Lead Opinion
Opinion
In this сase, we address a church-affiliated employer’s constitutional challenges to the Women’s Contraception Equity Act (WCEA),
The Legislature enacted the WCEA in 1999 to eliminate gender discrimination in health care benefits and to improve access to prescription contraceptives. Evidence before the Legislature showed that women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in large part to the cost of prescription contraceptives and the various costs of unintended pregnancies, including health risks, premature deliveries and increased neonatal care. Evidence also showed that, while most health maintenance organizations (HMO’s) covered prescription contraceptives, not all preferred provider organization (PPO) and indemnity plans did. As a result, approximately 10 percent of commercially insured Californians did not have coverage for prescription contraceptives.
The Legislature chose to address these problems by regulating the terms of insurance contracts. The WCEA does not require any employer to offer coverage for prescription drugs. Under the WCEA, however, certain health and disability insurance plans that cover prescription drugs must cover prescription contraceptives. As an exception, the law permits a “religious employer” to request a policy that includes drug coverage but excludes coverage for “contraceptive methods that are contrary to the religious employer’s religious tenets.”
Plaintiff Catholic Charities of Sacramento, Inc. (hereafter Catholic Charities) is a California nonprofit public benefit corporation. (See Corp. Code, § 5110 et seq.) Although independently incorporated, Catholic Charities describes itself as “operated in connection with the Roman Catholic Bishop of Sacramento” and as “an organ of the Roman Catholic Church.” The nonprofit corporation “offer[s] а multitude of social services and private welfare programs to the general public, as part of the social justice ministry of the Roman Catholic Church.” These services and programs include “providing immigrant resettlement programs, elder care, counseling, food, clothing and affordable housing for the poor and needy, housing and vocational training of the developmental^ disabled and the like.”
Catholic Charities offers health insurance, including prescription drug coverage, to its 183 full-time employees through group health care plans underwritten by Blue Shield of California and Kaiser Permanente. Catholic Charities does not, however, offer insurance for prescription contraceptives because it considers itself obliged to follow the Roman Catholic Church’s religious teachings, because the Church considers contraception a sin, and because Catholic Charities believes it cannot offer insurance for prescription contraceptives without improperly facilitating that sin.
As mentioned, the WCEA permits a “religious employer” to offer prescription drug insurance without coverage for contraceptives that violate the employer’s religious tenets. (Health & Saf. Code, § 1367.25, subd. (b).) The act defines a “religious employer” as “an entity for which each of the following is true: [J[] (A) The inculcation of religious values is the purpose of the entity, [f] (B) The entity primarily employs persons who share the religious tenets of the entity, [f] (C) The entity serves primarily persons who share the religious tenets of the entity. [j[] (D) The entity is a nonprofit organization as described in Section 6033(a)(2)(A) i or iii, of the Internal Revenue Code of 1986, as amended.” {Ibid.) The cited provisions of the Internal Revenue Code exempt, from the obligation to file an annual return, “churches, their integrated auxiliaries, and conventions or associations of churches” (26 U.S.C. § 6033(a)(2)(A)(i)) and “the exclusively religious activities of any religious order” (id., § 6033(a)(2)(A)(i) and (iii)).
Catholic Charities does not qualify as a “religious employer” under the WCEA because it does not meet any of the definition’s four criteria. (See Health & Saf.
As mentioned, the WCEA implicitly permits any employer to avoid covering contraceptives by not offering coverage for prescription drugs. But this option, according to Catholic Charities, does not eliminate all conflict between the law and its religious beliefs. Catholic Charities feels obliged to offer prescription drug insurance to its employees under what it describes as the “Roman Catholic religious teaching” that “an employer has a moral obligation at all times to consider the well-being of its employees and to offer just wages and benefits in order to provide a dignified livelihood for the employee and his or her family.”
Perceiving no option consistent with both its beliefs and the law, Catholic Charities filed this action seeking a declaratory judgment that the WCEA is unconstitutional and an injunction barring the law’s enforcement. Defendants are the State of California, the Department of Managed Health Care and the Department of Insurance.
II. Discussion
Catholic Charities, in its brief to this court, asserts eight constitutional challenges to the WCEA. All refer to the religion clauses of the federal and state Constitutions. (U.S. Const., 1st Amend.;Cal. Const., art. I, § 4.) Catholic Charities begins with a set of three arguments to the effect that the WCEA impermissibly interferes with the autonomy of religious
A. Religious Autonomy
1. Interference with matters of religious doctrine and internal church governance
Catholic Charities contends the WCEA impermissibly interferes with matters of religious doctrine and internal church governance. In support of the contention, Catholic Charities invokes the rule that the state must accept the decision of appropriate church authorities on such matters. This is the rule of the so-called church property cases. (E.g., Serbian Orthodox Diocese v. Milivojevich (1976)
The first church property case to reach the United States Supreme Court, Watson v. Jones, supra,
The high court in Watson, supra,
Because Watson, supra,
Catholic Charities asserts that the Legislature, in enacting the WCEA, violated the mle of the church property cases by interfering with matters of internal church governance and by rejecting the Catholic Church’s decision that prescription contraceptives are sinful. These assertions are incorrect. This case does not implicate internal church governance; it implicates the relationship between a nonprofit public benefit corporation and its employees, most of whom do not belong to the Catholic Church. Only those who join a church impliedly consent to its religious governance on matters of faith and discipline. (Watson, supra,
Catholic Charities also argues the Legislature, by enacting the WCEA, deliberately intervened in a conflict within the Catholic Church on the side of those who
While the church property cases thus do not invalidate the WCEA, the constitutional principles that underlie those cases may place an outer limit on the statute’s constitutional application. Relying on the church property cases, lower federal courts have held that the First Amendment bars courts from reviewing employment decisions by religious organizations affecting employees who have the religious duties of ministers. (McClure v. Salvation Army (5th Cir. 1972)
The Fifth Circuit first recognized the ministerial exception in McClure v. Salvation Army, supra,
Because the case before us does not involve title VII, the ministerial exception as currently articulated does not apply. Although the constitutional reasoning underlying the ministerial exception might
2. Distinction between religious and secular activities
Catholic Charities next argues that the First Amendment forbids the government to “premis[e] a religious institution’s eligibility for an exemption from government regulation upon whether the activities of the institution are deemed by the government to be ‘religious’ or ‘secular’ . . . .” The argument is directed against the four statutory criteria an employer must satisfy to claim exemption from the WCEA as a “religious employer.” (Health & Saf. Code, § 1367.25, subd. (b)(l)(A)-(D); see p. 539, ante.) The argument lacks merit.
