Catholic Charities, et al. v. Serio

This lawsuit challenges the constitutionality of that portion of New York's new contraceptive insurance coverage law, which requires employers who provide health insurance coverage for prescription drugs to "include coverage for the cost of contraceptive drugs or devices." The measure contains an exception for religious organizations, but it is drawn so narrowly that religious social service agencies do not qualify.

Despite personal lobbying against the bill by the Catholic Cardinal Archbishop of New York, Edward Egan, "The Women's Health and Wellness Act" was adopted by the New York legislature in 2002 and became law on January 1, 2003.

Shortly afterward, a lawsuit challenging the new law as unconstitutional was filed in the Supreme Court for the County of Albany. Plaintiffs included Catholic Charities of the Dioceses of Albany and Ogdensburg, Temple Baptist Church and First Bible Baptist Church, the Servants of Relief for Incurable Cancer, Our Lady of Consolation Geriatric Care Center, the Carmelite Sisters for the Aged and Infirm, Bishop Ludden High School, and Delta Development of Western New York. The defendant is Gregory Serio, Superintendent of the New York State Department of Insurance.

On August 22, 2003, The Becket Fund for Religious Liberty filed an amicus brief (PDF format, 144K) with the court, explaining "how the law at issue here violates the Free Exercise Clause in ways not emphasized by plaintiffs."

The statute (N.Y. Insurance Law §§ 3221) provides that "a religious employer may request a contract without coverage for . . . contraceptive methods that are contrary to the religious employer's religious tenets."

But "religious employer" is defined as 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 . . . the Internal Revenue Code."

The Becket Fund brief declares that the law is clearly a violation of the First Amendment to the U.S. Constitution because it "fails the test of religion-neutrality." The law's conscience clause "reflects the legislature's preferred conception of religion — an excessively narrow conception that explicitly favors, over all other religiously-motivated conduct, the 'inculcation of religious values.'" Because the clause is so narrowly drawn, it "still regulates employers who engage in a wide range of religiously-motivated conduct, from liturgical practice, to missionary work and other evangelism, to a vast array of religiously-motivated charitable services. All of this religiously-motivated conduct is entirely lawful, and so all of it lies squarely within the production of the Free Exercise Clause, which "by its terms, gives special protection to the exercise of religion."

In its legal brief, the state candidly concedes that the purpose of the conscience clause is the "accommodation" of "the beliefs of purely religious" entities. But The Becket Fund argues that "It is far from religion-neutral . . . for the government to exalt and protect religious exercise it deems 'purely religious,' while trampling on the vast remainder of religious exercise because it is deemed less 'pure.'" It is well-established constitutional law that "government may not play favorites among religions when making accommodations." Even worse, the governmental distinctions "are based on an essentially theological distinction — here, between 'purely' and non-purely religious practices — made by government officials. It is especially ironic that religious charitable organizations are not deemed 'purely religious' by the State, when the Scripture of at least some of the religious organizations covered by the law suggests the opposite." It illustrates, at the very least, "the state's utter incompetence to make such determinations."

The requirements that employees and patrons of the religious entity "share" its religious tenets requires an "invasive inquiry into the most personal religious beliefs and practices of the employees and patrons," an inquiry which courts may not make. "It is simply beyond the constitutional pale for the government to engage in so deep and so broad an investigation of religious beliefs, least of all as a condition for granting a government benefit, such as the deregulation represented by the conscience clause here."

Neither does the state of New York have a compelling interest that might justify such a burden on religious exercise. The conscience clause, even in its narrow scope, reflects a legislative judgment that "interest in free exercise outranks the asserted interests in achieving gender equality in health care costs and promoting public health." The absence of a compelling interest is made even more evident by the fact that the law takes no steps to provide contraceptive insurance coverage to "(1) unemployed women, (2) stay-at-home mothers, (3) women whose employers do not offer health insurance benefits, and (4) women in part-time employment that do not qualify for health benefits." Since the Supreme Court has held that "a law cannot be regarded as protecting an interest 'of the highest order' when it leaves appreciable damage to that supposedly vital interest unprohibited," the New York law does not serve a compelling interest, and cannot survive strict scrutiny.

In short, the New York law defines religious entities so narrowly that many people working in religiously-motivated social service organizations, "in order to avoid violating the law. . . would have to violate one or the other of their fundamental religious beliefs." And thus, "the law should be struck down."

(Catholic Charities of the Diocese of Albany, et al. v. Gregory V. Serio, New York Supreme Court, County of Albany, Index No. 8229-02)