beckett fund amicus brief in catholic fund v serio
TRANSCRIPT
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STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY
CATHOLIC CHARITIES OF THE DIOCESE
OF ALBANY; THE SERVANTS OF RELIEFFOR INCURABLE CANCER; TEMPLE BAPTISTCHURCH; OUR LADY OF CONSOLATIONGERIATRIC CARE CENTER; DELTADEVELOPMENT OF WESTERN NEW YORK,INC.; ST. JOHN BAPTIST CHURCH; CATHOLICCHARITIES OF THE DIOCESE OF OGDENSBURG;BISHOP LUDDEN HIGH SCHOOL; FIRSTBIBLE BAPTIST CHURCH; CARMELITE SISTERSFOR THE AGED AND INFIRM, INC.
Plaintiffs, Index No. 8229-02-versus- Lamont, J.
GREGORY V. SERIO, SUPERINTENDENT,NEW YORK STATE DEPARTMENT OFINSURANCE,
Defendant.
BRIEF AMICUS CURIAE OF THE BECKET FUND FORRELIGIOUS LIBERTY IN SUPPORT OF PLAINTIFFS
THE BECKET FUND FOR RELIGIOUS LIBERTY Anthony J. Vlatas, Esq.Anthony R. Picarello, Jr., Esq.Roman P. Storzer, Esq.Derek L. Gaubatz, Esq.1350 Connecticut Avenue, NW, Suite 605Washington, D.C. 20036-1735Phone: (202) 955-0095Fax: (202) 955-0090
Date: August 22, 2003
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TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE ............................................................................1
ARGUMENT................................................................................................................2
I. The Law Is Not Religion-Neutral and Does NotSurvive Strict Scrutiny. .............................................................................5
A. The Law Is Not Religion-Neutral. ......................................................5
B. The Law Fails Strict Scrutiny.............................................................9
II. The Law Substantially Burdens the Free Exerciseof Religion Pursuant to a System of Individualized
Exemptions. ..............................................................................................11
III. The Law Violates a Free Exercise Hybrid Right,Because the Law At Least Colorably ViolatesOther Fundamental Rights. ....................................................................16
CONCLUSION ..........................................................................................................18
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INTEREST OF AMICUS CURIAE
The Becket Fund for Religious Liberty is an interfaith, bi-partisan, public interest
law firm dedicated to protecting the free expression of all religious traditions, and the
equal participation of religious people and groups in public life and public benefits. The
Becket Fund litigates in support of these principles in state and federal courts throughout
the United States, both as primary counsel and as amicus curiae . Virtually all of those
cases involve claims against the government under the federal Free Exercise Clause, and
usually involve related First Amendment claims under the Free Speech Clause, including
its protection of expressive association.Accordingly, The Becket Fund offers its expertise in this area of law to this
honorable Court, with the hope that it will assist the Court in its resolution of the parties
pending motions. While The Becket Fund endorses generally the plaintiffs federal Free
Exercise arguments, the main purpose of this brief is to explain how the law at issue here
violates the Free Exercise Clause in ways not emphasized by plaintiffs. Accordingly,
The Becket Fund believes that this brief will not be duplicative.
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ARGUMENT
The contraceptive insurance coverage law (the law) 1 violates the Free Exercise
Clause of the First Amendment to the federal constitution. The Free Exercise Clause
1 N.Y. Insurance Law 3221(l)(16), 4303(cc) and those portions of 3221(k)(13) and 4303(bb)dealing with contraceptive drugs and devices. Pursuant to 3221(l)(16):
Every group or blanket policy which provides coverage for prescriptiondrugs shall include coverage for the cost of contraceptive drugs or devicesapproved by the federal food and drug administration or generic equivalentsapproved as substitutes by such food and drug administration under theprescription of a health care provider legally authorized to prescribe under titleeight of the education law. The coverage required by this section shall be
included in policies and certificates only through the addition of a rider.(A) Notwithstanding any other provision of this subsection, a religiousemployer may request a contract without coverage for federal food and drugadministration approved contraceptive methods that are contrary to the religiousemployer's religious tenets. If so requested, such contract shall be providedwithout coverage for contraceptive methods. This paragraph shall not beconstrued to deny an enrollee coverage of, and timely access to, contraceptivemethods.