The exception to the WCEA accommodates religious exercise by relieving statutorily defined “religious employers” (Health & Saf. Code, § 1367.25, subd. (b)) of the burden of paying for contraceptive methods that violate their religious beliefs. The United States Supreme Court has long recognized that the alleviation of significant govemmentally created burdens on religious exercise is a permissible legislative purpose that does not offend the establishment clause. (Corporation of Presiding Bishop v. Amos (1978)
Catholic Charities’ argument to the contrary largely depends on a single lower federal court decision, Espinosa v. Rusk (10th Cir. 1980)
Our conclusion that the government may properly distinguish between secular and religious entities and activities for the purpose of accommodating religious exercise does not mean that any given statute purporting to draw such distinctions necessarily passes muster under the free exercise clause. “[A] law targeting religious beliefs as such is never permissible,” and a court “ ‘must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.’ ” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra,
3. Excessive entanglement
Catholic Charities contends that the WCEA’s exemption for “religious employees]” (Health & Saf. Code, § 1367.25, subd. (b)) violates the establishment clause by mandating an entangling inquiry into the employer’s religious purpose and into its employees’ and clients’ religious beliefs. The argument refers to the first three of the four statutory criteria for identifying a “religious employer,” namely, whether “[t]he inculcation of religious values is the purpose of the entity” (id., subd. (b)(1)(A)), whether “[t]he entity primarily employs persons who share the religious tenets of the entity” (id., subd. (b)(1)(B)), and whether “[t]he entity serves primarily persons who share the religious tenets of the entity” (id., subd. (b)(1)(C)). A law that fosters an excessive governmental entanglement with religion can for that reason violate the establishment clause. (Lemon v. Kurtzman (1971)
The argument might have merit as applied to a hypothetical employer that sought to qualify under the WCEA’s exemption for religious employers (Health & Saf. Code, § 1367.25, subd. (b)) but objected on establishment clause grounds to an entangling official effort to verify that its purpose was the inculcation of religious values, and that it primarily employed and served persons who shared its religious tenets. But Catholic Charities candidly alleges in its complaint that it does not qualify under the exemption because it does not satisfy any of the four criteria. More specifically, Catholic Charities concedes that its purpose is not the inculcation of religious values, that it does not primarily hire and serve Catholics, and that it does not fall within either of the relevant provisions of the Internal Revenue Code (26 U.S.C. § 6033(a)(2)(A)(i) and (iii), cited in Health & Saf. Code, § 1367.25, subd. (b)(1)(D)). Consequently, no entangling inquiry into Catholic Charities’ purpose or beliefs, or the beliefs of its employees and clients, has occurred or is likely to occur. Therefore, even if in some other case the statute might require an entangling inquiry, in this case, as applied to Catholic Charities, the establishment clause offers no basis for holding the statute unconstitutional.
B. Free Exercise of Religion
Catholic Charities argues the WCEA violates the free exercise clauses of the federal and state Constitutions (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4) by coercing the organization to violate its religious beliefs, in that the WCEA, by regulating the content of insurance policies, in effect requires employers who offer their workers insurance for prescription drugs to offer coverage for prescription contraceptives. Catholic Charities wishes to offer insurance, but may not facilitate the use of contraceptives without violating its religious beliefs.
Any analysis of Catholic Charities’ free exercise claim must take into consideration the United States Supreme Court’s decision .in Employment Div., Ore. Dept, of Human Res. v. Smith, supra,
Before Smith, supra,
Eight years before Smith, supra,
The general rule affirmed in Smith, supra,
To demonstrate an exception to the general rule is, in fact, precisely what Catholic Charities seeks to do. On four separate grounds, Catholic Charities argues we should examine the WCEA under strict scrutiny despite the holding of Smith, supra,
1. Neutrality and general applicability
Catholic Charities offers two arguments why the WCEA should be not considered neutral or generally applicable and should, thus, be subject to strict scrutiny under an exception to the rule of Smith, supra,
A law is not neutral towards religion if its “object... is to infringe upon or restrict practices because of their religious motivation . . . .” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra,
In determining whether the object of a law is to suppress religion or religiously motivated conduct, a court “must begin with [the law’s] text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discemable from the language or context.” (Lukumi, supra,
Relying on Lukumi, supra,
Lukumi, supra,
Because a legislative accommodation benefits religion, it is tested not under the free exercise clause but under the establishment clause. (Amos, supra,
A rule barring religious references in statutes intended to relieve burdens on religious exercise would invalidate a large number of statutes. A few examples suffice. The federal statute upheld in Amos, supra,
2. Religious gerrymander
Our analysis does not end with the conclusion that the WCEA is facially neutral towards religion. The First Amendment requires more than facial neutrality. It protects against “ ‘subtle departures from neutrality’ ” and “governmental hostility which is masked as well as overt.” (Lukumi, supra,
We find no merit in the argument that the WCEA discriminates against the
We find nothing to the contrary in Larson v. Valente, supra,
The reasoning of Larson, supra,
Catholic Charities argues the WCEA violates Larson, supra,
Catholic Charities’ intent may be to argue that the WCEA discriminates against chаritable social work as a religious practice. Such an argument would implicate “[t]he principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief ...” (Lukumi, supra, 508 U.S 520, 543.) Applying this principle, the high court in Lukumi held unconstitutional an ordinance that permitted the killing of animals for food or sport, but not in religious rituals. The ordinance had “ ‘every appearance of a prohibition that society is prepared to impose upon [Santería worshippers] but not upon itself.’ ” (Id., at p. 545, quoting The Florida Star v. B.J.F. (1989)
As additional support for its claim that the WCEA’s purpose is to discriminate against the Catholic Church, Catholic Charities contends the Legislature drafted the “religious employer” exception (Health & Saf. Code, § 1367.25, subd. (b)) with the specific intention of excluding Catholic hospitals and social service agencies like Catholic Charities. Catholic Charities draws an analogy to Lukumi, supra,
According to Catholic Charities, the history of the WCEA suggests the Legislature intended the law to close a “Catholic gap” in insurance coverage for prescription contraceptives. The evidence does not support the contention. The phrase “Catholic gap” appears only in Catholic Charities’ brief, not in the legislative history. Catholic Charities refers to the Senate testimony of a representative of Planned Parenthood, which opposed any exception for religious employers. Explaining that organization’s position, the witness stated: “Primarily our intent was to close the gap in insurance coverage for contraception and prescription benefit plans. Our concern with granting an exemption is that that defeats the original purpose of the bill.” The “gap” to which the witness apparently referred was the gap identified by a national consulting firm’s 1999 study of health insurance for prescription contraceptives. This study, which received much attention in the Legislature, concluded that approximately 10 percent of commercially insured Californians did not already have insurance coverage for prescription contraceptives. The study identified this minority not as the employees of Catholic organizations, but as persons covered by PPO and indemnity plans. While most HMD’s covered prescription contraceptives, not all PPO and indemnity plans did. Catholic Charities’ assertion that the purpose of the WCEA was to close a “Catholic gap” rather than a statewide statistical gap in coverage has no apparent evidentiary support.
