Re: Potentially Important California State Case

[A.E. Brownstein]

The law challenged  in the Catholic Charities cases exempted only those 
religious organizations that discriminate on the basis of religion in 
hiring staff, primarily serve members of their own faith, and proselytize 
the recipients of their aid. Some faiths operate charities that satisfy 
these requirements. Many do not. The California Supreme Court apparently 
concluded that this kind of religious discrimination had no constitutional 
significance. I say apparently because the Court never directly confronts 
the core issue that the exemption criteria predictably includes certain 
faiths and excludes others on the basis of religious beliefs about the 
nature of a charitable ministry.

Alan Brownstein
UC Davis
At 03:13 PM 3/1/2004 -0500, you wrote:
<http://www.courtinfo.ca.gov/opinions/documents/S099822.PDF>http://www.courtinfo.ca.gov/opinions/documents/S099822.PDF

California generally requires employers providing health insurance to 
their employees to ensure that such insurance covers the costs of 
contraception.  California has enacted a limited religious accommodation 
that exempts certain religious organzations (viz., churches), but not 
others, from this requirement.  Catholic Charities does not satisfy any of 
the four statutory criteria for the exemption, and it sued under the 
Establishment and Free Exercise Clauses to have the exemption 
extended.  The Cal Supreme Court ruled 6 to 1 that the limited exemption 
was constitutional -- although the court did tentatively conclude that at 
least one of the criteria was of dubious constitutionality.

The case raises numerous interesting issues concerning, e.g., the 
Ministerial Exception, general applicability under Lukumi, the so-called 
hybrid exception, Larson v. Valente, the scope of California's state 
constitutional free exercise guarantee, the notion of "substantial 
burden," etc.  To my mind one of the most interesting and difficult 
questions it raises is how a legislature can and should craft, and limit, 
religious accommodations.  The case demonstrates, in my view, why an 
across-the-board standard for exemptions -- such as those codified in 
federal and state RFRAs -- is preferable to a series of stand-alone, 
statute-by-statute legislative exemptions.
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