(1) For purposes of this subsection, a "religious employer" is an entityfor 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.(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 paragraph shall provide written notice to prospective enrollees priorto enrollment with the plan, listing the contraceptive health care services theemployer refuses to cover for religious reasons.
(B)(i) Where a group policyholder makes an election not to purchasecoverage for contraceptive drugs or devices in accordance with subparagraph(A) of this paragraph each certificateholder covered under the policy issued tothat group policyholder shall have the right to directly purchase the riderrequired by this paragraph from the insurer which issued the group policy at theprevailing small group community rate for such rider whether or not the
employee is part of a small group.(ii) Where a group policyholder makes an election not to purchase
coverage for contraceptive drugs or devices in accordance with subparagraph(A) of this paragraph, the insurer that provides such coverage shall providewritten notice to certificateholders upon enrollment with the insurer of theirright to directly purchase a rider for coverage for the cost of contraceptive drugsor devices. The notice shall also advise the certificateholders of the additionalpremium for such coverage.
(C) Nothing in this paragraph shall be construed as authorizing a groupor blanket policy which provides coverage for prescription drugs to exclude
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forbids the State of New York from imposing any law prohibiting the free exercise of
religion. U.S. Const. amend. I. 2
The law exemplifies all three categories of laws that the Free Exercise Clause has
been interpreted by the U.S. Supreme Court to prohibit:
(1) Laws that are not religion-neutral or are not generally applicable to
religiously-motivated and non-religiously-motivated conduct alike, unless
such a law is shown by the State to serve a compelling interest by
narrowly tailored means ( i.e., unless the law survives strict scrutiny).
See Employment Div., Dept. of Human Resources of Ore. v. Smith , 494U.S. 872, 879 (1990); Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531-32 (1993); see also Larson v. Valente , 456
U.S. 228, 245 (1982) (discussing how important religion-neutrality is to
realizing the purposes of the Free Exercise Clause).
(2) Laws that impose a substantial burden on religiously-motivated conduct
pursuant to a system of individualized exemptions, unless denying the
exemption in the individual case is shown by the State to serve a
compelling interest by narrowly tailored means. See Smith , 494 U.S.
at 883; Lukumi , 508 U.S. at 537-38; Hobbie v. Unemployment Appeals
Comm'n of Florida , 480 U.S. 136 (1987); Thomas v. Review Bd. of
coverage for prescription drugs prescribed for reasons other than contraceptivepurposes.
(D) Such coverage may be subject to reasonable annual deductibles andcoinsurance as may be deemed appropriate by the superintendent and as areconsistent with those established for other drugs or devices covered under thepolicy.
2 The Free Exercise Clause has been incorporated against the States through the FourteenthAmendment. See Cantwell v. Connecticut , 310 U.S. 296 (1940).
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Indiana Employment Security Div. , 450 U.S. 707 (1981); Sherbert v.
Verner , 374 U.S. 398 (1963); see also Fraternal Order of Police v. City of
Newark , 170 F.3d 359, 365-66 (3 rd Cir. 1999).
(3) Laws that both burden religious exercise and implicate one or more
fundamental, constitutional rights (a so-called hybrid right), unless such
a law is shown by the State to serve a compelling interest by narrowly
tailored means. See Smith , 494 U.S. at 881-82; Wisconsin v. Yoder , 406
U.S. 205 (1972) (combining Free Exercise right with right of parents to
direct childrens upbringing); Murdock v. Pennsylvania , 319 U.S. 105(1943) (combining Free Exercise right with Free Speech right); E.E.O.C.
v. Catholic Univ. of America , 83 F.3d 455, 467 (D.C. Cir. 1996)
(combining Free Exercise right with right against Establishment of
Religion).