Next, Catholic Charities argues the Legislature deliberately narrowed the statutory exception for “religious employees]” (Health & Saf. Code, § 1367.25, subd. (b)) to include as few Catholic organizations as possible and specifically to exclude Catholic hospitals and social service organizations. The legislative history does show that the bill’s sponsors argued against a broader exception. The bill’s Senate sponsor,
3. Hybrid rights
As an additional argument for applying strict scrutiny to its federal free exercise claim, Catholic Charities argues that the WCEA violates so-called hybrid rights. The term “hybrid rights” is loosely derived from Smith, supra,
Relying on this passage from Smith, supra,
The high court has not, since the decision in Smith, supra,
Catholic Charities argues that the non-free-exercise component of a hybrid claim need only be “colorable” and not ultimately meritorious. While some courts have proposed such a rule (e.g., Miller v. Reed, supra,
We are aware of no decision in which a federal court has actually relied solely on the hybrid rights theory to justify applying strict scrutiny to a free exercise claim. Indeed, the only federal decision that can properly be said to have relied on the theory at all is E.E.O.C. v. Catholic University of America, supra,
Assuming for the sake of argument the hybrid rights theory is not merely a misreading of Smith, supra,
4. California Constitution
Catholic Charities’ final argument for applying strict scrutiny invokes the free exercise clause of the California Constitution. (Cal. Const., art. I, § 4.)
What might be the proper standard of review for challenges to neutral, generally applicable laws under the state Constitution’s free exercise clause is a question we left open in Smith v. Fair Employment & Housing Com. (1996)
No decision about the appropriate standard of review can be gleaned from the various separate opinions in Smith v. FEHC, supra,
The only published decision purporting to determine the standard of review for claims under the California Constitution’s free exercise clause is Brunson v. Department of Motor Vehicles (1999)
Certainly the high court’s decision in Smith, supra,
However, no settled interpretation of the state Constitution’s free exercise clause existed in 1990. Between the dates of Sherbert, supra,
In view of this history, we may safely agree with the scholars who concluded in 1993, years after the high court decided Smith, supra, 494 U.S. 872, that “[s]ection 4 has not so far played an independent role in free exercise claims.” (Grodin et al., The Cal. State Constitution: A Reference Guide (1993) p. 44.)
In a case that truly required us to do so, we should not hesitate to exercise our responsibility and final authority to declare the scope and proper interpretation of the California Constitution’s free exerсise clause. (Cal. Const., art. I, § 4.) Here, however, we need not do so because Catholic Charities’ challenge to the WCEA fails in any event. As we explain below, the statute passes strict scrutiny. A future case might lead us to choose the rule of Sherbert, supra,
We therefore review Catholic Charities’ challenge to the WCEA under the free exercise clause of the California Constitution in the same way we might have reviewed a similar challenge under the federal Constitution after Sherbert, supra,
Applying this standard, we consider first whether the WCEA in fact burdens Catholic Charities’ religious beliefs. We do not doubt Catholic Charities’ assertion that to offer insurance coverage for prescription contraceptives to its employees would be religiously unacceptable. Catholic Charities adequately supports the assertion with the declaration of a Roman Catholic priest who serves as Executive Director of the Secretariat for Doctrine and Pastoral Practices of the National Conference of Roman Catholic Bishops. Catholic Charities may, however, avoid this conflict with its religious beliefs simply by not offering coverage for prescription drugs. The WCEA applies only to employers who choose to offer insurance coverage for prescription drugs; it does not require any employer to offer such coverage.
Anticipating this objection, Catholic Charities argues that its religious beliefs also require it to offer its employees insurance for prescription drugs. On this point, however, the declaration just mentioned seems open to interpretation. The declarant states: “The clear teaching and firm doctrine of the Roman Catholic Church is that all employers, religious or otherwise, are to provide just wagеs and benefits to employees, regardless of their religious affiliations and beliefs, as an obligation arising from the Gospel message of justice and charity. The goal of the Roman Catholic Church, also as a matter of justice and charity, is that all workers regardless of their circumstances should receive adequate health-care coverage.” In the present context—that of weighing an asserted burden on religious beliefs against the state interests supporting a challenged statute—the declaration raises the question whether Catholic Charities’ beliefs about the requirements of “justice and charity” are necessarily equivalent to religious beliefs. We must ask this question because a claim under the free exercise clause must be “rooted in religious belief’ and not on “philosophical” choices or “[a] way of life, however virtuous and
The need to ask questions such as these places a court in an uncomfortable position. “Repeatedly and in many different contexts,” the high court has “warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” (Smith, supra,
The WCEA serves the compelling state interest of eliminating gender discrimination. Evidence before the Legislature showed that women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in part to the cost of prescription contraceptives and the various costs of unintended pregnancies, including health risks, premature deliveries and increased neonatal care. (See p. 537, ante.) Assembly, Senate, and legislative staff analyses of the bills that became the WCEA consistently identify the elimination of this economic inequity as the bills’ principal object. Catholic Charities, which pays men and women equal wages, argues the type of inequity that prompted the WCEA cannot properly be viewed as gender discrimination. To identify subtle forms of gender discrimination, however, is within the Legislature’s competence. Nor is the identification irrational.
Strongly enhancing the state’s interest is the circumstance that any exemption from the WCEA sacrifices the affected women’s interest in receiving equitable treatment with respect to health benefits. We are unaware of any decision in which this court, or the United States Supreme Court, has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties. The high court in Wisconsin v. Yoder, supra,
Catholic Charities next argues the WCEA is underinclusive, and therefore not narrowly tailored, because it does not facilitate access to prescription contraceptives for “indigent women, unemployed women, stay-at-home mothers, women whose employers do not offer health insurance benefits, and women in part-time employment [who] do not qualify for health benefits.” But this argument misconceives the principal purpose of the WCEA, which is not to facilitate access to contraceptives but to eliminate a form of gender discrimination in the provision of health benefits. The situations Catholic Charities identifies, in which no employer or insurer is providing health benefits, do not entail such discrimination.
Finally on this point, Catholic Charities argues the WCEA is not narrowly tailored because it is overinclusive. Catholic Charities justifies this surprising assertion by arguing that the law must be overinclusive if it applies to employers that do not discriminate on the basis of gender, and that Catholic Charities does not discriminate on that basis because it does not providе contraceptive coverage to women or to men (e.g., vasectomies). With this argument, however, Catholic Charities merely restates its disagreement with the Legislature’s determination that the exclusion of prescription contraceptives from health care plans constitutes a form of gender discrimination. As we have already explained, the Legislature was entitled to reach that conclusion.
