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

Mon Oct 1 10:33:03 PDT 2007

I would replace Alan's characterization of free exercise jurisprudence as "debased" with "enlightened".  Especially in cases like these, the "autonomy" of religious institutions cannot be the guiding principle.  What about the "autonomy" of those who seek medical services contrary to the religious entity's beliefs in an era of increasing consolidation of medical services?  The issue poses an inevitable question of public policy balancing and belongs properly to the legislatures, not the courts.  This is especially so when the vast majority of the funding is coming from the government and not the private, religious institution.  Typically, over 80% of Catholic Charities funding comes from public tax dollars.

Marci

Marci A. Hamilton
Visiting Professor of Public Affairs
Kathleen and Martin Crane Senior Research Fellow
Program in Law and Public Affairs
Woodrow Wilson School
Princeton University

-----Original Message-----
From: Brownstein, Alan <aebrownstein at ucdavis.edu>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
Sent: Mon, 1 Oct 2007 1:17 pm
Subject: RE: Supreme Court won't hear appeal in Catholic Charities of theDioceseof Albany v. Dinallo

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) 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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