The plaintiffs have correctly argued that the law is unconstitutional under the first and the
third Free Exercise prohibitions above that is, the law is not neutral, 3 and the law
violates a hybrid right consisting of plaintiffs Free Exercise right combined with their
Free Speech and Free Association rights. 4
In Section I below, amicus argues from a somewhat different perspective than
plaintiffs that the law is not religion-neutral and does not survive strict scrutiny. In
Section II, amicus argues that the law imposes a substantial burden pursuant to a system
of individualized exemptions. Finally, in Section III amicus argues that the law violates a
3 See [Plaintiffs] 2-21-03 Memorandum of Law in Support, at 63-69; see generally [Plaintiffs] 6-16-03 Reply Memorandum of Law.
4 See [Plaintiffs] 2-21-03 Memorandum of Law in Support at 70-71; [Plaintiffs] 6-16-03 ReplyMemorandum of Law at 35-37.
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different hybrid right, one combining plaintiffs Free Exercise rights with (a) their First
Amendment rights against unconstitutionally vague legislation; and (b) a different aspect
of their First Amendment right to freedom of association.
I. The Law Is Not Religion-Neutral and Does Not Survive Strict Scrutiny.
The law fails the test of religion-neutrality, first, because the laws conscience
clause reflects the legislatures preferred conception of religion an excessively narrow
conception that explicitly favors, over all other religiously-motivated conduct, the
inculcation of religious values; 5 and, second, because the law mandates a remarkably
invasive inquiry by the employer into the religious tenets of both its employees and itspatrons. 6 As a matter of law, moreover, the interests advanced by the State in the laws
defense are not compelling because they are left significantly unprotected by the law.
Finally, the law is not narrowly tailored to serve the States asserted interests, because the
State may serve its stated purposes by a wide range of alternative means that are less
restrictive of religious exercise ( e.g., the State itself could provide group contraceptive
insurance for women whose employers refuse to provide it on religious grounds).
A. The Law Is Not Religion-Neutral.
Because the conscience clause is so narrow, the law still regulates employers who
engage in a wide range of religiously-motivated conduct, from liturgical practice, to
missionary work and other evangelism, to a vast array of religiously-motivated charitable
services. All of this religiously-motivated conduct is entirely lawful, and so all of it lies
squarely within the protection of the Free Exercise Clause, which by its terms, gives
special protection to the exercise of religion. Thomas v. Review Bd. , 450 U.S. 707, 713
5 N.Y. Ins. Law 3221(l)(16)(A)(1)(a).
6 Id. 3221(l)(16)(A)(1)(b & c).
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(1981) (emphasis added). It is especially well-established that the religiously-motivated
provision of social services represents protected religious exercise. See, e.g., Fifth Ave.
Presbyterian Church v. City of New York , 293 F.3d 570, 574 (2d Cir. 2002) (providing
outdoor sleeping space for the homeless effectuates a sincerely held religious belief and
therefore is protected under the Free Exercise Clause.); Espinosa v. Rusk , 634 F.2d 477,
479 (10 th Cir. 1980), affd, 456 U.S. 951 (1982) (concluding that Free Exercise Clause
protects charitable activity of the church having to do with the feeding of the hungry or
the offer of clothing and shelter to the poor.). 7
Although the laws conscience clause is a positive step as far as it goes, it singlesout from the vast universe of religiously-motivated conduct only the inculcation of
religious values for special protection. This distinction does nothing to serve the
interests asserted in support of the law generally: (1) achieving gender equality in
healthcare costs; and (2) promoting public health by reducing the number of unintended
pregnancies. [Defendants] 4-14-03 Memorandum of Law in Opposition at 23-27.
Instead, the State candidly concedes that the purpose of the conscience clause is the
accommodati[on] of the beliefs of purely religious entities. [Defendants] 4-14-03
Memorandum of Law in Opposition, at 2 (emphasis added); see also id. at 4 (the
conscience clause applies in favor of purely religious entities) (emphasis added).
It is far from religion-neutral, however, for the government to exalt and protect
religious exercise it deems purely religious, while trampling on the vast remainder of
7 The Free Exercise Clause has consistently been held to protect conduct that is not necessarilyreligious (as prayer is, for example) when the conduct is undertaken for religious reasons. See, e.g. , Wisconsin v. Yoder , 406 U.S. 205 (1972) (educating children at home for religious reasons is protected FreeExercise); United States v. Ballard , 322 U.S. 78 (1944) (soliciting money for religious reasons can beprotected Free Exercise); Church of the Lukumi Babalu Aye, Inc. v . City of Hialeah , 508 U.S. 520 (1993)(killing animals for religious reasons is protected Free Exercise).
