Defending the 12th century since the 14th; blogging since the 21st.

Catholicism, Conservatism, the Middle Ages, Opera, and Historical and Literary Objets d'Art blogged by a suburban dad who teaches law and writes stuff.

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Tuesday, October 24, 2006
Exempt this

I've had a chance to look over the decision of the New York Court of Appeals (that state's highest court) upholding a state law that forces Catholic and other objecting social-service employers to include contraceptive coverage in their health plans if they offer prescription coverage at all.

As I suspected, the culprit is the statute, not the court. In the age of Lochner (which I taught this morning), laws telling private employers what they must include in their health coverage were just not done. Today, that sort of "social legislation" is done all the time. Some of our friends think "religious exemptions" are the ticket to preserving the Church's breathing room while the thicket of government activism chokes off the rest of civil society. That won't work, either theoretically or practically.

I do not know whether Catholic Charities of New York fought this bill itself when it was enacted in 2002, or whether they put all their eggs in the basket of a statutory religious exemption; I suspect the latter. In any event, the religious exemption they got was so narrow, Mother Teresa's order wouldn't qualify, as was pointed out at the time.

Perhaps the real motivation of those who opposed a broader exemption was precisely to undermine the faith of Catholics (and of conservative Baptists and orthodox Jews, who also objected). But courts should not look at hidden legislative motivation, and they only make a mess when they try. As far as a court can determine, this statute is simply social legislation that does not target religion but has an incidental effect on it.

Quite correctly, the New York court held that this is not the kind of law the U.S. Constitution's Free Exercise Clause prohibits. Also correctly, and very perceptively, it pointed out that other courts that have claimed to subject all infringements of religious freedom to a strict "compelling state interest" test have generally been lying. (My term, not the court's -- the court puts it in terms of "lip service.")

To religious social service providers who thought they could approve the endless expansion of social welfare legislation and ignore government's embrace of contraception, secure in a cocoon of judicially-administered exemptions -- welcome to earth.

To readers who think the court's deference to the legislature here was too flaccid: a few weeks ago, when the same court unexpectedly yet firmly upheld New York's refusal to recognize same-sex marriages, deference to legislative judgment was again the keynote. You need a consistent approach to how and when courts should defer to legislatures. "They should defer when I like the law and not when I don't" is lame.

What can Catholic Social Services of New York do now? Options: 1. Offer medical benefits without prescription coverage. Not attractive to prospective employees, but then, who ever went into social services for the money? 2. Fight back in the legislature until the statute is repealed, or at least until the statutory religious exemption is expanded. 3. Disband Catholic social services as an organized entity in New York. The religious Wyatt's Torch. "I'm leaving it just the way I found it."