*1 S099822. Mar. [No. 2004.] SACRAMENTO, INC., Petitioner,
CATHOLIC CHARITIES OF COUNTY, THE SUPERIOR COURT OF SACRAMENTO Rеspondent; al., DEPARTMENT OF MANAGED HEALTH CARE et Real Parties Interest.
Counsel Grant, R Sweeney, & James Sweeney, Sweeney Law Office of James Francis Tobin, Grant; E. R. Jannuzzi Eric Tobin & Paul Lawrence Gaspari Petitioner. Greene, D. Ramsey and Michael Gaglione; & Robert J.
Gaglione, Coleman of Petitioner. as Amicus Curiae on behalf for Catholic Charities USA Costa; Costa, Costa, P. Daniel P. Daniel & Law Offices of Diepenbrock Curiae on Conference as Amicus W. Bassett for California Catholic William behalf of Petitioner. *8 D. and for Life Defense Fund
Richard Ackerman G. as Gary Kreep Legal Amicus Curiae behalf of Petitioner. Brown, Reed; & W. J. Lark and S. Gregory
Reed Stuart for Stephen Baylor Society, Christian Focus on the Research Council and Legal Family, Family Ethics and of the Religious Liberty Baptist Commission Southern Convention as Amici Curiae on behalf of Petitioner.
McNicholas & McNicholas and John P. for the Lutheran McNicholas Church-Missouri Church International Synod, Foursquare Gospel, the Worldwide Church of God and the United States Conference Catholic as Amici Curiae on behalf Petitioner. Bishops Bassi, Reinach; Brownstein; Alan J. E. Alan Martinin & Blum and Fred Blum for California Coalition for Free Exercise of as Amicus Curiae Religion on behalf of Petitioner. Austin, Wood, Berman, &
Sidley Sidley Austin Brown & Jeffrey A. James M. Harris, Schaerr, Lee, Gene C. Michael S. Rebecca K. Smith and Eric A. Health, Care, for Shumsky Adventist Alliance of Catholic Health Association International, California, Christian Schools Catholic Charities of USA, Inc., Charities Loma Linda and Linda University Loma University Medical Center Curiae as Amici on behalf of Petitioner.
No appearance Respondent. General, Smith-Steward,
Bill Lockyer, Attorney Pamela Chief Assistant General, Hoch, Manuel M. Attorney Medeiros and Andrea Assistant Lynn General, Aken, Halloran, Attorneys Catherine M. Van Meg Christopher Williams, Mikkelson, Krueger, Kenneth R. W. Kathleen Daniel G. Stone and Muscat, General, Timothy M. for Real Parties in Deputy Attorneys Interest. Weiss, Brick; Catherine Julie C. Sternberg; Margaret Ann Jordan Crosby, Budd; Rocío L. and Cordoba Mark Rosenbaum for Civil American Liberties Union, California, Civil American Liberties Union of Northern ACLU Foundation of Southern California and American Civil Liberties Union of San Diego Counties as Curiae Imperial Amici on behalf Real Parties in Interest. Abramson, Freeman, Galatzan, Broido;
Rosina K. Steven M. Tamar Erica Zenner; Mirell, Sokatch; Shestack, Rachel Doug Daniel Jerome J. P. Jeffrey Stein, Samulon; Foerster, Sinensky, Kara H. Danielle A. & Morrison Stusiak, J. Michael Sunil R. Kulkami and Felton T. Newell for Anti-Defamation Hadassah, Progressive the American Jewish Committee League, behalf of Real Parties Interest. Alliance as Amici Curiae on Jewish and Marian M. Johnston & Law Bisen Jay-Alien Eisen Johnston Corporation, Jackie Amici Speier Robert J. Senator Hertzberg for Assemblymember *9 Real in Interest. Curiae on behalf of Parties Tabash; Khan; K. United for and Steve Green for Americans
Edward Ayesha in behalf of Real Parties and State as Amicus Curiae on of Church Separation Interest. Center, Women M. Law California Solomon for California Women’s
Nancy Queen’s and Bench of Los Lawyers Angeles Womеn Association Lawyers, Amici Curiae on behalf of the San Francisco Area as Bay Bar Association Real Parties in Interest. and Respondent Gartner, Lee; and Deborah Donna Roberta Riley; Lilly Spitz;
Eve C. California, California Planned Parenthood Affiliates Baumgarten for Fund, and Planned All Affiliates Education Planned Parenthood Parenthood Curiae on behalf Planned Federation of America as Amici Parenthood Parties Interest. and Real in Respondent College the American Meghrigian I. and Astrid G. for
Catherine Hanson Medical Association and and California Gynecologists Obstetricians in and Real Parties Interest. Amici Curiae on behalf Respondent McCutchen, Enersen, Beck Beth Parker and Alison- R. Brown & H. Doyle, Choice, Choice, for Free for a Free California Catholics for Catholics Conscience, Out, a Free Vermont Catholics for Catholics Speak Dignity/USA, Ritual, and Women’s Ordination Ethics Theology, Women’s Alliance and Real Parties Amici Curiae on behalf Respondent Conference as Interest. Martel, Lewis, Anderson; L. A. Sarah Farella Braun & Claudia
Bebe J. Kowalski; for the California Abortion Reproductive and Ronora Pawelko Fund, the Center Pro-Choice Education CARAL League, Action Rights Planning Fund of Family Law and the Education Policy, for Reproductive Inc., State, Law Center as and National Women’s New York Advocates of and Real Parties Interest. behalf of Amici Curiae on Respondent Union, L. Neff and Christyne Broad for Barry International AFL-CIO & CLC, Women, Coalition of Labor Union Service International Employees Union, Local and California Nurses Association as Amici Curiae on behalf of and Real Parties Interest. Respondent Opinion case,
WERDEGAR, In this we address a church-affiliated employer’s J. constitutional to the challenges Women’s Act Contraception Equity (WCEA),1 under which certain health and insurance disability contracts must cover prescription contraceptives. which plaintiff employer, opposes contraceptives claims the grounds, statute violates the establish- ment and free exercise clauses United States California Constitu- Const., (U.S. Amend.; Const., I, tions. 1st Cal. art. The lower courts *10 rejected claims. employer’s We affirm.
I. Facts The Legislature enacted the WCEA eliminate 1999 discrimina- gender tion in health care benefits and to access to improve prescription contracep- tives. Evidence before the Legislature showed that women their during reproductive years as much as spent 68 more than men percent in out-of- costs, health pocket care due in large to the cost of part prescription and the various contraceptives costs of unintended pregnancies, including risks, health deliveries and premature increased neonatal care. Evidence also that, showed while most health maintenance (HMO’s) organizations covered not all prescription contraceptives, preferred (PPO) and prоvider organization result, indemnity did. As a plans approximately percent commercially insured Californians did not have for coverage prescription contraceptives.
The Legislature chose to address these by problems regulating terms of insurance contracts. The WCEA does not require employer WCEA, offer for coverage however, drugs. Under the prescription certain health and insurance disability that cover plans must cover prescription drugs prescription As an contraceptives. the law a exception, permits “religious employer” request policy includes but drug coverage excludes for coverage methods that are “contraceptive to the em contrary tenets.”2 Health ployer’s religious and Code section 1367.25 Safety governs laws, comprises Safety (Stats. WCEA two Health and Code section 1367.25 ch. 532) (Stats. 1999, and 538). Insurance Code section 10123.196 ch. 1367.25, Safety Health (b); and Code section subdivision Insurance Code section subdivision, 10123.196, (d). contracts;3 section health care service Insurance Code 10123.196 group plan insurance and disability policies.4 individual governs group Sacramento, Charities) (hereafter Inc. Plaintiff Catholic Charities Code, (See is a benefit nonprofit corporation. Corp. California public Safety provides: Health and Code section 1367.25 contract, “(a) care Every plan except specialized health care service for a health group amended, contract, issued, renewed, January or plan that is or delivered on after service amended, renewed, every plan and individual health care service contract that is. contract, 1, 2000, January except plan care service specialized delivered on or after for a health all coverage following, general applicable terms conditions provide shall for the under benefits: “(1) coverage provides outpatient prescription A health care service contract that plan Drug drug coverage variety include for a federal Administration benefits shall Food designated by plan. patient’s In the event the prescription methods approved contraceptive acting scope practice, his or her determines none of participating provider, within medically by plan personal for the medical or designated appropriate patient’s methods Drug history, provide coverage federal Administration plan shall also for another Food medically appropriate contraceptive prescribed patient’s approved, prescription method provider. “(2) shall for an enrollee’s Outpatient prescription benefits for enrollee be the same spouse nonspouse dependents. covered and covered section, “(b) Notwithstanding any religious emplоyer may request provision other this Drug plan coverage health care without for federal Food and Administration service contract tenets. contrary employer’s religious that are to the approved contraceptive methods provided coverage for requested, plan a health care contract shall be without If so service contraceptive methods. *11 section, “(1) ‘religious entity each of the employer’ For of this a is an for which purposes following is true: “(A) entity. religious purpose The values is the of inculcation “(B) entity. tenets of the entity primarily employs persons The who share “(C) entity. of the entity primarily persons The serves who share the tenets iii, 6033(a)(2)(A)i “(D) or entity nonprofit organization is a described Section as Code of the Internal Revenue as amended. “(2) exemption provided under this shall Every religious employer that invokes the section plan, listing to to enrollment with provide prospective prior written notice enrollees to cover contraceptive employer health care services the refuses for reasons. “(c) coverage to for Nothing prescription in this section shall be construed exclude authority by prescriptive care with for reasons contraceptive supplies provider ordered a health eliminating cancer purposes, decreasing than as the risk ovarian or contraceptive other such necessary preserve that is the life contraception or symptoms menopause, prescription for health of enrollee. an “(d) deny any way be or restrict Nothing in this section shall construed compliance this when Managed authority plan chapter [D]epartment[of ensure Care’s] drugs. provides coverage for plan prescription a “(e) care require group construed individual or health Nothing in this section shall be investigational plan experimental or treatments.” services to cover Safety and Code essentially the same as Health section 10123.196 Insurance Code (see ante), disability policies instead except regulates fn. that it insurance section 1367.26 convenience, to the subsequent references plan care contracts. For the sake of health service only Safety will the Health and Code. WCEA include 5110 et Although seq.) independently § Charities incorporated, describes itself as in connection with the Roman “operated Catholic Bishop of Sacramento” and “an as of the Roman organ Catholic Church.” nonprofit multitude of social services and corporation private “offer[s] welfare to the programs general social public, part justice ministry of the Roman Catholic Church.” These and services include programs care, food, immigrant resettlement “providing elder programs, counseling, and affordable clothing hоusing for and voca- poor needy, housing tional of the training disabled and the like.” developmental^ insurance,
Catholic Charities offers health including prescription drug to its 183 full-time coverage, employees through health care group plans underwritten Blue Shield of California and Kaiser Permanente. Catholic not, however, Charities does offer insurance for prescription contraceptives because it considers itself to follow the obliged Roman Catholic Church’s religious teachings, sin, because the Church considers contraception because Catholic Charities believes it cannot offer insurance for prescription without contraceptives that sin. improperly facilitating mentioned, As the WCEA permits “religious to offer employer” prescrip tion insurance drug without coverage for that violate the contraceptives Code, employer’s (Health 1367.25, religious tenets. & Saf. (b).) subd. § The act defines a “religious as “an employer” entity which each of the is true: following (A) The inculcation of religious values is the [J[] purpose (B) entity, The entity primarily [f] who share the employs persons religious tenets of the (C) The entity, entity serves who primarily [f] persons share the religious [j[] tenets of the (D) The entity. is a entity nonprofit organization iii, as described in Section 6033(a)(2)(A) i or of the Internal Revenue Code of {Ibid.) as amended.” The cited provisions Internal Revenue Code return, from the exempt, to file an annual obligation “churches, auxiliaries, their integrated and conventions or associations of (26 churches” U.S.C. 6033(a)(2)(A)(i)) and “the exclusively § ac tivities of any (id., religious order” 6033(a)(2)(A)(i) (iii)).
Catholic Charities does not as a qualify “religious under the employer” WCEA because it does not meet of (See the definition’s four criteria. Code, 1367.25, Health & Saf. (b)(l)(A)-(D).) subd. The § organization candidly acknowledges this in its the complaint, offering following explana- tion: “The of Catholic corporate purpose Charities is not the direct inculca- Rather, tion of religious values. ... to offer purpose is social services to [its] the that general a public just, that promote society compassionate supports families, of dignity individuals and to reduce the causes and results of and to poverty, build healthy communities social through service programs such services, as counseling, mental health and immigration low-income Further, to the and vulnerable. and social services
housing, poor supportive Roman does not who share its employ Catholic Charities primarily persons beliefs, but, rather, of group Catholic a diverse employs persons whom commit- all of share many religious backgrounds, Gospel-based [its] ment to a just, dignity promote compassionate society supports Moreover, all Catholic serves individuals and families. Charities people a do not share Roman backgrounds, significant faith majority [whom] [its] Charities, . . . Catholic Finally, although organiza- Catholic faith. exempt 501(c)(3), organization tion under U.S.C. is not pursuant nonprofit § 6033(a)(2)(A)(i) (iii) of the Internal Revenue Code of 1986. [s]ection not to an . . . Catholic Charities is entitled ... Consequently, the mandate by imposed [the WCEA].” mentioned, to avoid permits any employer
As WCEA implicitly But for covering offering drugs. contraceptives coverage prescription Charities, to Catholic does not eliminate all conflict according this option, between the and its beliefs. Catholic Charities feels obliged law it offer insurance to its under what describes drug employees prescription moral the “Roman Catholic that “an has a religious teaching” employer to offer all times to consider the of its and obligation well-being employees for the and benefits in order to livelihood wages dignified just provide and his or her family.” employee law, both Catholic no consistent with its beliefs
Perceiving option action the WCEA Charities filed this seeking declaratory judgment and an law’s enforcement. Defendants injunction barring unconstitutional California, Health and the are the State of Care Managed Department Charities’ to WCEA arise challenges of Insurance.5 Catholic Department exercise of the United States under establishment free clauses Const., Amend.; Const., I, 4.) (U.S. 1st Cal. art. California Constitutions. § court, that Catholic Charities finding The no reasonable likelihood superior merits, denied its motion for a injunction. would prevail preliminary writ of review of this sought ruling by petition Catholic Charities mandate, Court denied. review of the granted which the Court We Appeal decision. of Appeal’s
II. Discussion Charities, court, its this asserts eight brief to constitutional clauses of the federal and the WCEA. All refer to challenges religion (Health regulates plans. & Department Managed Care health care service Health Code, and the Insurance Commissioner seq.) Department et of Insurance § Saf. id., Code, (e)(1), (See and Ins. regulate policies. § subd. disability insurance *13 seq.) et
541 Const., (U.S. Amend.;Cal. Const., I, state Constitutions. 1st art. Catholic Charities begins with a set of three arguments to the effect that the WCEA interferes with the impermissibly (See autonomy religious organizations. Next, 541 et p. Catholic seq., post.) Charities claims the WCEA impermissi- claim, burdens its of free bly right exercise. As of this Catholic Charities part offers four arguments the WCEA to subjecting strict scrutiny, despite United States Court’s Supreme holding of free right exercise does not neutral, excuse Div., compliance generally laws. applicable (Employment Ore. Dept, 872, Human Res. (1990) v. Smith 494 U.S. 876-890 [108 876, L.Ed.2d 1595]; 110 S.Ct. see et 547 post.) seq., Finally, Charities contends the WCEA fails even the rational (See basis test. et 566 seq., post.)
