Lederman, Lupu, and Tuttle on the Catholic Charities petition

Over at SCOTUSBlog, Marty Lederman has a typically thorough discussion of the petition for certiorari filed in the Catholic Charities case. Professors Tuttle and Lupu have also posted an excellent primer on the case over at the Roundtable on Religion and Social Welfare Policy. Finally, here is a link to the petition itself.

Rick

UPDATE: I sent the following note to Marty Lederman, regarding his discussion of the Catholic Charities case:

"I appreciated your post on the CC case, and agree with much of what you had to say. Although I suspect that I regard the California court's decision as being more ominous for religious freedom than do many of our colleagues, I'm inclined to agree (with regret) that the petition for cert -- despite being very well done -- faces an uphill battle.

I'd offer a few, quick thoughts, in response to your analysis:

First, I think it would be interesting and worthwhile for all of us to think more about Justice Brown's suggestion that perhaps Smith should apply differently -- or that, perhaps, the rule should be different -- in cases where the burden on religious exercise falls on the autonomy or integrity of a religious *group* or institution, as opposed to the religiously motivated conduct of an individual. What do you think?

Second, although I agree with you that all accommodations of religion require careful line-drawing at the boundaries (and that those of us who support accommodation shouldn't want the necessary line-drawing to be too difficult!), I think that Justice Kennard was on to something in suggesting that the first and third requirements for the religious-employer exemption to the California law raise serious "entanglement"-type problems (and, maybe, "Hull Church"-type, interpretation-of-doctrine problems, too). As you point out, though, Catholic Charities failed to meet *any* of the requirements. Still, perhaps even the inclusion of the suspect requirements raises entanglement-type concerns?

Third, I think (as Justice Brown suggested) there are non-trivial concerns about Lukumi-type hostility and sect-specific gerrymandering here. As I understand the record -- but I could be wrong -- the religious-employer exemption was crafted *specifically* (not just knowingly) to make sure that Catholic social-service agencies, schools, and universities would *not* be covered. As I understand it, the legislature was aware that (a) most employers in the State were already providing contraception coverage and that (b) a sizeable portion of the not-already-providing employers were Catholic affiliated organizations. Obviously -- given all the Catholic universities and schools in the State -- an exemption that included these employers would make the mandate itself much less useful in achieving full (as opposed to 90-ish percent) coverage.

It also appears that several legislators -- including some Catholic legislators -- said things on the floor like, "we need to get the Church to do the right thing," or otherwise emphasized the need to nudge the Church away from its stand on contraception. While I agree with Steve Smith's recent (and wonderful) essay in First Things, where he argues that the focus of our constitutional doctrine on the bad motives of public actors is unfortunate, I *also* think that these floor statements are troubling.

Finally -- and this is, I realize, probably not a cert-worthy issue -- I was struck by the California court's conclusion (which might not be holding, I guess) that, even if "strict scrutiny" applies, the burden imposed by the contraception mandate satisfies that standard. It's not at all clear to me that moving from (as I understand it) 90 percent coverage to, say, 98 percent coverage, in large part at the expense of Catholic employers, either serves a compelling interest or is narrowly tailored.

All that said, since I think that the Smith decision is (basically) right, I'm left with the hope that California will revisit this matter, and that other States will prove more generous in crafting their own conscience exemptions."

Rick