On March 1, 2004, the California Supreme Court issued its 80-page opinion in the contraceptive mandate case, Catholic Charities of Sacramento, Inc. v. Superior Court.

For the past several years, Catholic Charities of Sacramento, Inc. has been litigating a facial challenge to a statute imposing a mandate upon California insurers to provide coverage for prescription contraceptive medications as part of any prescription drug benefit plan. The California Legislature included a conscience clause exemption that was expressly designed to exclude Catholic healthcare, social service and higher education ministries.

With the strong support of California's bishops, Catholic Charities filed suit in July of 2000 challenging the mandate statute on constitutional grounds. In July of 2001, an intermediate appellate court found that the mandate statute did not violate either state or federal religious freedom rights.

With Justice Janice Rogers Brown the only dissenter, the Supreme Court affirmed the lower court's decision that the mandate does not violate any of the religion clauses of the federal or state constitutions. Following is a brief summary of the decision. Justice Kathleen Werdegar, the former dean of the University of San Francisco Law School (wrote the opinion for a five-member majority comprising herself, Chief Justice George, and Justices Baxter, Chin and Moreno. (Justice Kennard wrote a separate concurring opinion.) The majority opinion divided the constitutional challenges into three basic groups, which it labeled "religious autonomy," "free exercise" and "rational basis." We address these in turn.

I. Religious Autonomy

Under this rubric, the court addressed three issues.

First, the court considered whether the contraceptive mandate violates the rule of the church property cases by "interfering with matters of internal church governance and by rejecting the Catholic Church's decision that prescription contraceptives are sinful" (p. 9). The court rebuffed these arguments: "This case does not implicate internal church governance; it implicates the relationship between a nonprofit public benefit corporation and its employees, most of whom do not belong to the Catholic Church. Only those who join a church impliedly consent to its religious governance on matters of faith and discipline" (pp. 9-10).

The Court also rejected the argument that the Legislature "deliberately intervened in a conflict within the Catholic Church on the side of those who disagree with the Church's teachings on contraception" (p. 10). In this regard, the court dismissed the voluminous legislative history with the statement that "the Legislature's motivation cannot reliably be inferred from a single senator's remarks" (p. 10-11). The court also rejected any reliance on the ministerial exemption cases by noting that "Catholic Charities does not claim that any of its employees have the religious duties of ministers. Indeed…most are not even members of the Catholic Church" (p. 12).

Second, the court considered whether the mandate's four exemption criteria impermissibly distinguished between an organization's religious and its secular activities. The court resolved this issue with the observation that "the alleviation of significant governmentally created burdens on religious exercise is a permissible legislative purpose that does not offend the establishment clause" and that "[s]uch legislative accommodations would be impossible as a practical matter if the government were, as Catholic Charities argues, forbidden to distinguish between the religious entities and activities that are entitled to accommodation and the secular entities and activities that are not" (p. 13).

In this context, the court purported to "distinguish" the Tenth Circuit's decision in Espinosa v. Rusk, 634 F.2d 477 (10th Cir. 1980), on the basis that it involved a regulation of speech, in contrast to the contraceptive mandate. The Court did not note Rusk had been summarily affirmed but treated it as "a lower federal court opinion" and did not cite, much less discuss, Catholic Bishop of Chicago which involved the NLRB proposal to regulate "religiously affiliated schools" but not completely "religious schools."

Third, the court considered whether the mandate's four exemption criteria violate the Establishment Clause by mandating an entangling inquiry into the employer's religious purpose and into its employees' and clients' religious beliefs" (p. 15). The court allowed that the argument might have merit as applied to an employer subjected to scrutiny by state officials in the course of seeking the statutory exemption; however, by conceding that it cannot qualify for the exemption, Catholic Charities could not raise this argument.

II. Free Exercise

By four different arguments, Catholic Charities argued that the courts ought to apply "strict scrutiny" to its free exercise challenges to contraceptive mandate. After rejecting those arguments grounded in neutrality and general applicability, religious gerrymander, and hybrid rights, the court considered the argument that state constitution should be interpreted to require application of strict scrutiny even if its federal counterpart does not. The court concluded that it had not definitively decided this question, and it declined to decide the question in this case:

"In a case that truly required us to do so, we should not hesitate to exercise our responsibility and final authority to declare the scope and proper interpretation of the California Constitution's free exercise clause…Here, however, we need not do so because Catholic Charities' challenge to the [contraceptive mandate] fails in any event. As we explain below, the statute passes strict scrutiny" (p. 37).

