Our latest effort to feature interesting cert. petitions pending at the Supreme Court is Catholic Charities of the Diocese of Albany, et al. v. Dinallo (No. 06-1550), which the Court will consider at its September 24 conference. At issue in the case is whether New York’s Women’s Health and Wellness Act (WHWA) violates the First Amendment rights of religious organizations by forcing them to include contraceptives in the prescription drug coverage provided by their insurance plans.

Enacted in 2002, the WHWA requires employers who provide their employees with a group insurance policy that includes prescription drug coverage to include prescription contraceptives as part of that coverage. The law also contains an exemption for organizations that both primarily employ and serve members of their own faith. Nowhere, however, are employers required to offer prescription drug coverage.

Petitioners are Catholic and Baptist charitable organizations in New York that do not qualify for WHWA’s exemption. Their efforts to seek relief from the WHWA in New York state courts were unsuccessful. The state court of last resort, the New York Court of Appeals, rejected their claim that the law violated the Free Exercise clause of the First Amendment. Applying the Supreme Court’s 1990 decision in Employment Division v. Smith, in which a five-justice majority concluded that two Native Americans could be denied unemployment insurance when they were fired after using peyote as part of a religious ceremony, the Court of Appeals reasoned that the Free Exercise Clause does not provide any protection against laws that run counter to church doctrine so long as “they apply neutrally to non-religious entities as well as religious ones.” And the Court of Appeals similarly rejected petitioners’ free speech claims, citing the Supreme Court’s decision, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), which held that a federal law that effectively required law schools to host military recruiters on campus did not violate the schools’ freedom of speech. Just as the military recruiters on campus did not prevent law schools from communicating any message they liked, the Court of Appeals reasoned, so too an insurance mandate also does not stop the churches from communicating that which they choose.

The petitioners, represented by Kevin T. Baine of Williams & Connolly in Washington, DC, argue that they are stuck between the proverbial rock and hard place. On the one hand, Catholic and Baptist church doctrines teach that contraception is “intrinsically evil”; to participate in its distribution by subsidizing contraceptive coverage would run counter to their religious beliefs. On the other, both groups also require that employers “provide just wages and benefits” — like prescription drug plans — to their employees.

The petitioners’ argument, therefore, pivots around two major points. First, Baine writes that, contrary to the lower court’s decision, FAIR did not address the question whether coerced subsidization of private conduct amounts to “coerced endorsement of that conduct in violation of free-speech principles.” Because the issue at hand in FAIR was decidedly not monetary, Baine argues, the two cases are fundamentally different.

Second, the petition notes that in Smith, Justice Scalia’s opinion for the majority observed that there were instances in which the Court had held that the First Amendment “bars application” of such neutral laws to “religiously motivated action.” Scalia explained, however, that those cases had considered the Free Exercise Clause “in conjunction with other constitutional protections, such as freedom of speech and the press.” This case, the petition asserts, presents precisely the kind of unusual “hybrid scenario” that Justice Scalia had in mind in Smith — i.e., one in which petitioners’ free speech rights are violated in addition to their free exercise rights.

Finally, the petition maintains that the law, as written, doesn’t even make sense. Far from advancing women’s healthcare, it essentially functions as a deterrent to the charities from offering any prescription drug coverage at all.

New York, represented by Solicitor General Barbara Underwood, contends that the case requires nothing more than a straightforward application of Smith. First, the state explains, the WHWA is a neutral law targeting no one group particularly. It applies to petitioners not because of their religious beliefs, but because they “employ workers and offer group health insurance benefits like other non-exempt organizations.” Therefore, as the Supreme Court held in Smith, the Free Exercise Clause permits enforcement of the law, even if it has “the incidental effect of burdening” petitioners.

Turning to petitioners’ allegations that the WHWA infringes on their right to free speech, the state emphasizes petitioners’ concession that the law does not prohibit their speech, but rather their conduct. The First Amendment, though, only protects expressive actions; offering insurance, by contrast, is not an expressive act but is instead analogous to other employment benefits like a minimum wage or social security tax. Like the FAIR decision, the WHWA doesn’t force petitioners to say anything or stop them from saying anything, nor does it compel them to associate with any particular group over another. Surely, the state reasons, the public and their employees can differentiate between a state-mandated insurance policy and the religious tenets of petitioners. Further, their employees would have no sense at all of petitioners’ views on the whole array of prescription drugs covered unless and until petitioners voiced those views. Because the case does not involve a free speech violation, the BIO continues, even if there were uncertainty surrounding a “hybrid scenario,” this case would be a poor vehicle to consider it.

The “long” conference is Monday, September 24, and grants are expected to be announced the following day.

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