New York's contraception mandate upheld

The New York Court of Appeals has decided -- following the California Supreme Court -- that New York's contraception-coverage mandate, which exempts "religious employers" but defines "religious employers in a very narrow way," violates neither the federal nor the New York free-exercise clause.

For commentary on the California case, which is relevant to New York's decision, go here, or here, or here.  As I wrote, more than two years ago -- time flies, when you're bloggin' --

But perhaps the most provocative and unsettling feature of the California law — and of the majority's constitutional defense of it — is the distinction that it both presumes and polices between "the inculcation of religious values" and (mere?) works of mercy. Justice Kennard confessed, in a short concurring opinion, "I have serious doubt that the First Amendment...allows California to limit its religious employer exemption to religious entities that have as their purpose the inculcation of religious values, denying that exemption to religious entities...that are organized for the purpose of feeding the hungry, caring for the sick, and providing shelter to the homeless." As well she should. The court's opinion, in Justice Brown's words, begs a crucial question: "may the government determine which parts of bona fide religious organizations are religious and which parts are secular...in order to infringe the religious freedom of that portion of the organization the government characterizes as secular?" Justice David Souter's concerns — expressed in Lee v. Weisman, a Supreme Court case about prayers at graduation — seem applicable here: "I can hardly imagine," he observed, "a subject less amenable to the competence of [government officials], or more deliberately to be avoided where possible," than "comparative theology."

The problem with the distinction that the act presumes is not simply that state actors are incompetent to draw and administer it. More fundamentally, we should worry that, by determining for its own purposes the meaning and significance of religious organizations' work, and by allocating burdens and benefits on the basis of state-crafted distinctions between "religious" and "secular" activities, the government can subtly but powerfully reshape and domesticate the content and challenge of faith. As Justice Brown put it, through the act, "the government is not accidentally or incidentally interfering with religious practice; it is doing so willfully by making a judgment about what is or is not religious." In a sense, the act's "religious employer" exemption's criteria reflect, and reinforce, a controversial, sectarian, privatized notion of what religion is, and what religious communities do: Religion is about belief and values, not service, sacrifice, and engagement. By requiring, as a condition of participation in public life, that Catholic Charities acquiesce to this notion, California is not only taking sides in an irreducibly religious debate about human sexuality. It also, in Justice Brown's words, "impoverish[es] our political discourse and imperil[s] the foundations of liberal democracy."