonstrates a lack of neutrality; second, Catholic Charities
relies on the WCEA’s legislative history and practical effect
to argue the Legislature “gerrymandered” the law to reach
only Catholic employers. We address these arguments
separately, as Catholic Charities has stated them in its brief.
A law is not neutral towards religion if its “object...
is to infringe upon or restrict practices because of their
religious motivation ....” (Church of Lukumi Babalu Aye,
Inc. v. Hialeah, supra, 508 U.S. 520, 533 (Lukumi).) A law is
not generally applicable if it “in a selective manner impose[s]
burdens only on conduct motivated by religious belief... .”
(/d., at p. 543.) Thus, “[nJeutrality and general applicability
are interrelated, and ... [a] failure to satisfy one requirement
is a likely indication that the other has not been satisfied.”
(/d., at p. 531.)
In determining whether the object of a law is to
suppress religion or religiously motivated conduct, a court
“must begin with [the law’s] text, for the minimum
requirement of neutrality is that a law not discriminate on its
face. A iaw lacks facial neutrality if it refers to a religious
practice without a secular meaning discernable from the
language or context.” (Lukumi, supra, 508 U.S. 520, 533.)
22a
Following this approach, the high court in Lukumi found that
a city council’s use of the words “sacrifice” and “ritual” in an
ordinance regulating animal slaughter helped to show,
together with other evidence, that the ordinance had been
motivated by a desire to suppress the Santeria religion. The
lack of facial neutrality fit into a “pattern” of “animosity to
Santeria adherents and their religious practices . .. ” (d., at
p. 542.) Not only did “the ordinances by their own terms
target [Santeria] religious exercise,” so too were “the texts of
the ordinances ...gerrymandered with care to proscribe
religious killings of animals but to exclude almost all secular
killings ....” (/bid.) Finally, “the ordinances suppress[ed]
much more religious conduct than [was] necessary in order to
achieve the legitimate ends asserted in their defense [l.e.,
protecting health and preventing cruelty to animals].” (/bid.)
Relying on Lukumi, supra, 508 U.S. 520, Catholic
Charities argues the WCEA is not neutral because its
exemption for religious employers contains religious terms
and terminology that lack any secular meaning or purpose.
Catholic Charities specifically refers to the terms “inculcation
of religious values” and “religious tenets,” both of which
appear in criteria used in the WCEA-to define and exempt
“religious employer(s].” (Health & Saf. Code, § 1367.25,
subd. (b)(1)(A), (B) & (C).)
Lukumi, supra, 508 U.S. 520, is inapposite. The
animal sacrifice ordinance challenged in that case referred to
religious practices (“sacrifice” and “ritual”) in order to
prohibit them. In that context, the statute’s use of religious
terminology supported the court’s conclusion “that
suppression of the central element of the Santeria worship
service was the object of the ordinances” there at issue. (/d.,
at p. 534.) In contrast, the WCEA refers to the religious
characteristics of organizations in order to identify and
exempt those organizations from an otherwise generally
applicable duty. Although Catholic Charities cannot claim
eee ee wa aa
23a
the statutory exemption for religious employers, other
Catholic organizations may be able to claim it. If the WCEA
burdens Catholic Charities’ religious beliefs, the burden
arises not from the religious terminology used in the
exemption, but from the generally applicable requirement to
provide coverage for contraceptives. The high court has
never prohibited statutory references to religion for the
purpose of accommodating religious practice. To the
contrary, the court has repeatedly indicated that “it is a
permissible legislative purpose to alleviate significant
governmental interference with the ability of religious
organizations to define and carry out their religious
missions.” (Corporation of Presiding Bishop v. Amos, supra,
483 U.S. 327, 335 (Amos); see also Hobbie v. Unemployment
Appeals Comm'n of Fla., supra, 480 U.S. 136, 144-145: cf.
Smith, supra, 494 U.S. 872, 890.) Furthermore, the state may
require an organization “claiming the benefits of [a] religious-
organization exemption” from a regulatory statute “to prove
that [it] is a religious organization within the meaning of the
[statute].” (Larson v. Valente (1982) 456 U.S. 228, 255,
fn. 30, italics added.) To accomplish these purposes without
explicitly defining the religious groups and practices to be
accommodated, in order to distinguish them from secular
groups and practices not entitled to accommodation, would
often be impossible.
Because a_ legislative accommodation _ benefits
religion, it is tested not under the free exercise clause’ but
under the establishment clause. (Amos, supra, 483 U.S. 327,
334-336.) To comply with the establishment clause, a law
must among other things serve a “secular legislative
purpose.’” (/d., at p. 335, quoting Lemon v. Kurtzman,
supra, 403 U.S. 602, 612.) In this context, the requirement of
a secular legislative purpose “does not mean that the law’s
purpose must be unrelated to religion—that would amount to
a requirement ‘that the government show a. callous
indifference to religious groups,’ ... and the Establishment
ata
Clause has never been so interpreted.”- (Amos, at p. 335,
quoting Zorach v. Clauson (1952) 343 U.S. 306, 314.)
Instead, “it is a permissible legislative purpose to alleviate
significant governmental interference with the ability of
religious organizations to define and carry out their religious
missions.” (Amos, at p. 335.) The references to religion in
the WCEA-have no other purpose than this. The high court
has not “required that legislative categories make no explicit
reference to religion.” (Texas Monthly, Inc. v. Bullock (1989)
489 U.S. 1, 10 (plur. opn. of Brennan, J.).)
A tule barring religious references in statutes intended
to relieve burdens on religious exercise would invalidate a
large number of statutes. A few examples suffice. The
federal statute upheld in Amos, supra, 483 U.S. 327, for
example, exempted from title VII of the Civil Rights Act of
1964 “a religious corporation, association, or educational
institution, or society with respect to the employment of
individuals of a particular religion to perform work connected
with the carrying on by such a corporation, association,
education institution, or society of its activities.” (42 U.S.C.
§ 2000e-1(a).) Similarly, the California Fair Employment
and Housing Act uses the term “religious association or
corporation” (Gov. Code, § 12926, subd. (d)) in order to
exempt certain employers from liability for unlawful
employment practices. We recently upheld statutes that refer
to “religiously affiliated” associations and their “religious
mission[s]” for the purpose of exempting such associations
from burdens imposed by a landmark preservation ordinance.
(East Bay Asian Local Development Corp. v. State of
California, supra, 24 Cal.4th 693, 702, quoting Gov. Code,
§§ 25373, subd. (d), and 37361, subd. (c).) The rule Catholic
Charities proposes would invalidate these and many similar
laws. Because the high court’s decisions provide no support
for such a rule, we reject it.
ZJjd
rm Religious gerrymander
Our analysis does not end with the conclusion that the
WCEA is facially neutral towards religion. The First
Amendment requires more than facial neutrality. It protects
against “’subtle departures from neutrality and
“governmental hostility which is masked as well as overt.”
(Lukumi, supra, 508 U.S. 520, 534, quoting Gillette v. United
States, supra, 401 U.S. 437, 452.) Thus, a court “ ’must
Survey meticulously the circumstances of governmental
categories to eliminate, as it were, religious gerrymanders.’ ”
(/bid., quoting Walz v. Tax Commission, supra, 397 U.S. 664,
696 (conc. opn. of Harlan, J.).) Catholic Charities argues the
Legislature gerrymandered the WCEA to deny the benefit of
the exemption to Catholic organizations. The law
discriminates, Catholic Charities contends, both against the
Catholic Church and against religious organizations of any
denomination that engage in charitable work, as opposed to
work that is purely spiritual or evangelical.
a 3
We find no merit in the argument that the WCEA
discriminates against the Catholic Church. It was at the
request of Catholic organizations that the Legislature added
an exception permitting religious employers to deny coverage
for “contraceptive methods that are contrary to the religious
employer’s religious tenets.” (Health & Saf. Code,
§ 1367.25, subd. (b).) Because most religions do not object
to prescription contraceptives, most religious employers are
subject to the WCEA. The Legislature’s decision to grant
preferential treatment to religious employers who do object is
justifiable as an accommodation of religious exercise under
the principles discussed above. (Amos, supra, 483 U.S. 327,
334-335.) That the exemption is not sufficiently broad to —
cover all organizations affiliated with the Catholic Church
£Ua
does not mean the exemption discriminates against the
Catholic Church. ”
We find nothing to the contrary in Larson v. Valente,
supra, 456 U.S. 228 (Larson), the decision on which Catholic
Charities principally relies. The high court in Larson held
unconstitutional under the establishment clause a Minnesota
statute that discriminated, in effect, against the Reverend Sun
Myung Moon’s Unification Church. For many years prior to
Larson, Minnesota law had regulated charitable solicitations
generally but exempted from regulation all solicitations by
religious organizations. In 1978, the Minnesota Legislature
amended the law to exempt only those religious organizations
that received more than 50 percent of their contributions from
members or affiliated organizations. Minnesota defended the
exemption as intended to prevent abusive solicitations of the
public, reasoning that the members of well-established,
internally funded churches would exercise enough
supervision over fund-raising activities to justify dispensing
with state supervision. The high court rejected the argument.
In the court’s view, the 50-percent rule violated “([t]he
clearest command of the Establishment Clause,” namely,
“that one religious denomination cannot be officially
‘i Indeed, rather than discriminating against the Catholic Church,
the WCEA can more plausibly be viewed as benefiting the Catholic
Church in practical effect, since no other religious group opposed to
prescription contraceptives has been identified. But the WCEA does not
for this reason violate the establishment clause. A law intended not to
discriminate among religions but to alleviate a governmentally created
burden on religious exercise does not necessarily violate the establishment
clause, even though only a single religion in need of accommodation has
been identified, if the law is phrased neutrally, to allow for the possibility
that other as-yet-unidentified religions in need of the same
accommodation will be able to claim it. (See, e.g., Kong v. Scully (9th
Cir. 2003) 341 F.3d 1132; Children’s Health. Is A Legal Duty v. Min De
Parle (8th Cir. 2000) 212 F.3d 1084; Droz v. Commissioner of I.R.S. (9th
Cir. 1995) 48 F.3d 1120.)
VS AA NO, oR ABE AREA NO Bu nee? ae
AG. «
preferred over another.” (/d., at p.244.) Laws granting
denominational preferences must serve compelling
governmental interests and be closely fitted to further those
interests. (/d., at pp. 246-247.) Minnesota’s law failed that
test.
The reasoning of Larson, supra, 456 U.S. 228, does
not invalidate the WCEA. The statute invalidated in Larson
drew an explicit distinction between religious denominations
based on their sources of income, and used that distinction to
impose a regulatory burden only on certain denominations.
In contrast, the WCEA applies to religious and nonreligious
organizations equally. The WCEA confers the special benefit
of exemption only on those religious organizations whose
tenets are opposed to prescription contraceptives and that
meet the other requirements for exemption. This benefit, as
explained above, is justifiable as a legislative
accommodation—an effort to alleviate a governmentally
imposed burden on religious exercise. (See Amos, supra, 483
U.S. 327, 334-335.) Those Catholic employers that do not
qualify for exemption are treated precisely the same as all
other employers in the state, whether religious or
nonreligious. Thus, while the WCEA may treat some
Catholic employers more favorably than other employers, the
WCEA does not under any circumstance treat Catholic
employers less favorably than any other employers. About a
law such as this, Larson has nothing to say. '°
™ We read Larson, supra, 456 U.S. 228, as condemning laws that
discriminate among religions or religious denominations. The law held
unconstitutional in Larson reflected the Minnesota Legislature’s “express
design ... to burden or favor selected religious denominations” (id., at
p. 255, italics added), specifically the Unification Church (id., at pp. 232,
255, fn. 30). Here, in contrast, nothing about the Catholic religion
prevents a Catholic religious organization from qualifying under the
WCEA’s exemption for religious organizations. We assume, for example,
Ra
Catholic Charities argues the WCEA violates Larson,
supra, 456 U.S. 228, for the additional reason that the law
draws a distinction between religious organizations whose
purpose is the “inculcation of religious values” (Health & Saf.
Code, § 1367.25, subd. (b)(1)(A)) and other religious
organizations that, in Catholic Charities’ words, “have the
temerity to engage in ministries other than the ‘inculcation of
religious values.’ ” (Italics in original.) We accept Catholic
Charities’ assertion that the Catholic Church’s “self-
understanding compels it to engage in ‘corporal works of
mercy,’ which ‘consist especially in feeding the hungry,
sheltering the homeless, clothing the naked, visiting the sick
and imprisoned, and burying the dead.’” (Quoting
Catechism of the Catholic Church (1994) 4 2447, p. 588.)
However, to the extent Catholic Charities is arguing the
WCEA embodies a_ preference for non-Catholic
denominations, the argument fails for the reasons already
given.