Under the strict scrutiny rubric, the court expressed skepticism that Catholic Charities was actually burdened by the contraceptive mandate because it could escape the mandate by declining to offer its employees any insurance for prescription drugs. Ultimately, however, the court did not resolve the burden issue "because Catholic Charities' claim fails in any event: Assuming for the sake of argument the WCEA substantially burdens a religious belief or practice, the law nevertheless serves a compelling state interest and is narrowly tailored to achieve that interest" (p. 40). The court held that the compelling state interest served by the mandate was "eliminating gender discrimination" (p. 40), including "subtle" forms thereof (p. 41).

The court further held that "[s]trongly enhancing the state's interest is the circumstance that any exemption from the [mandate] sacrifices the affected women's interest in receiving equitable treatment with respect to health benefits" (p. 42). More generally, the court held that no authority supported "exempt[ing] a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties" (p. 42).

As for narrow tailoring, the court concluded that no less restrictive means were available to the Legislature: "Any broader exemption increases the number of women affected by discrimination in the provision of health care benefits" (p. 43). Regarding the public financing mechanism contained in Assembly Bill 1112, which the Governor vetoed in 1998, the court found "no authority requiring the state to subsidize private religious practices" (p. 43).

The court rejected the argument that the contraceptive mandate is under inclusive (because it does not facilitate access to prescription contraception for a wide variety of women) on the ground that equality, not health, is the point of the mandate. The court also rejected the argument that the mandate is over inclusive (because it covered employers like Catholic Charities who do not truly discriminate on the basis of gender) on the ground that the Legislature was solely entitled to determine who discriminates.

III. Rational Basis

Finally, the court rejected Catholic Charities' argument that the contraceptive mandate fails the rational basis test because the statute's exemption criteria are arbitrary. The court disagreed as to all criteria except the third, under which an employer must "serve[] primarily persons who share the religious tenets of the entity." The court opined: "To imagine a legitimate purpose for such a requirement is difficult…The Legislature may wish to address this problem" (p. 46).

Nevertheless, Catholic Charities could not "successfully challenge the [mandate] on this ground because the organization concedes it does not qualify under any of the criteria for exemption, including the relatively objective terms of the federal tax statute cited in the fourth criterion…Catholic Charities thus cannot qualify for exemption in any event" (p. 46).

IV. Dissent

Justice Janice Rogers Brown filed a strong dissent, taking issue with the majority's terse and summary dismissal of Catholic Charities' religious freedom rights. Justice Brown noted that "[i]n the whole scheme of things, the risk associated with allowing government to impose a stifling orthodoxy in pursuit of the good society may greatly outweigh the small harm of tolerating heterodoxy in this circumstance" (Dissent, p. 15).

Moreover, she took strong issue with the majority's tacit dismissal of Catholic Charities' arguments regarding the impropriety of the state deciding whether a religious ministry was "religious enough" to qualify for a conscience exemption. To this end she observed that "[t]his is such a crabbed and constricted view of religion that it would define the ministry of Jesus Christ as a secular activity" (Dissent, p. 18).

Justice Brown also criticized, as exaggerated and less than credible, the State's arguments regarding the importance of the State's interests and the necessity for burdening Catholic Charities' religious freedom rights. She observed that "[a]t the very least, the constitutional weight of the state's interest must be affected by the size and severity of the problem the state is attempting to solve. To authorize the state to use a howitzer to smite a gnat should be no part of our constitutional jurisprudence" (Dissent, p. 22).

V. Conclusion

Obviously, this is a deeply disappointing and troubling result. The majority exhibited significant hostility to religion in general and the Catholic Church in particular. Despite the Court's statist orientation, its general animus to the notion of conscience and principle religious autonomy, to say nothing of its myopically narrow view of religious freedom, is a bit surprising, considering its more recent decisions regarding religious institutions.

As the case was decided entirely on federal grounds, we are currently studying the basis for review by the Supreme Court of the United States on a writ of certiorari. Because of the importance of the issues presented by the Catholic Charities case, the U. S. bishops will be giving serious consideration to a petition for writ of certiorari --- which must be submitted within 90 days of the decision.

James F. Sweeney is General Counsel for the California Catholic Conference.