OPINION OF THE COURT
This appeal presents constitutional and statutory questions
I. Facts
In 2002, the Legislature enacted the Women’s Health and Wellness Act (hereinafter WHWA), a comprehensive statutory initiative to improve group health insurance benefits for women’s preventative health care. Provisions of the WHWA require group insurance policies and contracts to include coverage for obstetric and gynecologic care, periodic mammography and cervical cytology screenings, and bone density exams, among other things (see L 2002, ch 554). The WHWA further requires that any group insurance that includes coverage for prescription drugs must also include a rider providing coverage for the cost of prescribed contraceptive drugs or devices (see Insurance Law § 3221 [Z] [16]; § 4303 [cc]). In this action, plaintiffs challenge this “contraceptive mandate.”
The WHWA provides two avenues by which an employer that offers its employees group health insurance may avoid providing coverage for prescription contraceptives. First, any employer that does not want to provide contraceptive coverage can offer its employees insurance that does not include prescription coverage at all (see Insurance Law § 3221 [Z] [16]; § 4303 [cc] [expressly requiring contraceptive coverage only in policies and contracts “which provide[ ] coverage for prescription drugs”]). Second, the WHWA includes an express exemption for “religious employer[s]” if prescription contraceptive methods are “contrary to the religious employer’s religious tenets” (Insurance Law § 3221 [Z] [16] [A]; § 4303 [cc] [1]). The exemption defines a “religious employer” as an entity that satisfies four criteria: (1) the inculcation of religious values is the purpose of the entity; (2) the entity primarily employs persons who share the religious tenets of the entity; (3) the entity serves primarily persons who share the religious tenets of the entity; and (4) the entity is a nonprofit organization as described in 26 USC § 6033 (a) (2) (A) (i) or (iii) (Internal Revenue Code of 1986, as amended) (Insurance Law § 3221 [Z] [16] [A] [1]; § 4303 [cc] [1] [A] [hereinafter the exemption]).
Plaintiffs are all faith-based entities that operate a broad array of ministries in areas of human services such as health care,
Plaintiffs assert that contraception is contrary to their religious tenets. They also assert that in accordance with religious teachings, they bear a moral obligation to offer their employees fair, adequate and just employment benefits, which they view as including prescription drug coverage. From plaintiffs’ perspective, the WHWA leaves them with a Hobson’s choice: either decline to provide coverage for the cost of all prescription drugs or extend coverage for contraceptives, neither of which they view as an acceptable option.
Plaintiffs commenced this action seeking declaratory and injunctive relief, and they moved for a preliminary injunction prohibiting enforcement of the WHWA. Defendant answered and cross-moved for summary judgment dismissing the complaint. Supreme Court granted defendant’s motion and dismissed the complaint, and plaintiffs appeal.
Plaintiffs’ constitutional challenges to the WHWA all fall within the Religion clauses of the United States and New York constitutions (US Const First Amend; NY Const, art I, § 3). We first address their pure free exercise claims, which rely primarily on the state Free Exercise Clause. Next we turn to plaintiffs’ “hybrid” claims (see Employment Div., Dept. of Human Resources of Ore. v Smith,
II. Threshold Issues
Plaintiffs concede that the WHWA was duly enacted, and thus, their arguments addressed to the constitutionality of the WHWA must overcome certain presumptions and meet certain standards. “Legislative enactments enjoy a strong presumption of constitutionality” (LaValle v Hayden,
III. Constitutional Issues
Plaintiffs devote a significant portion of their brief to discussion of the religious beliefs that are affected by the WHWA and the undeniably substantial burden that the WHWA imposes upon those beliefs. The implication of this discussion is that religious beliefs that are deeply and strongly held are, by virtue of US Constitution First Amendment and NY Constitution, article I, § 3, impenetrable by civil law. But that simply is not so. Religion and religious institutions exist within a civil society, and notwithstanding the constitutional protection accorded religious freedoms, conflicts inevitably arise between religious adherents and government when the latter exercises its obligation to order a civil society {see Lemon v Kurtzman,
The Free Exercise Clause of the First Amendment, which applies to the states by virtue of the Fourteenth Amendment (see Cantwell v Connecticut,
“The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so*122 construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state” (NY Const, art I, § 3).
Although invoking the First Amendment, plaintiffs do not analyze or expressly argue a federal Free Exercise Clause claim; rather, they rely heavily upon the state constitutional provision, which, they argue, provides broader protection than does the federal Free Exercise Clause. Our analysis must nevertheless begin with review of plaintiffs’ claim under the First Amendment of the US Constitution.