Catholic Charities’ intent may be to argue that the
WCEA discriminates against charitable social work as a
religious practice. Such an argument would implicate “[t]he
principle that government, in pursuit of legitimate interests,
cannot in a selective manner impose burdens only oi: conduct
motivated by religious belief... .” (Lukumi, supra, 508 U.S
that a Catholic diocese or parish, acting as an employer, would typically
qualify under the exemption.
In contrast, Larson, supra, 456 U.S. 228, does not purport to bar
a state from attempting for valid regulatory purposes to distinguish among
organizations based on sect-neutral grounds, even if those organizations
claim a religious character. Indeed, Larson expressly permits the state to
require an organization “claiming the benefits of [a] religious-organization
exemption” from a regulatory statute “to prove that [it] is a religious
organization within the meaning of the [statute].” (/d., at p. 255, fn. 30,
italics added.) Were this not true, the mere claim of religious character
would effectively preclude state regulation.
29a
520, 543.) Applying this principle, the high court in Lukumi
held unconstitutional an ordinance that permitted the killing
of animals for food or sport, but not in religious rituals. The
ordinance had “ ‘every appearance of a prohibition that
society is prepared to impose upon [Santeria worshippers] but
not upon itself.’ ” (/d., at p. 545, quoting The Florida Star v.
B.J.F. (1989) 491 U.S. U.S. 524, 542.) The WCEA is not
similar. If a religiously affiliated organization fails to qualify
for exemption because its purpose is something other than the
“inculcation of religious values” (Health & Saf. Code,
§ 1367.25, subd. (b)(1)(A)), then the result is simply that the
organization becomes subject to the same obligations that
apply to all other employers. Because the WCEA applies to
all nonreligious employers engaged in charitable social work,
no argument can logically be made that the WCEA imposes a
burden on charitable social work only when performed for
religious reasons.
As additional support for its claim that the WCEA’s
purpose is to discriminate against the Catholic Church,
Catholic Charities contends the Legislature drafted the
“religious employer” exception (Health & Saf. Code,
§ 1367.25, subd. (b)) with the specific intention of excluding
Catholic hospitals and social service agencies like Catholic
Charities. Catholic Charities draws an analogy to Lukumi,
supra, 508 U.S. 520, 540-542, in which the high court
considered specific statements by members of the Hialeah
City Council as evidence that the ordinance prohibiting
animal sacrifice was intended to suppress the Santeria
religion. Catholic Charities” assertions about the legislative
history of the WCEA do not justify a similar conclusion in
this case.
According to Catholic Charities, the history of the
WCEA suggests the Legislature intended the law to close a
“Catholic gap” in insurance coverage for prescription
contraceptives. The evidence does not support the
30°.
contention. The phrase “Catholic gap’ appears ofly ‘in
Catholic Charities’ brief, not in the legislative history.
Catholic Charities refers to the Senate testimony of a
representative of Planned Parenthood, which opposed any
exception for religious employers. Explaining — that
organization’s position, the witness stated: “Primarily our
intent was to close the gap in insurance coverage for
contraception and prescription benefit plans. Our concern
with granting an exemption is that that defeats the original
purpose of the bill.” The “gap” to which the witness
apparently referred was the gap identified by a-national
consulting firm’s 1999 study of heaith insurance for
prescription contraceptives. This study, which received much
attention in the Legislature, concluded that approximately 10
percent of commercially insured Californians did not already
have insurance coverage for prescription contraceptives. The
study identified this minority not as the employees of
Catholic organizations, but as persons covered by PPO and
indemnity plans. While most HMO’s covered prescription
contraceptives, not all PPO and indemnity plans did.
Catholic Charities’ assertion that the purpose of the WCEA
was to close a “Catholic gap” rather than a statewide
statistical gap in coverage has no apparent evidentiary
support.’
” Catholic Charities also argues that the Legislature acted out of
antipathy and spite towards the Catholic Church. Through this argument,
Catholic Charities seeks to compare the Legislature’s consideration of the
WCEA with the Hialeah City Council’s decision (see Lukumi, supra, 508
U.S. 520) to ban animal sacrifice as a way of suppressing the Santeria
religion. In discussing the council’s decision, the high court noted that
Hialeah city officials had castigated Santeria as an “abomination to the
Lord” and “the worship of demons,” and that a public crowd attending the
city council’s meeting had interrupted with jeers and taunts the President
of the Santeria Church. (/d., at p. 541.) The legislative history of the
WCEA discloses no comparable antipathy to the Catholic Church.
——
pe ee ee
3la
‘Next, Catholic Charities argues the Legislature
deliberately narrowed the statutory exception for “religious
employer[s]” (Health & Saf. Code, § 1367.25, subd. (b)) to
include as few Catholic organizations as possible and
specifically to exclude Catholic hospitals and social service
organizations. The legislative history does show that the
bill’s sponsors argued against a broader exception. The bill’s
Senate sponsor, for example, stated in a committee hearing
that “the intention of the authors as it relates to creating a
religious exemption may not be the same intentions of the
religions themselves in wanting to be exempted. [{] The
intention of the religious exemption in both these bills is an
intention to provide for exemption for what is religious
activity. The more secular the activity gets, the less
religiously based it is, and the more we believe that they
should be required to cover prescription drug benefits for
contraception.” Catholic Charities describes this and similar
statements as evidence that the Legislature targeted specific
Catholic organizations for disadvantageous treatment. But
we have already examined and rejected that argument. The
law treats some Catholic organizations more favorably than
all other employers by exempting them; nonexempt Catholic
organizations are treated the same as all other employers.
3 Hybrid rights
As an additional argument for applying strict scrutiny
to its federal free exercise claim, Catholic Charities argues
that the WCEA violates so-called hybrid rights. The term
“hybrid rights” is loosely derived from Smith, supra, 494 U.S.
872, in which the high court repudiated the strict scrutiny test
of Sherbert, 374 U.S. 398. (See Smith, at pp. 882-884.)
Along the way to that conclusion, the court distinguished
certain of its prior decisions as having involved not just the
free exercise clause but other constitutional provisions as
well. Specifically, the court stated that “[t]he only decisions
in which we have held that the First Amendment. bars
32a
application of a neutral, generally applicable law to
religiously motivated action have involved not the Free
Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections, such as
freedom of speech and of the press U2], or the right of
parents ... to direct the education of their children pe
(/d., at p. 881.) The facts of Smith, the court observed, did
“not present such a hybrid situation, but a free exercise claim
unconnected with any communicative activity or parental
right.” (Smith, at p. 882.)
Relying on this passage from Smith, supra, 494 U.S.
872, Catholic Charities argues the WCEA violates hybrid
rights and, thus, requires us to apply strict scrutiny to its free
exercise claim. The other rights violated, Catholic Charities
asserts, are those protected by the free speech and
establishment clauses of the First Amendment. (U.S. Const.,
Ist Amend.)
The high court has not, since the decision in Smith,
supra, 494 U.S. 872, determined whether the hybrid rights
theory is valid or invoked it to justify applying strict scrutiny
to a free exercise claim. Justice Souter has mentioned hybrid
rights in a concurring opinion, but only to criticize Smith’s
reliance on the concept. (Lukumi, supra, 508 U.S. 520, 567
(opn. of Souter, J., conc. in part).) Some of the lower federal
courts have treated the relevant passage from Smith as dictum
and declined to apply, to assertedly hybrid claims, a standard
stricter than the rational basis test. (Leebaert v. Harrington
12
Namely, Follett v. McCormick (1944) 321 U.S. 573, Murdock v.
Pennsylvania (1943) 319 U.S. 105, and Cantwell v. Connecticut, supra,
310 U.S. 296; see Smith, supra, 494 U.S. 872, 881.
13
Namely, Wisconsin v- Yoder, supra, 406 U.S. 205, and Pierce v.
Society of Sisters (1925) 268 U.S. 510; see Smith, supra, 494 U.S. 872,
881.
33a
(2d Cir. 2003) 332 F.3d 134, 143-144; Kissinger v. Board of
Trustees (6th Cir. 1993) 5 F.3d 177, 180.) Other lower
federal courts appear to have assumed that hybrid claims
trigger a higher level of scrutiny, but have concluded that “a
plaintiff does not allege a hybrid-rights claim entitled to strict
scrutiny analysis merely by combining a free exercise claim
with an utterly meritless claim of the violation of another
alleged fundamental right.” (Miller v. Reed (9th Cir. 1999)
176 F.3d 1202, 1208; see also Civil Lib. for Urban Believers
v. City of Chicago (7th Cir. 2003) 342 F.3d 752, 765:
Swanson by and through Swanson y. Guthrie ISD I-L (10th
Cir. 1998) 135 F.3d 694, 700.)
Catholic Charities argues that the non-free-exercise
component of a hybrid claim need only be “colorable” and
not ultimately meritorious. While some courts have proposed
such a rule (e.g., Miller v. Reed, supra, 176 F.3d 1202, 1207;
Swanson by and through Swanson v. Guthrie ISD I-L, supra,
135 F.3d 694, 700), no court has relied on it to grant relief.
Nor would such a rule make sense. As Justice Souter has
explained, “[i]f a hybrid claim is simply one in which another
constitutional right is implicated, then the hybrid exception
would probably be so vast as to swallow the Smith rule... .”
(Lukumi, supra, 508 U.S. 520, 567 (opn. of Souter, J., conc.
in part).) For this reason, the Sixth Circuit has rejected as
“completely illogical” the proposition that “the legal standard
[of review] under the Free Exercise Clause depends on
whether a_ free-exercise claim is coupled with other
constitutional rights.” (Kissinger v. Board of Trustees, supra,
5 F.3d 177, 180 & fn. 1.)
We are aware of no decision in which a federal court
has actually relied solely on the hybrid rights theory to justify
applying strict scrutiny to a free exercise claim. Indeed, the
only federal decision that can properly be said to have relied
on the theory at all is E.E.O.C. v. Catholic University of
America, supra, 83 F.3d 455, 467, in which the court
34a
mentioned hybrid rights as an alternative basis for its
conclusion that federal employment law could not be applied
to require a Catholic educational institution to grant tenure to
a professor of canon law. The principal basis for the court's
holding was the ministerial exception. (/d., at pp. 463-465;
see ante, at p. 11 et seq.)'*
Assuming for the sake of argument the hybrid rights
theory is not merely a misreading of Smith, supra, 494 U.S.
872, Catholic Charities has not alleged a meritorious
constitutional claim that might justify the theory's application
to this case. Catholic Charities argues that to assist in
providing employees with insurance for prescription
contraceptives would be viewed as an endorsement of their
use and that the WCEA, by compelling such assistance,
violates the free speech clause by requiring the organization
to engage in symbolic speech it finds objectionable. The
argument lacks merit. Certainly “the First Amendment may
prevent the. government from compelling individuals to
express certain views ....” (United States v. United Foods,
Inc. (2001) 533 U.S. 405, 410, citing Wooley v. Maynard
(1977) 430 U.S. 705, 713-717 [state may not compel
unwilling motorists to display state motto, “Live Free or
Die,” on vehicle license plates], and Board of Education v.
Barnette (1943) 319 U.S. 624, 630-642 [state may not compel
public school pupils to salute the flag or recite the Pledge of
Allegiance].) However, Catholic Charities’ compliance with
a law regulating health care benefits is not speech. The law
leaves Catholic Charities free to express its disapproval of
prescription contraceptives and to encourage its employees
not to use them. For purposes of the free speech clause,
14
A few state courts have mentioned the hybrid-rights theory.
(First Covenant Church v. Seattle (Wash. 1992) 840 P.2d 174, 181-182
{alternative ground for decision]; City Chapel v. South Bend (ind. 2001)
744 N.E.2d 443, 452-454 (plur. opn. of Dickson, J.).)
3Sa
simple obedience to a law that does not require one to convey
a verbal or symbolic message cannot reasonably be seen a
Statement of support for the law or its purpose. Such a rule
would, in effect, permit each individual to choose which laws
he would obey merely by declaring his agreement or
opposition. (Cf. Buhl v. Hannigan (1993) 16 Cal.App.4th
1612, 1626 & fn. il [dismissing as “ludicrous” a
motorcyclist’s claim that compliance with a law requiring the
wearing of helmets in effect compelled speech supporting the
law, regardless of the motivation for noncompliance].)'*
4, California Constitution
Catholic Charities’ final argument for applying strict
scrutiny invokes the free exercise clause of the California
Constitution. (Cal. Const., art. 1, § 4.)'° That clause, Catholic
Charities contends, forbids the state to burden the practice of
religion, even incidentally, through a neutral, generally
applicable law, unless the law in question serves a compelling
governmental interest and is narrowly tailored to achieve that
interest. Catholic Charities asserts, in other words, that we
must interpret the California Constitution the same way the
United States Supreme Court interpreted the federal
Constitution’s free exercise clause in Sherbert, supra, 374
U.S. 398.
14
Catholic Charities perfunctorily asserts that its claims under the
establishment clause (U.S. Const., Ist Amend.) also justify treating this
case as involving hybrid rights. We have, however. already determined
that those claims lack merit.