For these reasons, applying the strict scrutiny test of Sherbert, supra,
C. Rational Basis
Catholic Charities’ final challenge to the WCEA is that it violates the rational basis test. More specifically, Catholic Charities argues the state has defined the exempt category of “religious employer” (Health & Saf. Code, § 1367.25, subd. (b)) with arbitrary criteria. “In effect,” according to Catholic Charities, “the Legislature decided that any religious institution that employs individuals of other faiths or that ministers to persons of all faiths (or no faith)—in effect any ‘missionary’ church or church with social outreach—is not sufficiently ‘religious’ to qualify for exemption,” and that these classifications are
The argument lacks merit. The WCEA’s exemption for religious organizations, even if not applicable to Catholic Charities, rationally serves the legitimate interest of complying with the rule barring interference with the relationship between a church and its ministers. (See ante, at p. 543 et seq.) Although the high court has not spoken on the subject, the lower federal courts have held that the constitutionally based ministerial exemption survives the decision in Smith, supra,
The second criterion, to which Catholic Charities specifically objects as lacking a rational basis, requires that an employer “primarily employ[] persons who share the religious tenets of the entity.” (Health & Saf. Code, § 1367.25, subd. (b)(1)(B).) This provision, in effect, accommodates religious employers more broadly than the ministerial exemption requires by extending the WCEA’s exemption to employees who could not fall within the ministerial exemption. The provision has the legitimate, rational purpose of accommodating a state-imposed burden on religious exercise. {Amos, supra,
The third criterion, to which Catholic Charities also objects, is problematic. To qualify under it, an employer must “serve[] primarily persons who share the religious tenets of the entity.” (Health & Saf. Code, § 1367.25, subd. (b)(1)(C).) To imagine a legitimate purpose for such a requirement is difficult. Reading the provision literally, a hypothetical soup kitchen run entirely by the ministers of a church, which inculcates religious values to those who come to eat (thus satisfying the first, second, and fourth criteria), would lose its claim to an exemption from the WCEA if it chose to serve the hungry without discrimination instead of serving co-religionists only. The Legislature may wish to address this problem. Catholic Charities, however, cannot successfully challenge the WCEA on this ground because the organization concedes it does not qualify under any of the criteria for exemption, including the relatively objective terms of the federal tax statute cited in the fourth criterion. (Health & Saf. Code, § 1367.25, subd. (b)(1)(D).) Catholic Charities thus cannot qualify for exemption in any event.
III. Disposition
The decision of the Court of Appeal is affirmed.
George, C. J., Baxter, J., Chin, J., and Moreno, J., concurred.
Notes
The WCEA comprises two laws, Health and Safety Code section 1367.25 (Stats. 1999, ch. 532) and Insurance Code section 10123.196 (Stats. 1999, ch. 538).
Health and Safety Code section 1367.25, subdivision (b); Insurance Code section 10123.196, subdivision, (d).
Health and Safety Code section 1367.25 provides:
“(a) Every group health care service plan contract, except for a specialized health care service plan contract, that is issued, amended, renewed, or delivered on or after January 1, 2000, and every individual health care service plan contract that is. amended, renewed, or delivered on or after January 1, 2000, except for a specialized health care service plan contract, shall provide coverage for the following, under general terms and conditions applicable to all benefits:
“(1) A health care service plan contract that provides coverage for outpatient prescription drug benefits shall include coverage for a variety of federal Food and Drug Administration approved prescription contraceptive methods designated by the plan. In the event the patient’s participating provider, acting within his or her scope of practice, determines that none of the methоds designated by the plan is medically appropriate for the patient’s medical or personal history, the plan shall also provide coverage for another federal Food and Drug Administration approved, medically appropriate prescription contraceptive method prescribed by the patient’s provider.
“(2) Outpatient prescription benefits for an enrollee shall be the same for an enrollee’s covered spouse and covered nonspouse dependents.
“(b) Notwithstanding any other provision of this section, a religious employer may request a health care service plan contract without coverage for federal Food and Drug Administration approved contraceptive methods that are contrary to the religious employer’s religious tenets. If so requested, a health care service plan contract shall be provided without coverage for contraceptive methods.
“(1) For purposes of this section, a ‘religious employer’ is an entity for which each of the following is true:
“(A) The inculcation of religious values is the purpose of the entity.
“(B) The entity primarily employs persons who share the religious tenets of the entity.
“(C) The entity serves primarily persons who share the religious tenets of the entity.
“(D) The entity is a nonprofit organization as described in Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.
“(2) Every religious employer that invokes the exemption provided under this section shall provide written notice to prospective enrollees prior to enrollment with the plan, listing the contraceptive health care services the employer refuses to cover for religious reasons.
“(c) Nothing in this section shall be construed to exclude coverage for prescription contraceptive supplies ordered by a health care provider with prescriptive authority for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or for prescription contraception that is necessary to preserve the life or health of an enrollee.
“(d) Nothing in this section shall be construed to deny or restrict in any way the [D]epartment[of Managed Care’s] authority to ensure plan compliance with this chapter when a plan provides coverage for prescription drugs.
“(e) Nothing in this section shall be construed to require an individual or group health care services plan to cover experimental or investigational treatments.”
Insurance Code section 10123.196 is essentially thе same as Health and Safety Code section 1367.26 (see fn. 3, ante), except that it regulates disability insurance policies instead of health care service plan contracts. For the sake of convenience, subsequent references to the WCEA will include only the Health and Safety Code.
The Department of Managed Health Care regulates health care service plans. (Health & Saf. Code, § 1341 et seq.) The Department of Insurance and the Insurance Commissioner regulate disability insurance policies. (See id., § 1343, subd. (e)(1), and Ins. Code, § 10290 et seq.)
The court in Lemon v. Kurtzman, supra,
Lyng v. Northwest Indian Cemetery Prot. Assn. (1988)
Lyng v. Northwest Indian Cemetery Prot. Assn., supra,
In Bowen v. Roy (1986)
Indeed, rather than discriminating against the Catholic Church, the WCEA can more plausibly be viewed as benefiting the Catholic Church in practical effect, since no other religious group opposed to prescription contraceptives has been identified. But the WCEA does not for this reason violate the establishment clause. A law intended not to discriminate among religions but to alleviate a governmentally created burden on religious exercise does not necessarily violate the establishment clause, even though only a single religion in need of accommodation has been identified, if the law is phrased neutrally, to allow for the possibility that other as-yet-unidentified religions in need of the same accommodation will be able to claim it. (See, e.g., Kong v. Scully (9th Cir. 2003)
We read Larson, supra,
In contrast, Larson, supra,
Catholic Charities also argues that the Legislature acted out of antipathy and spite towards the Catholic Church. Through this argument, Catholic Charities seeks to compare the Legislature’s consideration of the WCEA with the Hialeah City Council’s decision (see Lukumi, supra,
Namely, Follett v. McCormick (1944)
Namely, Wisconsin v. Yoder, supra,
A few state courts have mentioned the hybrid rights theory. (First Covenant Church v. Seattle (1992)
Catholic Charities perfunctorily asserts that its claims under the establishment clause (U.S. Const., 1st Amend.) also justify treating this case as involving hybrid rights. We have, however, already determined that those claims lack merit.
“Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. . . .” (Cal Const., art. I, § 4.)
The United States Supreme Court subsequently held RFRA unconstitutional. (City of Boerne v. Flores (1997)
WMle the court in Brunson v. Department of Motor Vehicles, supra,
Assuming the obligation to provide adequate health care coverage is a religious belief, one might also ask whether a religious employer opposed to contraceptives on religious grounds could avoid all conflict with its beliefs by declining coverage for prescription drugs (thus satisfying the WCEA) while offering its employees a raise to offset the reduced benefits, accompanied by whatever condemnations of contraceptives the employer wished to offer. A raise might be far more expensive for the employer than insurance, and a law that indirectly made a religious practice more expensive might at some point become a constitutionally significant burden on religious exercise. However, “it cannot be expected, much less required that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions.” (Braunfeld v. Brown, supra,
At least 19 other states have adopted laws requiring that employers or insurers provide coverage for prescription contraceptives. (See Note, The Quest for Equality: Comprehensive Insurance Coverage of Prescription Contraceptives (2002) 82 Boston U. L.Rev. 1289, 1290, 1298-1301; Comment, Contraceptive Coverage Laws: Eliminating Gender Discrimination or Infringing on Religious Liberties? (2002) 69 U. Chicago L.Rev. 1867, 1877, fn. 68.)
Concurrence Opinion
In September 1999, the Legislature enacted the Women’s Contraception Equity Act (WCEA). Under this law, every group health care policy that “provides coverage for outpatient prescription drug benefits” must, as of January 1, 2000, include coverage for contraceptives. (Health & Saf. Code, § 1367.25.)
“(A) The inculcation of religious values is the purpose of the entity.
“(B) The entity primarily employs persons who share the religious tenets of the entity.
“(C) The entity serves primarily persons who share the religious tenets of the entity.
“(D) The entity is a nonprofit organization as described in Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.” (§ 1367.25, subd. (b)(1).)
Plaintiff Catholic Charities of Sacramento, Inc. (Catholic Charities), which has brought this lawsuit challenging the constitutionality of the religious employer exemption, acknowledges that it does not satisfy any of the four requirements for that exemption. Catholic Charities’ complaint alleges that it is a nonprofit public benefit corporation “operated in connection with the Roman Catholic Bishop of Sacramento” as “an organ of the Roman Catholic Church.” The complaint further alleges that Catholic Charities’ mission is to perform good works, such as “providing immigrant resettlement programs, elder care, counseling, food, clothing and affordable housing for the poor and needy, housing and vocational training of the developmentally disabled and the like.” According to the complaint, Catholic Charities provided prescription drug coverage to its 183 employees before the WCEA’s effective date; for it to continue to do so now would be promoting the use of contraсeptives, a sinful practice under Catholic Church doctrine. For the purposes of deciding the legal issues in this case, the majority accepts these allegations as true, as do I.
I agree with the majority that Catholic Charities is properly subject to the WCEA. In the course of its discussion, however, the majority rejects Catholic Charities’ argument that the religious employer exemption discriminates against “religious organizations . . . that engage in charitable work, as opposed to work that is purely spiritual or evangelical.” (Maj. opn., ante, at p. 552.) I am not persuaded that the first requirement of the religious employer exemption, limiting the exemption to entities whose primary purpose is the “inculcation of religious values” (§ 1367.25, subd. (b)(1)(A)), can be reconciled with the establishment clauses of the federal and state Constitutions. This is a close and difficult issue. I need not resolve it, however, because Catholic Charities does not meet the exemption’s fourth requirement that it is a religious entity exempt from federal tax filing, a requirement that both the majority and I agree is constitutional.
I
The United States Constitution’s First Amendment provides that “Congress shall make no law respecting an establishment of religion.” (U.S. Const., 1st Amend.) This provision applies to the states through the Fourteenth Amendment;
On this basis, the United States Supreme Court in Larson v. Valente (1982)
Catholic Charities argues here that the WCEA’s religious employer exemption similarly imposes its burdens and advantages on some religious organizations but not others. Catholic Charities points out that the exemption favors those religious organizations whose purpose is “[t]he inculcation of religious values” (§ 1367.25, subd. (b)(1)(A)), while disfavoring those entities, such as Catholic Charities, whose purpose is to perform good works. Comparing the WCEA to the Minnesota law struck down by the high court in Larson v. Valente, supra,
To distinguish the WCEA’s religious employer exemption from the religious organization charitable reporting exemption invalidated in Larson v. Valente, supra,
Under the high court’s analysis in Larson v. Valente, supra,
II
As I noted at the outset, dispositive here is Catholic Charities’ concession that it does not meet the fourth requirement for the WCEA’s religious employer exemption as a religious entity exempt from federal tax filing. (See § 1367.25, subd. (b)(1)(D).) Because the concerns expressed above about the constitutionality of the exemption’s first requirement—that “inculcation of religious values” (§ 1367.25, subd. (b)(1)(A)) is the purpose of the entity— can have no effect on the judgment, I agree with the majority that if Catholic Charities is to afford its employees health coverage that would include outpatient prescription drugs, it must do so through a policy that provides coverage for prescription contraceptives.
Further undesignated statutory references are to the Health and Safety Code.
The majority construes Larson v. Valente, supra,
Dissenting Opinion
This case presents questions on which reasonable minds can differ—especially in light of the whimsical and somewhat erratic path of free exercise jurisprudence after the Supreme Court’s decision in Employment Div., Ore. Dept, of Human Res. v. Smith (1990)
After Smith, neutral, generally applicable laws do not have to survive compelling state interest review. Such laws require no justification no matter how severely they burden the individual religious claimant and no matter how inconsequential the government interest. (See Smith v. Fair Employment & Housing Com. (1996)
I.
The proponents of the WCEA make an argument with which no one can disagree. Women in the workplace are entitled to be treated fairly and equitably and to be free from discrimination on the basis of gender. Government has not only the authority, but the obligation, to discourage invidious discrimination in the workplace, and this includes discrimination in the distribution of benefits. (See, e.g., Erickson v. Bartell Drug Company (W.D.Wash. 2001)
Neither the propriety, nor the wisdom of, nor the government’s authority to impose a prescription contraceptive mandate on California employers is at issue here. The question is a very narrow one. May the government impose a mandate on a religiously affiliated employer that requires the employer to pay for contraceptives—in violation of an acknowledged religious tenet—or to redefine what constitutes religious conduct?