1. First Amendment Free Exercise Clause
While the United States Supreme Court previously applied strict scrutiny—requiring a state to show a compelling interest justifying a burden on an individual’s freedom to exercise religious beliefs (see Sherbert v Verner,
The WHWA and its provisions apply to every group health insurance policy and contract delivered or issued for delivery in New York (see Insurance Law § 3221 [a]; § 4303 [a]) and, accordingly, every employer in the state that offers group health insurance is subject to the statute. The WHWA does not selectively impose any burden on conduct motivated by religious belief and is therefore generally applicable (see Employment Div., Dept. of Human Resources of Ore. v Smith, supra at 879-880; see also United States v Lee,
In sum, the WHWA easily satisfies the test of Smith, and thus, while it incidentally imposes a burden on plaintiffs’ free exercise rights, we find that it does not violate the Free Exercise Clause of the First Amendment.
2. NY Constitution
Plaintiffs argue that NY Constitution, article I, § 3 affords greater protection than under the federal Free Exercise Clause. To be sure, the language of the two constitutional clauses is different—the First Amendment broadly and summarily protects “the free exercise” of religion, while New York’s Free Exercise Clause protects the “free exercise and enjoyment of religious profession and worship,” further stating that “the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state” (NY Const, art I, § 3). Plaintiffs contend that a “compelling interest” test should be employed to review state free exercise claims. They further assert that the language of the state Free Exercise Clause expressly limits the
In reviewing state free exercise claims, the Court of Appeals has applied a test that balances “ ‘the interest of the individual right of religious worship against the interest of the [s]tate which is sought to be enforced’ ” (People ex rel. DeMauro v Gavin,
The balancing test is a two step process: “first, a determination whether a restriction will be . . . imposed on [plaintiffs’] freedom of worship; and secondly, a determination whether the presence of a restriction is justified, after a consideration of the social and constitutional values involved” {People v Woodruff, supra at 238).
We begin this process with the recognition that plaintiffs’ religious beliefs are sincerely held, and that in their view, their religious dilemma can be resolved only by a finding that the WHWA is unconstitutional because the exemption is not broad
Turning to the social issues involved in this constitutional dispute, we reject plaintiffs’ constricted reading of NY Constitution, article I, § 3 which, they contend, expressly limits the scope of the state interest to only those matters that are narrowly in pursuit of “peace or safety or . . . limiting licentiousness.” While plaintiffs generally argue the limitations purportedly imposed by these terms, their arguments do not address the fact that the interests of the State in peace and safety extend far beyond protection of the citizenry from disorderly or criminal behavior, and include such interests as medical care and gender equality (see Executive Law § 290 [3] [declaring that lack of equal opportunity because of, among other things, discrimination and health care, “threatens the peace, order, health, safety and general welfare of the state and its inhabitants”]). The importance of the conjoined interests of gender equality and health care—which the WHWA seeks to address—is well documented.
Having defined “the social and constitutional values involved” (People v Woodruff,
On the other side of the scale, we attribute great weight to plaintiffs’ free exercise rights and the state constitutional values inherent therein. However, it cannot be overlooked that plaintiffs, in their capacities as ministries, employ people who do not share their religious beliefs. While plaintiffs’ free exercise rights are not diminished by this fact, the rights—including the
Reasonable minds may differ with respect to whether the WHWA and its exemption take the best path toward meeting the Legislature’s stated goals, and whether the benefits of the statute will be outweighed by the potential for harm to women if employers choose not to provide prescription coverage. However, and as noted above, in the absence of a showing to the contrary, we must presume that the Legislature conducted adequate fact-finding to satisfy itself that sufficient numbers of women would be benefitted by the WHWA even if significant numbers of employers—both religious and nonreligious—chose to opt out of prescription coverage altogether (see Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y.,
B. “Hybrid” Rights
Relying on dictum in Smith, plaintiffs contend that even if their free exercise claims fail, the combination of those rights
1. Expressive Association
Plaintiffs rely primarily upon Boy Scouts of America v Dale (
2. Conduct as Protected Speech
Plaintiffs argue that the WHWA’s contraceptive coverage requirement violates their First Amendment right to free speech
As a general principle, conduct without the use of express language may be entitled to protection under the Free Speech Clause of the First Amendment (see Spence v Washington,
Clearly, plaintiffs do not intend their provision of contraceptive coverage to convey a particularized message endorsing contraceptive use.
While we certainly accept the fundamental principle underlying plaintiffs’ “conduct as speech” argument—that the right to freedom of speech necessarily incorporates the right to refrain from speaking (see Wooley v Maynard,
Finding that plaintiffs have adequately stated a hybrid free exercise/free speech claim, the dissent proceeds to apply strict scrutiny to the WHWA, and concludes that the state’s asserted interests in gender equity and women’s health care are undermined, and that the statute is not narrowly tailored because it encourages nonexempt religious organizations to opt out of providing prescription coverage. While we disagree with the determination to apply strict scrutiny in the first instance, we note that this analysis fails to acknowledge the compelling state interests at issue, and ignores the unrebutted presumption that the Legislature conducted adequate fact-finding with respect to the effect of the opt-out provision.