- “Free exercise and enjoyment of religion without discrimination
or preference are guaranteed. This liberty of conscience does not excuse
acts that are licentious or inconsistent with the peace or safety of the
State... .” (Cal Const., art. I. § 4.)
36a
What might be the proper standard of review for
challenges to neutral, generally applicable laws under the
state Constitution’s free exercise clause is a question we left
open in Smith v. Fair Employment & Housing Com. (1996)
12 Cal.4th 1143, 1177-1179 (Smith v. FEHC). There we
rejected, under both federal and state law, a landlord's
religiously based claim to exemption from a fair housing
statute prohibiting discrimination on the basis of marital
status. (Gov. Code, § 12955, subd. (a).) Although the case
arose after the high court’s decision in Smith, supra, 494 U.S.
872, we nevertheless applied strict scrutiny to the landlord’s
federal claim because the Religious Freedom Restoration Act
required us to do so. (42 U.S.C. § 2000bb et seq., hereafter
RFRA; see Smith v. FEHC, at pp. 1165-1167.) '’ We did not
decide whether the landlord’s claim under the state
Constitution’s free exercise clause required strict scrutiny. A
plurality of three justices assumed for the sake of argument
that it did, but declined to “address the scope and proper
interpretation of California Constitution, article I, section 4.”
(Smith v. FEHC, at p. 1179 (plur. opn. of Werdegar, J.,
George and Arabian, JJ., conc.).) “These important
questions,” the plurality wrote, “should await a case in which
their resolution affects the outcome.” (/bid.) Justice Mosk’s
concurring opinion provided a fourth vote for the disposition.
(/d., at pp. 1179-1192 (conc. opn. of Mosk, J.).)
No decision about the appropriate standard of review
can be gleaned from the various separate opinions in Smith v.
FEHC, supra, 12 Cal.4th 1143. The subject of Justice
Mosk’s concurring opinion was his view that RFRA was
unconstitutional; he did not address the state Constitution.
(Smith v. FEHC, at pp. 1179-1192 (conc. opn. of Mosk, J.).)
Justice Kennard, who also wrote separately, would have held
17
The United States Supreme Court subsequently held RFRA
unconstitutional. (City of Boerne v. Flores (1997) 521 U.S. 507.)
Se ee ee
37a
that the challenged law violated RFRA; she, too, did not
address the state Constitution. (/d., at pp. 1192-1218 (conc.
& dis. opn. of Kennard, J.).) Justice Baxter, who otherwise
agreed with Justice Kennard, wrote separately to emphasize
the point we now make, namely, that the court’s various
opinions left unsettled “the scope of protection of religious
liberty under the free exercise clause of our state
Constitution.” (/d., at p. 1250 (conc. & dis. opn. of Baxter, J.,
with Lucas, C.J., conc.).)
The only published decision purporting to determine
the standard of review for claims under the California
Constitution’s free exercise clause is Brunson v. Department
of Motor Vehicles (1999) 72 Cal.App.4th 1251. The Court of
Appeal in Brunson rejected the contention that the plaintiffs’
religious beliefs excused them from complying with a
Statutory duty (Veh. Code, §§ 1653.5, 12800, subd. (a)) to
provide their Social Security numbers to the Department of
Motor Vehicles when applying for drivers’ licenses. The
court interpreted Smith v. FEHC, supra, 12 Cal.4th 1143, as
mandating application of the rational basis test to the
petitioners’ claims under the state free exercise clause.
(Brunson v. Department of Motor Vehicles, supr~, at
pp. 1255-1256.) The court’s reading of Smith v. FEHC was
erroneous. As we have just explained, in Smith v. FEHC we
left the question open.'" The Court of Appeal in the case
before us, while acknowledging Brunson, examined the
question independently and concluded that challenges under
” While the court in Brunson v. Department of Motor Vehicles,
supra, 72 Cal.App.4th 1251, thus misinterpreted Smith v, FEHC, supra,
12 Cal.4th 1143, we have no occasion to reexamine the Brunson court’s
ultimate conclusion about the validity of the statutes at issue in that case.
We note the Legislature recently amended Vehicle Code sections 1653.5
and 12800, subdivision (a), to permit the Department of Motor Vehicles to
accept appropriate numbers and identifiers other than Social Security
numbers. (Stats. 2003, ch. 326, §§ 1, 2.)
38a
the state free exercise clause to neutral, generally applicable -
laws should be evaluated under the rational basis standard of
Smith, supra, 494 U.S. 872.
Certainly the high court’s decision in Smith, supra,
494 U.S. 872, does not control our interpretation of the state
Constitution’s free exercise clause. Neither does the decision
in Sherbert, supra, 374 U.S. 398. We have observed many
times “that the meaning of the California Constitution article
I, section 4 ... is not dependent on the meaning of any
provision of the federal Constitution. The state charter
declares in so many words that ‘[r]ights guaranteed by this
Constitution are not dependent on those guaranteed by the
United States Constitution.” (Cal. Const., art. I, § 24.)
‘Respect for our Constitution as ‘a document of independent
force’ [citation] forbids us to abandon settled applications of
its terms every time changes are announced in _ the
interpretation of the federal charter.” (Smith v. FEHC,
supra, 12 Cal.4th 1143, 1177, quoting People v. Pettingill
(1978) 21 Cal.3d 231, 248, and People v. Brisendine (1975)
13 Cal.3d 528, 549-550.) Thus, if a settled interpretation of
the California Constitution’s free exercise clause had existed
before 1990, when the United States Supreme Court
abandoned the Sherbert test, we would simply adhere to that
interpretation, regardless of Smith, supra, 494 U.S. 872.
However, no settled interpretation of the state
Constitution’s free exercise clause existed in 1990. Between
the dates of Sherbert, supra, 374 U.S. 398, and Smith, supra,
494 U.S. 872, our own decisions assessing the
constitutionality of neutral, generally applicable laws that
incidentally burdened religious practices applied the federal
and state free exercise clauses interchangeably, without
ascribing any independent meaning to the state clause.
(Walker v. Superior Court (1988) 47 Cal.3d 112, 138-141;
Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1112-
1120; In re Arias (1986) 42 Cal.3d 667, 692 & fn. 28; People
39a
v. Woody (1964) 61 Cal.2d 716, 718, fn. 1.) In decisions
prior to Sherbert, we generally took an approach similar to
the high court’s decisions of the same era, declining to
exempt religiously motivated conduct from neutral, generally
applicable laws. We wrote, for example, that “a person is
free to hold whatever belief his conscience dictates, but when
he translates is belief into action he may be required to
conform to reasonable regulations which are applicable to ail
persons and are designed to accomplish a_ permissible
objective.” (Rescue Army v. Municipal Court (1946) 28.
Cal.2d 460, 470.) We also wrote that, “[i]f the applicability
of government regulation turned on the religious motivation
of activities, plausible motivations would multiply and in the
end vitiate any regulation.” (Gospel Army v. City of Los
Angeles (1945) 27 Cal.2d 232, 243; see also Gabrielli y.
Knickerbocker (1938) 12 Cal.2d 85, 90-92 [declining to
reinstate a pupil expelled from public school for refusing on
religious grounds to salute the flag]; Ex parte Andrews (1861)
18 Cal. 678, 683-685 [upholding a Sunday closing law].)
In view of this history, we may safely agree with the
scholars who concluded in 1993, years after the high court
decided Smith, supra, 494 U.S. 872, that “[s]ection 4 has not
so far played an independent role in free exercise claims.”
(Grodin et al., The Cal. State Constitution: A Reference
Guide (1993) p. 44.)
In a case that truly required us to do so, we should not
hesitate to exercise our responsibility and final authority to
declare the scope and proper interpretation of the California
Constitution’s free exercise clause. (Cal. Const., art. I, § 4.)
Here, however, we need not do so because Catholic Charities’
challenge to the WCEA fails in any event. As we explain
below, the statute passes strict scrutiny. A future case might
lead us to choose the rule of Sherbert, supra, 374 U.S. 398,
the rule of Smith, supra, 494 US. 872, or an as-yet
unidentified rule that more precisely reflects the language and
40a
history of the California Constitution and our own
understanding of its import. But “[t]hese important questions
should await a case in which their resolution affects the
outcome.” (Smith v. FEHC, supra, 12 Cal.4th 1143, 1179.)
We therefore review Catholic Charities’ challenge to
the WCEA under the free exercise clause of the California
Constitution in the same way we might have reviewed a
similar challenge under the federal Constitution after
Sherbert, supra, 374 U.S. 398; and before Smith, supra, 494
U.S. 872. In other words, we apply strict scrutiny. Under
that standard, a law could not be applied in a manner that
substantially burdened a religious belief or practice unless the
state showed that the law represented the least restrictive
means of achieving a compelling interest or, in other words,
was narrowly tailored. (See Thomas v. Review Bd., Ind.
Empl. Sec. Div. (1981) 450 U.S. 707, 718; Sherbert, supra,
374 U.S. 398, 403, 406, 407-408.) For these purposes, a law
substantially burdens a religious belief if it “conditions
receipt of an important benefit upon conduct proscribed by a
religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his behavior
and to violate his beliefs ....” (Thomas v. Rev. Bd., Ind.
Empl. Sec. Div., supra, 450 U.S. 707, 717-718.)
Applying this standard, we consider first whether the
WCEA in fact burdens Catholic Charities’ religious beliefs.
We do not doubt Catholic Charities’ assertion that to offer
insurance coverage for prescription contraceptives to its
employees would be religiously unacceptable. Catholic
Charities adequately supports the assertion -with the
declaration of a Roman Catholic priest who serves as
Executive Director of the Secretariat for Doctrine and
Pastoral Practices of the National Conference of Roman
Catholic Bishops. Catholic Charities may, however, avoid
this conflict with its religious beliefs simply by not offering
4la
coverage for prescription drugs. The WCEA applies only to
employers who choose to offer insurance coverage for
prescription drugs; it does not require any employer to offer
such coverage.
Anticipating this objection, Catholic Charities argues
that its religious beliefs also require it to offer its employees
insurance for prescription drugs. On this point, however, the
declaration just mentioned seems open to interpretation. The
declarant states: “The clear teaching and firm doctrine of the
Roman Catholic Church is that all employers, religious or
otherwise, are to provide just wages and benefits to
employees, regardless of their religious affiliations and
beliefs, as an obligation arising from the Gospel message of
justice and charity. The goal of the Roman Catholic Church,
also as a matter of justice and charity, is that all workers
regardless of their circumstances should receive adequate
health-care coverage.” In the present context—that of
weighing an asserted burden on religious beliefs against the
State interests supporting a challenged _statute—the
declaration raises the question whether Catholic Charities’
beliefs about the requirements of “Justice and charity” are
necessarily equivalent to religious beliefs. We must ask this
question because < claim under the free exercise clause must
be “rooted in religious belief’ and not on “philosophical”
choices or “[a] way of life, however virtuous and admirable.”
(Wisconsin v. Yeder, supra, 406 U.S. 205, 215, 216.)
“Although a deternination of what is a ‘religious’ belief or
practice entitled to constitutional protection may present a
most delicate question, the very concept of ordered liberty
precludes allowing every person to make his own standards
on matters of coaduct in which society as a whole has
important interests.” (/d., pp. 215-216, footnote omitted.)'°
19
Assuming th: obligation to provide adequate health care
coverage is a religiow belief, one might also ask whether a religious
42a
The need to ask questions such as these places a court
in an uncomfortable position. “Repeatedly and in many
different contexts,” the high court has “warned that courts
must not presume to determine the place of a particular belief
in a religion or the plausibility of a religious claim.” (Smith,
supra, 494 U.S. 872, 887.) The line between construing
Catholic Charities’ declaration, which we must do, and
determining the plausibility of religious claims, which we
may not do, is fine indeed. Equally fine is the line between
construing the declaration and determining whether the
asserted burden falls on a protected religious belief or an
unprotected philosophical choice, which we also must do.
(Wisconsin v. Yoder, supra, 406 U.S. 205, 215-216.) If we
had to ask and answer these difficult questions, we would.
But we need not do so because Catholic Charities’ claim fails
in any event: Assuming for the sake of argument the WCEA
substantially burdens a religious belief or practice, the law
nevertheless serves a compelling state interest and is narrowly
tailored to achieve that interest.