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religious exercise because it is deemed less pure. It is, of course, a venerable tradition
of American government to accommodate religion generally . See Corp. of Presiding
Bishop v. Amos , 483 U.S. 327, 334 (1987) (This Court has long recognized that the
government may (and sometimes must) accommodate religious practice .); Zorach v.
Clauson, 343 U.S. 306, 314 (1952) (accommodating religious exercise follows the best
of our traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs.). See also Smith, 494 U.S. at
890 (a society that believes in the negative protection accorded to religious belief can be
expected to be solicitous of that value in its legislation). But it is equally well-established that the government may not play favorites among religions when making
accommodations. See Smith, 494 U.S. at 890 (noting generally that nondiscriminatory
religious-practice exemption is permitted) (emphasis added); Walz v. Tax Commr, 397
U.S. 664, 673 (1970) (Few concepts are more deeply embedded in the fabric of our
national life than for the government to exercise at the very least this kind of
benevolent neutrality toward churches and religious exercise generally so long as none
was favored over others and none suffered interference .) (emphasis added). See also
Larson v. Valente , 456 U.S. 228, 244 (1982) (The clearest command of the
Establishment Clause is that one religious denomination cannot be officially preferred
over another.).
And such discriminatory accommodations are all the worse when they are based
on an essentially theological distinction here, between purely and not-purely religious
practices made by government officials. It is especially ironic that religious charitable
organizations are not deemed purely religious by the State, when the Scripture of at
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least some of the religious organizations covered by the law suggests the opposite. See
James 1:27 (Pure religion and undefiled before God and the Father is this, To visit the
fatherless and widows in their affliction.). More relevantly, it is especially illustrative
of the states utter incompetence to make such determinations. See, e.g., Espinosa , 634
F.2d at 481 (The conception of religion entertained by the City in this very case 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 to be subject to regulation. This broad definition of secular is part of the
problem. [W]e must conclude that the present [regulatory] effort is an invalidinterference.). See also Univ. of Great Falls v. N.L.R.B., 278 F.3d 1335, 1342 (D.C. Cir.
2002) ([A]n exemption solely for pervasively sectarian schools would itself raise First
Amendment concerns discriminating between kinds of religious schools.) (citing
Larson , 456 U.S. at 244); id. , 278 F.3d at 1343 ([A]sking how effective the institution is
at inculcating its beliefs [is] an irrelevant inquiry.). 8
This conclusion that the conscience clause is not religion-neutral is only
reinforced by its invasive inquiry into the most personal religious beliefs and practices of
the employees and patrons of the employers seeking exemption. See Mitchell v. Helms,
530 U.S. 793, 828 (2000) (plurality opinion) (It is well established, in numerous other
contexts, that courts should refrain from trolling through a persons or institutions
religious beliefs.). The second and third elements of an exemption specifically require
that an employers employees and patrons must be primarily persons who share [the
8 The States response that it is permissibly distinguishing between the religious and thesecular, see Defendants Reply Memorandum of Law at 4-9, is baseless. As explained above, see supranote 7, all of the religiously-motivated conduct under discussion here is protected by the Free ExerciseClause as religious exercise, no matter how the government may prefer to view it.
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employers] religious tenets. N.Y. Ins. Law 3221(l)(16)(A)(1)(b & c). Although these
words could mean any of a number of things as a textual matter ( see supra p. 14), they
must, at a minimum, involve an inquiry into the beliefs of numerous employees and
patrons; an inquiry into the beliefs of the employer as an institution; an assessment of
whether those two sets of beliefs are sufficiently in harmony as to be shared; and an
assessment of whether enough employees and patrons share the employers beliefs that
they primarily do so. 9 It is simply beyond the constitutional pale for the government to
engage in so deep and so broad an investigation of religious beliefs, least of all as a
condition for granting a government benefit, such as the deregulation represented by theconscience clause here. 10
B. The Law Fails Strict Scrutiny.
Strict scrutiny requires the State to show that the interests advanced in the laws
defense are compelling and that that law serves them by narrowly tailored means,
9 Notably, it is difficult to imagine making the assessment of whether employees and patronsprimarily share the employers beliefs without also assessing the relative weight of employees andpatrons in that analysis, and the total number of all employees and patrons.