Plaintiffs assert challenges to the contraceptive coverage mandate under the Establishment Clause of the First Amendment.
Plaintiffs’ facial challenges to the exemption from the contraceptive coverage mandate are articulated in the following manner. They contend that courts may not draw a distinction between religious and secular activity, and they argue that the exemption is a prohibited gerrymander, in violation of principles set forth in Larson v Valente (
1. Lemon v Kurtzman (
Plaintiffs have not articulated these discrete and narrow arguments within the well established Lemon test that is applied to Establishment Clause claims, as we must.
Manifestly, under Lemon’s second prong, the principal or primary effect of the WHWA as a whole is not the advancement or inhibition of religion, and plaintiffs do not contend otherwise; rather, they focus their arguments on the “religious employer” exemption and their view that it favors some religious groups over others. Drawing a distinction between religious and secular activities or purposes does not, on its face, offend the Establishment Clause (see e.g. Bowen v Kendrick, supra at 609 [discussing Bradfield v Roberts,
Rather, the distinction between secular and sectarian generally gives rise to Establishment Clause problems within the confines of the third prong of the Lemon test. That is, excessive entanglement between church and state may occur when the government performs an individualized inquiry into whether a particular entity’s activities are religious or secular, “because [the inquiry] involves [government] officials in the definition of what is religious” (Espinosa v Rusk, 634 F2d 477, 481 [10th Cir 1980], affd
We nevertheless acknowledge that the exemption may pose entanglement problems if an agency or court were required to consider the extent to which a particular plaintiffs ministerial activities are motivated by and infused with ecclesiastical and proselytizing purposes (see Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Commn. of City of N.Y., supra at 521). Indisputably, as the dissent asserts, many religious organizations—including plaintiffs—view acts of charity and corporal works of mercy as manifestations of religious expression and a method of inculcating religious values. Moreover, we readily concede that “it is a significant burden on a religious organization to require it ... to predict which of its activities a secular court will consider religious” (Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos, supra at 336). In their complaint, however, plaintiffs expressly conceded that they do not qualify for the exemption because their “primary focus ... is not the inculcation of religious values” and because they both employ and serve people of many faiths. Inasmuch as no plaintiff ever claimed the exemption, a potentially entangling inquiry into plaintiffs’ religious duty to inculcate religious values and spread the faith through their ministries was never conducted, and thus, this action gives us no occasion to consider an “as applied” challenge to the constitutionality of the exemption (see Catholic Charities of Sacramento, Inc. v Superior Ct., 32 Cal 4th 527, 546-547,
Despite withstanding constitutional muster under the Lemon test, plaintiffs contend that the exemption discriminates between religious denominations in violation of Larson v Valente (
In Larson, the United States Supreme Court invalidated a statutory provision that imposed registration and reporting requirements upon religions that received 50% or more of their contributions from members or affiliated organizations (id. at 231-232). The Court stated that the Establishment Clause’s “clearest command ... is that one religious denomination cannot be officially preferred over another” (id. at 244), and clearly indicated that denominational neutrality requires that the government remain neutral as between sects (id. at 246). In this regard, the Court noted that the statute enacted by the Minnesota Legislature “does not operate evenhandedly, nor was it designed to do so: The [50%] rule . . . effects the selective legislative imposition of burdens and advantages upon particular denominations” (id. at 253-254). Indeed, the legislative history revealed that the statute had been drawn specifically to address the fund-raising practices of the Unification Church, referred to by one legislator as “the Moonies” (see id. at 254-255).
In this case, the four criteria set forth in the exemption exclude religious organizations whose purposes include activities other than the inculcation of religious values (see Insurance Law § 3221 [1] [16] [A] [1] [a]; § 4303 [cc] [1] [A] [i]). Thus, as revealed by the presence of the Baptist Church plaintiffs, the statute facially distinguishes between those religious institutions that create separate legal entities for their ecclesiastical and ministerial activities, and those religious institutions that do not. However, the line drawn in this case does not discriminate between religions or sects (see Catholic Charities of Sacramento, Inc. v Superior Ct., supra, 32 Cal 4th at 553-554,
This conclusion is not undermined by references in the legislative record to the Catholic Church, or by the fact that an earlier
3. Church Autonomy
The principal flaw in plaintiffs’ invocation of “church autonomy” is that the doctrine primarily requires the civil judiciary to defer to ecclesiastical tribunals on matters related to governance of a hierarchical church {see Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich,
Moreover, plaintiffs’ general assertions that the WHWA is unconstitutional because the contraception coverage mandate interferes with their relationships with their employees and constitutes an impermissible reach into the church treasury are novel contentions which, in our view, find no support in the law (see Tony & Susan Alamo Foundation v Secretary of Labor,
IV State Statutory Issues
A. Human Rights Law
The parties agree that group health insurance is a benefit of employment protected by the Human Rights Law. Plaintiffs cite Executive Law § 296 (11), which states in relevant part:
“Nothing contained in this section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment... to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained “ (emphasis added).