The WCEA serves the compelling state interest of
eliminating gender discrimination. Evidence before the
Legislature showed that women during their reproductive
years spent as much as 68 percent more than men in out-of-
employer opposed to contraceptives on religious grounds could avoid all
conflict with its beliefs by declining coverage for prescription drugs (thus
satisfying the WCEA) while offering its employees a raise to offset the
reduced benefits, accompanied by _ whatever condemnations of
contraceptives the employer wished to offer. A raise might be far more
expensive for the employer than insurance, and a law that indirectly made
a religious practice more expensive might at some point become a
constitutionally significant burden on religious exercise. However, “it
cannot be expected, much less required that legislators enact no law
regulating conduct that may in some way result in an economic
disadvantage to some religious sects and not to others because of the
special practices of the various religions.” (Braunfeld v. Brown, supra,
366 U.S. 599, 605.)
43a
pocket health care costs, due in part to the cost of prescription
contraceptives and the various costs of unintended
pregnancies, including health risks, premature deliveries and
increased neonatal care. (See p. 2, ante.) Assembly, Senate
and legislative staff analyses of the bills that became the
WCEA consistently identify the elimination of this economic
inequity as the bills’ principal object. Catholic Charities,
which pays men and women equal wages, argues the type of
inequity that prompted the WCEA cannot properly be viewed
as gender discrimination. To identify subtle forms of gender
discrimination, however, is within the Legislature’s
competence. Nor is the identification irrational.”° Congress,
making a similar identification, amended title VII to define
discrimination ‘on the basis of sex” as including
discrimination in benefits “on the basis of pregnancy,
childbirth, or related medical conditions ....” (42 U.S.C.
§ 2000e(k) (Pregnancy Discrimination Act), abrogating
General Electric Co. v. Gilbert ( 1976) 429 U.S. 125; see
Newport News Shipbuilding & Dry Dock v. EEOC (1983) 462
U.S. 669, 678 [acknowledging abrogation].) The only
reported federal decision addressing the issue holds that the
Statute just quoted requires employers to include coverage for
prescription contraceptives when offering health care plans
that cover prescription drugs. (Erickson v. Bartell Drug Co.
(W.D.Wash. 2001) 141 F.Supp.2d 1266, 1270-1272: but cf.
Glaubach v. Regence Blueshield (Wash. 2003) 74 P.3d 115,
116-119 [holding that a Washington statute requiring insurers
to provide coverage regardless of sex does not mandate
coverage of prescription contraceptives].) Certainly the
= ~ At least 19 other states have adopted laws requiring that
employers or insurers provide coverage for prescription contraceptives.
(See Note, The Quest for Equality: Comprehensive Insurance Coverage
of Prescription Contraceptives (2002) 82 Boston U. L.Rev. 1289, 1290,
1298-1301; Comment, Contraceptive Coverage Laws: Eliminating
Gender Discrimination or Infringing on Religious Liberties? (2002) 69 U.
Chicago L.Rev. 1867, 1877, fn. 68.)
44a
interest in eradicating gender discrimination 1s compelling.
We long ago concluded that discrimination based on gender
violates the equal protection clause of the California
Constitution (art. I, § 7(a)) and triggers the highest level of
scrutiny. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17-
20.)
Strongly enhancing the state’s interest is the
circumstance that any exemption from the WCEA sacrifices
the affected women’s interest in receiviig equitable treatment
with respect to health benefits. We are unaware of any
decision in which this court, or the United States Supreme
Court, has exempted a religious objector from the operation
of a neutral, generally applicable law cespite the recognition
that the requested exemption would detrimentally affect the
rights of third parties. The high court a Wisconsin v. Yoder,
supra, 406 U.S. 205, painstakingly limited its holding to
avoid endorsing any such result. While concluding that the
Amish parents in that case were enitled under the strict
scrutiny standard of Sherbert, supra, 374 U.S. 398, to an
exemption from a general law requiring their older children to
attend public school, the court emphaszed that its conclusion
depended on the assumption that no Amish child wished to
attend. (Wisconsin v. Yoder, supra, at pp. 230-232.)
Similarly, in rejecting a religious employer’s challenge to a
law requiring him to pay Social Securty and unemployment
taxes for his employees, the court wnte that “[g]ranting an
exemption from social security taxes to an employer operates
to impose the employer’s religious fath on the employees.”
(United States v. Lee, supra, 455 US. 252, 261.) “Congress
and the courts have been sensitive to he needs flowing from
the Free Exercise Clause, but every pe’son cannot be shielded
from all the burdens incident to exercising every aspect of the
right to practice religious beliefs. When followers of a
particular sect enter into commercial activity as a matter of
choice, the limits they accept on tleir own conduct as a
matter of conscience and faith are notto be superimposed on
45a
the statutory schemes which are binding on others in that
activity.” (/bid.; cf. Tony and Susan Alamo Foundation vy.
Sec’y of Labor, supra, 471 U.S. 290, 303-306 [religious
organization must comply with federal minimum wage laws];
Dole v. Shenandoah Baptist Church (4th Cir. 1990) 899 F.2d
1389, 1393-1400 [religious school must comply with federal
law requiring equal pay for men and women].) We see no
reason why a different rule should apply when a nonprofit
corporation enters the general labor market.
Nor are any less restrictive (or more narrowly
tailored) means readily available for achieving the state’s
interest in eliminating gender discrimination. Any broader
exemption increases the number of women affected by
discrimination in the provision of health care benefits.
Catholic Charities argues the Legislature could more widely
exempt employers from the WCEA without increasing the
number of affected women by mandating public funding of
prescription contraceptives for the employees of exempted
employers. The Legislature included such a provision in an
earlier version of the WCEA (Assem. Bill No. 1112 (1997-
1998 Reg. Sess.)), which the Governor vetoed. But Catholic
Charities points to no authority requiring the state to
subsidize private religious practices. (Cf. Lyng v. Northwest
Indian Cemetery Prot. Assn., supra, 485 U.S. 439, 447-453
[government need not forgo road building or timber
harvesting on its own property to avoid interference with
Native American religious practices].)
Catholic Charities next argues the WCEA is
underinclusive, and therefore not narrowly tailored, because it
does not facilitate access to prescription contraceptives for
“indigent women, unemployed women, stay-at-home
mothers, women whose employers do sot offer health
insurance benefits, and women in part-time employment
[who] do not qualify for health benefits.” But this argument
misconceives the principal purpose of the WCEA, which is
46a
not to facilitate access to contraceptives but to eliminate a
form of gender discrimination in the provision of health
benefits. The situations Catholic Charities identifies, in
which no employer or insurer is providing health benefits, do
not entail such discrimination.
Finally on this point, Catholic Charities argues the
WCEA is not narrowly tailored because it is overinclusive.
Catholic Charities justifies this surprising assertion by
arguing that the law must be overinclusive if it applies to
employers that do not discriminate on the basis of gender, and
that Catholic Charities does not discriminate on that basis
because it does not provide contraceptive coverage to women
or to men (e.g., vasectomies). With this argument, however,
Catholic Charities merely restates its disagreement with the
Legislature’s determination that the exclusion of prescription
contraceptives from health care plans constitutes a form of
gender discrimination. As we have already explained, the
Legislature was entitled to reach that conclusion.
For these reasons, applying the strict scrutiny test of
Sherbert, supra, 374 U.S. 398, to Catholic Charities’ claim
against the WCEA under the free exercise clause of the state
Constitution, we find the WCEA meets that test. We do not
hold that the state free exercise clause requires courts to apply
the Sherbert test to neutral, generally applicable laws that
incidentally burden religious practice. Instead, as explained
above, we leave that question for another day.
i. Rational Basis
Catholic Charities’ final challenge to the WCEA is
that it violates the rational basis test. More specifically,
Catholic Charities argues the State has defined the exempt
category of “religious employer” (Health & Saf. Code,
§ 1367.25, subd. (b)) with arbitrary criteria. “In effect,”
according to Catholic Charities, “the Legislature decided that
47a
any religious institution that employs individuals of other
faiths or that ministers to persons of all faiths (or no faith)—
in effect any ‘missionary’ church or church with social
outreach—is not sufficiently ‘religious’ to qualify for
exemption,” and that these classifications are “wholly
unrelated to any legitimate state interest.”
The argument lacks merit. The WCEA’s exemption
for religious organizations, even if not applicable to Catholic
Charities, rationally serves the legitimate interest of
complying with the rule barring interference with the
relationship between a church and its ministers. (See ante, at
p. 11 et seq.) Although the high court has not spoken on the
subject, the lower federal courts have held that the
constitutionally based ministerial exemption survives the
_ decision in Smith, supra, 494 U.S. 872. (See, e.g., Gellington
v. Christian Methodist Episcopal Church, Inc., supra, 203
F.3d 1299, 1302-1304; Combs v. Cen Tx Ann Conf United
Methodist Church, supra, 173 F.3d 343, 347-350; E.E.O.C. v.
Catholic University of America, supra, 83 F.3d 455, 460-463;
cf. Schmoll v. Chapman University, supra, 70 Cal.App.4th
1434, 1438-1445 [recognizing a ministerial exception to state
employment laws].) Most organizations entitled to invoke
the ministerial exemption will be involved in the “inculcation
of religious values,” which the first criterion requires.
(Health & Saf. Code, § 1367.25, subd. (b)(1)(A).) Many will
also satisfy the WCEA’s fourth exemption criterion, which
requires that a religious employer qualify for federal tax
exemption as a church, an integrated auxiliary of a church, a
convention or association of churches, or a religious order.
(See 26 U.S.C. § 6033(a)(2)(A)(i) and (iii), cited in Health &
Saf. Code, § 1367.25, subd. (b)(1)(D).) If in any case the
constitutionally required ministerial exception were broader
than the statutory exemption, the former would of course take
precedence.
48a
The second criterion, to which Catholic Charities
specifically objects as lacking a rational basis, requires that an
employer “primarily employ[] persons who share the
religious tenets of the entity.” (Health & Saf. Code,
§ 1367.25, subd. (b)(1)(B).) This provision, in effect,
accommodates religious employers more broadly than the
ministerial exemption requires by extending the WCEA’s
exemption to employees who could not fall within the
ministerial exemption. The provision has the legitimate,
rational purpose of accommodating a state-imposed burden
on religious exercise. (Amos, supra, 483 U.S. 327, 334-335.)
The third criterion, to which Catholic Charities also
objects, is problematic. To qualify under it, an employer
must “serve[] primarily persons who share the religious tenets
of the entity.” (Health & Saf. Code, § 1367.25, subd.
(b)(1)(C).) To imagine a legitimate purpose for such a
requirement is difficult. Reading the provision literally, a
hypothetical soup kitchen run entirely by the ministers of a
church, which inculcates religious values to those who come
to eat (thus satisfying the first, second, and fourth criteria),
would lose its claim to an exemption from the WCEA if it
chose to serve the hungry without discrimination instead of
serving co-religionists only. The Legislature may wish to
address this problem. Catholic Charities, however, cannot
successfully challenge the WCEA on this ground because the
organization concedes it does not qualify under any of the
criteria for exemption, including the relatively objective terms
of the federal tax statute cited in the fourth criterion. (Health
& Saf. Code, § 1367.25, subd. (b)(1)(D).) Catholic Charities
thus cannot qualify for exemption in any event.
Ill. Disposition
The decision of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
CHIN, J.
MORENO, J.
49a
50a
CONCURRING OPINION BY KENNARD, J.
In September 1999, the Legislature enacted the
Women’s Contraception Equity Act (WCEA). Under this
law, every group health care policy that “provides coverage
for outpatient prescription drug benefits” must, as of January
1, 2000, include coverage for contraceptives. (Health & Saf.
Code, § 1367.25.)' Exempt from the WCEA are policies sold
to entities that are religious employers.- To fall within the
act’s definition of “religious employer,” each of these four
requirements must be satisfied:
“(A) The inculcation of religious values is the
purpose of the entity.
“(B) The entity primarily employs persons who share
the religious tenets of the entity.
“(C) The entity serves primarily persons who share
the religious tenets of the entity.
“(D) The entity is a nonprofit organization as
described in Section 6033(a)(2)(A)i or iii, of the Internal
Revenue Code of 1986, as amended.” (§ 1367.25, subd.
(b)(1).)
Plaintiff Catholic Charities 0” Sacramento (Catholic
Charities), which has brought this lawsuit challenging the
constitutionality of the religious employer exemption,
acknowledges that it does not satisfy any of the four
requirements for that exemption. Catholic Charities’
complaint alleges that it is a nonprofit public benefit
corporation “operated in connection with the Roman Catholic
Bishop of Sacramento” as “an organ of the Roman Catholic
Church.” The complaint further alleges that Catholic
Charities’ mission is to perform good works, such as
Further undesignated statutory references are to the Health and
Safety Code.
PR nee MESS is Fees tr AAT
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“providing immigrant resettlement programs, elder care,
counseling, food, clothing and affordable housing for the poor
and needy, housing and _ vocational training of the
developmentally disabled and the like.” According to the
complaint, Catholic Charities provided prescription drug
coverage to its 183 employees before the WCEA’s effective
date; for it to continue to do so now would be promoting the
use of contraceptives, a sinful practice under Catholic Church
doctrine. For the purposes of deciding the legal issues in this
case, the majority accepts these allegations as true, as do I.