A. Religious Autonomy
1. with matters doctrine and internal Interference church governance Catholic Charities contends the WCEA impermissibly interferes with matters of religious doctrine and internal church In governance. support contention, Catholic Charities invokes the rule that the state must accept the decision of church appropriate authorities on such matters. This is the rule of the so-called church cases. property (E.g., Serbian Orthodox Diocese v. 696, Milivojevich (1976) 151, 426 U.S. 2372]; 708-709 L.Ed.2d 96 S.Ct. [49 Presbyterian Church 440, v. Hull Church (1969) 393 U.S. 445-449 [21 658, L.Ed.2d 601]; S.Ct. Kreshik v. St. (1960) Nicholas Cathedral 190, 1140, 1037]; 80 S.Ct. [4 v. St. Nicholas Kedroff Cathedral 143]; 109-121 L.Ed. 73 S.Ct. [97 Archbishop 5]; Gonzalez 16-17 L.Ed. 50 S.Ct. [74 Watson v. Jones (1871) 80 U.S. 666].) L.Ed. That rule does not of this dispose case.
The first church case to property reach the United States Supreme Court, Jones, Watson v. supra, 80 U.S. (Watson), articulates the rule and illustrates its proper case application. arose from a schism in the Church Presbyterian during Civil War. When the church’s national governing the General body, Assembly, its expressed opposition slavery, various congregations responded by declaring General view Assembly’s heretical renouncing body’s The General authority. Assembly, turn, dissolved the schismatic congregations. Civil ensued between disputes rival congregations, each asserting claim to be the true only congregation entitled to use certain local church The high court property. resolved the competing religious claims by deferring decision of the General Assembly, thus the rule adopting still in effect today: “[W]henever faith, . . . rule, questions custom, or of discipline, or ecclesiastical *14 which law have been decided the church to by highest judicatories [the] carried, as the matter the tribunals must such decisions legal accept has been final, them, the them.” and as on in their to case before binding application (Serbian (Id., rule’s Orthodox 727.) at The modem formulation is similar. 696, 709.) Diocese v. 426 U.S. Milivojevich, supra, Watson, The in 80 U.S. offered two reasons high supra, court first deferring religious justification authorities religious questions. and was that civil are to decide matters of faith simply “incompetent” courts matters, (Id., 732.) no in religious doctrine. at Courts have expertise them involve only courts “so unwise” as to decide “would attempt (Ibid.; themselves in a sea of and doubt ...” see also Serbian uncertainty 8.) & fn. Milivojevich, Orthodox Diocese v. 426 U.S. 714-715 supra, church, by joining, The second reason was the members implictly matters; to the church’s for civil courts governance religious consent bodies right review the church’s would these judgments “deprive id., 733-734; at (Watson, church at also construing their own laws” see pp. thus, and, 728-729) voluntary organiza- form impair right pp. 728-729; (id., at Diocese Milivojevich, tions cf. Serbian Orthodox v. pp. 724-725). at supra, pp. Watson,
Because 80 U.S. First Amendment’s supra, preceded Fourteenth, court base its on the into the did not decision incorporation cases, however, the court has described Watson’s Constitution. In subsequent “ ” (Serbian as Orthodox ring’ ‘clear constitutional reasoning having 696, 710, Presbyterian v. Milivojevich, supra, quoting Diocese Church, Watson, 446; 728-729) v. U.S. cf. at supra, Church Hull pp. of the First holding by religion and Watson’s clauses compelled Diocese (Serbian Milivojevich, supra, Amendment Orthodox Cathedral, 94, 115-116; 724—725; St. Nicholas U.S. supra, pp. Kedroffv. Div., Smith, also Ore. Human Res. v. Employment Dept, supra, see by court has also held that are bound 877). high legislatures courts. Watson articulated for the the same constitutional limitations Cathedral, 117-121.) St. Nicholas (Kedroffv. pp. WCEA, that the Legislature, enacting
Catholic Charities asserts matters of interfering violated mle of church cases property decision the Catholic Church’s governance by rejecting internal church are This are sinful. These assertions incorrect. that prescription contraceptives the relation does not internal church it governance; implicates case implicate and its most benefit corporation employees, between a ship nonprofit public those a church do to the Church. who Only join of whom not belong and disci to its on matters faith religious governance consent impliedly 679, conflicts with (Watson, WCEA Certainly pline. beliefs, Catholic Charities’ but this does not mean the Legislature created, has decided a has court has question. Congress high resolved, similar conflicts between law and beliefs employment *15 without deciding and without reference to the church religious questions cases. and Susan Alamo Foundation Labor property (E.g., Tony Sec’y v. 290, (1985) 278, 471 U.S. 303-306 L.Ed.2d 105 S.Ct. [religious [85 1953] laws]; must organization federal minimum United States comply wage 252, Lee 256-261 L.Ed.2d 102 S.Ct. [71 1051] [Amish must employer taxes].) Social pay Security Neither does unemployment Instead, this case us to decide require we need only questions. the usual rules for whether apply assessing burdens on reli- state-imposed exercise are gious (See constitutional. Church Lukumi Babalu Inc. v. Aye, Hialeah 2217]; 531-533 113 S.Ct. Div., Smith, Employment Ore. Human Dept, Res. v. supra, 494 U.S. below, 876-882.) This we do in the context of Catholic Charities’ separate under (See claims the free exercise clause. 547 et post.) seq., WCEA, Charities also the argues Legislature, by enacting intervened in a conflict deliberately within the Catholic Church on the side of those who disagree with Church’s on In teachings contraception. support of the argument, cited, Catholic Charities notes that one of WCEA’s sponsors Senate, on the floor of the state a New York Times that not all poll suggesting Catholic women accept Church’s on teachings and that contraception, “someone who artificial practices birth control can still be a Catholic.” good said, Commenting the senator “I that. poll, agree with I think it’s time to do the right thing.” state not “lend Certainly its to one or may power the other side in controversies over . . . .” authority dogma Div., Smith, (Employment Ore. Human Dept, Res. v. supra, However, the Legislature’s motivation cannot be inferred from reliably a single senator’s remarks. Other who voted to legislators enact the WCEA well have might done so because wished to reduce the they inequitable women, financial burden of health care on without regard any religious over the dispute artificial propriety contraception. WCEA,
While the church cases thus do property not invalidate the constitutional that underlie principles those cases may outer limit on place the statute’s cases, constitutional on the church application. Relying property lower federal courts have held that the First Amendment bars courts from reviewing decisions employment by religious organizations affecting employ ees who have the religious (McClure duties of ministers. v. Salvation Army (5th 1972) 553, 558-561; Cir. 460 F.2d see also Gellington v. Christian 1299, 1301-1304; Methodist (11th 2000) Church Cir. Episcopal 203 F.3d Combs v. Cen Tx Ann (5th United Church 1999) Methodist Cir. 173 F.3d Conf 343, 345-350.) The rule that from these emerges decisions is sometimes called the “ministerial it because as a exception,” operates nonstatutory, title Act Rights VII of Civil
constitutionally compelled exception
(42
VII.)
et
hereafter title
U.S.C. 2000e
1964.
seq.,
McClure v.
Fifth
first
the ministerial
exception
Circuit
recognized
2. Distinction between that the Amendment forbids next First argues Catholic Charities an exemption institution’s for eligibility religious government “premis[e] whether the activities of the institution are government regulation upon deemed to be or ‘secular’ . . . .” The by government ‘religious’ argument directed against four criteria an must statutory satisfy employer (Health claim from the WCEA as a & Saf. “religious employer.” Code, 1367.25, 539, (b)(l)(A)-(D); ante.) subd. see lacks argument § merit. to the WCEA accommodates exercise exception Code, defined
relieving (Health & statutorily “religious Saf. employers” 1367.25, (b)) subd. of the burden of methods paying contraceptive violate their beliefs. The United States Court has Supreme that the alleviation long recognized created significant govemmentally burdens on exercise is a that does permissible legislative purpose not offend the establishment clause. (Corporation Presiding Bishop Amos 483 U.S. 2862]; 334-335 107 S.Ct. [97 Hobbie v. Unemployment Comm’n Fla. Appeals 1046]; Div., 144—145 L.Ed.2d 107 S.Ct. cf. Ore. Employment Dept, Smith, Human Res. v. Such accom legislative modations were, would be as a matter if the impossible practical government as Catholic Charities forbidden to argues, between the distinguish entities and activities that are entitled to accommodation and the secular fact, entities and activities that are not. In and the Congress state legislatures *17 have drawn such distinctions for this and laws purpose, embodying such distinctions have constitutional muster. passed (E.g., Corporation of Amos, 327, Presiding v. Bishop 483 U.S. supra, 334—340[upholding statutory of “religious” employers for liability religious discrimina tion; 42 2000e-l(a)]; U.S.C. East Bay Asian Local Development § v. Corp. 693, State (2000) 24 280, Cal.4th 704-718 13 Cal.Rptr.2d [102 of California P.3d state laws [upholding affiliated” exempting “religiously 1122] organiza laws; Code, 25373, tions from landmark preservation Gov. (c) subds. & §§ 37361, (d), (c)].) subd.
Catholic Charities’ argument to the
on a
contrary largely depends
single
decision,
lower federal court
(10th
1980)
v. Rusk
Cir.
Espinosa
content-based restraints officials, effect, in to decide advance which that the gave municipal power the the would to hear city’s residents be messages permitted requiring officials, the before to determine that purpose granting permit, applicant’s violated was The ordinance thus soliciting truly religious. for funds (1940) 310 305-307 L.Ed. Cantwell v. Connecticut U.S. [84 time, 900], government regulate S.Ct. which place permits but them based on manner of not to censor altogether solicitations 480-482.) content of speech. (Espinosa, an assessment pp. WCEA, which no restrictions on does places problem speech, present v. Connecticut and Espinosa. addressed Cantwell between government may distinguish Our conclusion that properly accommodating for the secular and entities activities purpose draw exercise not mean statute given does purporting exercise clause. distinctions muster under free necessarily passes such a court beliefs as is never permissible,” law such targeting religious “[A] “ governmental categories ‘must circumstances of survey meticulously ” eliminate, were, (Church Babalu as it Lukumi religious gerrymanders.’ 533-534, Hialeah, v. Tax Inc. v. Aye, quoting Walz S.Ct. Commission 1409] Harlan, (conc. J.).) We address below Catholic Charities’ separate opn. in fact embod definition of “religious employer” WCEA’s argument treat Catholic for unfavorable legislative target organizations ies effort (See ment. et seq., post.)
3. entanglement Excessive “reli contends that the WCEA’s exemption Charities 1367.25, Code, (b)) violates (Health & Saf. subd. gious employees]” into mandating entangling inquiry employer’s establishment clause by its and clients’ beliefs. employees’ and into religious purpose *18 for statutory identifying refers the first three the four criteria argument values inculcation of religious whether “religious employer,” namely, “[t]he (id., (b)(1)(A)), entity whether entity” of the subd. purpose “[t]he is (id., tenets entity” share the of the who employs primarily persons who share serves (b)(1)(B)), and whether entity primarily persons subd. “[t]he (id., (b)(1)(C)). that fosters subd. A law entity” tenets of reason for that religion with can governmental entanglement an excessive (Lemon (1971) 403 U.S. clause. v. violate establishment Kurtzman Moreover, 2105].)6 judicial recent L.Ed.2d 91 S.Ct. 612-613 [29 6 Kurtzman, 602, “gleaned cases” prior] U.S. from [its Lemon court in 403 “First, the establishment clause: determining whether statute violates three tests for or effect must be legislative purpose; principal primary its have a secular second statute must have criticized opinions rules and laws that invite official “trolling through or person’s (Mitchell institution’s beliefs.” v. Helms Thomas, 120 S.Ct. J.); [147 (plur. opn. 2530] University Great (D.C. Falls v. N.L.R.B. 2002) Cir. D.C. App. F.3d 1342-1348].) The argument have might merit as a applied hypothetical employer sought under the qualify WCEA’s exemption religious employers Code, (Health 1367.25, & Saf. (b)) subd. but objected § establishment clause an grounds to entangling official effort to that its verify was purpose values, the inculcation of it and served primarily employed who shared persons its But religious tenets. Catholic Charities candidly alleges in its that it complaint does not under the qualify because it does not satisfy of the four criteria. More specifically, Catholic Charities concedes that its values, is not thе purpose inculcation of religious that it does not Catholics, hire and primarily serve and that it does not fall within either of the relevant provisions Internal Revenue (26 Code U.S.C. 6033(a)(2)(A)(i) and (iii), Code, 1367.25, § cited in Health & Saf. § (b)(1)(D)). subd. no Consequently, into entangling Catholic inquiry Charities’ beliefs, purpose or the clients, beliefs of its employees has occurred or Therefore, to occur. likely even if in some other case the statute might require case, entangling inquiry, Charities, this to Catholic applied the establishment clause offers no basis for holding statute unconstitu tional.
B. Free Exercise Religion Catholic Charities argues WCEA violates the free exercise clauses of the federal and Const., Amend.; state (U.S. Const., Constitutions 1st Cal. art. I, 4) by coercing organization beliefs, to violate its religious in that the WCEA, by the content regulating of insurance in effect policies, requires who offer employers their workers insurance for to offer prescription drugs coverage for prescription contraceptives. Charities wishes to offer insurance, but not may facilitate the use of without contraceptives violating its religious beliefs.