A. Why Religious Liberty Is Important
A strong argument can be made that it was the primacy of religious liberty in the early history of this country, with its acknowledgment of the separate spheres of church and state, that gave rise to our notions of limited government and equal protection—the constitutional precursors of our antidiscrimination laws. (McConnell, Why Is Religious Liberty the “First Freedom”? (2000) 21 Cardozo L.Rev. 1243, 1244 [“the division between temporal and spiritual authority gave rise to the most fundamental features of liberal democratic order: the idea of limited government, the idea of individual conscience and hence of individual rights, and the idea of civil society, as apart from government, bearing primary responsibility for the formation and transmission of opinions and ideas”].)
Our ability to create a space for religious perspectives is both instrumental and regenerative for democracy. Religious institutions enhance individual autonomy “by challenging the sovereign power of the liberal state” (Noonan, The End of Free Exercise? (1992) 42 De Paul L.R. 567, 579-580) and by articulating alternative visions—“counter-cultural visions that challenge and push the larger community in . . . directions unimagined by prevailing beliefs.” (Brady, Religious Organizations and Mandatory Collective Bargaining Under Federal and State Labor Laws: Freedom From and Freedom For (2004) 49 Vill. L.Rev. 77, 156.) By protecting religious groups from gratuitous state interference, we convey broad benefits on individuals and society. By underestimating the transformative potential of religious organizations, we impoverish our political discourse and imperil the foundations of liberal democracy.
B. Does Smith Apply to Religious Organizations?
Despite its surface simplicity, Smith is not an. easy case to understand or apply. The majority correctly quotes the critical passages from Smith: “ ‘[T]he right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” ’ (Smith, [supra, 494 U.S.] at p. 879, quoting United States v. Lee [(1982)]
Since Smith focused exclusively on the individual’s free exercise of religion, some courts have reasoned that religious institutions are exempted entirely from the Smith analysis.
1. Individuals v. Institutions
This case involves a religious organization and not an individual. Perhaps more importantly, it does not deal with the denial of a benefit because of a violation of existing law. Rather, it attempts to assess the constitutional implications of a law that requires a religious organization to provide a benefit despite its theological objections. These fundamental differences are simply ignored in the majority’s analysis.
Under Smith, the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability even if the law requires cоnduct that contravenes a religious belief, but “[i]t does not follow . . . that Smith stands for the proposition that a church may never be relieved from such an obligation.” (Catholic University, supra,
The majority may have made an abortive attempt to deal with this obvious distinction by citing, and dismissing, the so-called ministerial exception. It is true, as the majority notes, that the ministerial exception is not directly at issue here. (See, e.g., Alicea-Hernandez v. Catholic Bishop of Chicago (7th Cir. 2003)
The court in Catholic University summarized the distinction it was making this way: “We conclude from our review of the Supreme Court’s First Amendment jurisprudence that whereas the Free Exercise Clause guarantees a church’s freedom to decide how it will govern itself, what it will teach, and to whom it will entrust its ministerial responsibilities, it does not guarantee the right of its members to practice what their church may preach if that practice is forbidden by a neutral law of general application.” (Catholic University, supra,
2. The Two Faces of Entanglement
Under venerable establishment clause precedent, however, the exemption itself is problematic. To put it bluntly, the government may generally separate the religious from the secular to decide how it will dispense its benefits, but it cannot parse a bona fide religious organization into “secular” and “religious” components solely to impose burdens on the secular portion.
As noted, ante, the constitutional basis for the distinction seems indisputable.
If Catholic Charities were a “religious employer” it would be exempt from the WCEA’s requirement to include coverage for contraсeptives in its group health care policy. Under the act, a religious employer must satisfy all of the following criteria: “(A) The inculcation of religious values is the purpose of the entity, [f] (B) The entity primarily employs persons who share the religious tenets of the entity. [j[] (C) The entity serves primarily persons who share the religious tenets of the entity. [|] (D) The entity is a nonprofit organization as described in Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.” (Health & Saf. Code, § 1367.25, subd. (b)(1).)
As the majority notes, “Catholic Charities does not qualify as a ‘religious employer’ under the WCEA because it does not meet any of the definition’s four criteria.” (Maj. opn., ante, at p. 539, italics added.) But Catholic Charities would be a religious employer if the Legislature had not designed the exemption narrowly enough to exclude it.
The high court “ ‘has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.’ ” (Corporation of Presiding Bishop v. Amos (1987)
Even after Smith, it seems quite clear the government may not discriminate among religions (Larson v. Valente (1982)
In Universidad Cent, de Bayamón v. N.L.R.B. (1st Cir. 1985)
In Great Falls, the Court of Appeals for the District of Columbia rejected the NLRB’s latest effort—the “substantial religious character” test—because the multifaceted analysis created the same concerns as the approach rejected in Catholic Bishop. Moreover, the court invoked a long line of precedents which have made it clear that religious tests, inquiries into religious perspectives, or generally trolling through a person’s or institution’s religious beliefs is “ ‘not only unnecessary but also offensive.’ ” (Great Falls, supra, 278 F.3d at pp. 1341-1342, quoting Mitchell v. Helms (2000)
The court in Great Falls thus suggested a broad exemption which would avoid the pitfalls of having the government determine what is religious or how much religion is sufficient. The court would exempt any school which purports to provide a religious environment; is organized as a nonprofit; and affiliated with, or owned, or operated, or controlled directly or indirectly by a recognized religious organization or entity whose membership is determined at least in part with reference to religion. (Great Falls, supra,
Of course, the cited cases are distinguishable. Thе controversy here does not involve solicitation, or potential chilling effects, religious schools, administrative discretion, or ad hoc determinations. In reality, this case is worse. Here we are dealing with an intentional, purposeful intrusion into a religious organization’s expression of its religious tenets and sense of mission. The government is not accidentally or incidentally interfering with religious practice; it is doing so willfully by making a judgment about what is or is not religious. This is precisely the sort of behavior that has been condemned in every other context. The conduct is hardly less offensive because it is codified. Definition may be just as pernicious as ongoing monitoring if its purpose is to suppress or burden religious conduct. (Espinosa v. Rusk, supra,
3. The Meaning of Neutrality
In theory, when religious liberties are at stake, the state is only neutral when it does not choose sides. (Laycock, Religious Liberty as Liberty (1996) 7 J. Contemp. Legal Issues 313 [“[T]he core point of religious liberty is that the government does not take positions on religious questions—not in its daily administration, not in its laws, and not in its Constitution either”].) This would mean that the state may not prefer or seek to impose a particular normative view by squelching a competing religious perspective. Genuine neutrality would “allow many different and contending voices to be represented in public discourse.” (McConnell, Why Is Religious Liberty the “First Freedom’’?, supra, 21 Cardozo L.Rev. at p. 1262.)