10 See University of Great Falls , 278 F.3d at 1341-42 (citing Smith , 494 U.S. at 887, and Serbian Eastern Orthodox Diocese v. Milivojevich , 426 U.S. 696, 718 (1976)), where the D.C. Circuit held that theNational Labor Relations Board erred when it inquired under the National Labor Relations Act into factorssuch as the religious beliefs of faculty members and students at a Roman Catholic university, in decidingwhether jurisdiction could be exercised over the university:
The prohibition on such intrusive inquiries into religious beliefs underlay the decision inPresiding Bishop v. Amos , 483 U.S. 327 (1987), in which the Supreme Court upheldan exemption in Title VII of the Civil Rights Act as applied to the firing of a janitor by achurch-owned gymnasium. There the Court noted the difficulty of judicially decidingwhich activities of a religious organization were religious and which were secular. "The
line is hardly a bright one," the Court observed, "and an organization mightunderstandably be concerned that a judge would not understand its religious tenets andsense of mission." Id. at 336. For this reason, even those Justices who filed separateconcurrences in the judgment, expressed a belief that a non-profit institution owned oroperated by a church should be exempted from "a case-by-case determination whether itsnature is religious or secular" under Title VII. Id. at 340, 345.
University of Great Falls , 278 F.3d at 1342; see also Mitchell v. Helms , 530 U.S. 793, 828 (2000) (pluralityopinion) (It is well established, in numerous other contexts, that courts should refrain from trollingthrough a person's or institution's religious beliefs.").
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e.g, that no less-restrictive alternative is available. See Lukumi, 508 U.S. at 546-47;
Thomas , 450 U.S. at 718 (The state may justify an inroad on religious liberty by
showing that it is the least restrictive means of achieving some compelling state
interest.); Hobbie , 480 U.S. at 141; Yoder , 406 U.S. at 215 (The essence of all that has
been said and written on the subject is that only those interests of the highest order and
those not otherwise served can overbalance legitimate claims to the free exercise of
religion.). Here, as a matter of law, the two secular interests that the State has advanced
to justify its regulation of religious exercise in this case are not compelling; nor is the law
is narrowly tailored to serve those interests.First, compelling interests include [o]nly the gravest abuses, endangering
paramount interest. See, e.g. , Sherbert , 374 U.S. at 406; Lukumi, 508 U.S. at 546-47
(compelling interests include only interests of the highest order). However, from the
States own point of view, the interest in free exercise outranks the asserted interests in
achieving gender equality in health care costs and promoting public health by reducing
the number of unintended pregnancies. The conscience clause necessarily reflects this
legislative judgment. But the laws underinclusiveness is much more pronounced still.
The law does not provide contraceptive insurance coverage to: (1) unemployed women,
(2) stay-at-home mothers, (3) women whose employers do not offer health insurance
benefits, and (4) women in part-time employment that do not qualify for health benefits.
The law is thus underinclusive to a substantial extent. Lukumi , 508 U.S. at 547. This is
dispositive, for the Supreme Court has held: It is established in our strict scrutiny
jurisprudence that a law cannot be regarded as protecting an interest of the highest
order ... when it leaves appreciable damage to that supposedly vital interest
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unprohibited. Lukumi , 508 U.S. at 547; see also [Plaintiffs] 2-21-03 Memorandum of
Law 47-49 (making similar point). Accordingly, as a matter of law, the two State
interests advanced here are not compelling, and, therefore, the law fails strict scrutiny for
this reason alone.