Plaintiffs contend that this provision preempts the area of the employer-employee relations when a religious-related employer is involved. They assert that Executive Law § 296 (11) is an exclusive authority, and that it permits them to decline to provide their employees with coverage for contraceptives.
Initially, we note that the doctrine of preemption, which is generally employed to resolve federal-state statutory conflicts, has no application in this claimed conflict between two provi
B. Religious Corporations Law
Plaintiffs argue that certain provisions of the Religious Corporations Law “explicitly subordinated” the WHWA to the governance of religious denominations and their ecclesiastical governing bodies, and hence, the Legislature may not impose the contraceptive coverage mandate upon the Baptist Church plaintiffs, which are religious corporations. As relevant here, “[t]he primary purpose of the Religious Corporations Law is to provide an orderly method for the administration of the property and temporalities dedicated to the use of religious groups” (Morris v Scribner,
V Conclusion
In sum, in enacting the WHWA, the Legislature provided an exemption from the contraceptive coverage mandate which generally includes religious institutions in their capacity as ecclesiastical bodies, but which may not include religious institutions in their capacity as ministries. As we have noted, the contraceptive coverage mandate burdens plaintiffs’ right to freely exercise their religious beliefs. However, despite this burden, our review of the WHWA and its exemption for “religious employers” leads us to the conclusion that the WHWA does not offend the constitutional or statutory provisions invoked by plaintiffs. Moreover, while we are mindful that the exemption could give rise to entanglement problems if a court or agency were asked to determine what types of religious activ
Cardona, EJ. (dissenting). Inasmuch as we cannot agree that the Women’s Health and Wellness Act (hereinafter WHWA) comports with various clauses of the First Amendment of the US Constitution, as well as comparable provisions of the NY Constitution, we respectfully dissent.
I. Introduction and Legislative Overview of the WHWA
Significantly, over 20 states currently have statutes addressing the issues of prescription contraceptive coverage and gender equity in the provision of health care. The difficulty in reconciling legitimate concerns over gender equity in public health and the interest in accommodating the beliefs of religious entities has produced legislation that is by no means uniform. Certain states have chosen not to include any religious exemption and any employer who provides prescription coverage to its employees must include coverage for contraceptives (see e.g. Ga Code Ann § 33-24-59.6; 215 Ill Comp Stat 5/356z.4; Iowa Code § 514C.19; NH Rev Stat Ann §§ 415:18-i, 420-A:17-c, 420-B:8-gg; Vt Stat Ann tit 8, § 4099c; Va Code Ann § 38.2-3407.5:1). A few states, including California (see Cal Health & Safety Code § 1367.25; Cal Ins Code § 10123.196), have enacted contraceptive equity laws that include exemptions so narrowly drawn that only religious organizations serving in their alleged ecclesiastical capacity, as opposed to their so-called “secular” endeavors, can exclude contraceptive coverage from their prescription benefits (see e.g. Ariz Rev Stat § 20-826; Ark Code Ann § 23-79-1102; Haw Rev Stat §§ 431:10A-116.6, 431:10A-116.7; NC Gen Stat § 58-3-178). In contrast, the majority of states have enacted contraceptive statutes that contain broadly worded exemptions which include definitions of religious organizations
Turning to our New York statute, prior to enacting the WHWA, the Legislature struggled with the issue of how to address the concerns of religious organizations opposed to contraceptives as a tenet of their faith. The question was to what extent and in what manner they should be exempted from the statutory requirements. As noted by defendant, an earlier version of the legislation included an exemption from the prescription coverage provision for any group or entity “operated, supervised or controlled by or in connection with a religious organization or denominational group or entity” (2001 NY Senate Bill S 3, § 11). It was mentioned in the course of the legislative debate that this exemption was modeled after similar language defining a religious organization or employer already existing in a New York statute (see New York State Senate Debate on Senate Bill S 5626, June 20, 2001, at 10421 [remarks of Sen. John Bonacic]; see also Executive Law § 296 [11]). It was further explained at that time that the legislation would include a provision whereby the employees of an exempt organization who sought to utilize contraceptives would be able to do so by means of a rider which, for a nominal cost, would allow the employees to purchase contraceptives at the reduced group rate (see e.g. New York State Senate Debate on Senate Bill S 5626, June 20,
Significantly, plaintiffs herein are all nonprofit religious organizations, churches and religious orders that qualify for the status of religious employers in other statutory contexts such as employment and housing discrimination (see Executive Law § 296 [11]). As will hereinafter be explained in greater detail, it is our view that plaintiffs have successfully articulated a challenge to the WHWA based principally upon the religious exemption’s overly-strict requirements that define what is “religious” conduct and determines that entities engaging in conduct deemed to be “secular” in nature are not entitled to exemptions from providing contraceptives in opposition to their
In a case of this nature involving various parties who have presented their respective arguments extremely well, it is often helpful to step back and focus on where they agree and disagree. Here, there can be no question that the Legislature recognizes the moral concerns voiced by the religious organizations who oppose the use of contraceptives as a matter of faith, which is why a religious exemption is included in the WHWA. Moreover, it is clear that plaintiffs are principally objecting to the statute’s failure to exempt all bona fide religious organizations from its mandate. Thus, the real source of the controversy herein stems from the WHWA’s definition of what constitutes a religious employer.