In the present controversy, one side posits that sex is an aspect of autonomy, a vital human function in which men and women should be able to engage, enjoying their sexuality “free from anxiety.” (Hayden, Gender Discrimination Within the Reproductive Health Care System: Viagra v. Birth Control (1999) 13 J.L. & Health 171, 181.) This may in fact be the view of a majority of American adults. The Catholic Church’s view, in contrast, deems all forms of nonmarital sex immoral, and views sex within marriage as a unitive, procreative, and sacred reflection of a spiritual,
The Catholic Church purports to be one of those different and contending voices, a church which “has never envisioned a sharp divide between the Church and the world, the spiritual and the temporal, or religion and politics. For the Church, the internal spiritual life of its members and institutions must always move outward as a sign and instrument for the transformation of the larger society.” (Brady, Religious Organizations and Mandatory Collective Bargaining Under Federal and State Labor Laws: Freedom From and Freedom For, supra, 49 Vill. L.Rev. at p. 157.)
Petitioner complains the narrow exemption was designed to lend the state’s “considerable weight to the dissenting side of a conflict within the church about the legitimacy of contraceptive practice—under the banner of protecting the ‘rights’ of those who disagree . . . and to deny the church exemption based on the allegedly unpopular nature of a church doctrine that diverges from contemporary cultural mores.” In petitioner’s words, the state’s “action-has the effect of déclaring the Catholic hierarchy’s' stand ‘heresy’ in the eyes of secular culture.”
Of course, practice always diverges from theory. In contemporary American society, the government does take sides on policy issues. The First Amendment precludes the government from taking sides if the dispute involves internal church governance, but that leaves an area of overlap where the religiously dictated conduct of churches operating in the world comes into conflict with public policy. The question then is whether the coercive force of the law may be brought to bear to compel a religious organization that holds an alternative view, based on religious scruples, to support a hostile and competing vision of the good.
a. Religious bigotry
Smith could be read, as the majority apparently reads it, to suggest that religion is not entitled to constitutional protection unless the government action expressly and specifically targets religious expression. Under this interpretation, protection for religious liberty requires proof of religious bigotry, i.e., proof that government oficiáis acted out of antireligious motives. Thus, Smith—even as modified by Lukumi—would prohibit infringements of religious liberties only if a statute has the “object or purpose of . . . suppress[ing] religion or religious conduct” or involves “[o]fficial action that targets religious conduct for distinctive treatment.” (Lukumi, supra, 508 U.S. at pp. 533-534.) Since this statute imposes a mandate on all employers that provide prescription coverage, it arguably does not target religious conduct. On
b. Objects and effect
There is, however, morе than one way to look at neutrality. As Lukumi explains it, “[fjacial neutrality is not determinative. . . . The [free exercise] clause ‘forbids subtle departures from neutrality’ [citation] and ‘covert suppression of particular religious beliefs.’ ” (Lukumi, supra,
In this case, for instance, defendants argue that Catholic Charities’ ability to opt out, i.e., to choose not to provide any prescription coverage, obviates any concern about infringement. Catholic Charities insists it should not be forced to relinquish its vision of appropriate employee relations to preserve its right to object to the use of contraceptives. From the Church’s perspective, to demand that contraception be funded, despite bona fide religious objections, is to take sides, to abandon the commitment to public neutrality. In this sense, the WCEA, with its grudging religious exemption, may not be neutral. The majority’s response that the WCEA’s narrow exemption is an accommodation and not an imposition seems entirely unresponsive.
In the whole scheme of things, the risk associated with allowing government to impose a stifling orthodoxy in pursuit of the good society may greatly outweigh the small harm of tolerating heterodoxy in this circumstance.
A substantial amount of federal case law supports Catholic Charities’ claim that the Legislature’s attempt to draw distinctions between the religious and secular activities of a single religious entity is an impermissible government entanglement in religion.
C. Strict Scrutiny
Strict scrutiny is not what it once was. Described in the past as “strict in theory and fatal in fact” (Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for Newer Equal Protection (1972) 86 Harv. L.Rev. 1, 8), it has mellowed in recent decades (see, e.g., Grutter v. Bollinger (2003)
If recent precedent is any guide, a state’s interest is compelling if the state says it is. Thus, consistent with federal precedent, compelling interest now seems more or less coextensive with the state’s asserted exercise of police power.
1. Compelling State Interest
Unquestionably, the desire to eradicate invidious discrimination is a compelling state interest. But is the desire to force conformity on a single employer that objects to contraception on religious grounds also a compelling state interest? In the latter case, the state is not dealing with invidious discrimination; it is trying to prevent a disparate impact. Catholic Charities does not discriminate because of an animus against women. It opposes all forms of birth control, except abstinence, whether for men or women, whether prescription or over-the-counter, whether surgical, oral, or mechanical.
2. Narrow Tailoring
The WCEA defines as religious only those organizations for which the inculcation of religious values is the sole purpose of the entity, that primarily employ only adherents of their own faith tradition, that primarily serve only people who share their religious tenets, and that qualify as nonprofit organizations described in section 6033(a)(2)(A)(i) or (iii) of the Internal Revenue Code of 1986.
This is such a crabbed and cоnstricted view of religion that it would define the ministry of Jesus Christ as a secular activity.
The only reasons given for narrowing the exemption so drastically is the alleged
Furthermore, employers have the option of self-insuring. The Employee Retirement Income Security Act preempts state regulation of self-insured companies and “prohibits states from mandating benefits or defining discrimination in self-insured employee benefit plans more broadly than federal law.” (Law, Sex Discrimination and Insurance for Contraception (1998) 73 Wash. L.Rev. 363, 395; 29 U.S.C. § 1001 et seq.) Such employers would not only not be subject to mandatory prescription coverage, they would not be subject to any of California’s more restrictive insurance regulations. Arguably, the existence of these secular exemptions supports a religiously-affiliated-employer exemption even under Smith. The state would also need to show its refusal to countenance a religious exception, in a regulatory arena rife with exceptions, is not “official action that targets religious conduct for distinctive treatment.” (Lukumi, supra, 508 U.S. at pp. 533-534.)
II.
Thus, whether the WCEA would survive strict scrutiny—even under the relaxed federal standard—seems a much closer question than the majority acknowledges. But there may be other good reasons to rely on independent state grounds. Changes in the interpretation of the federal charter are not only becoming more frequent, the balancing test, and the standards applied to them, are shifting. Instead of applying Smith, we might view it as effectively returning free exercise questions to the states.