I agree with the majority that Catholic Charities is
properly subject to the WCEA. In the course of its
discussion, however, the majority rejects Catholic Charities’
argument that the religious employer exemption discriminates
against “religious organizations . .. that engage in charitable
work, as opposed to work that is purely spiritual or
evangelical.” (Maj. opn., ante, at p. 24.) I am not persuaded
that the first requirement of the religious employer
exemption, limiting the exemption to entities whose primary
purpose is the “inculcation of religious values” (§ 1367.25,
subd. (b)(1)(A)), can be reconciled with the establishment
clauses of the federal and state Constitutions. This is a close
and difficult issue. I need not resolve it, however, because
Catholic Charities does not meet the exemption’s fourth
requirement that it is a religious entity exempt from federal
tax filing, a requirement that both the majority and I agree is
constitutional.
The United States Constitution’s First Amendment
provides that “Congress shall make no law respecting an
establishment of religion.” (U.S. Const., Ist Amend.) This
provision applies to the states through the Fourteenth
Amendment; thus, state governments too are prohibited from
making such laws. Like its federal counterpart, California’s
bc
52a
Constitution provides that the Legislature “shall make no law
respecting an establishment of religion.” (Cal. Const., art. I,
§ 4.) Laws that prefer one religion or religious organization
over another (often called “denominational preferences”)
violate these provisions. (See Epperson v. Arkansas (1968)
393 U.S. 97, 106 [“‘State may noi adopt programs or practices
... which ‘aid or oppose’ any religion.”]; Everson v. Board of
Education (1947) 330 U.S. 1, 15 [no state can “pass laws
which aid one religion” or that “prefer one religion over
another’ ].)
On this basis, the United States Supreme Court in
Larson v. Valente (1982) 456 U.S. 228 invalidated a
Minnesota law that treated religious organizations differently.
The law in question generally required charitable
organizations that solicited contributions to register with the
state and to disclose their income and its sources, as well as
costs of management, fundraising, and public education.
Exempt from this law were religious organizations that
received more than 50 percent of their charitable
contributions from their own members or affiliates, rather
than from the general public. Not exempt were religious
organizations such as the Holy Spirit Associations for the
Unification of World Christianity (Unification Church) that
received more than half of their charitable contributions from
“ * door-to-door and public-place proselytizing and solicitation
of funds,” a practice emphasized by the tenets of that
religion. (/d. at p. 234.) Unification Church members sued,
seeking exemption from the law. The federal district court
granted the plaintiffs a preliminary injunction, which was
affirmed on appeal. The United States Supreme Court, in
turn, agreed that the law impermissibly “impose[d] the
registration and reporting requirements . . . on some religious
organizations but not on others”; it thus, did “not operate
evenhandedly,” but instead, “effect[ed] the selective
legislative imposition of burdens and advantages upon
particular denominations.” (/d. at pp. 253-254.)
53a
Catholic Charities argues here that the WCEA’s
religious employer exemption similarly imposes its burdens
and advantages on some religious organizations but not
others. Catholic Charities points out that the exemption
favors those religious organizations whose purpose is “[t]he
inculcation of religious values” (§ 1367.25, subd. (b)(1)(A)),
while disfavoring those entities, such as Catholic Charities,
whose purpose is to perform good works. Comparing the
WCEA to the Minnesota law struck down by the high court in
Larson v. Valente, supra, 456 U.S. 228, 253, which
“impose[d] the registrative and reporting requirements on
some religious organizations but not on others,” Catholic
Charities argues that similarly here the WCEA imposes the
contraceptive insurance coverage on some religious
organizations but not on others.
To distinguish the WCEA’s religious employer
exemption from the religious organization charitable
reporting exemption invalidated in Larson vy. Valente, supra,
456 U.S. 228, the majority states: “The WCEA confers the
Special benefit of exemption only on those religious
Organizations whose tenets are opposed to prescription
contraceptives and that meet the other requirements for
exemption. ... Those Catholic employers that do not qualify
for exemption are treated precisely the same as all other
employers in the state, whether religious or nonreligious.”
(Maj. opn., ante, at p. 25, italics added.) But the Minnesota
charitable solicitation registration law struck down in Larson
v. Valente treated religious organizations not qualifying for its
exemption “precisely the same as” nonreligious charitable
solicitors and other nonqualifying religious solicitors. Thus,
in treating religious entities that do not qualify for its
exemption just like nonreligious entities subject to its
requirements, the WCEA seems substantially similar to that
unconstitutional Minnesota law.
54a
Under the high court’s analysis in Larson v. Valente,
supra, 456 U.S. 228, a law that selectively discriminates
among religious organizations might still not violate the
establishment clause if it is “closely fitted to the furtherance”
of a “compelling governmental interest.” (/d. at p. 255.) As
the majority explains, and I agree, the WCEA serves the
compelling state interest of eliminating gender
discrimination. (Maj. opn., ante, at p. 40.) But in upholding
the first requirement of the religious employer exemption
(limiting it to those religious entities whose purpose is
inculcating religious values), the majority does not explain
how that limitation is “closely fitted” to the elimination of
gender discrimination. I have serious doubts that the First
Amendment, as construed by the United States Supreme
Court, allows California to limit its religious employer
exemption to religious entities that have as their purpose the
inculcation of religious values, denying that exemption to
religious entities, like Catholic Charities, that are organized
for the purpose of feeding the hungry, caring for the sick, and
providing shelter to the homeless.”
Il.
As I noted at the outset, dispositive here is Catholic
Charities’ concession that it does not meet the fourth
requirement for the WCEA’s religious employer exemption
. The majority construes Larson v. Valente, supra, 456 U.S. 228,
as prohibiting only those laws that discriminate among religious
denominations and thus as having no effect on Catholic Charities, an
entity affiliated with the Roman Catholic denomination. (Maj. opn., ante,
at p. 26, fn. 10.) Even under this view, the first requirement of the
WCEA’s religious employer exemption is of questionable
constitutionality because it disfavors those denominations that have as
their primary purpose something other than the inculcation of religious
values. Thus any organization or entity established by a religious
denomination whose primary purpose was attending to the needy would
~ on that basis be denied the religious employer exemption.
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55a
as a religious entity exempt from federal tax filing. (See
§ 1367.25, subd. (b)(1)(D).) Because the concerns expressed
above about the constitutionality of the exemption’s first
requirement—that “‘inculcation of religious values”
(§ 1367.25, subd. (b)(1)(A)) is the purpose of the entity—can
have no effect on the judgment, I agree with the majority that
if Catholic Charities is to afford its employees health
coverage that would include outpatient prescription drugs, it
must do so through a policy that provides coverage for
prescription contraceptives.
KENNARD, J.
56a
DISSENTING OPINION BY BROWN, J.
This case presents questions on which reasonable
minds can differ—especially in light of the whimsical and
somewhat erratic path of free exercise jurisprudence after the
Supreme Court’s decision in Employment Div., Ore. Dept. of
Human Res. v. Smith (1990) 494 U.S. 872 (Smith). However,
as a court pledged to defend constitutional limits, operating i
the post-Smith environment, we ought to think very carefully
about our role in defining the road ahead. Instead of being
dismissive of the very serious claims presented here, we
should treat them with the highest respect.
After Smith, neutral, generally applicable laws do not
have to survive compelling state interest review. Such laws
require no justification no matter how severely they burden
the individual religious claimant and no matter how
inconsequential the government interest. (See Smith v. Fair
Employment & Housing Com. (1996) 12 Cal.4th 1143, 1195
(conc. & dis. opn. of Kennard, J.) (Smith v. FEHC).) It is,
however, far from self-evident, if or how, Smith applies to
laws that directly contravene the religious conduct of
religious organizations. The Women’s Contraceptive Equity
Act (WCEA) attempts to circumvent this potentially
substantial hurdle by creating a very narrow exemption for
churches. But that begs an even more fundamental question:
may the government determine what parts of bona fide
religious organizations are religious and what parts are
secular? And, in particular, may the government make such
distinctions in order to infringe the religious freedom of that
portion of the organization the government characterizes as
secular? Because, unlike the majority, I do not think Smith
provides obvious answers to these questions, I respectfully
dissent.
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The proponents of the WCEA make an argument with
which no one can disagree. Women in the workplace are
entitled to be treated fairly and equitably and to be free from
discrimination on the basis of gender. Government has not
only the authority, but the obligation, to discourage invidious
discrimination in the workplace, and this includes
discrimination in the distribution of benefits. (See, e.g.,
Erickson v. Bartell Drug Company (W.D.Wash. 2001) 141
F.Supp.2d 1266, 1271 [title VII, as amended by the
Preg ancy Discrimination Act, prevented exclusion of
contraception from prescription drug coverage offered by
employer]; 42 U.S.C. § 2000e(k) [prohibiting, under title VII,
discrimination on the basis of “pregnancy, childbirth, or
related medical conditions”]; U.S. EEOC, Commission
Decision (Dec. 14, 2000) [coverage of contraception]
<http://eeoc. gov/policy/docs/decision-contraception.htmI> [as
of Mar. 1, 2004]; Conn. Gen. Stat., § 38a-503e (2001)
[mandating _ insurance coverage of prescription
contraception]; Mass. Gen. Laws, ch. 176B, § 4W(b) (2002)
[same]; Vt. Stat. Ann., tit. 8, § 4099c (2000) [same].)
Neither the propriety, nor the wisdom of, nor the
government’s authority to impose a prescription contraceptive
mandate on California employers is at issue here. The
question is a very narrow “ne. May the government impose a
mandate on a religiously affiliated employer that requires the
employer to pay for contraceptives—in violation of an
acknowledged religious tenet—or to redefine what constitutes
religious conduct?’ While antidiscrimination laws reflect a
The question has to be stated in the alternative because the
California enactment has some peculiarities. Despite the state’s argument
that it has a compelling interest in ensuring that all working women who
desire prescription contraceptive coverage have that option available, the
mandate is imposed only on employers that provide prescription coverage.
Thus, Catholic Charities of Sacramento, Inc. (Catholic Charities), can
choose either to provide contraceptives or not to provide prescription
58a
constitutional value, religious liberty occupies a
commensurate level in the constitutional hierarchy. As often
happens with First Amendment cases, this is “a collision
between two interests of the highest order: the Government’s
interest in eradicating discrimination in employment and the
constitutional right of a church to manage its own affairs free
from governmental interference.” (Equal Emp. Opp. Comm'n
v. The Catholic Univ. of America (D.C. Cir. 1996) 83 F.3d
455, 460 (Catholic University).) Thus, the desire to prevent
discrimination cannot be the beginning and the end of the
discussion.
A. Why Religious Liberty Is Important
A strong argument can be made that it was the
primacy of religious liberty in the early history of this
country, with its acknowledgment of the separate spheres of
church and state, that gave rise to our notions of limited
government and equal protection—the constitutional
precursors of our antidiscrimination laws. (McConnell, Why
Is Religious Liberty the “First Freedom”? (2000) 21 Cardozo
L.Rev. 1243, 1244 [‘“the division between temporal and
spiritual authority gave rise to the most fundamental features
of liberal democratic order: the idea of limited government,
the idea of individual conscience and hence of individual
rights, and the idea of civil society, as apart from government,
bearing primary responsibility for the formation and
transmission of opinions and ideas”].)
Our ability to create a space for religious perspectives
is both instrumental and regenerative for democracy.
Religious institutions enhance individual autonomy “by
challenging the sovereign power of the liberal state”
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(Noonan, The End of Free Exercise? (1992) 42 De Paul L.R.
567, 579-580) and by articulating alternative visions—
“counter-cultural visions that challenge and push the larger
community in . . . directions unimagined by prevailing
beliefs.” (Brady, Religious Organizations and Mandatory
Collective Bargaining Under Federal and State Labor Laws:
Freedom From and Freedom For (2004) 49 Vill. L.Rev. 77,
156.) 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.
B. Does Smith Apply to Religious Organizations?
Despite its surface simplicity, Smith is not an easy
case to understand or apply. The majority correctly quotes
the critical passages from Smith: “ ‘(T]he right of free
exercise does not relieve an individual of the obligation to
comply with a “valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).” ‘ (Smith, [supra,
494 U.S.] at p. 879, quoting United States v. Lee [((1982)] 455
U.S. 252, 263, fn. 3 (conc. opn. of Stevens, J.).) To permit
religious beliefs to excuse acts contrary to law, the Smith
court reasoned, * “would be to make the professed doctrines
of religious belief superior to the law of the land, and in effect
to permit every citizen to become a law unto himself. “ ‘
(Smith, at p. 879, quoting Reynolds v. United States (1879) 98
U.S. 145, 167.)” (Maj. opn., ante, at p. 17, italics added.)
Since Smith focused exclusively on the individual’s
free exercise of religion, some courts have reasoned that
religious institutions are exempted entirely from the Smith
analysis. (Gellington v. Christian Methodist Episcopal
Church, Inc. (11th Cir. 2000) 203 F.3d 1299, 1303; see
Kaplan, The Devil Is in the Details: Neutral, Generally
60a
Applicable Laws and Exceptions from Smith (2000) 75
N.Y.U. L.Rev. 1045, 1070.)