Any of Catholic analysis Charities’ free exercise claim must take into consideration the United States Court’s Supreme decision Employment .in Div., Smith, Ore. Human Dept, Res. v. {Smith). In Smith, the high court articulated the rule that general religious beliefs do not excuse compliance otherwise valid laws matters the regulating state is free to (Id., regulate. 877-882.) pp. The government may *19 ; one that neither religion advances nor inhibits finally, . . . the statute must not foster ‘an ” governmental 612-613, excessive entanglement (Id., religion.’ with pp. at quoting v.Walz Commission, 664, supra, 674.) Tax U.S. 397 548 by beliefs as such or their affirma
regulate religious compelling punishing (Id., tion. it conduct for because it may target regulation only at Nor p. (Ibid.) reasons. But “the of free exercise does undertaken right riot to a ‘valid and neutral obligation relieve individual of comply (or law of on the that the law proscribes general applicability ground ” (or (Smith, conduct that his religion prescribes) prescribes proscribes).’ Lee, 879, 252, 263, (cone, United States v. 455 U.S. fn. 3 supra, quoting Stevens, J.).) acts to To beliefs to excuse opn. contrary permit “ law, reasoned, court ‘would be to make the doctrines of Smith professed land, and to belief to the law of the in effect superior permit every ” 879, (Smith, citizen unto to become law himself.’ quoting 145, (1879) 244].) United 167 L.Ed. Reynolds v. States 98 U.S. [25 Smith, 872, taken a Before U.S. court had supra, high variety 494 claimed to laws burden approaches assessing constitutionality cases, (1963) free In some Sherbert v. Verner religion. notably exercise 965, 398, (Sherbert) 374 83 U.S. 403-409 L.Ed.2d S.Ct. [10 1790] 205, 15, (1972) Yoder 406 U.S. L.Ed.2d S.Ct. Wisconsin v. 220-229 92 [32 1526], the court had examined such laws under strict scrutiny, reasoning a law tailored to narrowly must be substantially burdening practice cases, a. interest. other both before and after serve state In compelling Sherbert, the court had laws and actions governmental challenged upheld under the free exercise clause without strict scrutiny.7 applying Smith, 872, lustice Stevens before 494 U.S.
Eight years
supra,
wrote
of the court’s
were
by
that most
better
holdings
explained
Sherbert,
398,
U.S.
but
“a standard
supra,
strict
test
374
scrutiny
an almost
insurmountable burden on
individual who
places
a valid and neutral law of
objects
general
ground
applicability
(or
religion
that the law
conduct that his
prescribes)
prescribes
proscribes
Lee,
252,
(or
(United
.
.
.
v.
455 U.S.
.”
States
proscribes)
Lee,
263,
Stevens,
J.).)
(cone.
again
fn. 3
After
court
opn.
exercise,
laws
claimed
to burden
free
either without
upheld
Sherbert,
while
Sherbert but
mentioning
declining
mentioning
7
534,
(1988)
Lyng
Cemetery Prot.
485
L.Ed.2d
108
Northwest Indian
Assn.
U.S. 439 [99
v.
(Native
governmental
logging
road
challenge
exercise
S.Ct.
American free
1319]
282,
activities);
(1987)
107
v. Estate
549 Smith, its test.8 This ended with in apply inconsistency which court high the Sherbert repudiated test the standard Justice expressly adopted (Smith, 882-890.) Stevens had articulated. at More pp. recently, court has reaffirmed Smith and reiterated “the that a law general proposition that is neutral and of need not be a general applicability justified by government interest even if the law has the incidental effect of compelling a burdening (Church Lukumi Babalu particular religious practice.” Aye, of Hialeah, Inc. v. 508 U.S. supra, Smith, The general rule affirmed in 494 U.S. would at first supra, glance of Catholic appear Charities’ free exercise claim. The dispose WCEA’s requirements apply neutrally to all generally employers, regard- affiliation, less of religious to those few who except satisfy statute’s strict Code, requirements (Health & Saf. grounds. 1367.25, (b).) subd. The act also addresses matter the state is free to it regulate; the content regulates of insurance for the of policies purpose eliminating form of gender discrimination in health benefits. The act conflicts with Catholic Charities’ beliefs only because incidentally, those beliefs to' make happen sinful. prescription contraceptives Accordingly, it Catholic appears Charities may the WCEA successfully challenge only by demonstrating to the exception general rule.
To
is,
demonstrate an
fact,
to the
exception
rule
general
what
precisely
Catholic Charities
seeks
do. On four
Catholic
separate grounds,
Charities
we
argues
should examine the WCEA under strict
scrutiny despite
Smith,
of
holding
supra,
Estate
342, 348-353;
Weinberger,
Goldman v.
503, 506-510.
Roy
In Bowen
2147],
1.
and
should be not
arguments why
Charities offers two
the WCEA
Catholic
should, thus,
to
or
and
be subject
considered neutral
generally applicable
Smith,
under an
to the rule of
In the of a law is to object religion whether determining suppress conduct, text, for a court “must begin motivated with religiously [the law’s] on its is that law not discriminate neutrality minimum requirement A if to a without face. law lacks facial it refers neutrality religious practice (Lukumi, or supra, discemable from context.” meaning language secular 520, 533.) this court in Lukumi found Following high approach, the words and “ritual” in ordinance that council’s use of “sacrifice” city show, evidence, to other that slaughter together animal with regulating helped had been motivated a desire to Santería by suppress ordinance to fit into a neutrality “pattern” “animosity The lack facial religion. Not (Id., 542.) and . . .” Santería adherents their . religious practices did their terms religious “the ordinances own only target [Santería] exercise,” . gerrymandered too were “the texts the ordinances . . so all animals but to exclude almost religious killings care to proscribe more (Ibid.) . . .” “the ordinances much Finally, secular . killings suppressed] ends necessary legitimate than in order achieve religious conduct [was] [i.e., cruelty health аnd asserted in their defense protecting preventing (Ibid.) animals].” Lukumi, Catholic Charities argues
Relying its contains employers WCEA not neutral because that meaning and lack secular terminology purpose. terms terms of religious refers to the “inculcation Catholic Charities specifically tenets,” both in criteria used in of which “religious appear values” and Code, (Health WCEA Saf. “religious to define & exempt employer[s].” 1367.25, & (b)(1)(A), (B) (C).) subd. Lukumi, 520, is The animal sacrifice ordinance inapposite. (“sacrifice” “ritual”) challenged in case referred religious practices context, in order to them. In the statute’s use of prohibit terminology supported court’s conclusion “that central suppression element of the Santería service was the worship object ordinances” (Id., contrast, there at issue. In the WCEA refers to the in order organizations characteristics those identify exempt organi- *22 zations from an otherwise Catholic generally duty. applicable Although Charities cannot claim the statutory religious for other employers, able it. organizations be to claim If the WCEA burdens may beliefs, Catholic Charities’ the burden arises not religious from the religious in used but terminology from the exemption, generally require- applicable ment to provide coverage for court has never contraceptives. high prohibited statutory references for the religion purpose accommodating to religious To the contrary, court has that “it practice. indicated repeatedly is a permissible legislative to alleviate significant purpose governmental interference with the to define ability religious organizations and out carry Amos, their religious missions.” Presiding v. (Corporation Bishop supra, 327, 483 U.S. 335 (Amos)', see also Hobbie v. Unemployment Appeals Fla., 136, 144-145; Smith, Comm’n 480 U.S. cf. supra, 494 U.S. supra, 872, Furthermore, 890.) the state may organization require “claiming benefits of from a religious-organization statute “to exemption” regulatory [a] prove that is a religious organization within the meaning [it] [statute].” (Larson 228, 255, 33, (1982) v. Valente 456 U.S. fn. 30 L.Ed.2d 102 S.Ct. [72 1673], added.) italics To accomplish these without defin- purposes explicitly ing accommodated, and religious practices to be order groups in to distinguish them from secular and not entitled groups to accommo- practices dation, would often be impossible. a
Because legislative accommodation benefits it is tested religion, not under the free exercise clause but (Amos, under the establishment clause. 327, 334—336.) clause, supra, 483 U.S. To with establishment comply “ ” law among (Id., must other serve a things legislative ‘secular purpose.’ 335, Kurtzman, 602, p. 612.) Lemon v. In quoting this context, the of a secular mean requirement legislative “does not purpose the law’s must be to purpose unrelated would amount to a religion—that ‘that the requirement show a indifference government religious callous to . . . and the groups,’ Establishment Clause never been has so interpreted.” 335, (Amos, at v. 314 quoting Zorach Clauson [96 Instead, 679].) L.Ed. 72 S.Ct. “it is a legislative permissible purpose alleviate interference significant governmental with ability (Amos, to define organizations carry out their religious missions.” 552 have no other than purpose The references to the WCEA religion make no legislative categories court has not high “required
this. (Texas Monthly, Inc. Bullock reference religion.” explicit Brennan, J.).) S.Ct. (plur. U.S. opn. 890] relieve burdens in statutes intended to A rule references barring A few number of statutes. large on exercise would invalidate Amos, suffice. The federal statute upheld examples association, or from title VII “a corporation, for example, exempted institution, of individu- or society employment educational respect carrying connected with the work religion perform als of particular institution, association, society of its such a educational corporation, Fair (42 2000e-l(a).) the California Similarly, Employ- activities.” U.S.C. § or corporation” Act the term association “religious ment uses Housing Code, 12926, (Gov. (d)) in order to certain employers subd. exempt We statutes that recently upheld for unlawful liability practices. employment affiliated” associations their “religious refer to “religiously missionfs]” aby from burdens imposed such associations purpose exempting Development Local (East Bay ordinance. Asian landmark preservation Code, 693, 702, Gov. quoting v. State Cal.4th California, supra, Corp. *23 37361, 25373, Charities (d), (c).) The rule Catholic subd. subd. §§ the Because high these and similar laws. many would invalidate proposes rule, it. reject no for such we court’s decisions provide support 2. gerrymander Religious the WCEA is not end with the conclusion that
Our does analysis more than The First Amendment neutral towards facially religion. requires “ ” and neutrality’ It ‘subtle against departures facial neutrality. protects (Lukumi, as as overt.” supra, which is masked well “governmental hostility States, supra, U.S. Gillette v. United quoting “ Thus, of govern the circumstances 452.) survey meticulously court ‘must ” eliminate, were, (Ibid., religious as it gerrymanders.’ mental to categories Commission, (cone. opn. v. Tax supra, quoting Walt Harlan, the J.).) gerrymandered argues Legislature Catholic Charities to organizations. Catholic WCEA to benefit deny exemption contends, discriminates, the Catholic against Charities both Catholic law denomination that engage religious organizations and against Church work, evangelical. that is purely spiritual in as to work charitable opposed that the WCEA discriminates argument against no merit in the We find that the organizations of Catholic It was at the Catholic Church. request to deny religious an permitting employers added exception Legislature that are coverage religious methods to em- “contraceptive contrary Code, 1367.25, (Health (b).) tenets.” & Saf. subd. religious ployer’s Because most do not to most religions' object prescription contraceptives, are religious to the WCEA. The decision employers subject Legislature’s grant object treatment who do preferential employers justifiable as accommodation of exercise under the discussed principles (Amos, 327, 334-335.) above. That the is not exemption sufficiently broad to cover all affiliated with the Catholic organizations Church does not mean the discriminates exemption against Church.9 Valente,
We find to the nothing contrary Larson v. U.S. 228 (Larson), decision which Catholic Charities relies. The principally court held high in Larson under the unconstitutional establishment clause a discriminated, effect, Minnesota statute that the Reverend Sun against Myung Larson, Moon’s Unification Church. For many years prior Minnesota law had regulated charitable solicitations but generally exempted from regulation all solicitations In by religious organizations. Minnesota amended Legislature the law to those only exempt organizations that received more than 50 of their contributions from percent members or organizations. affiliated Minnesota defended intended to abusive solicitations of the prevent that the public, reasoning well-established, members of internally funded churches would exercise enough over supervision activities to fund-raising justify dispensing state view, supervision. The court rejected argument. In the court’s high rule violated 50-percent clearest command of the Establishment “[t]he Clause,” one namely, “that denomination be cannot officially pre- (Id., ferred over another.” Laws denominational granting prefer- ences must serve compelling governmental interests and be fitted closely *24 (Id., 246-247.) further those at interests. failed pp. Minnesota’s law that test. Larson, The reasoning does not invalidate supra, the WCEA. The statute invalidated in Larson drew distinction explicit income, between denominations on religious based their sources of and used 9 Indeed, Church, discriminating against rather the than Catholic the WCEA can more effect, plausibly benefiting be viewed as the Church in practical Catholic since no other religious group opposed prescription to contraceptives has been identified. But the WCEA does for this the reason violate establishment A law to among clause. intended not discriminate religions governmentally but to a religious alleviate created burden on exercise does not clause, necessarily though religion violate only single the establishment even a in need of identified, phrased accommodation neutrally, possibility has been if the law to allow for the is as-yet-unidentified religions other that in of the same need accommodation will be able to Scully (9th (See, 1132; e.g., Kong 2003) Legal Children’s Health. Is A claim it. Cir. 341 F.3d Duty 1084; v. Min De (8th 2000) Parle (9th Cir. v. Commissioner 212 F.3d Cir. Droz of I.R.S. 1995) 1120.) 48 F.3d certain denominations. only to a burden on impose regulatory
that distinction
contrast,
religious
nonreligious organizations
In
the WCEA
to
applies
only
the
benefit of
those
WCEA confers
special
equаlly.
to
whose tenets are
contracep-
religious organizations
opposed
prescription
benefit,
This
as
and that meet the other
for exemption.
tives
requirements
above,
a
accommodation—an effort to
justifiable
legislative
as
explained
Amos,
(See
religious
a
burden on
exercise.
imposed
alleviate
govemmentally
327, 334-335.)
that
not qualify
Those Catholic
do
employers
in the
are treated
the same as all other
for exemption
precisely
employers
Thus,
state,
may
or
while the WCEA
treat
religious
nonreligious.
whether
more
than other
WCEA
favorably
employers,
some Catholic employers
less
than
favorably
not under
circumstance treat Catholic
any
employers
does
this,
say.10
a
as
has
to
nothing
other
About
law such
Larson
employers.