Second, even if the interests in achieving gender equality in health care coverage
and promoting public health by reducing unintended pregnancies were compelling, the
law fails to serve them by narrowly tailored means. For example, the State itself could
have provided group contraceptive insurance coverage for any women whose employer
chooses for religious reasons not to provide it. This would have avoided coercing anysincerely religiously-motivated employer into having to directly facilitate conduct
believed to be an affront to God, while more carefully matching the legislative solutions
with the asserted interests. The interests advanced here thus could be achieved by [a]
narrower [law] that burdened religion to a far lesser degree. The absence of narrow
tailoring suffices to establish the invalidity of the [law] under the Free Exercise Clause.
See, e.g. , Lukumi , 508 U.S. at 546.
II. The Law Substantially Burdens the Free Exercise of ReligionPursuant to a System of Individualized Exemptions.
Even if the law is religion-neutral, it violates the Free Exercise Clause on other
grounds. The burden the law imposes on the plaintiffs religious exercise is a substantial
one, yet the system of individualized exemptions established by the conscience clause
does not exempt them. No compelling reason has been advanced by the State for denying
them an exemption, and the law is not narrowly tailored to serve the interests that have
been advanced. See Lukumi, 508 U.S. at 537 ([I]n circumstances in which
individualized exemptions from a general requirement are available, the government
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may not refuse to extend that system to cases of religious hardship without compelling
reason.) (citing Smith , 494 U.S. at 884).
A law imposes a substantial burden on the free exercise of religion where the
law put[s] substantial pressure on an adherent to modify his behavior and to violate his
beliefs. Thomas , 450 U.S. at 718; Sherbert , 374 U.S. at 404 (finding a substantial
burden where an individual was forced to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of
her religion ... on the other hand). Here, in order to avoid violating the law, the
plaintiffs would have to violate one or the other of their fundamental religious beliefs. If plaintiffs were to adhere to their religious belief against providing contraceptives, 11 the
law would forbid them from providing their employees with health insurance coverage,
in violation of their religious belief in providing their employees fair compensation and
benefits. And vice-versa. 12
Indeed, the substantiality of the burden is even more poignant for some employers
regulated by the law. Plaintiff Temple Baptist Church (Temple Baptist), for example,
holds to the fundamental religious beliefs that human life begins at the moment of
conception and that the use of an abortion-inducing contraceptive is the taking of an
unborn human life. See Affidavit of Duke Hergatt 10-11 (sworn to Feb. 19, 2003)
(hereafter Hergatt Aff.). Consistent with these beliefs, Temple Baptists ministry
includes a crisis pregnancy service program for women. Id. at 6. The law thus strikes
at the very heart of both one of Temples fundamental religious tenets and one of its
11 In the case of the Baptist plaintiffs, their religious belief is against abortion-inducingcontraceptives only, rather than all contraceptives, as in the case of the Roman Catholic plaintiffs.
12 See [Plaintiffs] 2-21-03 Memorandum of Law at 46-47 and [Plaintiffs] 6-16-03 ReplyMemorandum in Further Support at 37-42.
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ministrys program goals bringing an end to the use of abortion-inducing
contraceptives.
Moreover, the law imposes this burden pursuant to a system of individualized
exemptions. The laws conscience clause establishes a four-element inquiry for any
employer seeking exemption. Before an exemption will be granted, the government must
examine each individual employers purpose, the religious tenets shared by the
employers employees, the religious tenets shared by the employers customers, and the
employers federal taxation status. See N.Y. Ins. Law 3221(l)(16)(A)(1). The first
three of the four elements for exemption are especially indefinite, creating a situation inwhich individual employers will be especially vulnerable to the whim and caprice of
government officials.
Consider the first element, which requires that the purpose of the entity be the
inculcation of religious values. N.Y. Ins. Law 3221(l)(16)(A)(1)(a) (emphasis added).
Few if any organizations have only a single purpose. For example, plaintiff Temple
Baptist Churchs corporate purpose is not solely the inculcation of religious values,
but, rather, to offer human service programs and services to the general public that
promote a just, compassionate society that support 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, prison ministry, youth ministry, bible
institutes, education and job placement for the homeless and crisis pregnancy assistance.
Hergatt Aff. at 15 (emphasis added). What, then, is Temple Baptists purpose within
the laws meaning? And, does that purpose whatever it is qualify as the inculcation
of religious values?