1. Individuals v. Institutions
This case involves a religious organization and not an
individual. Perhaps more importantly, it does not deal with
the denial of a benefit because of a violation of existing law.
Rather, it attempts to assess the constitutional implications of
a law that requires a religious organization to provide a
benefit despite its theological objections. These fundamental
differences are simply ignored in the majority’s analysis.
Under Smith, the right of free exercise does not relieve
an individual of the obligation to comply with a valid and
neutral law of general applicability even if the law requires
conduct that contravenes a religious belief, but “[i]t does not
follow .. . that Smith stands for the proposition that a church
may never be relieved from such an obligation.” (Catholic
University, supra, 83 F.3d at p. 462.)
The majority may have made an abortive attempt to
deal with this obvious distinction by citing, and dismissing,
the so-called ministerial exception. It is true, as the majority
notes, that the ministerial exception is not directly at issue
here. (See, e.g., Alicea-Hernandez v. Catholic Bishop of
Chicago (7th Cir. 2003) 320 F.3d 698 [ministerial exception
to title VII]; E.E.0.C. v. Roman Catholic Diocese of Raleigh
(4th Cir. 2000) 213 F.3d 795 [same]; Combs v. Central Texas
Ann. Conf. of United Methodist Church (Sth Cir. 1999) 173
F.3d 343 [same].) Likewise, it is certainly debatable whether
the legislative action challenged here invades the narrow
domain labeled church autonomy. (See, e.g., Serbian Eastern
Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696 [state
court impermissibly encroached on church autonomy];
Kedroff v. St. Nicholas Cathedral (1952) 344 U.S. 94 [state
statute impermissibly encroached on church autonomy].)
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And yet, the logic of these cases Suggests that the
constitutionally protected space for religious organizations is
actually broader than these obvious categories. In short, the
ministerial exception and the church autonomy doctrine are
ways of describing spheres of constitutionally required
protection, but these categories are not exhaustive.
The court in Catholic University summarized the
distinction it was making this way: “We conclude from our
review of the Supreme Court’s First Amendment
jurisprudence that whereas the Free Exercise Clause
guarantees a church’s freedom to decide how it will govern
itself, what it will teach, and to whom it will entrust its
ministerial responsibilities, it does not guarantee the right of
its members to practice what their church may preach if that
practice is forbidden by a neutral law of general application.”
(Catholic University, supra, 83 F.3d at p. 463.) In fact, the
Legislature apparently takes a similar view of the breadth of
Smith because it provided an exemption from the WCEA for
churches.
2. The Two Faces of Entanglement
Under venerable establishment clause precedent,
_ however, the exemption itself is prob'ematic. To put it
bluntly, the government may generally separate the religious
from the secular to decide kow it will dispense its benefits,
but it cannot parse a bona fide religious organization into
“secular” and “religious” components solely to impose
burdens on the secular portion.
As noted, ante, the constitutional basis for the
distinction seems indisputable. The United States Supreme
Court has recognized that government action may burden the
free exercise of religion in two different ways: “by
interfering with a believer’s ability to observe the commands
or practices of his faith [citations], and by encroaching on the —
62a
ability of a church to manage its internal affairs.” (Catholic
University, supra, 83 F.3d at p. 460; see, e.g., Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) 508 U.S.
520, 531-533 (Lukumi); Kedroff v. St. Nicholas Cathedral,
supra, 344 U.S. at p. 116 [free exercise clause protects power
of religious organizations “to decide for themselves, free
from state interference, matters of church government as well
as those of faith and doctrine”’].)
If Catholic Charities were a “religious employer” it
would be exempt from the WCEA’s requirement to include
coverage for contraceptives in its group healthcare policy.
Under the act, a religious employer must satisfy all of the
following criteria: “(A) The inculcation of religious values is
the purpose of the entity. [§] (B) The entity primarily
employs persons who share the religious tenets of the entity.
[J] (C) The entity serves primarily persons who share the
religious tenets of the entity. [{] (D) The entity is a
nonprofit organization as described in Section 6033(a)(2)(A)i
or iii, of the Internal Revenue Code of 1986, as amended.”
(Health & Saf. Code, § 1367.25, subd. (b)(1).)
As the majority notes, “Catholic Charities does not
qualify as a ‘religious employer’ under the WCEA because it
does not meet any of the definition’s four criteria.” (Maj.
opn., ante, at p. 5, italics added.) But Catholic Charities
would be a religious employer if the Legislature had not
designed the exemption narrowly enough to exclude it.? The
plaintiffs contend the Legislature has “deliberately defined
’ Earlier versions of the WCEA contained a broader conscience
clause—which Catholic Charities deemed acceptable—exempting bona
fide religious employers and allowing religiously affiliated hospitals,
universities, and social service agencies to opt out. The current version of
the act exempts churches, synagogues, mosques, temples, missions,
parochial schools, seminaries and convents from the requirement to
provide contraceptive coverage.
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the Catholic Church in a manner entirely inconsistent with
Catholic religious teaching, to exclude critical, constitutive
elements of the Catholic Church—i.e., the Church’s
healthcare, social service and educational ministries—from
the definition of ‘religious employer’ included in the
exemption provisions.”
The high court “ ‘has long recognized that the
government may (and sometimes must) accommodate
religious practices and that it may do so without violating the
Establishment Clause.’ ” (Corporation of the Presiding
Bishop v. Amos (1987) 483 U.S. 327, 334 (Amos).) At the
same time, acknowledging that churches often regard the
community services provided by affiliated nonprofits as “a
means of fulfilling religious duty and providing an example
of the way of life a church seeks to foster” (id. at p. 344
(conc. opn. of Brennan, J.)), the court concluded the case-by-
case determination of whether an affiliated nonprofit is
religious or secular is inappropriate under the free exercise
clause. (/d. at pp. 341-342 (conc. opn. of Brennan, J.)
(“Religion includes important communal elements for most
believers. They exercise their religion through religious
organizations and these organizations must be protected by
the [Free Exercise] Clause. . . . [R]eligious activity derives
meaning in large measure from participation in a larger
religious community”].)
Even after Smith, it seems quite clear the government
may not discriminate among religions (Larson v. Valente
(1982) 456 U.S. 228, 253) or engender a risk of politicizing
religion (id. at pp. 253-254) or purport to exempt “religious”
but not “secular” activities (Cantwell v. Connecticut (1940)
310 U.S. 296, 301; Espinosa v. Rusk (10th Cir. 1980) 643
F.2d 477, 480-481, affd. (1982) 456 U.S. 951). In National
Labor Relations Board vy. The Catholic Bishop of Chicago
(1979) 440
64a
U.S. 490 (Catholic Bishop), the National Labor Relations
Board (NLRB) certified unions as bargaining agents for lay
teachers in church-affiliated schools. The NLRB asserted it
was required to decline jurisdiction only when schools were “
‘completely religious’ and not just “ ‘religiously
associated.’ ” (/d. at p. 493.) The Seventh Circuit Court of
Appeals rejected the NLRB’s standard as a “ ‘simplistic black
or white, purported rule’ ” which offered no guide to
discretion. (/d. at p. 495.) “ ‘The real difficulty is found in
the chilling aspect that the requirement of bargaining will
impose on the exercise of the bishops’ control of the religious
mission of the schools.’ ” (/d. at p. 496.) The Supreme
Court, after acknowledging that the NLRB’s attempt to
distinguish between ‘completely religious’ ” and “
‘religiously associated’ ” was a recognition of its intrusion
into areas protected by the religion clauses, construed the
National Labor Relations Act so as to avoid deciding whether
jurisdiction “was constitutionally permissible under the
Religion Clauses of the First Amendment.” (Catholic Bishop,
at p. 499.) Nevertheless, the court expressed concern that
NLRB jurisdiction would inevitably involve “inquiry into the
good faith of the position asserted by clergy-administrators
and its relationship to the school’s religious mission,” and the
“very process of inquiry” would impinge on rights guaranteed
by the religion clauses. (Catholic Bishop, at p. 502.)
”
“es
In Universidad Central de Bayamon v. NLRB (\st Cir.
1985) 793 F.2d 383, 387, the NLRB sought to avoid the
problem by exempting “ ‘pervasively sectarian’ ” schools.
The controlling opinion in Universidad Central de Bayamon
found board jurisdiction posed just as great a risk as the
Supreme Court envisioned in Catholic Bishop, supra, 440
U.S. 490. “For the Board to exercise jurisdiction over an
educational institution where ‘the inculcation of religious
values is at least one purpose of the institution’ and ‘to
promise that courts in the future will control the Board’s
efforts to examine religious matters, is to tread the path that
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Catholic Bishop fovecloses.’ ” (Univ. of Great Falls v. NLRB
(D.C. Cir. 2002) 278 F.3d 1335, 1342 (Great Falls), quoting
Universidad Central de Bayamon v. NLRB, at p. 402.)
In Great Falls, the Court of Appeals for the District of
Columbia rejected the NLRB’s latest effort—the “substantial
religious character” test—because the multifaceted analysis
created the same concerns as the approach rejected in
Catholic Bishop. Moreover, the court invoked a long line of
precedents which have made it clear that religious tests,
inquiries into religious perspectives, or generally trolling
through a person’s or institution’s religious beliefs is “ ‘not
only unnecessary but also offensive.’ ” (Great Falls, supra,
278 F.3d at pp. 1341-1342, quoting Mitchell v. Helms (2000)
530 U.S. 793, 828; Amos, supra, 483 U.S. 327, 340, 345
(conc. opn. of Brennan, J.).)
The court in Great Falls thus Suggested a broad
exemption which would avoid the pitfalls of having the
government determine what is religious or how much religion
is sufficient. The court would exempt any school which
purports to provide a religious environment; is organized as a
nonprofit; and affiliated with, or owned, or operated, or
controlled directly or indirectly by a recognized religious
organization or entity whose membership is determined at
least in part with reference to religion. (Great Falls, supra,
278 F.3d at p. 1343.) The point of this bright-line test was to
avoid delving into religious doctrine or motive and to avoid
coercing a religiously affiliated educational institution to alter
its religious mission to meet regulatory demands. (/d. at p.
1345.) This approach responds to a longstanding concern that
the religious liberty protected by the Constitution ought not to
depend on a “determination by state authority as to what is a
religious cause.” (Cantwell v. State of Connecticut, supra,
310 US. at p. 307.)
66a
Of course, the cited cases are distinguishable. The
controversy here does not involve solicitation, or potential
chilling effects, religious schools, administrative discretion,
or ad hoc determinations. In reality, this case is worse. Here
we are dealing with an intentional, purposeful intrusion into a
religious organization’s expression of its religious tenets and
sense of mission. The government is not accidentally or
incidentally interfering with religious practice; it is doing so
willfully by making a judgment about what is or is not
religious. This is precisely the sort of behavior that has been
condemned in every other context. The conduct is hardly less
offensive because it is codified. Definition may be just as
pernicious as ongoing monitoring if its purpose is to suppress
or burden religious conduct. (Espinosa v. Rusk, supra, 634
F.2d at p. 481 [“The conception of religion entertained by the
City . . . was that it had to be purely spiritual or evangelical.
Thus, the charitable activity of the church having to do with
the feeding of the hungry or the offer of clothing and shelter
to the poor was deemed subject to regulation. This broad
definition of secular is part of the problem’’].)
3. The Meaning of Neutrality
In theory, when religious liberties are at stake, the
state is only neutral when it does not choose sides. (Laycock,
Religious Liberty as Liberty (1996) 7 J. Contemp. Legal
Issues 313 [“[T]he core point of religious liberty is that the
government does not take positions on religious questions—
not in its daily administration, not in its laws, and not in its
Constitution either”].) This would mean that the state may
not prefer or seek to impose a particular normative view by
squelching a competing religious perspective. Genuine
neutrality would “allow many different and contending voices
to be represented in public discourse.” (McConnell, Why Is
Religious Liberty the “First Freedom”’?, supra, 21 Cardozo
L.Rev. at p. 1262.)
67a
In the present controversy, one side posits that sex is
an aspect of autonomy, a vital human function in which men
and women should be able to engage, enjoying their sexuality
“free from anxiety.” (Hayden, Gender Discrimination Within
the Reproductive Health Care System: Viagra v. Birth
Control (1999) 13 J.L. & Health 171, 181.) This may in fact
be the view of a majority of American adults. The Catholic
Church’s view, in contrast, deems all forms of nonmarital sex
immoral, and views sex within marriage as a unitive,
procreative, and sacred reflection of a spiritual, emotional,
and biological reality that comes complete with reproductive
anxiety. (See George & Bradley, Marriage and the Liberal
Imagination (1995) 84 Geo. L.J. 301-320.) This is a
perspective many people would disparage as archaic. Several
of the legislators debating the WCEA seemed to think so.”