Larson,
U.S.
the WCEA violates
argues
Catholic Charities
a
religious
that the law draws
distinction between
for
additional reason
(Health
whose
is the “inculcation
values”
religious
organizations
purpose
1367.25,
Code,
(b)(1)(A))
religious organizations
subd.
and other
& Saf.
words,
that,
temerity
“have the
in ministries
engage
in Catholic Charities’
”
in
(Italics
original.)
than the ‘inculcation of
values.’
We
religious
other
Church’s “self-
Catholic Charities’ assertion that
Catholic
accept
in
which
mercy,’
it
works
understanding compels
engage
‘corporal
homeless,
clothing
in
feeding
hungry, sheltering
‘consist especially
”
naked,
(Quoting
the sick and
dead.’
burying
visiting
imprisoned,
However,
(1994) |
to the
Catechism
the Catholic Church
for
extent Catholic Charities is
WCEA embodies
arguing
preference
denominations,
given.
for the reasons already
fails
argument
non-Catholic
be
that the WCEA discrimi
argue
Catholic Charities’ intent
may
argument
Such an
practice.
charitable social work as
against
nates
legitimate
government,
implicate
principle
pursuit
would
“[t]he
Larson,
supra, condemning
among
laws
discriminate
We read
in Larson
reflected the
religions or
denominations. law held unconstitutional
denomina
design ...
or favor selected
Legislature’s “express
burden
Minnesota
232, 255,
(id.,
(id.,
added), specifically
pp.
Church
fn.
tions'”
italics
Unification
contrast,
Here,
religion
30).
nothing
prevents
about
the Catholic
religious organizations.
exemption for
We
organization
qualifying under the WCEA’s
assume,
acting
typically
parish,
employer,
as an
would
example,
that a Catholic diocese
exemption.
under the
qualify
*25
contrast, Larson,
228,
attempting
to
a state
for
purport
does not
bar
In
distinguish among organizations based on sect-neutral
grounds,
regulatory purposes to
valid
Indeed,
Larson
expressly permits the
organizations
claim a
character.
even if those
exemption”
organization “claiming
religious-organization
the
require an
benefits
[a]
state to
meaning
prove
organization
the
that
is a
within
regulatory
from a
statute “to
[it]
30,
true,
255,
(Id.,
added.)
Were
not
the mere claim
fn.
italics
this
the [statute].”
effectively preclude
regulation.
would
state
religious character
interests, cannot in a
manner
selective
burdens
conduct
only
impose
(Lukumi,
motivated
...”
by religious belief
supra, 508 U.S
high
this
court in
held
an
Applying
principle,
Lukumi
unconstitutional
ordinance that
for
but not in
permitted
killing
animals
food or sport,
“
rituals. The
had
ordinance
that
‘every
of a
appearance
prohibition
is
society
prepared
impose upon
but
upon
worshippers]
[Santería
”
(Id.,
itself.’
The Florida
quoting
Star v. B.J.F.
According of the history suggests WCEA Legislature intended the law close a “Catholic gap” insurance coverage for The prescription contraceptives. evidence does not the contention. support brief, “Catholic phrase gap” only Catholic Charities’ not in the appears legislative history. Catholic Charities refers to Senate of a testimony Parenthood, of Planned representative which opposed for any exception religious employers. Explaining organization’s the witness position, stated: our “Primarily intent was to close the in insurance gap for coverage benefit contraception prescription Our concern with plans. granting is that that defeats the original bill.” The purpose “gap” which the witness referred apparently was the identified a national gap firm’s consulting of health study insurance for prescription contracep- study, tives. This which received much attention in the concluded Legislature, insured approximately percent Californians did not commercially have insurance already coverage prescription contraceptives. study identified minority this not as the employеes of Catholic but as organizations, *26 While most HMD’s covered indemnity covered PPO and
persons plans. did. Catholic indemnity not all PPO plans prescription contraceptives, the the WCEA was to close a “Catholic Charities’ assertion that purpose has no gap coverage apparent rather than a statewide statistical gap” evidentiary support.11
Next, narrowed the deliberately the argues Legislature Catholic Charities Code, (Health & Saf. for statutory “religious employees]” exception 1367.25, as include as Catholic (b)) organizations possible subd. few and social service organizations. to exclude Catholic specifically hospitals against that the bill’s sponsors argued The does show legislative history for in a a The bill’s Senate stated sponsor, example, broader exception. “the the authors as it relates to creating that hearing committee intention the them- religions not be the same intentions of may religious exemption The intention of the religious exemp- selves in to be wanting exempted. [f] for for what is tion in both these is an intention provide bills the less based activity more secular the gets, religiously The religious activity. is, to cover they it and the we believe that should be required more describes this for Catholic Charities benefits prescription drug contraception.” targeted that the Legislature specific and similar statements evidence treatment. But we have already Catholic for disadvantageous organizations law treats some Catholic organiza- rejected argument. examined and them; more than all other by exempting nonexempt tions favorably employers as all other are treated same employers. Catholic organizations Hybrid 3. rights strict to its federal free scrutiny
As an additional argument applying claim, that the WCEA violates so-called argues Catholic Charities exercise Smith, derived from The term hybrid rights. “hybrid rights” loosely court strict test high repudiated scrutiny which Smith, Sherbert, 1790], (See 83 S.Ct. 398 [10 conclusion, court 882-884.) distinguished to that way Along pp. the free exercise decisions as involved having just certain its prior as well. the court stated but constitutional Specifically, clause other provisions have held that the First Amendment decisions in which we only that “[t]he argues Legislature antipathy spite acted out of also Catholic Charities compare Charities seeks to Through argument, this towards the Catholic Church. (see City decision the WCEA with the Hialeah Council’s Legislature’s consideration Lukumi, way 520) suppressing the Santería animal sacrifice as ban decision, high city discussing court noted that Hialeah officials religion. In the council’s demons,” worship “the and that castigated to the Lord” and Santería as “abomination had jeers city meeting interrupted had and taunts attending council’s public crowd history (Id., legislative of the WCEA of the Santería Church. President antipathy to the Catholic Church. comparable no discloses
557 neutral, bars of a law to mоtivated application generally religiously applicable alone, have the Free action involved not Exercise Clause but the Free Exercise in with Clause other constitutional such as conjunction protections, , freedom of and . . of press[12] right . or the ... speech parents children[13] (Id., 881.) direct education of . . . .” their facts of Smith, observed, situation, the court did “not such a but a free present hybrid exercise claim with unconnected communicative activity parental (Smith, 882.) right.” Smith, 872, on
Relying
this
494 U.S.
passage
supra,
and, thus,
Charities
argues WCEA violates hybrid rights
us to
requires
violated,
strict
free
scrutiny to its
exercise claim. The other
apply
rights
asserts,
Catholic Charities
are those
the free
protected
estab-
speech
Const.,
lishment clauses of
(U.S.
Amend.)
the First Amendment.
1st
not,
Smith,
court
high
872,
has
since the decision in
U.S.
supra, 494
determined whether
rights
or invoked
hybrid
theory is valid
it to justify
strict
free
applying
to a
exercise claim.
Souter
scrutiny
Justice
has mentioned
in a
hybrid rights
concurring
but
opinion,
to criticize Smith’s reliance
only
cone,
(Lukumi,
520,
Souter, J.,
508
concept.
U.S.
supra,
567
(opn.
Some of the
federal
part).)
lower
courts have
treated
relevant passage
from Smith
claims,
as dictum and declined to
apply,
assertedly hybrid
a
standard stricter than the
(Leebaert
rational basis test.
v.
(2d Cir.
Harrington
2003)
134, 143-144;
332 F.3d
Kissinger
(6th
v. Board
Trustees
1993)
Cir.
177, 180.)
5 F.3d
Other lower federal courts
to have assumed that
appear
claims
hybrid
a
level of
trigger
higher
but have concluded
scrutiny,
that “a
does not
plaintiff
allege
hybrid-rights claim entitled to strict scrutiny
analysis
merely
free
by combining
exercise claim
meritless
utterly
claim of the violation of another alleged
(Miller
fundamental right.”
v. Reed
1202,
(9th
1999)
1208;
Cir.
176 F.3d
see also Civil Lib.
Urban
752,
(7th
765;
Believers v. City
2003)
Cir.
Chicago
342 F.3d
Swanson by
694,
and through
(10th
1998)
Swanson v. Guthrie ISD I-L
700.)
Cir.
135 F.3d
Catholic Charities
that the
argues
non-free-exercise
of a
component
hybrid
need
claim
be
only
“colorable”
meritorious. While some
ultimately
Reed,
courts have
a rule
1202,
such
Miller
proposed
(e.g.,
supra,
v.
176 F.3d
1207;
I-L,
Swanson by
through
Swanson v. Guthrie ISD
135 F.3d
supra,
694, 700), no court
on it
has relied
Nor would
grant relief.
such a rule
make sense. As Justice
has
Souter
claim
explained,
hybrid
is simply
“[i]f
12
938,
Namely,
717],
Follett v. McCormick
one in wMch another constitutional
is implicated,
hybrid
rule
. .”
would
be
vast as to swallow the Smith
. .
so
exception
probably
cone,
I.,
Souter,
(Lukumi,
For this
(opn.
part).)
reason,
rejected
illogical”
the Sixth Circuit has
as “completely
proposition
under
Clause
that “the
standard
the Free Exercise
legal
depends
[of review]
rights.”
on whether a free-exercise claim is
with other constitutional
coupled
Trustees,
5 F.3d
180 & fn.
v. Board
(Kissinger
*28
We are aware
no decision in which a federal court has
relied
actually
of
scrutiny
the
to
strict
to a free
solely
hybrid rights theory
justify
applying
Indeed,
be
claim.
the
that can
said to
exercise
federal dеcision
only
properly
America,
all
University
have
on the
is E.E.O.C. v. Catholic
theory
relied
of
455, 467, in
mentioned
as an
rights
83 F.3d
which
court
hybrid
that federal
law could not be
alternative basis for its conclusion
employment
tenure to a
to
a Catholic educational institution to
applied
require
grant
The
for the court’s
was
holding
canon law.
basis
professor
principal
463-465;
ante, at
et
(Id.,
ministerial
see
543
seq.)14
exception.
pp.
is not
argument
hybrid rights
for the sake of
Assuming
theory
Smith,
872,
not
U.S.
Catholic Charities has
494
merely misreading
claim that
alleged
might
theory’s
a meritorious constitutional
justify
this
in
to
case. Catholic Charities
to assist
application
argues
providing
be viewed as
with insurance
would
employees
prescription contraceptives
WCEA,
an endorsement of their use and that the
such
by compelling
assistance,
the free
clause
to
organization
violates
speech
by requiring
it
merit.
in
finds
lacks
symbolic
objectionable.
argument
engage
speech
government
“the
Amendment
Certainly
may prevent
compel
First
(United
.”
v.
individuals to
certain views . . .
States United
ling
express
Foods,
405,
438,
2334],
121
(2001)
Inc.
410
L.Ed.2d
S.Ct.
[150
705,
752,
(1977)
v.
713-717
citing Wooley Maynard
[51
motto,
state
S.Ct.
not
motorists to
may
unwilling
display
compel
1428] [state
Die,”
Education v.
“Live Free or
on vehicle license
Board
plates],
L.Ed.
63 S.Ct.
Barnette
630-642
[state
[87
1178]
recite
flag
Pledge
not
school
salute
may
compel public
pupils
However,
with a law
compliance
Catholic Charities’
Allegiance].)
law
leaves
health care benefits
not
regulating
speech.
Charities
free
its disapproval
prescription
express
to use them. For
and to
its
encourage
contraceptives
employees
clause,
law
obedience
free
purposes
speech
simple
cannot
symbolic message
a verbal or
convey
does not
one
require
for the law or its
be seen as a statement of
purpose.
reasonably
support
would,
effect,
choose
each individual to
which
Such a rule
permit
(First
Covenant Church
theory.
hybrid rights
have mentioned the
A few state courts
decision]; City
ground for
Seattle
P.2d
4. Constitution California Catholic Charities’ final argument for strict applying scrutiny invokes the free exercise clause of the (Cal. Const., I, California Constitution. 4.)16 art. clause, contends, That Catholic Charities forbids the state to burden the practice religion, neutral, even incidentally, through generally applicable law, unless the law in question serves a compelling governmental interest and is narrowly tailored to asserts, achieve that interest. Catholic Charities words, other that we must the California interpret Constitution the same way the United States Court Supreme the federal interpreted Constitution’s free *29 Sherbert, exercise clause in 374 supra, U.S. 398.
What might be the standard proper neutral, of review for challenges generally applicable laws under the state Constitution’s free exercise clause is we question left in Smith v. Fair open Employment & Housing (1996) Com. (Smith 12 Cal.4th 1177-1179 Cal.Rptr.2d 913 P.2d [51 v. 909] FEHC). There we under rejected, law, both federal and state a landlord’s religiously based claim to from a fair statute housing prohibiting discrimination on the Code, basis of (Gov. marital status. (a).) subd. § Although Smith, case arose after the high court’s decision in supra, 494 we nevertheless strict applied to the scrutiny landlord’s federal claim because the Religious Freedom Restoration Act us to required do so. (42 U.S.C. 2000bb et RFRA; FEHC, § hereafter seq., see Smith v. at 1165-1167.)17 pp. We did not decide whether the landlord’s claim under the state Constitution’s free exercise clause strict A required scrutiny. of plurality three justices assumed for the did, sake of that it argument but declined to “address the scope Constitution, proper of California interpretation article I, section (Smith FEHC, 4.” v. at J., 1179 of (plur. with opn. Werdegar, Arabian, JJ., George cone.).) “These important questions,” plurality wrote, “should await a case in which their resolution affects the outcome.” 15 Catholic perfunctorily Charities asserts that its claims under the establishment clause Const., (U.S. Amend.) 1st justify treating have, also this case involving hybrid rights. We however, already determined that those claims lack merit. 16 “Free enjoyment exercise and religion of without preference discrimination or are guaranteed. liberty This of conscience does not excuse acts that are licentious or inconsistent Const., with peace safety (Cal I, of the State. . . .” art. 17 The United Supreme States Court subsequently held (City RFRA unconstitutional. of Boerne v. Flores 2157].) U.S. 507 117 S.Ct. [138
(Ibid.) vote Justice Mosk’s fourth for concurring opinion provided Mosk, (Id., (cone. J.).) at of opn. 1179-1192 disposition. pp.
