Supreme Court won't hear appeal in Catholic Charities of the Dioceseof Albany v. Dinallo

[Marty Lederman]

The denial of cert. was not unexpected.  Somewhat surprisingly, in my view, the lead argument in the petition (http://www.scotusblog.com/movabletype/archives/06-1550_pet.pdf) was not that the criteria the legislature drew in crafting its religious exemption were problematic.  I don't think that argument would have fared any better -- it's difficult to sustain under Gillette, as I've argued on-list previously.  But it is an interesting and rarely examined question, and it's a stronger claim than the arguments petition did make.  The petition's principal argument was that the Court should clarify the so-called "hybrid" exception to Smith, which is, I think, a sure sign of a weak case, since it's plain the Court invented the hybrid "exception" simply so that it would not have to expressly overrule Yoder; and I doubt there are any Justices who want to ever have anything to do with that "exception" again, unless lower courts start taking it seriously.  Moreover, the predicate for invoking the hybrid exeception here -- an alleged free-speech violation -- was especially untenable, IMHO.
  ----- Original Message ----- 
  From: Brad Pardee 
  To: Law & Religion issues for Law Academics 
  Sent: Monday, October 01, 2007 10:25 AM
  Subject: Supreme Court won't hear appeal in Catholic Charities of the Dioceseof Albany v. Dinallo


  According to this story on Yahoo, the Supreme Court isn't going to hear an appeal regarding a state law in New York that forces groups like Catholic Charities to cover contraceptives in the prescription drug plan they offer their employees.

  http://news.yahoo.com/s/ap/20071001/ap_on_go_su_co/scotus_contraceptives_suit

  I found this snippet particularly persuasive, and accordingly, I found the Court's refusal to hear the case quite thoroughly disappointing:

  Catholic Charities and other religious groups argued New York's law violates their First Amendment right to practice their religion because it forces them to violate religious teachings that regard contraception as sinful.

  "If the state can compel church entities to subsidize contraceptives in violation of their religious beliefs, it can compel them to subsidize abortions as well," the groups said in urging the court to take their case. "And if it can compel church entities to subsidize abortions, it can require hospitals owned by churches to provide them."

  I had hoped for better from the Roberts court.

  Brad Pardee


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