The Catholic Church purports to be one of those
different and contending voices, a church-which “has never
envisioned a sharp divide between the Church and the world,
the spiritual and the temporal, or religion and politics. For
the Church, the internal spiritual life of its members and
institutions must always move outward as a sign and
instrument for the transformation of the larger society.”
(Brady, Religious Organizations and Mandatory Collective
Bargaining Under Federal and State Labor Laws: Freedom
From and Freedom For, supra, 49 Vill. L.Rev. at p. 157.)
: (See, e.g., Remarks of Sen. Speier, Sen. Floor Debate on Sen.
Bill No. 41 (1999-2000 Reg. Sess.) Apr. 12, 1999. pp. 7-8 [floor statement
of Senator Speier asserting that since 75 percent of all California Catholic
hospitals already provide contraception coverage, the “issue has already
been resolved . . . and its time has come”]; Remarks of Sen. Speier, Sen.
Floor Debate on Assem. Bill No. 39 (1999-2000 Reg. Sess.) Sept. 7, 1999,
p. 7 [floor statement of Senator Speier arguing that “59 percent of all
Catholic women of childbearing age practice contraception [and] 88
percent of Catholics believe . . . that someone who practices artificial birth
control can still be a good Catholic,” and commenting. “ agree with that.
I think it’s time to do the right thing” (italics added)].)
68a
Petitioner complains the narrow exemption was
designed to lend the state’s “considerable weight to the
dissenting side of a conflict within the church about the
legitimacy of contraceptive practice—under the banner of
protecting the ‘rights’ of those who disagree . . . and to deny
the church exemption based on the allegedly unpopular nature
of a church doctrine that diverges from contemporary cultural
mores.” In petitioner’s words, the state’s “action has the
effect of declaring the Catholic hierarchy’s stand ‘heresy’ in
the eyes of secular culture.”
Of course, practice always diverges from theory. In
contemporary American society, the government does take
sides on policy issues. The First Amendment precludes the
government from taking sides if the dispute involves internal
church governance, but that leaves an area of overlap where
the religiously dictated conduct of churches operating in the
world comes into conflict with public policy. 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 and competing vision of the good.
a. Religious bigotry
Smith could be read, as the majority apparently reads
it, to suggest that religion is not entitled to constitutional
protection unless the government action expressly and
specifically targets religious expression. Under _ this
interpretation, protection for religious liberty requires proof
of religious bigotry, i.e., proof that government officials acted
out of anti-religious motives. Thus, Smith—even as modified
by Lukumi—would prohibit infringements of religious
liberties only if a statute has the “object or purpose of...
suppress[ing] religion or religious conduct” or involves
“{o]fficial action that targets religious conduct for distinctive
treatment.” (Lukumi, supra, 508 U.S. at pp. 533-534.) Since
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69a
this statute imposes a mandate on all employers that provide
prescription coverage, it arguably does not target religious
conduct. On one level, religious interests and secular
interests are treated with equal dignity, and since the mandate
provides an escape hatch, Catholic Charities’ attempt to claim
specifically unequal treatment faces formidable obstacles.
Consequently, the majority finds Catholic Charities has failed
to prove an anti-religious motive and the statute is neutral.
b. Objects and effect
There is, however, more than one way to look at
neutrality. As Lukumi explains it, “[f]acial neutrality is not
determinative. ... The [free exercise] clause ‘forbids subtie
departures from neutrality’ [citation] and ‘covert suppression
of particular religious beliefs.’ ” (Lukumi, supra, 508 U.S. at
p. 543.) “Apart from the text, the effect of a law in its reg]
operation is strong evidence of its object.” (/d. at p. 535.)
“[I]f the object of the law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral [citation]; and it is invalid unless it is justified by a
compelling interest and is narrowly tailored to advance that
interest.” (Id. at p. 533.) “The Free Exercise Clause
‘protect[s] religious observers against unequal treatment.’ ”
(Lukumi, at p. 543.) But equality in the context of religious
liberty must be broadly defined. In effect, the general
applicability requirement is needed to ensure neutrality across
broad categories of regulation. Pursuant to Lukumi, if other
activities which cause comparable harm to the same
governmental interests are not regulated, the law is not
generally applicable. Thus, Lukumi makes it clear that strict
scrutiny is required if a law is not neutral—and it considers
the question of neutrality broadly.
In this case, for instance, defendants argue that
Catholic Charities’ ability to opt out, i.e., to choose not to
Provide any prescription coverage, obviates any concern
70a
about infringement. Catholic Charities insists it should not be
forced to relinquish its vision of appropriate employee
relations to preserve its right to object to the use of
contraceptives. From the Church’s perspective, to demand
that contraception be funded, despite bona fide religious
objections, is to take sides, to abandon the commitment to
public neutrality. In this sense, the WCEA, with its grudging
religious exemption, may not be neutral. The majority’s
response that the WCEA’s narrow exemption is an
accommodation and not aa imposition seems entirely
unresponsive.
In the whole scheme of things, the risk associated with
allowing government to impose a stifling orthodoxy in pursuit
of the good society may greatly outveigh the small harm of
tolerating heterodoxy in this circumstance.’
. This does not mean that the government may never limit what
religious organizations can do. There are truly neutral laws which may be
applied; there are aggressive interventions which are necessary to prevent
harm. (See, e.g., Walker v. Superior Court (1988) 47 Cal.3d 112, 139
[finding Christian Scientist who did not seek medical treatment for her
child liable for child’s death, notwithstanding the “religious infringement
of significant dimensions,” since state’s interest is compelling and child
endangerment statute is narrowly tailored]; Brady, Religious
Organizations and Mandatory Collective Bargaining Under Federal and
State Labor Laws: Freedom From anda rreedom For, supra, 49 Vill.
L.Rev. at p. 161 [“In rare cases, limitations on the freedom of religious
organizations may be necessary. For example, if a religious group
experiments with practices that endanger the lives of its employees or
threaten them with serious bodily injury, interference may be justified”);
Laycock, Towards a General Theory of the Religion Clauses: The Case of
Church Labor Relations and the Right to Church Autonomy (1981) 81
Colum. L.Rev. 1373, 1406 [“Courts have intervened to protect church
members from serious bodily harm even when they voluntarily
submitted”].) In contrast, what this case presents is essentially a clash of
ideas.
Tfa
At oral argument, counsel indicated the Catholic Church,
including Catholic Charities, employs fewer than 60,000 of
California’s millions of employees.” Some of the Church’s
employees belong to religious orders and are presumably
fully in agreement with the church’s position. Some are men,
some are women no longer capable of childbearing, and some
are spouses of people employed by other companies who are
covered by their spouses’ health plans. Of the women of
childbearing age who remain, and to whom contraceptive
coverage is a critical concern, none are faced with a pervasive
practice which would prevent them from finding more
congenial employment. The existence of WCEA’s
5
These numbers are approximate. At oral argument, Catholic
Charities counsel asserted that the Catholic Church employs fewer than
50,000 people, including those in holy orders. Proponents claim there are
52,000 employees in Catholic-affiliated hospitals alone. Using 60,000 as
a point of reference, it appears all Cathclic Church employees in
California represent less than .5 percent of the California workforce, and
female employees of the Catholic Church represent about the same
percentage of the number of working women of childbearing age in
California. According to recent Bureau of Labor Statistic « publications,
the current number of California adults employed in ~ nfarm jobs is
approximately 14.4 million. (Bur. of Lab. Statistics, U.S. Dept. of Lab.
News Release No. 04-81 (Jan. 27, 2004) Employees on nonfarm payrolls
by state and selected industry sector, table 5<http://www.bls.gov/
news.release/pdf/laus.pdf> [as of Mar. 1, 2004].) A little less than half are
women. Extrapolating from national Statistics, around 5 million of that
total will be women between 16 and 45. (Bur. of Lab. Statistics, U.S.
Dept. of Lab. News Release No. 04-120 (Feb. 6, 2004) Selected
employment indicators, table A-6 <http://www.bls.gov/
newsrelease/pdf/empsit.pdf> [as of Mar. 1, 2004].) Even assuming these
numbers need to be adjusted upward or downward for accuracy, an
exemption for Catholic Charities would seem to have a negligible effect.
The majority cites language from United States v. Lee, supra,
455 U.S. 252, for the Proposition that allowing an employer to be exempt
from a neutral law “operates to impose the employer’s religious faith on
employees.” (/d. at p. 261.) This is a curious Statement. .1 Lee, both the
72a
mandate—to which the vast majority of California employers
apparently have no religious objection—enhances their
employment options. In fact, the defection of talented female
employees may cause Catholic Charities to reconsider its
position. Such a result has no First Amendment implications.
A substantial amount of federal case law supports
Catholic Charities’ claim that the Legislature’s attempt to
draw distinctions between the religious and secular activities
of a single religious entity is an impermissible government
entanglement in religion. I am inclined to agree. Such an
action is constitutionally invalid and that ends the discussion.
If, however, the existence of the narrow exemption simply
shows the statutory scheme is not neutral in operation or
effect, it is invalid only if it fails strict scrutiny.
¢.. Strict Scrutiny
Strict scrutiny is not what it once was. Described in
the past as “strict in theory and fatal in fact” (Gunther,
employer and the employee were members of the Old Order Amish and
all agreed they should be exempt from Social Security and unemployment
insurance taxes. Even if that were not the case, it is not clear how an
employer is in a position to impose anything on its employees to which
they object. (U.S. Const., 13th Amend. [prohibiting slavery or
involuntary servitude].) Only the state, which holds the monopoly on
coercive force, can compel adults to remain where they do not choose to
be and do what they do not wish to do.
In Smith v. FEHC, supra, 12 Cal.4th 1143, this court considered
whether a state law prohibiting discrimination against unmarried
cohabitating couples burdened the free exercise of a landlady who
objected to renting to the couple on religious grounds. A majority of the
court concluded Smith’s rights were not substantially burdened because
she could simply abandon the rental business and redeploy her capital. If
we reject the challenges of some religious claimants because they have
other options, what logic compels us to assume that employees have no
choice?
ee ate ee
73a
Foreword: In Search of Evolving Doctrine on a Changing
Court: A Model for Newer Equal Protection (1972) 86 Harv.
L.Rev. 1, 8), it has mellowed in recent decades (see, e.g.,
Grutter v. Bollinger (2003) 539 U.S. 306 [123 S.Ct. 2325,
2338] [holding state law school’s race-based affirmative
action program survived strict scrutiny and noting that
“[s]trict scrutiny is not ‘strict in theory, but fatal in fact’ ”]).
If recent precedent is any guide, a state’s interest is
compelling if the state says it is. Thus, consistent with
federal precedent compelling interest now seems more or less
coextensive with the state’s asserted exercise of police power.
1. Compelling State Interest
Unquestionably, the desire to eradicate invidious
discrimination is a compelling state interest. But is the desire
to force conformity on a single employer that objects to
contraception on religious grounds also a compelling state
interest? In the latter case, the state is not dealing with
invidious discrimination; it is trying to prevent a disparate
impact. Catholic Charities does not discriminate because of
an animus against women. It opposes all forms of birth
control, except abstinence, whether for men or women,
whether prescription or over-the-counter, whether surgical,
oral, or mechanical.
2. Narrow Tailoring
The WCEA defines as religious only those
organizations for which the inculcation of religious values is
the sole purpose of the entity, that primarily employ only
adherents of their own faith tradition, that primarily serve
only people who share their religious tenets, and that qualify
as nonprofit organizations described ir section 6033(a)(2)(A)i
or iii of the Internal Revenue Code of 1986.
74a
This is such a crabbed and constricted view of religion
that it would define the ministry of Jesus Christ as a secular
activity.’ The stinginess of the exemption makes the structure
of the act all the more baffling. The mandate applies only to
employers that provide prescription coverage. Thus, Catholic
Charities can avoid the mandate by dropping the coverage.
The state wants to make sure that women are not burdened
more than others. Where employers cooperate, the WCEA
will reduce the inequitable financial burden of healthcare for
women. If religiously affiliated employers are serious about
their objections, however, women who work for those
employers could actually be worse off.
The only reasons given for narrowing the exemption
so drastically is the alleged concern that the exception could
“swallow up” the rule because the numbers of employees
who work for secular organizations affiliated with religious
entities could easily approach several hundred thousand; the
exemption might deprive thousands of employees of access to
nondiscriminatory health and disability insurance; and a
desire exists to extend coverage to as many people as
possible. There are a few problems with this litany. First, the
act, as its structure demonstrates and as the majority candidly
admits, has nothing to do with access or extending coverage.