No
review can be
gleaned
decision about the
standard of
appropriate
FEHC,
v.
Certainly high supra, 494 clause. of the Constitution’s free exercise control our state interpretation Sherbert, U.S. We have observed supra, Neither does decision 374 398. I, 4 article meaning “that the of California Constitution section
many times 18 Vehicles, Department supra, in Brunson Motor Cal.App.4th v. 72 WMle the court FEHC, 1251, 1143, supra, 12 misinterpreted Smith v. we have no occasion to Cal.4th thus reexamine the Brunson court’s validity ultimate of the statutes at issue conclusion about 12800, recently amended Code sections 1653.5 and Legislature that case. We note Vehicle (a), accept appropriate Motor numbers permit Department Vehicles subdivision 2003, 326, 1, (Stats. 2.) Security ch. other than Social numbers. §§ identifiers
561
...
is not
on the
dependent
meaning
of the federal
provision
Constitution. The
charter
state
declares in so
words that
many
‘[r]ights
guaranteed by this Constitution are not
those
dependent
guaranteed by
Const.,
I,
United States
(Cal.
Constitution.’
art.
for our
‘Respect
Constitution as “a document of
force”
forbids us to
independent
[citation]
abandon settled
of its terms
time
are announced in
applications
every
changes
”
FEHC,
of the
interpretation
(Smith
federal charter.’
v.
12 Cal.4th
supra,
1143, 1177,
231,
quoting People
(1978)
v.
21 Cal.3d
Pettingill
248 [145
861,
108],
528,
578 P.2d
Cal.Rptr.
(1975)
v. Brisendine
13 Cal.3d
People
315,
Thus,
549-550
However, no settled of the state Constitution’s free interpretation exercise Sherbert, clause 398, existed in 1990. Between the dates of Smith, 872, our 494 own decisions assessing constitution neutral, ality generally laws that burdened applicable incidentally practices federal and state applied free exercise clauses interchangeably, without ascribing any (Walker to the state clause. independent meaning v. (1988) 112, 1, Court Superior 47 Cal.3d 138-141 P.2d 763 Cal.Rptr. [253 852]; 1092, Molko v. Holy (1988) Assn. Spirit 46 Cal.3d 1112-1120 [252 122]; 667, In (1986) re Arias 42 Cаl.Rptr. Cal.3d 725 Cal.Rptr. [230 P.2d & fn. 664]; Cal.3d 667 664] 725 P.2d Cal.Rptr. People [230 716, 718, v. Woody 61 Cal.2d fn. 1 813].) P.2d In Cal.Rptr. [40 Sherbert, decisions prior we took an generally similar to the approach high era, court’s decisions of the same declining to motivated exempt religiously neutral, wrote, conduct from laws. We generally applicable example, “a dictates, is free to person hold whatever belief his conscience but when he translates his belief into action he be to conform to may reasonable required regulations which are to all applicable and are to accom persons designed plish permissible (Rescue objective.” Army Court Municipal Cal.2d 8].) that, P.2d We also wrote applicability “[i]f government activities, turned on regulation motivation plau sible motivations would and in the end vitiate multiply any regulation.” *31 232, v. (Gospel Army City (1945) Los Angeles 27 Cal.2d 243 P.2d [163 704]; 85, see also Gabrielli (1938) v. Knickerbocker 12 Cal.2d 90-92 [82 P.2d to a [declining reinstate pupil 391] school for expelled public on refusing religious to salute the grounds (1861) Ex flag]; parte Andrews 18 678, Cal. 683-685 a law].) [upholding Sunday closing In view of this we history, may with the scholars who safely agree 1993, Smith, concluded in after the years court decided high U.S. supra, 494 562
872, not role in free 4 has so far an played independent that “[s]ection al., et Cal. Constitution: A Reference (Grodin claims.” State exercise 44.) Guide so, to do not hesitate exercise
In a case that us to we should truly required final to declare the and scope proper interpre our authority responsibility Const., I, (Cal. free art. tation of the California Constitution’s exercise clause. Here, however, Catholic challenge we need not do so because Charities’ below, strict fails we the statute passes to WCEA event. As any explain Sherbert, the rule supra, A future case lead us choose might scrutiny. Smith, 872, 1790], an U.S. or supra, 374 U.S. S.Ct. the rule 398 [83 the language history unidentified rule that more reflects as-yet precisely But own of its import. California Constitution and our understanding await their resolution should a case which important questions “[t]hese FEHC, 1143, 1179.) v. Cal.4th (Smith supra, affects the outcome.” review WCEA challenge We therefore Catholic Charities’ in the same way under the free exercise clause of the California Constitution a under the Constitution challenge we have reviewed similar federal might Smith, Sherbert, 872. U.S. and before 494 U.S. supra, supra, after standard, words, a law could not In other we strict Under that scrutiny. apply a or a burdened belief substantially religious be in manner applied the least restrictive unless state showed that law practice represented words, or, interest in other was narrowly means of a achieving compelling Bd., Ind. (See tailored.' Thomas v. Sec. Div. Empl. Review Sherbert, 1425]; 101 S.Ct. 403, 406, 407-408.) For a law burdens substantially these purposes, if of an benefit conduct upon belief it “conditions receipt important faith, it because of where denies such a benefit proscribed by belief, substantial pressure conduct mandated by religious thereby putting (Thomas .” and to his . . . his behavior violate beliefs modify adherent Div., Bd., 717-718.) Ind. Empl. Rev. Sec. standard, in fact we consider first whether this WCEA
Applying We do not doubt Catholic Catholic beliefs. burdens Charities’ for contra coverage assertion that to offer insurance prescription Charities’ be Catholic to its would religiously unacceptable. ceptives employees of Roman the assertion with declaration Charities adequately supports the Secretariat Executive Director of Catholic who serves as priest Roman Practices of National Conference for Doctrine Pastoral however, this conflict with avoid may, Catholic Charities Bishops. drugs. for offering coverage not prescription its beliefs simply cover who choose to offer insurance only The WCEA applies employers to offer such it does drugs; require employer age prescription coverage. *32 this Catholic Charities that its
Anticipating objection, argues religious beliefs also it to offer its insurance for require employees prescription drugs. however, On this the declaration point, just mentioned seems to open The declarant interpretation. states: “The clear and firm doctrine of teaching otherwise, the Roman Catholic Church that all are employers, religious just and benefits to provide wages of their employees, regardless religious beliefs, affiliations and as an from the obligation of arising Gospel message Church, and justice charity. of the Roman Catholic goal also as a matter of that justice charity, is all workers of their regardless circumstances should receive health-care In the context—that adequate coverage.” present weighing asserted burden on religious beliefs the state interests against statute—the supporting challenged declaration raises the whether question Catholic Charities’ beliefs about are requirements “justice charity” necessarily beliefs. We equivalent religious must ask this because question a claim under free exercise clause must be “rooted in belief’ and religious life, not on choices or “philosophical” way however virtuous and “[a] Yoder, (Wisconsin 205, 215, admirable.” v. supra, 216.) 406 U.S. “Although determination of what is a ‘religious’ belief or entitled to constitu practice tional protection may a most delicate present question, very concept ordered liberty precludes allowing to make every his own standards person on matters of conduct in which as a whole society has interests.” important (Id., 215-216, omitted.)19 fn. pp.
The need to ask such as these questions court an uncomfort places able contexts,” position. and in “Repeatedly different many court has high “warned that courts must not to determine the of a presume belief place particular in a or the religion (Smith, of a plausibility religious claim.” supra, 494 U.S. 887.) The line declaration, bеtween construing Catholic Charities’ which we do, must claims, determining which plausibility religious we may do, is fine indeed. fine is the line Equally between construing declaration and determining whether the asserted burden falls on a protected religious choice, belief or an unprotected which we philosophical also must Yoder, (Wisconsin do. v. 215-216.) If we had to ask and answer these difficult we would. But we need not questions, do so because 19 Assuming obligation belief, provide adequate coverage religious health care is a might one also ask religious employer whether a opposed contraceptives grounds could avoid all conflict with declining coverage its beliefs prescription drugs (thus satisfying WCEA) benefits, offering while its employees a raise to offset the reduced accompanied by whatever contraceptives condemnations the employer wished to offer. A might insurance, raise be far more expensive employer for the indirectly than and a law that made a practice expensive might more point constitutionally at some become a However, significant burden on exercise. “it cannot be expected, required much less legislators regulating enact no may way law conduct in some result in an economic disadvantage to some sects and not to special practices others because of the Brown, religions.” (Braunfeld various
564 the sake of Assuming claim in event: for any
Catholic Charities’ fails burdens belief or substantially practice, WCEA argument and is tailored to law serves a state interest narrowly nevertheless compelling that achieve interest.
The serves the state interest of eliminating WCEA compelling showed that women Legislature discrimination. Evidence before gender than men in their as much as 68 more during years percent reproductive spent costs, the cost health care due of part prescription out-of-pocket and the costs of unintended pregnancies, including various contraceptives risks, 537, (See health deliveries and increased neonatal care. premature Senate, staff bills that became ante.) analyses Assembly, legislative of this economic as inequity the WCEA the elimination consistently identify Charities, which men and women pays the bills’ object. principal cannot WCEA wages, argues type inequity prompted equal forms identify be To subtle gender viewed discrimination. properly discrimination, however, within the Nor Legislature’s gender competence. identification, a similar is the identification irrational.20 Congress, making title to define “on the basis sex” as including amended VII discrimination childbirth, basis of or related discrimination in benefits “on the pregnancy, (42 2000e(k) . .” Discrimination medical conditions . . U.S.C. (Pregnancy § 125 (1976) Co. v. Act), General Electric Gilbert 429 abrogating [50 343, 401]; Dock. Dry S.Ct. News & v. Newport Shipbuilding L.Ed.2d 97 see 89, (1983) 103 S.Ct. EEOC 678 [77 2622] [acknowl the issue federal decision abrogation].) only addressing edging reported for coverаge that the include just quoted holds statute requires employers care that cover offering plans pre when health contraceptives prescription (W.D.Wash. 2001) 141 (Erickson Bartell Co. Drug v. scription drugs. 1270-1272; (2003) Regence but cf. Glaubach v. Blueshield F.Supp.2d that a statute [holding Washington Wn.2d 827 P.3d 116-119] [74 mandate of sex does not regardless insurers to coverage requiring provide eradicating interest in Certainly coverage prescription contraceptives].) discrimina We concluded that long ago discrimination is gender compelling. on clause of the California tion based violates the gender equal protection I, 7, (art. (a)) highest scrutiny. level triggers Constitution subd. (Sail’er Inn, Kirby (1971) 5 Cal.3d 17-20 Cal.Rptr. Inc. 529].) P.2d any is the circumstance that exemp- state’s interest
Strongly enhancing affected interest in receiving from the sacrifices the women’s tion WCEA provide requiring employers or insurers adopted states have laws At least 19 other Comprehensive Note, Equality: (See contraceptives. Quest for coverage prescription 1289, 1290, Contraceptives Coverage Prescription Boston U. L.Rev. Insurance Eliminating 1298-1301; Comment, Contraceptive Coverage Laws: Gender Discrimination or 1867, 1877, Religious Liberties? Chicago L.Rev. fn. Infringing 69 U. treatment with to health equitable benefits. We are unaware of respect court, Court, decision which this or the United States has Supreme neutral, from the exempted religious objector of a operation generally law applicable that the despite recognition would requested exemption *34 affect the of third detrimentally rights The court in v. high Wisconsin parties. Yoder, 205, 406 U.S. supra, limited its to avoid painstakingly holding endorsing such result. While any that the Amish in that concluding parents Sherbert, case were entitled under the strict standard of scrutiny supra, to an from a law exemption general their older children to requiring school, attend the court public its conclusion on emphasized depended Yoder, that no child assumption (’Wisconsin Amish wished to attend. v. 230-232.) supra, pp. Similarly, rejecting chal- employer’s to a lenge law him to Social requiring pay Security taxes unemployment for his the court wrote that employees, an “[gjranting from social exemption taxes to security employer operates impose Lee, employer’s religious faith (United on States employees.” 455 U.S. supra, and the “Congress courts have been sensitive to the needs flowing Clause, Free Exercise but every cannot be shielded person from all the burdens incident to exercising every aspect right practice religious beliefs. When followers of a commercial sect enter into particular activity choice, a matter of the limits they their own conduct accept as matter of conscience and faith are not to be on the superimposed schemes statutory which are (Ibid.; on others in that binding activity.” cf. Tony Susan Labor, Alamo Foundation v. Sec’y 303-306 [religious organization must with federal comply laws]; minimum wage Dole v. Shenandoah Baptist (4th Church Cir. 1990) F.2d 1393-1400 [religious school must with federal comply law for men requiring equal pay and women].) We see no reason a different why rule should when a apply nonprofit enters the corporation general labor market.
Nor are less (or restrictive more tailored) narrowly means readily available for the state’s achieving interest in eliminating gender discrimina- tion. Any broader increases the number of women affected by discrimination in the provision health care benefits. Catholic Charities argues could Legislature more widely from the exempt employers WCEA without the number of increasing affected women by mandating public funding prescription for the contraceptives em- employees exempted ployers. included Legislature such a in an earlier version of the provision (Assem. WCEA (1997-1998 Bill No. 1112 Sess.)), Reg. which the Governor vetoed. But Catholic Charities to no points authority state to requiring subsidize (Cf. private practices. v. Northwest Indian Lyng Cemetery Assn., Prot. 447-453 need [government road forgo or building timber on its harvesting own to avoid interference with property Native American religious practices].) underinclusive, and
Catholic Charities next WCEA argues tailored, because it does not facilitate access narrowly therefore not women, women, stay- “indigent unemployed prescription contraceptives mothers, insurance at-home women whose do not offer health employers benefits, do not for health and women part-time employment qualify [who] misconceives argument benefits.” But this principal purpose WCEA, but to eliminate which is not to facilitate access contraceptives health in the benefits. gender provision form discrimination identifies, insurer is Charities in which no employer situations Catholic benefits, do health not entail such discrimination. providing the WCEA is not argues narrowly on this Catholic Charities Finally point, tailored because it is overinclusive. Catholic Charities this justifies surprising *35 be if to assertion that the law must overinclusive it arguing applies and that Catholic gender, that do not discriminate on basis of employers on that basis because it does not provide Charities does not discriminate vasectomies). men With this to women or to contraceptive coverage (e.g., however, disagreement restates its merely Charities argument, determination that the exclusion of Legislature’s prescription contracep- As tives from care constitutes form of discrimination. gender health plans reach have entitled to that conclu- Legislature we was already explained, sion. Sherbert, reasons,
For these the strict test scrutiny supra, applying free claim the WCEA under the against to Catholic Charities’ Constitution, we the WCEA meets that test. exercise clause of the state find courts do not that the state exercise requires apply We hold free clause neutral, that burden incidentally laws generally Sherbert test applicable Instead, above, that for we leave as religious practice. explained question another day.