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The second and third elements are at least as vague, intrusive, and discretionary as
the first. These elements require that the employers patrons and employees must
primarily be persons who share [the employers] religious tenets. N.Y. Ins. Law
3221(l)(16)(A)(1)(b & c). These words could be interpreted, for example, to require
that: (1) a majority of the employees and patrons must affirm that they are formal
members of the same religious body with which the employer is affiliated; (2) a majority
of the employees and patrons must affirm that, although they are not formal members of
the same religious body as the employer, they nevertheless share (believe, practice, or
both?) the religious tenets (one, some, or all?) of the employer; (3) a majority of theemployees and patrons must affirm that, whatever their formal religious membership and
whatever religious tenets they may hold generally speaking, they actually believe and
practice the employers religious tenet against the use of contraceptives; or (4) some
subset, other than a majority, of all employees and patrons of the employer (perhaps
based on hours worked, or quality or quantity of patronage, respectively) represents the
primary part of that group, and has a connection to the religious employer such as is
described in (1), (2), or (3) above.
Putting aside for the moment the grave constitutional problems of vagueness and
of probing into religious affairs, this inquiry represents a classic system of individualized
assessments which, even after Smith, triggers strict scrutiny when it imposes substantial
burdens on religious exercise. It warrants emphasis that the Smith Court did not overrule
the cases that had previously applied the substantial burdens test such as Sherbert v.
Verner, 374 U.S. 398 (1963), Hobbie v. Unemplt. Appeals Commn, 280 U.S. 136 (1987),
and Thomas v. Review Bd., 450 U.S. 707 (1982) but instead distinguished them as cases
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involving systems of individualized governmental assessment of the reasons for the
relevant conduct. Smith, 494 U.S. at 884. Incidental burdens imposed through
discretionary systems still trigger strict scrutiny for at least two reasons. First, they
present boundless opportunities for government officials to engage in religious
discrimination of a sort that is virtually impossible to prove. See Cottonwood Christian
Center v. City of Cypress, 218 F. Supp. 2d 1203, 1224 (C.D. Cal. 2002) (noting that law
invites deception and discrimination where government agencies could vest absolute
discretion in a single person or body, because [t]hat decision-maker would then free to
discriminate against religious uses and exceptions with impunity, without any judicialreview.).
Second, they require the government to make a determination that necessarily
entails impermissible discrimination. By granting a discretionary exemption to one
religious group and not another, the government declares that one set of religious reasons
is worthier of government solicitude than another. Lukumi, 508 U.S. at 537-38
(interpreting necessity exception not to include religious reasons devalues religious
reasons for [prohibited conduct] by judging them to be of lesser import than nonreligious
reasons.). See also id. at 532 ([T]he First Amendment forbids an official purpose to
disapprove of a particular religion or of religion in general.). And governments relative
devaluation of religious reasons for an exemption whether in relation to different
religious reasons or to secular reasons for that same exemption triggers strict scrutiny.
See, e.g., Fraternal Order of Police v. City of Newark , 170 F.3d 359 (3d Cir. 1999)
(applying strict scrutiny where police accepted nonreligious, medical reasons for
exception from no-beards requirement, but rejected religious reasons for same exception).
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The law at issue here represents just such a case. As discussed above, the denial
of the conscience clause exemption imposes a substantial burden on religious exercise
by compelling the choice between compliance with the law and compliance with the
dictates of religious belief and conscience. That grave burden, moreover, is imposed only
after a case-by-case assessment of whether the purpose of the entity is sufficiently
religious in the eyes of the state, based on a series of indefinite, malleable criteria, also
established by the state. Thus, the statute on its face declares that some religious reasons
for exemption are more important than others, which is sufficient evidence of
discrimination to trigger heightened Free Exercise scrutiny. Moreover, in its applicationin particular cases , nothing prevents government decision-makers from denying the
exemption to religious employers they simply dont like, since the criteria are so easily
manipulated.