Plaintiffs argue that their conduct in providing social and educational services to all persons, regardless of their faith, is undertaken because of their religious tenets and they understandably object to the WHWA’s clear determination that such activities are “secular.” Plaintiffs raise a valid point. We fail to see where the record establishes that an organization is automatically secular and not religious in nature if it employs or serves persons of different faiths or engages in the provision of charitable or social services. Nor do we see that making such assumptions and engaging in the formulation of “religious test[s]” is an appropriate area of inquiry for the Legislature or the courts (see Espinosa v Rusk, 634 F2d 477, 480 [10th Cir 1980], affd
A. Free Exercise—NY Constitution
Turning to the various constitutional challenges presented, herein, we initially conclude that plaintiffs have established a meritorious claim pursuant to New York’s Free Exercise Clause (NY Const, art I, § 3). As noted by the majority, the Court of Appeals has articulated a test that balances “ ‘the interest of the individual right of religious worship against the interest of the State which is sought to be enforced’ ” (People ex rel. DeMauro v Gavin,
Significantly, the majority acknowledges that the legislation burdens plaintiffs’ rights under the Free Exercise Clause of the First Amendment. Furthermore, in our opinion, there can be little question that plaintiffs have established that the WHWA restricts their right to freedom of worship. As for the issue of whether the restriction is justified under all the relevant circumstances, we do not find that the result of the balancing test favors defendant. Notably, defendant indicates that the competing state interests herein are the laudable goals of gender equity and “ensuring that the maximum number of women will receive necessary preventive health care.” Defendant also goes into great detail in an attempt to show the detriments to employees without contraceptive coverage.
In balancing the stated competing interests, the majority finds significant the fact that plaintiffs employ persons of different faiths, a circumstance we do not find to be dispositive. Furthermore, the majority balances the free exercise issue in defendant’s favor with the observation that “plaintiffs could avoid the contraceptive coverage mandate by withholding all prescription coverage.”
B. “Hybrid” Rights
Next, we disagree that plaintiffs have not articulated a valid claim under the US Constitution. As previously stated, the majority agrees that “the qualified mandated coverage for prescription contraceptives burdens [plaintiffs’] free exercise rights.” However, since the WHWA is allegedly neutral on its face and generally applicable, the majority deems plaintiffs’ free exercise claims to be insufficient to warrant strict scrutiny under the reasoning of Employment Div., Dept, of Human Re
1. Expressive Association
Specifically, we are persuaded by the claim that the WHWA violates plaintiffs’ right to free speech under the US and NY constitutions. In our view, plaintiffs present a compelling argument in support of their expressive association claim. Significantly, plaintiffs allege that the WHWA imposes upon them an unwanted affiliation when they argue that a “compelled association exists because [plaintiffs] are forced to join the ranks of other employers and provide contraceptive coverage as part of their employee health plans.”