C. Rational Basis that it final WCEA is violates challenge Catholic Charities’ the state has argues More Catholic Charities specifically, rational basis test. Code, (Health & Saf. category “religious defined the exempt employer” effect,” 1367.25, criteria. “In to Catholic (b)) according with arbitrary subd. § Charities, institution that any religious employs “the decided Legislature (or ministers all no faiths other faiths or that to persons individuals of church or church with social outreach—is faith)—in effect any ‘missionary’ these classifica- ‘religious’ exemption,” not sufficiently qualify state interest.” legitimate tions are unrelated to “wholly any argument lacks merit. WCEA’s for religious organiza- exemption tions, Charities, even if not to Catholic serves the applicable rationally legitimate interest with the rule interference with the complying barring ante, (See between a church and relationship its ministers. et seq.) court has not Although high lower federal spoken subject, courts have held that the based ministerial sur- constitutionally exemption Smith, vives the decision in (See, U.S. 872. supra, e.g., Gellington Church, 1299, 1302-1304; Christian Methodist 203 F.3d Episcopal supra, Church, Cen Combs v. Tx Ann United Methodist 173 F.3d Conf 347-350; America, E.E.O.C. v. Catholic University 83 F.3d 455, 460-463; cf. Schmoll v. Chapman University, supra, Cal.App.4th 1434, 1438-1445 a ministerial to state [recognizing exception employment laws].) Most entitled to invoke the organizations ministerial will exemption values,” be involved in the “inculcation of religious which the first criterion Code, 1367.25, (Health & (b)(1)(A).) Saf. requires. subd. will also Many § criterion, satisfy WCEA’s fourth which that a reli- exemption requires gious church, employer for federal tax qualify integrated church, churches, of a auxiliary a convention or association of or a religious (See order. 26 U.S.C. 6033(a)(2)(A)(i) (iii), cited in Health & Saf. § Code, 1367.25, subd. (b)(1)(D).) If in case the constitutionally required ministerial were exception broader than the statutory the former exemption, would of course take precedence. criterion,
The second to which Catholic Charities *36 as specifically objects basis, a lacking rational that an requires employer “primarily employ[] Code, who share the persons tenets religious (Health of the & Saf. entity.” 1367.25, (b)(1)(B).) effect, subd. § This provision, accommodates religious more employers than the broadly ministerial exemption requires by extending the WCEA’s exemption who could not fall within the employees ministe- rial The has the exemption. provision rational legitimate, of accom- purpose {Amos, a modating burden on state-imposed religious exercise. 334-335.) criterion, The third to which Catholic Charities also objects, is problematic. it, To qualify under must employer who share primarily persons “serve[] the Code, religious (Health 1367.25, tenets of the entity.” & Saf. § (b)(1)(C).) subd. To imagine for legitimate such is purpose requirement difficult. the Reading run prоvision literally, kitchen hypothetical soup church, the entirely by ministers of a which inculcates religious values to (thus first, second, those who come to eat criteria), and fourth satisfying would lose its claim to an from the WCEA if it chose to exemption serve without hungry discrimination instead of The serving co-religionists only. Charities, however, Legislature may wish to address this Catholic problem. cannot successfully challenge WCEA on this because the ground organi- zation concedes it does not under of the criteria qualify any for exemption, tax statute cited in the terms of federal
including relatively objective Code, 1367.25, (b)(1)(D).) & subd. (Health fourth criterion. Saf. § event. Charities thus cannot for qualify
III. Disposition of the Court of is affirmed. Appeal decision J., Baxter, J., Chin, J., Moreno, J., concurred. George, C. enacted J., Legislature
KENNARD, Concurring. In September law, (WCEA). Act Under this every group the Women’s Contraception Equity drug health care for coverage prescription “provides outpatient policy must, include January coverage contraceptives. benefits” as Code, are sold (Health 1367.25.)1 & from the WCEA Saf. Exempt policies entities To fall the act’s definition that are within employers. must be each these four satisfied: “religious requirements employer,” “(A) entity. The inculcation of values purpose tenets of “(B) The share the religious who entity primarily persons employs the entity. tenets of
“(C) serves who share entity primarily persons the entity. as described in Section
“(D) The is a organization entity nonprofit iii, amended.” 6033(a)(2)(A)i or of the Internal Revenue Code 1367.25, (§ (b)(1).) subd. Sacramento, Charities), which (Catholic Inc.
Plaintiff Catholic Charities of constitutionality has this lawsuit brought challenging *37 four it of the satisfy any that does not acknowledges employer exemption, that it alleges Catholic Charities’ complaint for that exemption. requirements with benefit in connection “operated is a nonprofit corporation public as of the Roman Catholic of Sacramento” “an organ Roman Catholic Bishop is to that Catholic Charities’ mission further alleges Church.” complaint works, resettlement such immigrant programs, as good “providing perform food, care, and and for the housing poor affordable counseling, clothing elder of the disabled training developmentally and vocational needy, housing Safety statutory are to Health Code. undesignated Further references the like.” Catholic Charities According complaint, provided prescrip- date; tion drug to its 183 before the WCEA’s coverage effective employees to continue it to do so now would be use promoting contraceptives, a sinful under Catholic Church doctrine. For the practice purposes deciding case, true, issues in this legal these as as majority accepts allegations do I.
I agree with the that Catholic majority Charities is to the properly subject discussion, however, WCEA. In the cоurse of its majority rejects Charities’ argument that the religious discriminates employer exemption work, against “religious . . . that organizations in charitable engage ante, to work that opposed or purely evangelical.” spiritual (Maj. opn., amI not that the first persuaded requirement employer exemption, limiting to entities whose primary pur- 1367.25, is the “inculcation of pose (§ (b)(1)(A)), values” subd. can be reconciled with the establishment clauses of the federal and state Constitu- tions. it, however, This is a close and difficult issue. I need not resolve because Catholic Charities does not meet the fourth exemption’s requirement that it is a religious from entity federal tax exempt filing, requirement both the and I majority agree is constitutional.
I The United States Constitution’s First Amendment provides “Congress shall make no law Const., respecting (U.S. establishment of religion.” 1st Amend.) This to the provision applies states the Fourteenth Amend- through ment; thus, state governments too are such prohibited making laws. Like its federal California’s Constitution counterpart, that the provides Legis- lature “shall make no law an establishment of respecting (Cal. religion.” Const., I, 4.) art. Laws that one or prefer religion organization (often over another called “denominational violate these preferences”) provi- (See sions. Epperson (1968) Arkansas L.Ed.2d [21 89 S.Ct. may . . . which ‘aid or adopt programs practices 266] [“State Everson oppose’ religion”]; v. Board Education L.Ed. 67 S.Ct. state [91 can laws which aid one “pass religion” 504] [no or that another”].) one over “prefer religion basis,
On this
the United
States
Court in Larson
Supreme
v. Valente
To distinguish religious employer exemption WCEA’s charitable invalidated in Larson v. organization gious reporting exemption Valente, states: “The WCEA confers majority on those whose religious organizations benefit of special exemption only are and that meet the other tenets contraceptives opposed prescription . . Those Catholic do not qualify for . requirements exemption. employers all other for are treated the same as precisely employers ante, state, italics whether religious nonreligious.” (Maj. opn., Minnesota down added.) But charitable solicitation law struck registration its not organizations qualifying in Larson v. treated religious Valente and other charitable solicitors nonreligious same as” exemption “precisely Thus, in that do solicitors. entities treating nonqualifying entities to its like nonreligious subject for its qualify exemption just unconstitutional substantially the WCEA seems similar requirements, Minnesota law. Valente, court’s in Larson v.
Under high analysis still organizations might that selectively among religious a law discriminates *39 not violate the establishment clause if it is fitted to the furtherance” “closely (Id. of a 255.) interest.” at “compelling governmental As p. majority and I explains, agree, WCEA serves the state interest compelling ante, 255.) discrimination. eliminating gender But in (Maj. opn., the first of the upholding requirement religious employer (limiting exemption it to those religious values), entities whose purpose inculcating religious the majority does not how that limitation is fitted” to the explain “closely elimination of discrimination. I gender have serious doubts that the First Amendment, Court, as construed by United States allows Supreme California to limit its religious that employer religious entities exemption have values, as their the inculcation of purpose religious that denying entities, Charities, religious like Catholic that are organized sick, purpose feeding hungry, caring for the shelter providing homeless.2
II outset, As I noted at the here is dispositive Catholic Charities’ concession that it does not meet the fourth for the requirement WCEA’s religious as a employer exemption religious entity (See from federal tax exempt filing. 1367.25, (b)(1)(D).) subd. Because the concerns above about expressed constitutionality first exemption’s “inculcation requirement—that 1367.25, (§ values” subd. (b)(1)(A)) is the of the purpose entity— can have no effect on the I judgment, agree with the majority that if Catholic
Charities is to afford its health that employees coverage would include it outpatient prescription drugs, must do so through policy provides coverage for prescription contraceptives.
BROWN, J., Dissenting. This case on which reasonable presents questions minds can differ—especially light whimsical and somewhat erratic of free path exercise after the jurisprudence Court’s decision in Supreme Div., Employment Ore. Dept, Human Res. v. Smith U.S. 872 However, (Smith). 110 S.Ct. aas court pledged 1595] limits, defend constitutional environment, in the operating we post-Smith to think ought very carefully about our role in the road ahead. defining Valente, majority construes Larson v. prohibiting only those laws that among religious discriminate having denominations thus as no effect on Catholic Charities, entity ante, affiliated with the Roman (Maj. opn., Catholic denomination. view, fn. Even under requirement this the first religious employer of WCEA’s exemption is questionable constitutionality because it disfavors those denominations primary have as their purpose something other than the inculcation of values. Thus any organization entity established denomination primary purpose whose was attending needy to the would on that basis be denied the employer exemption. here, we dismissive of the serious claims very presented
Instead being *40 the highest treat them with respect. should neutral, Smith, laws do have to survive generally
After applicable no matter state interest Such laws no justification review. compelling require claimant no matter how burden the individual and severely they religious v. Fair (See Employment how the interest. Smith government inconsequential 700, P.2d (1996) 12 1195 Housing Cal.Rptr.2d & Com. Cal.4th 913 [51 is, however, Kennard, J.) (Smith FEHC).) of It far (cone. & dis. opn. 909] how, if, the directly to contravene from self-evident Smith laws applies The Women’s religious organizations. Contraceptive conduct of religious hurdle (WCEA) Act substantial to circumvent this attempts potentially Equity even a But that an begs narrow churches. by creating very of determine more fundamental the what may government parts question: what are secular? bona fide are and religious organizations parts And, order to the make distinctions in may government such particular, the organization govern- freedom of that of the infringe portion Because, think I do not majority, ment characterizes as secular? unlike to these I dissent. questions, respectfully Smith obvious answers provides
I. can with which no one argument of the WCEA make proponents to be treated fairly in the are entitled disagree. Women workplace Govern- gender. be free from on the basis to discrimination equitably invidious discourage ment has not but only authority, obligation, this discrimination in in the includes workplace, discrimination (See, Company Erickson v. Bartell e.g., Drug distribution of benefits. VII of the Civil 2001) Rights (W.D.Wash. F.Supp.2d [title Act, Discrimination (title VII) as amended by Pregnancy Act offered drug coverage exclusion of prescription prevented contraception VII, title 2000e(k) under discrimina- 42 U.S.C. [prohibiting, by employer]; § childbirth, conditions”]; medical on the or related tion basis “pregnancy, EEOC, 14, 2000) (Dec. Dec. [coverage contraception] U.S. Com. Mar. [as <http://eeoc.gov/policy/docs/decision-contraception.html> Stat., insurance 2004]; (2001) coverage [mandating Conn. Gen. 38a-503e § 176B, Laws, 4W(b) ch. Mass. Gen. § contraception]; prescription Ann., [same].) [same]; tit. Vt. Stat. 4099c of, authority nor nor the government’s the wisdom Neither propriety, is at mandate California a employers impose prescription contraceptive one. the government impose here. narrow very May issue The question pay on a affiliated that requires employer mandate religiously employer tenet—or an acknowledged violation of for contraceptives—in redefine what constitutes conduct?1 While antidiscrimination laws value, reflect a constitutional religious liberty commensurate level occupies cases, in the constitutional As often with First hierarchy. Amendment happens this is “a collision between two interests of the order: highest the Govern- ment’s interest in discrimination in and the eradicating employment constitu- tional of a church to right manage its own affairs free from governmental (E.E.O.C. interference.” v. Catholic University, (D.C. 1996) America Cir. Thus, D.C. 343 F.3d App. (Catholic University).) 460] desire to discrimination cannot prevent be and the end beginning discussion.