A. A Document of Independent Force
“We may take it for granted that the meaning of California Constitution article I, section 4, ... is not dependent on the meaning of any provision of the federal Constitution. The state charter declares in so many words that ‘[flights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.’ (Cal. Const., art. I, § 24.)” (Smith v. FEHC, supra,
This is true even when the language is identical to the federal Constitution, but is particularly true when the language differs. (See, e.g., Golden Gateway Center v. Golden Gateway Tenants Assn. (2001)
Similarly, although we have said California’s establishment clause is coextensive with the federal provision (East Bay Asian Local Development Corp. v. State of California (2000)
B. The Compelling State Interest Analysis
The majority carefully avoids deciding whether strict scrutiny would be required under the California Constitution. Other states with very similar constitutional liberty of conscience clauses have found that infringement requires strict scrutiny. (See, e.g., Humphrey v. Lane (2000) 89 OhioSt.3d 62 [
At the very least, the constitutional weight of the state’s interest must be affected by the size and severity of the problem the state is attempting to solve. To authorize the state to use a howitzer to smite a gnat should be no part of our constitutional jurisprudence. Where strict scrutiny applies, the state “may abridge religious practices only upon a demonstration that some compelling state interest outweighs the defendants’ interests in religious freedom.” (People v. Woody (1964)
It may also be true that “[s]ection 4 has not played an independent role in free exercise claims” (Grodin et al., The Cal. State Constitution: A Reference Guide (1993) p. 44), but does that mean it should remain dormant? In Woody, the court relied on the First Amendment rather than the California provision, but in doing so, the court applied strict scrutiny and
Under the standard enunciated in Woody, the state has actually failed to meet its burden. The whole debate ensues because the state found that “approximately 10 percent of commercially insured Californians did not have coverage for prescription contraceptives.” (Maj. opn., ante, at p. 537.) Presumably that 10 percent includes both men and women. Still, it means that 90 percént of Californians who are commercially insured do have such coverage! The insurance gap itself is not large, and Catholic Church employers can constitute only a small percentage of that small percentage.
Moreover, even if we assume the interests at issue here are both compelling and of equal weight, the Legislature’s refusal to grant a broader exemption—one which would not embroil the government in the unseemly task of deciding what is “religious”—is inexplicable. The state has produced no substantial evidence that the exemption of Catholic Charities from this particular mandate would render the whole scheme ineffective or would be so administratively burdensome as to preclude enforcement. As petitioner poses the question: “[I]f closing the Catholic gap [was] not the problem,” how can “ ‘granting an exemption to Catholic employers’ . . . ‘defeat the purpose of the bill’ ”? There has been no showing that the interests served by the WCEA—which focuses on a modest 10 percent gap in coverage—cannot be achieved by less restrictive means.
Conclusion
Equality is one of those words, like justice, like freedom, which no one is against. But the invocation of the word “equality” often reduces analysis to empty platitudes. It is important to remember that in America we seek equality because it is a concomitant of freedom. When it is possible to accommodate both, that is what we should do.
The question has to be stated in the alternative because the California enactment has some peculiarities. Despite the state’s argument that if has a compelling interest in ensuring that all working women who desire prescription contraceptive coverage have that option available, the mandate is imposed only on employers that provide prescription coverage. Thus, Catholic Charities of Sacramento, Inc. (Catholic Charities), can choose either to provide contraceptives or not to provide prescription coverage to employees at all. This option would arguably make everyone worse off, but, in theory at least, equally so.
Earlier versions of the WCEA contained a broader concience clause—which Catholic Charities deemed acceptable—exempting bona fide religious employers and allowing religiously affilated hospitals, universities, and social service agencies to opt out. The current version of the act exempts churches, synagogues, mosques, temples, missions, рarochial schools, seminaries and convents from the requirements to provede contraceptive coverage.
(See, e.g., Remarks of Sen. Speier, Sen. Floor Debate on Sen. Bill No. 41 (1999-2000 Reg. Sess.) Apr. 12, 1999, pp. 7-8 [floor statement of Senator Speier asserting that since 75 percent of all California Catholic hospitals already provide contraception coverage, the “issue has already been resolved . . . and its time has come”]; Remarks of Sen. Speier, Sen. Floor Debate on Assem. Bill No. 39 (1999-2000 Reg. Sess.) Sept. 7, 1999, p. 7 [floor statement of Senator Speier arguing that “59 percent of all Catholic women of childbearing age practice contraception [and] 88 percent of Catholics believe . . . that someone who practices artificial birth control can still be a good Catholic,” and commenting, “I agree with that. I think it’s time to do the right thing” (italics added)].)
This does not mean that the government may never limit what religious organizations can do. There are truly neutral laws which may be applied; there are aggressive interventions which are necessary to prevent harm. (See, e.g., Walker v. Superior Court (1988)
These numbers are approximate. At oral argument, Catholic Charities counsel asserted that the Catholic Church employs fewer than 50,000 people, including those in holy orders. Proponents claim there are 52,000 employees in Catholic-affiliated hospitals alone. Using 60,000 as a point of reference, it appears all Catholic Church employees in California represent less than .5 percent of the California workforce, and female employees of the Catholic Church represent about the same percentage of the number of working women of childbearing age in Califоrnia. According to recent Bureau of Labor Statistics publications, the current number of California adults employed in nonfarm jobs is approximately 14.4 million. (Bur. of Lab. Statistics, U.S. Dept, of Lab. News Release No. 04-81 (Jan. 27, 2004) Employees on nonfarm payrolls by state and selected industry sector, table 5 <http://www.bls.gov/news.release/pdf/laus.-pdf> [as of Mar. 1, 2004].) A little less than half are women. Extrapolating from national statistics, around 5 million of that total will be women between 16 and 45. (Bur. of Lab. Statistics, U.S. Dept, of Lab. News Release No. 04-120 (Feb. 6, 2004) Selected employment indicators, table A-6 <http://www.bls.gov/newsrelease/pdf/empsit.pdf> [as of Mar. 1, 2004].) Even assuming these numbers need to be adjusted upward or downward for accuracy, an exemption for Catholic Charities would seem to have a negligible effect.
The majority cites language from United States v. Lee, supra,
In Smith v. FEHC, supra,
Even churches that do not operate schools, hospitals, or social service agencies would have trouble with the WCEA’s religious test. Not all religions proselytize. Those that do necessarily reach out to people who do not share their beliefs. Christian denominations, for example, are commanded to seek and save the lost. “Go ye into all the world and teach the gospel to every creature.” (Mark 15:15.) Catholic Charities suggest that some Catholic congregations might be “ineligible for the exemption depending . . . upon the demographics of a particular diocese, the' fortuitous nature of hiring patterns, and the particular application of the theological criteria . . . .”