2. Conduct as Protected Speech
Additionally, we find that the facilitation of contraceptive coverage by plaintiffs, even when the cost to the employer is
Here, plaintiffs advance a forceful argument that “financial support is a form of sponsorship or endorsement.” As one corn
In any event, given the meritorious arguments raised by plaintiffs pursuant to the Free Exercise and Free Speech clauses, we believe that a sufficient “hybrid” claim by plaintiffs has been presented under the Smith standard so as to warrant application of strict scrutiny. Notably, to meet the standard of strict scrutiny, a statute must he both justified by a compelling governmental interest and narrowly tailored to further that interest (see Larson v Valente,
We are also persuaded by plaintiffs’ challenges to the WHWA pursuant to the Establishment Clause of the First Amendment. Assuming arguendo that the majority is correct in finding that plaintiffs cannot mount a challenge to the WHWA as applied, we are nonetheless unconvinced that the WHWA survives a facial challenge. While it is true that “statutes that give special consideration to religious groups are [not] per se invalid” (Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos,
In rejecting plaintiffs’ claim that the various prongs of the WHWA exemption evidence a denominational preference (see generally Larson v Valente, supra at 244-246), the majority differentiates between a law which discriminates between denominations and one which merely discriminates “between those religious institutions that create separate legal entities for their ecclesiastical and ministerial activities, and those religious institutions that do not.” In our view, this is a distinction with very little difference. For example, the differentiation between secular and ecclesiastical functions which is embodied in the inculcation prong of the religious employer exemption presupposes that sincere and meaningful religious expression exists only when a given religious sect is engaged in its ecclesiastical activities. On the contrary, a great many religious denominations—including several represented by plaintiffs herein—view acts of charity and other so-called “secular” pursuits as a significant manifestation of religious expression (see Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v Amos, supra at 344 [Brennan, J., concurring] [characterizing the provision of community service “as a means of fulfilling
Moreover, even if it cannot be said that the WHWA’s division between “secular” and “ecclesiastic” does not, on its face, amount to the functional equivalent of a denominational preference, this distinction poses an additional significant Establishment Clause difficulty. Specifically, pursuant to the third prong of the tripartite test set forth in Lemon v Kurtzman (
It cannot be questioned “that religious freedom encompasses the ‘power (of religious bodies) to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine’ ” {Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich,
Furthermore, the separate requirement that the entity primarily employ individuals that share the entity’s religious convictions has a three-fold coercive impact upon a religious organization’s internal affairs. First, this qualification impliedly requires the entity to engage in a searching inquiry of its prospective employees in order to insure continued compliance
For all the above reasons, we find that the WHWA violates various clauses of the US and NY constitutions.
Peters and Carpinello, JJ., concur with Mercure, J.; Cardona, EJ., and Spain, J., dissent in a separate opinion by Cardona, EJ.
Ordered that the order is affirmed, without costs.
Notes
. We decline plaintiffs’ invitation to reverse Supreme Court’s order on the ground that triable issues of material fact exist with respect to the burdens imposed upon plaintiffs’ religious beliefs—the record adequately supports the point without contradiction.
. In 1999, the California Legislature enacted the Women’s Contraception Equity Act (hereinafter WCEA), which required certain group policies that offered prescription coverage to include coverage for prescription contraceptives (Cal Health & Safety Code § 1367.25; Cal Ins Code § 10123.196). The WCEA’s four-pronged definition of a “religious employer” was adopted verbatim by the New York Legislature in the WHWA (see Insurance Law § 3221 [Z] [16] [A] [1]; § 4303 [cc] [1] [A]; Cal Health & Safety Code § 1367.25 [b] [1]; Cal Ins Code § 10123.196 [d] [1]). The constitutionality of the WCEA has been upheld by the California Supreme Court in Catholic Charities of Sacramento, Inc. v Superior Ct. (32 Cal 4th 527,
. We note that plaintiffs do not seek a “constitutionally required exemption” from the WHWA (United States v Lee,
. (See NY Const, art XVII, § 3 [“The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made ... as the legislature shall from time to time determine”]; Executive Law § 296 [1] [a] [“It shall be an unlawful discriminatory practice . . . (f)or an employer . . . because of the . . . sex ... of any individual ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment”]; see also Catholic Charities of Sacramento, Inc. v Superior Ct, 32 Cal 4th 527, 564,
. In any event, given the lack of evidence in the record as to how plaintiffs are funded, it is unclear that any plaintiff herein would qualify for the broader exemption adopted in states such as Connecticut and Massachusetts. That exemption does not apply to organizations that normally receive more than 25% of their support from governmental sources.
. We note that the argument that plaintiffs’ conduct is constitutionally-protected speech is not enhanced because religion is involved. Rather, the “religious” aspects of the conduct fall within the ambit of the Free Exercise Clause.
. Although the complaint in this action states separate causes of action under the NY Constitution, plaintiffs’ brief to this Court does not argue any independent state Establishment Clause right, and thus, we will consider plaintiffs’ Establishment Clause claims only under the First Amendment. We note that like the Free Exercise Clause of the First Amendment, the Establishment Clause is applicable to the states by virtue of the Fourteenth Amendment (Roemer v Board of Public Works of Md.,
. While the Lemon test has been slightly modified in the context of governmental aid to religious schools (see Mitchell v Helms,
. We express no view on whether the exemption from the Human Rights Law would include such an action, if taken by plaintiffs.
. For example, Connecticut, Massachusetts, Rhode Island and West Virginia utilize a broad exemption which includes, inter alia, the federal definition of “church-controlled organizations” contained in 26 USC § 3121 (w):
“(3) Definitions.