A. Why Is Religious Liberty Important
A strong can be made that argument it was the primacy religious liberty in the early of this with history country, its acknowledgment of the separate state, of church and spheres that gave rise to our notions of limited govern- ment and equal constitutional protection—the of our precursors antidiscrimi- (McConnell, nation laws. Why Is Religious Liberty “First Freedom”? (2000) 1243, 21 Cardozo L.Rev. 1244 division between and temporal [“the spiritual authority rise to the gave most fundamental features of liberal democratic order: the idea of limited government, the idea of individual conscience and hence of individual and the rights, idea of civil society, from apart government, bearing for the primary responsibility formation and transmission of and ideas”].) opinions
Our ability to create a space is both perspectives instrumental and regenerative for democracy. Religious institutions enhance individual autonomy “by challenging sovereign (Noonan, liberal state” power The End Free (1992) 567, Exercise? 42 De Paul 579-580) L.R. and by articulating alternative visions—“counter-cultural visions that and challenge push larger in . . community . directions unimagined by prevailing beliefs.” (Brady, Religious Organizations and Mandatory Collective Bargain- Under Federal ing and State Labor Laws: Freedom From and Freedom For 77, Vill. 49 L.Rev. By protecting religious from groups gratu- interference, itous state we broad convey bеnefits on individuals and society. By underestimating transformative potential religious organizations, we our impoverish discourse and political foundations of imperil liberal democracy. question has to be stated in the alternative because the California enactment has some
peculiarities. Despite argument the state’s that if has a compelling ensuring interest that all working available, women who desire prescription contraceptive coverage option have that Thus, imposed only mandate is employers provide prescription coverage. Sacramento, (Catholic Charities), Charities of Inc. provide can choose either to contraceptives or provide coverage not to prescription employees to at option arguably all. This would make off, but, everyone least, worse theory equally at so. Smith to Religious Organizations? B. Does Apply is not case understand easy its surface Smith an. to simplicity, Despite “ critical Smith: majority correctly quotes passages ‘[T]he apply. to does of the obligation of free exercise not relieve individual right ground law of on the general “valid neutral applicability comply (or (or religion law conduct that his prescribes that the proscribes prescribes) ’ States v. (Smith, United [supra, quoting 494 U.S.] proscribes).” 252, 263, [(1982)] U.S. fn. 3 102 S.Ct. Lee 1051] [71 Stevens, I.).) To acts contrary beliefs excuse (cone. opn. permit ' law, reasoned, “would be make the doctrines the Smith court professed land, every in effect belief the law of to permit of religious superior ’ (Smith, Reynolds to become a law unto at p. quoting citizen himself.” ante, 244].)” States L.Ed. (Maj. opn., United added.) italics on the free exercise of Smith focused individual’s exclusively Since are some courts have reasoned institutions exempted religion, analysis. (Gellington Episcopal from the v. Christian Methodist entirely Smith 1299, 1303; in the 2000) The Devil Is (11th Cir. 203 F.3d see Kaplan, Church Neutral, Smith Generally Exceptions Laws Applicable Details: *42 from 1045, 1070.) L.Rev. (2000) 75 N.Y.U. 1. Individuals v. Institutions not an Perhaps
This case a individual. religious organization involves a of a it does not deal with the denial of benefit because more importantly, Rather, law. it to assess the constitutional attempts violation existing a a religious organization provide of a law requires implications are These fundamental differences theological benefit its despite objections. majority’s analysis. in the ignored simply Smith, an of free exercise does not relieve individual right
Under general and neutral law of applicability valid obligation comply belief, but contravenes a religious if the law conduct that “[i]t even requires may that a church . that Smith stands for does not follow . . proposition (Catholic obligation.” University, supra, be from such an never relieved 462.) F.3d deal obvious abortive with this have made an majority may attempt It is the so-called ministerial exception. by citing, dismissing,
distinctiоn
notes,
is
true,
directly
ministerial
exception
that the
majority
(7th
Chicago
v.
(See,
Bishop
here.
e.g.,
issue
Alicea-Hernandez
VII];
v.
to title
E.E.O.C.
2003)
exception
Cir.
The court in Catholic University summarized the distinction it was making this “We conclude way: from our review of Supreme Court’s First Amendment jurisprudence whereas the Free Exercise Clause guarantees itself, church’s freedom teach, to decide how it will what it will govern to whom it will entrust its ministerial it does not responsibilities, guarantee the right of its members to what their practice church if that may preach is forbidden practice neutral law of (Catholic general application.” fact, University, 83 F.3d at In Legislature takes apparently a similar view of the breadth of Smith because it provided exemption the WCEA for churches.
2. The TwoFaces Entanglement Under venerable however, establishment clause precedent, itself is To it problematic. put bluntly, government may generally separate from the benefits, secular to decide how it will its it but dispense *43 cannot a bona fide parse religious into organization “secular” and “religious” components solely to burdens on the secular impose portion. noted, ante,
As the seems constitutional basis for the distinction indisput- able. The United States Court has Supreme recognized that government action may burden the free exercise of in two religion different ways: “by with a believer’s interfering to observe the ability commands or of practices [citations], his faith and by on the of a church encroaching ability to manage (Catholic 460; see, its internal affairs.” University, 83 F.3d at e.g., p. Church 520, Lukumi Babalu Inc. Aye, City Hialeah 508 U.S. of of 472, 531-533 L.Ed.2d (Lukumi); 113 S.Ct. St. Nicholas [124 2217] Kedroffv. Cathedral, 344 U.S. at exercise clause p. of protects power [free themselves, interference, religious organizations “to decide for free from state of matters church government doctrine”].) as well as those of faith and it from would be “religious exempt If Catholic Charities were employer” in its group to include coverage the WCEA’s requirement contraceptives act, of the all satisfy carе Under the must religious employer health policy. of the “(A) criteria: The inculcation of values is following religious purpose the who share (B) The entity, entity primarily employs persons [f] who [j[] (C) serves primarily tenets of the entity. entity persons [|] (D) The a nonprofit tenets of the is entity. entity share iii, or the Internal 6033(a)(2)(A)i in Section of as described organization 1367.25, Code, 1986, (Health & Saf. Revenue Code of as amended.” (b)(1).) subd. notes, does not as a ‘religious “Catholic Charities majority qualify
As not meet the definition’s under the because it does WCEA employer’ ante, added.) at italics But Catholic four criteria.” (Maj. opn., designed if the had not Legislature Charities would be a religious employer it.2 The contend exclude narrowly enough plaintiffs entirely has defined the Catholic Church in a manner “deliberately Legislature critical, to exclude constitutive teaching, with Catholic religious inconsistent care, Church—i.e., social health elements of Church’s em- the definition of ‘religious service and educational ministries—from included in the exemption provisions.” ployer’ “ (and the government may court long recognized ‘has high it do so must) may sometimes accommodate practices ” Presiding (Corporation the Establishment Clause.’ violating without L.Ed.2d 107 S.Ct. v. Amos 2862] Bishop [97 time, that churches often (Amos).) regard At the same acknowledging fulfilling affiliated “a means nonprofits services community provided church seeks life a way religious duty providing example Brennan, J.)), the (id. (cone. court concluded opn. to foster” of whether an affiliated nonprofit determination case-by-case clause. 341-342 (Id. under the free exercise pp. secular is inappropriate Brennan, elements J.) includes communal (cone. [“Religion important opn. organiza- exercise through religious believers. their They religion for most must by. these be Exercise] tions and organizations protected [Free measure meaning . . derives activity large Clause. . [R]eligious community”].) in a larger religious participation Smith, not discriminate clear the government may Even after it seems quite (Larson (1982) v. Valente religions among *44 2 Catholic concience clause—which versions the WCEA contained a broader Earlier allowing reli religious employers bona fide acceptable—exempting deemed Charities universities, current agencies opt to out. hospitals, social service giously affilated missions, churches, temples, parochial synagogues, mosques, act exempts of the version coverage. schools, provede contraceptive requirements from the seminaries and convents
577
1673])
(id.
at
102 S.Ct.
or
risk of
engender
religion
politicizing
253-254) or
but not “secular” activities
“religious”
pp.
purport
exempt
1213,
(Cantwell
(1940)
v. Connecticut
L.Ed.
60 S.Ct.
[84
477, 480-481,
900];
Cir.
affd.
(10th
1980)
v. Rusk
634 F.2d
Espinosa
2025]).
L.Ed.2d
102 S.Ct.
In NLRB v. Catholic Bishop
951 [72
(Catholic
S.Ct.
In Great the Court of for the District of Columbia Appeals rejected latest NLRB’s effort—the “substantial character” test—because the multifaceted analysis created same concerns as the rejected approach Moreover, in the court Bishop. invoked line of long precedents *45 578 tests, into religious religious
which have made it clear that inquiries perspec- tives, religious a or institution’s beliefs through person’s or generally trolling “ ” Falls, (Great F.3d supra, but also offensive.’ 278 is ‘not only unnecessary 1341-1342, v. 828 at Mitchell Helms 530 pp. quoting Amos, 327, 340, 2530]; (cone, 120 345 S.Ct. supra, Brennan, J.).) opn. suggested
The in Great Falls thus a broad which would court is or avoid the determine what having government religious pitfalls The school which how much is sufficient. court would religion exempt environment; a organized a is as religious nonprofit; purports provide with, owned, a or or or controlled or directly indirectly by affiliated operated, or is determined whose recognized religious organization entity membership Falls, (Great at least F.3d supra, with reference religion. part into 1343.) delving religious of this test was to avoid bright-line p. point affiliated educational doctrine or motive to avoid coercing religiously (Id. at to alter its mission to meet demands. religious regulatory institution to a that the 1345.) religious This concern long-standing p. approach responds not to on a “determination Constitution liberty by ought depend protected (Cantwell as is a cause.” v. State state to what by authority religious Connecticut, course, does cited are here controversy Of cases distinguishable. effects, schools, solicitation, admin- not involve or potential chilling religious discretion, In this case worse. or ad hoc determinations. is reality, istrative intentional, intrusion into dealing Here we are with an purposeful tenets and of mission. The of its sense organization’s expression with religious not or accidentally incidentally interfering is government is about what or is by it is so doing willfully making judgment practice; been condemned This is the sort of behavior has religious. precisely it is less because hardly context. The conduct is offensive every other as if its monitoring Definition be as just pernicious ongoing codified. may Rusk, conduct. (Espinosa is to or burden suppress purpose . . . entertained religion City 634 F.2d at conception [“The Thus, the charitable evangelical. was that it had to be or spiritual purely offer to do with the feeding hungry of the church activity having This regulation. and shelter to the was deemed poor subject of clothing broad definition of secular is part problem”].) Neutrality Meaning 3. The stake, neutral only
In liberties are at the state when theory, Liberty Liberty (Laycock, Religious when it does not choose sides. is that core of religious liberty J. Legal point Issues Contemp. [“[T]he *46 government the does not take on in its positions religious questions—not administration, laws, its Constitution daily either”].) not in and not in its This would mean that the a may state or seek prefer impose particular normative view Genuine competing religious perspective. squelching would neutrality “allow different and voices to be many contending repre- (McConnell, in Religious sented discourse.” Is the “First public Why Liberty Freedom’’?, 1262.) 21 Cardozo L.Rev. at p.
In the one side that sex is an present controversy, posits aspect a vital in autonomy, human function which men and women should be able
engage, their “free from enjoying sexuality anxiety.” (Hayden, Gender Dis- crimination Within the Health Reproductive System: Care v. Birth Viagra 171, 181.) Control 13 J.L. in & Health This fact be the view may view, majority contrast, American adults. Catholic Church’s deems immoral, all forms of nonmarital sex and sex within marriage views unitive, emotional, and sacred procreative, reflection of a and spiritual, biological that comes reality complete (See anxiety. George reproductive & Bradley, and the Liberal Marriage 84 Geo. L.J. Imagination 301-320.) This is a many would as archaic. perspective disparage people Several of the legislators debating the WCEA to think seemed so.3
The Catholic Church to be one different and contending of those purрorts voices, a church which “has never envisioned a divide sharp between the world, and Church the and the spiritual religion and temporal, politics. Church, For the internal life of its members and spiritual institutions must always move outward sign as a instrument transformation of the larger society.” Religious (Brady, Organizations and Collective Mandatory Bargaining Under Federal State Labor Laws: Freedom From and For, Freedom Vill. L.Rev. at supra, 49
Petitioner the narrow designed was to lend the state’s complains “considerable weight to the side of a conflict within the dissenting church about legitimacy contraceptive banner of practice—under protect- the ‘rights’ of those who . . . ing disagree deny and to church exemption based on the nature of a church doctrine that allegedly unpopular diverges 3 (See, e.g., (1999-2000 Speier, Remarks of Sen. Sen. Sen. Floor Debate on Bill No. 41 Sess.) Reg. Apr. pp. Speier asserting 7-8 statement of that [floor Senator since percent hospitals already of all California provide contraception coverage, Catholic the “issue already come”]; been time Speier, has resolved . . . and its has of Sen. Sen. Remarks Floor 7, 1999, (1999-2000 Sess.) on Reg. Debate Assem. Bill No. Sept. statement [floor Speier arguing percent childbearing age Senator of all practice “59 Catholic women contraception percent of Catholics believe who practices . . . that someone artificial [and] Catholic,” good agree control can commenting, birth still be a with that. I “I think it’s time right (italics added)].) thing” to do the words, the state’s “action- cultural mores.” In petitioner’s from contemporary the eyes stand hierarchy’s' ‘heresy’ the effect déclaring has of secular culture.” course, In diverges theory. from always contemporary
Of practice take issues. The First American does sides society, government policy Amendment sides if government taking dispute precludes area of where but leaves an governance, overlap involves internal church *47 the comes into conduct churches world operating dictated religiously force of then whether coercive conflict with is policy. question public that holds to a religious organization the law be bear to may brought compel view, hostile and to religious support an alternative based on scruples, of the good. vision competing
a. bigotry Religious it, read, that suggest as the reads to majority apparently Smith could be unless government is entitled to constitutional protection not religion Under this targets action expressly specifically religious expression. of religious for religious liberty requires proof interpretation, protection i.e., mo- out of antireligious oficiáis acted government bigotry, proof Thus, infringe- Lukumi—would by prohibit tives. Smith—even modified or of . . . a statute the “object ments of liberties if has religious only purpose action that conduct” or involves religion “[o]fficial suppress[ing] (Lukumi, for treatment.” conduct distinctive targets all this mandate on 533-534.) employers at Since statute imposes pp. conduct. not coverage, arguably target religious it does provide prescription level, secular interests are treated with equal one interests and On hatch, an Charities’ the mandate since dignity, provides escape faces formidable obstacles. to treatment claim attempt specifically unequal has failed to prove finds Catholic Charities majority Consequently, neutral. and the statute is motive antireligious
b. Objects effect is, however, Lukumi to look at As way neutrality. more than one There it, . . The “[fjacial not determinative. . neutrality exercise] is explains [free and ‘covert sup- from neutrality’ clause ‘forbids subtle departures [citation] ” 543.) (Lukumi, at p. beliefs.’ particular pression text, strong a law real is operation the effect of in its “Apart infringe is to (Id. 535.) law- object object.” evidence its p. “[I]f motivation, the law is of their religious or restrict because upon practices [citation]; compelling unless it is justified and it invalid neutral 533.) “The (Id. at tailored to advance that interest.” and is narrowly interest Free Exercise Clause observers treat- ‘protect[s] religious against unequal ” (Lukumi, ment.’ But in the context of equality religious liberty effect, must be defined. In broadly the general applicability requirement is. needed to ensure across broad neutrality Pursuant to categories regulation. Lukumi, if other activities which cause harm to the govern- same comparable Thus, mental interests are not regulated, law is not generally applicable. Lukumi makes it clear that strict if a law is not scrutiny required is. neutral—and it considers the question neutrality broadly. case, instance,
In this defendants that Catholic Charities’ argue ability out, i.e., opt choose not to obviates provide any prescription coverage, concern about infringement. Catholic Charities it insists should not be forced to its vision of relinquish appropriate relations to employee preserve its right to the object use From Church’s contraceptives. perspective, funded, demand that be bona fide contraception despite religious objec- tions, sides, is to take to abandon the commitment to In this public neutrality. sense, WCEA, with its grudging religious not be neutral. exemption, may The majority’s that the response WCEA’s narrow is an accommo- *48 dation and not an seems imposition entirely unresponsive.
