New York Court of Appeals adopts Mystery Scrutiny as the test underthe state's Free Exercise Clause

[Brownstein, Alan]

While I disagree with the New York Court's application of this
"mysterious scrutiny" rule in this case, I think this kind of an ad hoc
analysis is still better than the "Smith" rule. But as Eugene suggests,
the real test will be what the New York courts do with this new
approach. 

It is not all that unusual for courts to begin the development of
doctrine with an amorphous reasonableness standard -- and then move
forward to differentiate different kinds of cases that are subject to
different standards of review. We can see that shift from amorphous
balancing to more clearly stated doctrinal rules in the evolution of
free speech and equal protection case law -- at least to some extent.

If New York does that -- and actually tries to develop free exercise
doctrine --- that would indeed be a useful free exercise experiment. If
it never advances beyond a generally deferential analysis that
occasionally, and completely unpredictably, transforms into a kind of
balancing test or intermediate level scrutiny test, we will not have
gotten very far or learned very much.

Alan Brownstein

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, October 19, 2006 1:39 PM
To: Law & Religion issues for Law Academics
Subject: New York Court of Appeals adopts Mystery Scrutiny as the test
underthe state's Free Exercise Clause

	Catholic Charities v. Serio,
http://www.courts.state.ny.us/ctapps/decisions/oct06/110opn06.pdf,
decided today, rejects both Sherbert/Yoder strict scrutiny and Smith
rational basis scrutiny in religious exemption cases, and instead says:

	"We now hold that substantial deference is due the Legislature,
and that the party claiming an exemption bears the burden of showing
that the challenged legislation, as applied to that party, is an
unreasonable interference with religious freedom....  [T]he principle
stated by the United States Supreme Court in Smith -- that citizens are
not excused by the Free Exercise Clause from complying with generally
applicable and neutral laws, even ones offensive to their religious
tenets -- should be the usual, though not the invariable, rule....

	"[But] a rule that the Constitution never requires a religious
exemption from generally applicable laws could lead to results plainly
inconsistent with basic ideas of religious freedom:  'Under the
no-exemptions view . . . religious believers and institutions cannot
challenge facially neutral legislation, no matter what effect it may
have on their ability or freedom to practice their religious faith.
Thus, a requirement that all witnesses must testify to facts within
their knowledge bearing on a criminal prosecution . . . if applied
without exception, could abrogate the
confidentiality of the confessional.  Similarly, a general prohibition
of alcohol consumption could make the Christian sacrament of communion
illegal, uniform regulation of meat preparation could put kosher
slaughterhouses out of business, and prohibitions of discrimination on
the basis
of sex or marital status could end the male celibate priesthood.'
[Quoting Michael McConnell.]  We find these hypothetical laws to be well
beyond the bounds of constitutional acceptability.  And we by no means
exclude the possibility that, even in much less extreme cases,
parties claiming an exemption from generally applicable and neutral laws
will be able to show that the state has interfered unreasonably with
their right to practice their religion."

	The court then went on to conclude that in this case -- which
involved religious charities' objection to a law mandating that
employers who provide prescription drug coverage include contraceptives
-- no exception was required, because of a mix of factors, including
that "[though t]he burden the [law] places on plaintiffs' religious
practices is a serious one, [the law] does not literally compel them to
purchase contraceptive coverage for their employees, in violation of
their religious beliefs; it only requires that policies that provide
prescription drug coverage
include coverage for contraceptives," that "[t]he employment
relationship is a frequent subject of legislation, and when a religious
organization chooses to hire non-believers it must, at least to some
degree, be prepared to accept neutral regulations imposed to protect
those employees'
legitimate interests in doing what their own beliefs permit," and that
"the State [has a] substantial interest in fostering equality between
the sexes, and in providing women with better health care."

	I generally think such a free-form, case-by-case decisionmaking
process is indeed suitable -- in fact, commonplace -- when done as part
of a common-law-making process, and would be proper for the legislature
to authorize under a non-strict-scrutiny RFRA:  Such
jurisdiction-by-jurisdiction general religion exemption enabling
statutes create a sort of common-law process, in which (as with the
common law) courts make decisions about exemptions considering (as with
the making of the common law of torts, property, contracts, and the
like) a wide range of factors, and then legislatures may revise those
decisions if they think the various factors ultimately point in the
other direction.  Where constitutional decisionmaking is considered,
such a free-form approach strikes me as more troublesome; but it's hard
to tell for sure until we get some better sense of how courts end up
applying it.  Sounds like New York is on the threshold of what could be
an interesting religious accommodation experiment.

	Eugene
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.