“(T]he principal purpose of the WCEA ... is not to facilitate
access to contraceptives but to eliminate a form of gender
: Even churches that do not operate schools, hospitals, or social
service agencies would have trouble with the WCEA’s religious test. Not
all religions proselytize. Those that do necessarily reach out to people
who do not share their beliefs. Christian denominations, for example, are
commanded to seek and save the lost. “Go ye into all the world and teach
the gospel to every creature.” (Mark 15:15.) Catholic Charities suggest
that some Catholic congregations might be “ineligible for the exemption
depending . . . upon the demographics of a particular diocese, the
fortuitous nature of hiring patterns, and the particular application of the
theological criteria... .”
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75a
discrimination in the provision of health benefits.” (Maj.
opn., ante, at pp. 43-44.) Moreover, the record provides no
support for the claim that the exemption potentially affects
several hundred thousand employees.
Furthermore, employers have the option of self-
insuring. The Employee Retirement Income Security Act
preempts state regulation of self-insured companies and
“prohibits states from mandating benefits or defining
discrimination in self-insured employee benefit plans more
broadly than federal law.” (Law, Sex Discrimination and
Insurance for Contraception (1998) 73 Wash. L.Rev. 363,
395; 29 U.S.C. § 1001 et seq.) Such employers would not
only not be subject to mandatory prescription coverage, they
would not be subject to any of California’s more restrictive
insurance regulations. Arguably, the existence of these
secular exemptions supports a religiously-affiliated-employer
exemption even under Smith. The state would also need to
show its refusal to countenance a religious exception, in a
regulatory arena rife with exceptions, is not “official action
that targets religious conduct for distinctive treatment.”
(Lukumi, supra, 508 U.S. at pp. 533-534.)
Thus, whether the WCEA would survive strict
scrutiny—even under the relaxed federal standard—seems a
much closer question than the majority acknowledges. But
there may be other good reasons to rely on independent state
grounds. Changes in the interpretation of the federal charter
are not only becoming more frequent, the balancing test, and
the standards applied to them, are shifting. Instead of
applying Smith, we might view it as effectively returning free
exercise questions to the states. |
76a
A. A Document of Independent Force
“We may take it for granted that the meaning of
California Constitution article I, section 4, .. . is not
dependent on the meaning of any provision of the federal
Constitution. The state charter declares in so many words
that ‘[rjights guaranteed by this Constitution are not
dependent on those guaranteed by the United States
Constitution.’ (Cal. Const., art. I, § 24.)” (Smith v. FEHC,
supra, 12 Cal.4th at p. 1177.) “Respect for our Constitution
as ‘a document of independent force’ [citation] forbids us to
abandon settled applications of its terms every time changes
are announced in the interpretation of the federal charter.”
(People v. Pettingill (1978) 21 Cal.3d 231, 248, quoting
People v. Brisendine (1975) 13 Cal.3d 528, 549-550.)
This is true even when the language is identical to the
federal Constitution, but is particularly true when the
language differs. (See, e.g., Golden Gateway Center v.
Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1019
[Unlike the United States Constitution, which couches the
right to free speech as a limit on congressional power (see
U.S. Const., Ist Amend.), the California Constitution gives
‘[e]very person’ an affirmative right to free speech.
[Citation.] Accordingly, we have held that our free speech
clause is ‘more definitive and inclusive than the First
Amendment’ ” (fn. omitted)].)
Similarly, although we have said California’s
establishment clause is coextensive with the federal provision
(East Bay Asian Local Development Corp. v. State of
California (2000) 24 Cal.4th 693, 718), California’s free
exercise clause guarantees “free exercise and enjoyment of
religion without discrimination or preference” and specifies
that “liberty of conscience does not excuse acts that are
licentious or inconsistent with the peace and safety of the
state.” (Cal. Const., art. I, § 4.) We do not have to decide
77a
that this language literally embodies the strict scrutiny test.
The drafting history of California’s free exercise clause is not
clear enough to resolve the question definitively. Although
the proponents of the licentious acts clause may simply have
wanted to preserve the ability of the state to regulate specific
practices they considered immoral or dangerous (Browne,
Rep. of the Debates in Convention of Cal. on Formation of
State Const. (1850) p. 39), that does not mean they thought
the language was otherwise synonymous with the language of
the federal Constitution,
B. The Compelling State Interest Analysis
The majority carefully avoids deciding whether strict
scrutiny would be required under the California Constitution.
Other states with very similar constitutional liberty of
conscience clauses have found that infringement requires
strict scrutiny. (See, ¢.g., Humphrey v. Lane (Ohio 2000) 728
N.E.2d 1039, 1043 (holding that under the Ohio Constitution,
“the standard for reviewing a generally applicable, religion-
neutral state regulation that allegedly violates a person’s right
to free exercise of religion is whether the regulation serves a
compelling state interest and is the least restrictive means of
furthering that interest” and finding the regulation at bar not
the least restrictive]; State v. Hershberger (Minn. 1990) 462
N.W.2d 393 [under the Minnesota Constitution, neutral motor
vehicle statute, which burdened Amish religious exercise,
failed compelling state interest test since state failed to show
lack of reasonable alternative means]; First Covenant Church
v. City of Seattle (Wash. 1992) 840 P.2d 174, 187 [statute that
burdened free exercise failed state compelling interest test
under Washington Constitution since the State’s interest was
not of sufficient magnitude to outweigh free exercise of
religion].)
At the very least, the constitutional weight of the
State’s interest must be affected by the size and severity of the
78a
problem the state is attempting to solve. To authorize the
state to use a howitzer to smite a gnat should be no part of our
constitutional jurisprudence. Where strict scrutiny applies,
the state “may abridge religious practices only upon a
demonstration that some compelling state interest outweighs
the defendants’ interests in religious freedom.” (People v.
Woody (1964) 61 Cal.2d 716, 718 (Woody).)
It may also be true that “[s]ection 4 has not played an
independent role in free exercise claims” (Grodin et al., The
Cal. State Constitution: A Reference Guide (1993) p. 44), but
does that mean it should remain dormant? In Woody, the
court relied on the First Amendment rather than the
California provision, but in doing so, the court applied strict
scrutiny and insisted on a searching inquiry. Under
California law—at least up to now—the compelling state
interest test had bite and required the court to “weigh{] the
competing values represented . . . on the symbolic scale of
constitutionality.” (Woody, supra, 61 Cal.2d at p. 727.)
Untested assertions of a possible deleterious effect on a
statutory scheme were not sufficient. (/d. at p. 724.) In .
Woody, the court concluded that uniform enforcement of
neutral criminal drug laws (similar to the laws at issue in
Smith) was not a compelling reason to intrude upon sincere
religious practices. In explaining why the interest in drug
enforcement—while undeniably important—was not
compelling enough, the court said: “In a mass society, which
presses at every point toward conformity, the protection of
self-expression, however unique, of the individual and the
group becomes ever more important. The varying currents of
the subcultures that flow into the mainstream of our national
life give it depth and beauty.” (Woody, at p. 727.) These
concerns should be heightened when the government seeks to
redefine the core theology of religious organizations.
Under the standard enunciated in Woody, the state has
actually failed to meet its burden. The whole debate ensues
79a
because the state found that “approximately 10 percent of
commercially insured Californians do not have coverage for
prescription contraceptives.” (Maj. opn., ante, at p. 2.)
Presumably that 10 percent includes both men and women.
Still, it means that 90 percent of Californians who are
commercially insured do have such coverage! The insurance
gap itself is not large, and Catholic Church employers can
constitute only a small percentage of that small percentage.
Moreover, even if we assume the interests at issue
here are both compelling and of equal weight, the
Legislature’s refusal to grant a broader exemption—one
which would not embroil the government in the unseemly
task of deciding what is “religious”—is inexplicable. The
state has produced no substantial evidence that the exemption
of Catholic Charities from this particular mandate would
render the whole scheme ineffective or would be so
administratively burdensome as to preclude enforcement. As
petitioner poses the question: “[I]f closing the Catholic gap
[was] not the problem,” how can “ "granting an exemption to
Catholic employers’ ... ‘defeat the purpose of the bill’ ”?
There has been no showing that the interests served by the
WCEA—which focuses on a modest 10 percent gap in
coverage—cannot be achieved by less restrictive means.
CONCLUSION
|
Equality is one of those words, like justice, like
freedom, which no one is against. But the invocation of the
word “equality” often reduces analysis to empty platitudes. It
is important to remember that in America we seek equality
because it is a concomitant of freedom. When it is possible to
accommodate both, that is what we should do.
BROWN, J.
80a
Attorneys for Appellant:
Law Office of James Francis Sweeney, Sweeney & Grant,
James F. Sweeney, Eric Grant; Tobin & Tobin, Paul E.
Gaspari and Lawrence R. Jannuzzi for Petitioner.
Gaglione, Coleman & Greene, Robert J. Gaglione; and
Michael D. Ramsey for Catholic Charities USA as Amici
Curiae on behalf of Pefitioner.
Diepenbrock & Costa, Law Offices of Daniel P. Costa,
Daniel P. Costa; and William W. Bassett for California
Catholic Conference as Amicus Curiae for Petitioner.
Richard D. Ackerman and Gary G. Kreep for Life Legal
Defense Fund as Amicus Curiae on behalf of Petitioner.
Reed & Brown, Stephen W. Reed; Stuart J. Lark and Gregory
S Baylor for Christian Legal Society, Focus on the Family,
Family Research Council and Ethics and Religious Liberty
Commission of the Southern Baptist Convention as Amici
Curiae on behalf of Petitioner.
MeNicholas & McNicholas and John P. McNicholas for the
Lutheran Church-Missouri Synod, The International Church
of the Foursquare Gospel, the Worldwide Church of God and
the United States Conference of Catholic Bishops as Amici
Curiae on behalf of Petitioner.
Alan J. Reinach; Alan E. Brownstein; Bassi, Martinin &
Blum and Fred Blum for California Coalition for the Free
Exercise of Religion as Amicus Curiae on behalf of
Petitioner.
Sidley & Austin, Sidley Austin Brown & Wood, Jeffrey A.
Berman, James M. Harris, Gene C. Schaerr, Michael S. Lee,
Rebecca K. Smith and Eric A. Shumsky for Adventist Health,
Alliance of Catholic Health Care, Association of Christian
8la
Schools International, Catholic Charities of California,
Catholic Charities USA, Inc., Loma Linda University and
Lonia Linda University Medical Center as Amici Curiae on
behalf of Petitioner.
Attorneys for Respondent:
No appearance for Respondent
Attorneys for Real Party in Interest:
Bill Lockyer, Attorney General, Pamela Smith-Steward,
Chief Assistant Attorney General, Manuel M. Medeiros and
Andrea Lynn Hoch, Assistant Attorneys General, Catherine
M. Van Aken, Meg Halloran, Christopher Krueger, Kenneth
R. Williams, Kathleen W. Mikkelson, Daniel G. Stone and
Timothy M. Muscat, Deputy Attorneys General, for Real
Parties in Interest.
Catherine Weiss, Julie Sternberg; Margaret C. Crosby, Ann
Brick; Jordan Budd; Rocio L. Cordoba and Mark Rosenbaum
for American Civil Liberties Union, American Civil Liberties
Union of Northern California, ACLU Foundation of Southern
California and American Civ] Liberties Union of San Diego
and Imperial Counties as Amici Curiae on behalf of Real
Parties in Interest.
Rosina K. Abramson, Steven M. Freeman, Tamar Galatzan,
Erica Broido; Rachel Zenner; Doug Mirell, Daniel Sokatch;
Jerome J. Shestack, Jeffrey P. Sinensky, Kara H. Stein,
Danielle A. Samulon; Morrison & Foerster, J. Michael
Stusiak, Sunil R. Kulkarni and Felton T. Newell for Anti-
Defamation League, Hadassah, The American Jewish
Committee and The Progressive Jewish Alliance as Amici
Curiae on behalf of Real Parties in Interest.
82a
Eisen & Johnston Law Corporation, Jay-Allen Eisen and
Marian M. Johnston for Assemblymember Robert J.
Hertzberg and Senator Jackie Speier as Amici Curiae on
behalf of Real Parties in Interest.
Edward Tabash; Ayesha Khan; and Steve K. Green for
Americans United for Separation of Church and State as
Amicus Curiae on behalf of Real Parties in Interest.
- Nancy M. Solomon for California Women’s Law Center,
California Women Lawyers, Women Lawyers Association of
Los Angeles and Queen’s Bench Bar Association of the San
Francisco Bay Area as Amici Curiae on behalf of Respondent
and Real Parties in Interest.
Eve C. Gartner, Donna Lee; Roberta Riley; Lilly Spitz; and
Deborah Baumgarten for Planned Parenthood Affiliates of
California, California Planned Parenthood Education Fund,
All Planned Parenthood Affiliates and Planned Parenthvod
Federation of America as Amici Curiae on behalf of
Respondent and Real Parties in Interest.
Catherine I. Hanson and Astrid G. Meghrigian for the
American College of Obstetricians and Gynecologists and the
California Medical Association as Amici Curiae on behalf of
Respondent and Real Parties in Interest.
McCutchen, Doyle, Brown & Enersen
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