Beckett Fund Amicus Brief in Catholic Fund v Serio

8/6/2019 Beckett Fund Amicus Brief in Catholic Fund v Serio

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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.

Beckett Fund Amicus Brief in Catholic Fund v Serio

Documents

Transcript of Beckett Fund Amicus Brief in Catholic Fund v Serio