In the whole scheme of the risk associated things, with allowing govern ment to impose stifling in orthodoxy of pursuit good society may greatly outweigh small harm of in tolerating heterodoxy this circums tance.4 At oral argument, Church, counsel indicated the Catholic including Charities, 60,000 fewer than millions employs of California’s of employees.5 Some of the Church’s employees belong religious orders and аre in presumably fully men, with the agreement church’s Some are position. 4 This does not government may mean that the never organizations limit what can truly do. There are neutral may laws which be applied; aggressive there are interventions which necessary (See, are Superior Walker prevent e.g., harm. Court 47 Cal.3d Cal.Rptr. 139 [finding 763 P.2d Christian Scientist did 852] who not seek medical death, treatment for her child liable for notwithstanding “religious child’s infringement of dimensions,” significant since state’s compelling endangerment interest is and child statute is tailored]; Brady, Religious Organizations narrowly Mandatory Bargaining and Collective For, Under Federal and State Labor Laws: Freedom From Freedom Vill. L.Rev. cases, rare [“In limitations on the organizations may freedom of be necessary. For example, if a group experiments practices endanger that the lives of employees its or threaten them with bodily injury, may serious interference justified”]; be Theory Towards a General Laycock, Religion Clauses: The Case Church Labor of of Right Relations and the Autonomy to Church Colum. L.Rev. 1406 [“Courts have protect intervened to church bodily they members from serious harm even when contrast, voluntarily submitted”].) In what presents essentially this case is a clash of ideas. 5 These approximate. argument, numbers are At oral Catholic Charities counsel asserted that 50,000 the Catholic Church employs fewer than people, including holy in those orders. 52,000 Proponents claim there are employees in hospitals Using Catholic-affiliated alone. 60,000 reference, point as a appears it all employees Catholic Church in represent California workforce, less than .5 percent of the California and female employees of the Catholic Church and some are childbearing, spouses are women longer capable
some no their spouses’ who are covered by other by companies people employed remain, who and to whom of childbearing age health Of the women plans. concern, are faced with a pervasive a critical none is contraceptive coverage them more finding congenial emplo which would from practice yment prevent .6 which the vast majority WCEA’s mandate—to The existence of have their religious objection—enhances no employers California apparently fact, may the defection of talented female employees In options. employment no Such a result has First Catholic Charities to reconsider its position. cause Amendment implications. claim case law Catholic Charities’
A substantial amount of federal supports to draw between the distinctions Legislature’s attempt government activities of a is single religious entity impermissible secular action in I am inclined to Such an is agree. entanglement religion. however, If, invalid, the discussion. exist- ends constitutionally is scheme shows simply statutory ence of narrow exemption effect, scrutiny. it is if it fails only neutral in invalid strict operation childbearing age working women of percentage about the same number of represent the current According publications, Bureau Statistics to recent of Labor California. 14.4 jobs approximately million. employed number of California adults nonfarm Statistics, (Jan. 2004) (Bur. Dept, of News Release No. 04-81 of Lab. U.S. Lab. sector, table industry state and selected Employees payrolls on nonfarm 1, 2004].) less Mar. A little than <http://www.bls.gov/news.release/pdf/laus.-pdf> [as statistics, will that total be national around 5 million of Extrapolating half are women. Statistics, (Bur. Lab. News Dept, between 16 and 45. Lab. women *49 indicators, 6, 2004) (Feb. table employment A-6 No. 04-120 Selected Release 1, 2004].) assuming of Mar. Even <http://www.bls.gov/newsrelease/pdf/empsit.pdf> [as accuracy, an for adjusted upward need or downward for these numbers to be negligible to have a effect. Catholic Charities would seem 6 Lee, for U.S. majority language from United States v. cites impose neutral to exempt “operates to be from a law proposition allowing employer that (Id. This a curious statement. In religious employees.” is employer’s faith on Lee, Amish and all of the Order employer employee and the were members Old both taxes. Even they Security unemployment be Social and insurance agreed exempt should anything case, on position impose is in a to employer not the it not clear how an if that were Const., slavery (U.S. or they object. [prohibiting 13th employees to which its Amend.. force, state, servitude].) monopoly coercive can involuntary Only the which holds the on they not wish to do. they not to be and do what do adults to remain where do choose compel FEHC, a state whether law supra, 12 Cal.4th this court considered In Smith v. the free exercise of cohabitating couples unmarried burdened against prohibiting discrimination religious grounds. majority of court objected renting to the on A landlady couple who to a simply abandon rights substantially because she could were not burdened concluded Smith’s challenges some capital. reject her we redeploy business and If the rental employees logic compels us assume that they options, what because have other claimants no choice? have Strict C. Scrutiny
Strict not what it once in in scrutiny is was. “strict past Described (Gunther, In theory fatal in fact” Foreword: Search Doctrine Evolving A on Court: Model 86 Harv. Changing Equal Newer Protection 1, 8), (see, L.Rev. it Grutter has mellowed recent decades e.g., Bollinger S.Ct. state [holding 304] law school’s scrutiny race-based affirmative action survived strict program that ‘strict fatal noting ”]). is not but in fact’ scrutiny theory, “[s]trict
If recent is any guide, a state’s interest is if the state precedent compelling Thus, it is. consistent with says federal interest now precedent, compelling more seems or less coextensive with the state’s exercise of asserted pоlice power.
1. State Interest Compelling the desire Unquestionably, to eradicate discrimination is a com- invidious state interest. But is the pelling desire force on a conformity single that employer objects also contraception religious grounds compelling case, interest? state In the latter the state is dealing not with invidious discrimination; trying it is Catholic Charities prevent disparate impact. does discriminate because an animus women. It all against opposes control, abstinence, women, forms birth whether for men or except over-the-counter, oral, whether or whether prescription or mechani- surgical, cal.
2. Narrow Tailoring The WCEA defines as only those for which the organizations inculcation of values is the sole purpose entity, primarily tradition, only adherents of their own employ faith serve only primarily tenets, who share their and that people as nonprofit organi- qualify zations 6033(a)(2)(A)(i) (iii) described in section of the Internal Revenue Code 1986.
This is such a crabbed constricted view of that it would religion define *50 the Christ as a ministry Jesus secular The activity.7 stinginess schools, agencies Even operate hospitals, churches that do not or social service would have religions necessarily trouble with the proselytize. WCEA’s test. Not all Those that do denominations, people reach out to do not example, who share their beliefs. Christian for are every ye commanded to seek and the lost. “Go all the the gospel save into world and teach to (Mark 15:15.) suggest congregations might creature.” Catholic Charities that some Catholic be diocese, “ineligible depending particular for the . the exemption upon demographics . . the' act more The baffling. makes the structure of the all the mandate
exemption Thus, to only coverage. applies employers provide prescription coverage. can avoid the mandate the The state wants Charities by dropping make that women are not burdened more than others. Where sure employers the will the financial burden of WCEA reduce cooperate, inequitable are about healthcare for women. If affiliated serious religiously employers however, their who for could employers women work those objections, be worse off. actually the drastically for the so is narrowing exemption
The reasons only given concern could “swallow the rule because alleged exception up” for secular organizations who affiliated with numbers of work employees thousand; the entities several hundred easily exemp- could approach nondiscriminatory tion thousands of of access to deprive might employees insurance; to as coverage health and and a desire exists extend disability First, There few litany. are a this many possible. problems people act, admits, and as has candidly as its structure demonstrates the majority do or extending to with access nothing coverage. purpose principal “[T]he ... to facilitate access to but to eliminate contraceptives WCEA not form of discrimination in the of health benefits.” gender (Maj. opn., provision ante, Moreover, the claim that record no for provides support affects several hundred thousand potentially employees.
Furthermore, have the option self-insuring. Employee employers of self-insured regulation Retirement Income Act state Security preempts defining states from benefits or discrimi- companies mandating “prohibits law.” benefit more than federal plans broadly nation in self-insured employee Contraception Discrimination Insurance (Law, 73 Wash. Sex 363, 395; only et Such would not seq.) employers L.Rev. 29 U.S.C. be they subject not be would subject mandatory prescription coverage, Arguably, more insurance regulations. of California’s restrictive a religiously-affiliated- existence these secular exemptions supports to show its Smith. even under state would also need employer exemption in a arena rife with refusal to countenance exception, regulatory for distinctive is not action that conduct targets religious “official exceptions, (Lukumi, 533-534.) treatment.” pp.
II. Thus, under whether the WCEA would survive strict scrutiny—even a much than majority relaxed federal standard—seems closer question theological particular application hiring patterns, nature of and the fortuitous criteria . . . .” *51 But there be acknowledges. may other reasons to good rely independent state grounds. in the Changes of the federal charter are interpretation not only test, more becoming and the frequent, balancing standards applied them, Smith, are shifting. Instead of we view it as applying might effectively free returning exercise to the states. questions
A. A Document Force Independent
“We
take
may
it for
granted
of California
meaning
Constitution
I,
4,
article
section
...
is not
on the
dependent
meaning
any provision
the federal Constitution. The state charter declares in so
words that
many
‘[flights guaranteed
this
by
Constitution are not
on those
dependent
guaran-
teed
Const.,
I,
United
(Cal.
(Smith
States Constitution.’
24.)”
art.
v.
§
FEHC, supra,
Similarly,
we
although
have said California’s establishment clause is
coextensive with the federal
(East
provision
Asian
Bay
Local Development
v. State
Corp.
24 Cal.4th
Cal.Rptr.2d
of California
586 Analysis State Interest
B. The Compelling whether would be deciding scrutiny avoids strict carefully majority Other similar very the California Constitution. states under required that infringement of clauses have found liberty constitutional conscience (2000) OhioSt.3d 62 (See, v. Lane 89 scrutiny. Humphrey strict e.g., requires that under the Ohio [holding Ohio 728 N.E.2d 1043] [2000 Constitution, a religion- reviewing applicable, “the standard for generally to free exercise right that violates a neutral state regulation allegedly person’s is a state interest and the serves religion regulation compelling is whether regula- that and the furthering finding least means of interest” the restrictive (Minn. restrictive]; 1990) 462 Hershberger at bar the least State v. tion not statute, Constitution, motor neutral vehicle N.W.2d 393 Minnesota [under exercise, test failed state interest which burdened Amish compelling means]; First alternative state failed to show lack reasonable since P.2d 120 Wn.2d City Covenant Church v. Seattle [840 interest test burdened exercise failed state compelling free [statute 187] not interest was of sufficient under Constitution since state’s Washington free of religion].) exercise magnitude outweigh least, must be the state’s interest weight At the constitutional very the state severity problem attempting affected the size be no the state a should gnat To authorize to use howitzer smite solve. scrutiny Where strict applies, our constitutional part jurisprudence. that some a demonstration only upon state “may abridge practices interests in religious interest defendants’ outweighs state compelling 61 Cal.2d Woody(1964) freedom.” (People Cal.Rptr. P.2d (Woody).) 813] in 4 has not role independent
It be true may played also “[s]ection al., A Reference (Grodin et The Cal. State Constitution: free exercise сlaims” Woody, it dormant? In 44), but that mean should remain Guide does p. than the California the court on the First Amendment rather provision, relied so, on a searching court and insisted scrutiny but in strict doing applied state California law—at least to now-—the up compelling Under inquiry. values the court to “weigh[] competing interest test had bite required constitutionality.” (Woody,supra, scale of symbolic ... on represented on a of a deleterious effect 727.) possible at Untested assertions Cal.2d p. court (Id. 724.) at In Woody, were not sufficient. statutory scheme (similar uniform criminal drug enforcement of neutral laws concluded that Smith) reason to intrude upon not compelling the laws at issue was enforce- drug the interest why In explaining sincere religious practices. the court enough, undeniably compelling ment—while important—was toward conformity, society, every point “In mass which presses said: protection however of the individual and the self-expression, unique, group becomes ever more currents of the subcultures that important. varying flow into the mainstream of our national life it give depth beauty.” (Woody, These concerns should be heightened when the govern- ment seeks to redefine the core theology religious organizations.
Under the standard enunciated in the state Woody, has failed to actually meet its burden. The whole debate ensues because the state found “approximately insured Californians did not percent commercially have ante, coverage prescription contraceptives.” (Maj. opn., Still, that 10 Presumably includes both men and women. percent it means that percént Californians who are insured do have such commercially coverage! insurance itself is not and Catholic Church gap large, employ- ers can constitute a small only of that small percentage percentage.
Moreover, even if we assume the interests at issue here are both compel- ling and of equal weight, Legislature’s refusal a broader grant which exemption—one would not embroil the government the unseemly task of what deciding is “religious”—is The state has inexplicable. produced no substantial evidence that the of Catholic exemption Charities from this mandate particular would render the whole scheme ineffective or would be so administratively burdensome as to preclude enforcement. As petitioner poses the question: the Catholic closing “[I]f can gap problem,” how [was] “ ‘granting to Catholic . . . ‘defeat the employers’ purpose the bill’ ”? There has been no that the showing interests served WCEA—which focuses on a modest 10 percent gap coverage—cannot be achieved by less restrictive means.
Conclusion words, freedom, one of those Equality like justice, like which no one is But the against. invocation of the word often “equality” reduces analysis empty It is platitudes. important remember that in America we seek because equality it is a concomitant of freedom. When it is possible both, accommodate that is what we should do.