“(A) For purposes of this subsection, the term ‘church’ means a church, a convention or association of churches, or an elementary or secondary school which is controlled, operated, or principally
“(B) For purposes of this subsection, the term ‘qualified church-controlled organization’ means any church-controlled tax-exempt organization described in section 501 (c) (3), other than an organization which
“(i) offers goods, services, or facilities for sale, other than on an incidental basis, to the general public, other than goods, services, or facilities which are sold at a nominal charge which is substantially less than the cost of providing such goods, services, or facilities; and
“(ii) normally receives more than 25 percent of its support from either (I) governmental sources, or (II) receipts from admissions, sales of merchandise, performance of services, or furnishing of facilities, in activities which are not unrelated trades or businesses, or both.”
. The record indicates that the religious organizations concerned were comfortable with this solution, presumably because it does not involve a situation where the religious employer would be “facilitating” the use of contraceptives in violation of its religious tenets (see New York State Senate Debate on Senate Bill S 5626, June 20, 2001, at 10356 [remarks of Sen. Joseph Bruno]).
. One objection raised concerning the broad religious exemption was the fact that many of the religious organizations receive public funds (see New York State Senate Debate on Senate Bill S 5626, June 20, 2001, at 10408-10409). The relevance of that fact has not been well explained given that the WHWA applies to “all insurance plans purchased by employers and therefore [is] not at all tied to the receipt of public funds,” nor does it appear that receipt of public funds renders a religious organization less “religious in character” (Stabile, State Attempts to Define Religion: The Ramifications of Applying Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers, 28 Harv JL & Pub Pol’y 741, 758 n 74 [2005]).
. Notably, the record debate did not appear to include a discussion of what effect there would be if the exemption were written less broadly and the nonexempt religious organizations chose to opt out rather than provide coverage in contravention of their religious beliefs. Although some legislators expressed concern about the employees of exempt religious employers being treated unfairly by having to pay a little more when utilizing the insurance rider, realistically, it is unlikely that any non-Catholic employee who, for instance, chooses to work for an entity such as plaintiff Catholic Charities of the Diocese of Albany could seriously claim to be surprised if direct access to contraceptives through the employer were not available. In the affidavit provided by plaintiff Carmelite Sisters for the Aged and Infirm, for example, it is stated that all prospective employees are specifically informed that they are expected to conform to Catholic strictures with respect to their employment. As noted by the majority, the Catholic Church’s position on birth control is well known. “Employees who take employment with a Catholic employer do so with the understanding of the Church’s position and with no expectation that the Catholic employer will act in a way inconsistent with its beliefs” (see Stabile, State Attempts to Define Religion: The Ramifications of Applying Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers, 28 Harv JL & Pub Pol’y 741, 763 [2005]). Significantly, “just as employees choose not to work for particular employers for any number of reasons, em
. Four of the subject plaintiffs meet the fourth WHWA religious exemption requirement, namely, St. John the Baptist Church, Temple Baptist Church, First Bible Baptist Church and Carmelite Sisters for the Aged and Infirm. Pursuant to this exacting requirement alone, only an entity such as a church or religious order could realistically qualify for the exemption. However, as noted by plaintiffs, this tax return provision appears to have no relationship to the health care goals of the WHWA.
. While the rates for the riders are approved by the State Insurance Department, Supreme Court estimated that the monthly cost to exempt religious employees to directly purchase the riders would be “on the order of $1.00 to $2.00 per month,” an amount that appears, from one of the health insurance rate sheets in the record, to offset the savings to employees of exempt religious organizations realized as a result of the fact that their employer-provided prescription plans do not include contraceptive coverage.
. Plaintiffs assert that they are disinclined to opt out of providing prescription benefits because it would violate their “sincerely-held religious beliefs regarding the moral obligation of employers to provide a dignified livelihood, including fair, adequate and just employment benefits, to their employees.” However, as noted by one commentator, “when forced to confront the choice between participating in an intrinsically evil act and attempting to satisfy its obligation to pay just wages and benefits in another manner, some institutions may very well decide that ceasing to provide any prescription coverage is the lesser evil” (Stabile, State Attempts to Define Religion: The Ramifications of Applying Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers, 28 Harv JL & Pub Pol’y 741, 774 [2005]). Inasmuch as defendant estimates that religious organizations in New York similarly situated to plaintiffs employ somewhere between 50,000 to 500,000 employees, a wholesale decision to opt out of providing prescription benefits by these employers would leave a significant number of workers without any prescription coverage. Indeed, “[a]ll employees of Catholic institutions would be worse off if this option is chosen. It will be little solace to a female employee of a Catholic employer to be told that she is being treated equally with male employees when equality can be achieved only by putting her in a much worse position than she was when she was theoretically being treated as less than equal” (id. at 774).