Thus, because it requires an evaluation of the particular justification for the
[employers conduct], this [law] represents a system of individualized governmental
assessment of the reasons for the relevant conduct. Lukumi, 508 U.S. at 537 (quoting
Smith, 494 U.S. at 884).
III. The Law Violates a Free Exercise Hybrid Right, Because the LawAt Least Colorably Violates Other Fundamental Rights.
In Employment Division v. Smith , the Supreme Court held that the First
Amendment bars application of a neutral, generally applicable law to religiously
motivated action [in cases involving] 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. 494 U.S. at 881 (citing Cantwell , 310 U.S. at 304-307). Here,
the law can be said to violate the Free Exercise as argued above ( see supra pp. 5-16). In
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addition, two other fundamental rights are implicated (beyond those advanced by the
plaintiffs): (1) the laws extreme vagueness presents an independent First Amendment
violation; and (2) the fact that the law offers the plaintiffs, in substance, a choice of sins,
arguably means that the law violates their First Amendment freedom of association.
First, the laws pronounced vagueness ( see supra pp. 13-14) necessarily bestows
unbridled discretion on the administrative officials who will have to interpret the law, in
either permitting or prohibiting the religious exercise at stake under the conscience
clause. This standardless discretion renders the law unconstitutional under the First
Amendment. See, e.g., Kunz v. New York , 340 U.S. 290, 294 (1961) (striking down lawas applied to religiously-motivated speaker: [W]e have consistently condemned [laws]
which vest in an administrative official discretion to grant or withhold a permit [to speak
in public forum] upon broad criteria unrelated to [the laws secular purpose].) (citing
Cantwell v. State of Connecticut , 310 U.S. 296, 305 (1940) (law regulating religious
solicitation struck down as violating First Amendment where decision whether to issue
license was given to discretionary judgment of administrative official: He is not to issue
a certificate as a matter of course. His decision to issue or refuse it involves appraisal of
facts, the exercise of judgment, and the formation of an opinion.)).
Second, the Supreme Court specifically noted in discussing hybrid rights that it
is easy to envision a case in which a challenge on freedom of association grounds would
likewise be reinforced by Free Exercise Clause concerns. 494 U.S. at 882. This is just
such a case. In traditional Christian religious belief, committing a sin separates the
adherent from the church and from God, the Creator of the church. See Isaiah 59:2 (But
your iniquities have separated you from God; your sins have hidden his face from you, so
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that he will not hear.) As described above, the law here presents the plaintiffs here with
a choice of religious evils they have no way to comply with the law except by
committing what they believe is a sin. Accordingly, the law forces plaintiffs into
separating themselves from God and their church by committing sin. The law thereby
abridges plaintiffs First Amendment freedom of association.
Because the law violates two hybrid rights, it triggers strict scrutiny. And as
discussed above, the law cannot withstand that scrutiny. Therefore, it should be struck
down.
CONCLUSION
The law should be held unconstitutional under the federal First Amendments
Free Exercise Clause, the First Amendments prohibition against unconstitutionally
vague laws, and the First Amendments protection of free association.
Respectfully submitted,
____________________________________THE BECKET FUND FOR RELIGIOUS LIBERTY Anthony J. Vlatas, Esq.Anthony R. Picarello, Jr., Esq.Roman P. Storzer, Esq.Derek L. Gaubatz, Esq.1350 Connecticut Avenue, NW, Suite 605Washington, D.C. 20036-1735Phone: (202) 955-0095Fax: (202) 955-0090
Date: August 22, 2003
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CERTIFICATE OF SERVICE
I hereby certify that on this 21 st day of August, 2003, I served a true and correct
copy of the enclosed Brief Amicus Curiae of the Becket Fund for Religious Liberty in
Support of Plaintiffs, by placing same in the first-class mail, postage prepaid, addressed
to the last known address of the addressees as indicated below:
Nancy G. Groenwegen, Esq.Assistant Attorney GeneralThe CapitolAlbany, NY 12224-0341
Attorneys for Defendants
Michael L. Costello, Esq.TOBIN & DEMPF , LLP33 Elk StreetAlbany, NY 12207
Attorneys for Plaintiffs
______________________________Anthony R. Picarello, Jr.