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

[Brownstein, Alan]

I agree with most of what Marty says. The only strong federal constitutional argument in Catholic Charities focused on the criteria employed in drafting the legislative exemption. I think that is a better argument than Marty does, but I'm not surprised that the Court denied cert.

 

In the California Catholic Charities case ((which Catholic Charities also lost), the strongest arguments for plaintiffs focused on the criteria employed in the legislative exemption and free exercise rights under the state constitution.

 

However, it is important to recognize that these conclusions are a product of the debased free exercise jurisprudence the Court has adopted. Catholic Charities should have come out the other way if free exercise rights were taken seriously. Brad's concern about the reasoning of cases like Catholic Charities and what that reasoning bodes for the autonomy of religious institutions are clearly justified.

 

His hope for better results from the Roberts court, however, seem less justified - at least to me.  The current court views both free exercise and establishment clause issues through the prism of free speech principles - and there is nothing unique about religion under that analytic framework. 

 

Alan Brownstein

 

 

 

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, October 01, 2007 9:59 AM
To: Law & Religion issues for Law Academics
Subject: Re: Supreme Court won't hear appeal in Catholic Charities of theDioceseof Albany v. Dinallo

 

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) <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 <mailto:bp51414 at alltel.net>  

	To: Law & Religion issues for Law Academics <mailto:religionlaw at lists.ucla.edu>  

	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

________________________________

	_______________________________________________
	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.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20071001/f5fd6e9f/attachment.htm