. While it is possible that nonexempt religious employers could provide their own self-funded plans, there seems little to be gained by defendant encouraging that result since, not only would such plans not include contraceptive coverage, it cannot be assured that such plans would include the low cost insurance riders that currently allow employees of exempt religious employers
. Although the majority indicates that we are implicitly urging the broader religious employer exemption not adopted by the Legislature, the debate over its inclusion is long past. However, that is not to say that an overview of the history of a statute under review, as well as the approach taken by other states, serves no purpose. For example, since concern over whether there would be sufficient contraceptive coverage for plaintiffs’ employees was one of the principal reasons for rejecting the broader religious employer exemption, it is especially troubling for us to see that plaintiffs’ ability to opt out and not provide group coverage consistent with the WHWA is cited as one of the justifications for upholding the constitutionality of that statute. It must be remembered that no one here is arguing that persons not employed by plaintiffs are in any danger of losing coverage under the WHWA. The entire debate over the religious employer exemption, and the state’s allegedly compelling interest, concerns only persons employed by entities such as plaintiffs. Thus, if the statute is upheld with the understanding that every nonexempt employer in plaintiffs’ circumstances could opt out for religious reasons, one could well question the Legislature’s purpose in enacting a religious employer exemption that not only excludes plaintiffs from its qualification but also plaintiffs’ employees from access to the low-cost rider.
. Unlike the majority, we find plaintiffs’ arguments that they not be included with other groups that do not object to the facilitation of contraceptives coverage to be well represented in both their briefs and the record before us, particularly in their strong objections to being included in the grouping of “secular” employers, as opposed to “purely religious employers.” Plaintiffs clearly convey their adherence to their beliefs regardless of whether those beliefs could be considered unpopular or outside the mainstream. Accordingly, we would not agree that plaintiffs’ arguments should be disregarded.
. The majority’s reliance on cases dealing with a government restriction of expressive conduct (see e.g. Clark v Community for Creative Non-Violence,
Nevertheless, we find considerable proof that plaintiffs intended to convey a message by not providing contraceptive coverage. For instance, the record establishes that, prior to the enactment of the WHWA, new employees of Catholic Charities “were informed during orientation that[, consistent with the teachings of the Roman Catholic Church,] coverage for contraceptive drugs and devices were not provided.” One commentator persuasively suggests that a refusal to fund contraceptives is a form of political free speech closely linked to a free exercise claim (see Lowell, Striking a Balance: Finding a Place for Religious Conscience Clauses in Contraceptive Equity Legislation, 52 Clev St L Rev 441, 457 [2004-2005]). Significantly, echoed repeatedly in the record and in plaintiffs’ brief is their unwavering assertion that the act of subsidizing coverage that their religion prescribes as morally evil cannot be condoned regardless of whether any employee actually utilized the coverage or how little it would cost them out-of-pocket to provide it. In fact, it seems clear that plaintiffs would oppose this coverage even if there were no cost to them or if doing so provided them a financial benefit. Accordingly, we find the message expressed by plaintiffs with their actions (and lack thereof) to be straightforward.
. It is worth reemphasizing that the inculcation prong at issue requires that the teaching of religious values be “the purpose” of the entity (Insurance Law § 3221 [Z] [16] [A] [1] [a] [emphasis added]). Given the presence of the definite article in the statute, it is logical to assume that a religious organization may only be eligible for the exemption if its singular purpose is the promotion of religious belief (see McKinney’s Cons Laws of NY, Book 1, Statutes § 252; compare Ark Code Ann § 23-79-1102 [3] [B] [Arkansas religious employer need only have “one (1) of its primary purposes (be) the inculcation of religious values” in order to qualify for the exemption]). For example, Carmelite Sisters would be ineligible for the exemption because, according to plaintiffs, “their purpose is the inculcation of religious values but when offering health care services to the community through their members” that is not their purpose. Thus, the inculcation prong of the statutory exemption has the potential to do significantly more than merely distinguish between religious institutions that choose to exercise a ministerial function via an independent legal entity and those that do not. In our view, a group such as Carmelite Sisters, if it applied for the WHWA exemption, could find itself ineligible simply due to the fact that it has chosen to engage in pastoral work as a secondary purpose of its organization (see Catholic Charities of Sacramento, Inc. v Superior Ct., supra, 32 Cal 4th at 571 n 2,
. For instance, although Carmelite Sisters do assert that they employ and serve persons outside their faith, it is also stated in their affidavit that they “do not ask our employees to state their religious affiliation as a condition for employment.” Thus, whether the population they employ and serve is “primarily” outside their Catholic faith is an open question unless they inquire of these persons about their beliefs as a means of complying with the religious exemption. Even if a religious organization chose to make such potentially controversial inquiries, there is no guidance as to how it should respond if the persons involved do not wish to share the particulars of their faith upon questioning. We do not believe that the fact that the statute seems to require employers seeking the exemption to make all the entangling inquiries (as opposed to the government) is dispositive of the issue, inasmuch as “the Constitution’s protection is not limited to direct interference with fundamental rights” (Healy v James,