Interest of Amici

Representatives of diverse religious communities in the United States unite here as amici curiae on behalf of Petitioner Catholic Charities of Sacramento.^1/ Most of these amici do not share the Catholic Church's convictions about contraceptives. However, they recognize that this case seeks to establish a precedent dangerous to our national tradition of respecting the integrity of religious institutions against the intrusive power of the State. The State proposes a rule of law that forces a church institution, in violation of its own self-identity and constitution, to pay for something in its own workplace that the institution holds and teaches to be sinful. At issue is an effort by California to rewrite the church agency's self-definition -- and by rewriting, effectively to threaten the present constitution of that church -- by forbidding it to practice in its own house what it preaches. That novel claim by the State, if unchecked here, could support more expansive and corrosive inroads into religious institutions.

If Catholic Charities' constitutionally-grounded right of self-definition and autonomy is not vindicated here, no denomination will be safe from the threat of being reconstituted at the state's command. Religious bodies as a consequence will be at risk of losing their distinctiveness, forced to conform to the state's own conception of what those organizations should look like. Today's case is about contraceptives. Tomorrow's will present some other issue that elicits public division, such as abortion, assisted suicide, cloning, or some issue of self-governance, such as the use of resources for evangelization or who a religious agency may hire to do ministry work. Indeed, the State's preposterous claim that Catholic Charities is not a religious organization at all^2/ shows just how radical the State's agenda is.

It is no answer to say that Catholic Charities can simply avoid the mandate by declining to provide its employees with prescription drug coverage. As a matter of social justice, Catholic Charities considers it a religious duty to provide such coverage. See Petitioner's Brief at 3. And as a matter of the common good, how is the health and welfare of employees better off if there is no prescription drug coverage? One would hope that the State would find some mechanism to promote public health and resolve insurance problems without creating one that actually could reduce health and exacerbate the very problems the State seeks to solve. For us, this one factor speaks eloquently to the fact that the overriding concern is not contraceptive coverage but establishing the principle that the State can force a religion to submit to the State's will.

The freedom to organize religious agencies and institutions is among the most cherished of human rights. Those institutions, whose very purpose is to minister and preach an often counter-cultural message, have a right to be distinctive. To them belong a civil right (and a religious duty) to speak prophetically to their members and to society, and to constitute themselves, free from state interference, in a manner consistent with their own particular teaching. That is what this case is about, and why this Court's intervention is now so essential.

I. This Case Has Grave Implications for All Religious Denominations.

This case presents an issue of historic consequence for all churches.^3/ What is at stake is the ability of the churches and their institutions to organize and govern themselves, to constitute themselves in a manner consistent with their religious convictions. Apart from an outright ban on churches, a civil mandate that a church agency pay in its own workplace for what the church preaches against is one of the most serious invasions of church autonomy imaginable. Such a mandate forces a church to act in a manner directly contrary to the message it preaches, effectively destroying its ability to organize and govern itself and its agencies. The contraceptive legislation challenged here is at bottom a refusal to tolerate any religious group or message that does not conform to the State's secular model.

Once allowed, there is little in principle to stop further destructive intrusions into the self-governance and organization of churches, for if a church can be required in its own house to provide or pay for particular programs or services even if repugnant to its deeply held religious convictions, it would seem that no church or church body is safe from the ad hoc nullification of its practices and teaching at the hands of the State. Even the late Mother Teresa's Missionaries of Charity, whose work with the poor and destitute is internationally known and still carried on, could be forced out of existence as presently constituted by requiring the Missionaries, under force of law, to pay for contraceptives, assisted suicides, or abortions, all squarely in contradiction of its identity and purpose. This Court's intervention is necessary to prevent the state from attacking the integrity of Catholic Charities, as the State has done here, and other church agencies.

At the outset, it needs to be dramatically emphasized just how far this case is from Employment Division v. Smith, 494 U.S. 872 (1990), upon which the Court of Appeal relied so heavily. Smith rejected an individual's claimed exemption against a criminal drug law. This case, in contrast to Smith, involves a command by the State that an agency of a church itself, as a condition of existing under its present constitution in California, pay for what the church explicitly and unqualifiedly holds to be morally evil. Forcing religious organizations to subsidize the very thing they preach against strikes at the very heart of the church's ability simply to exist and to engage its members and society in the church's message and mission. See Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 341 (1987) (Brennan, J., concurring in the judgment) (recognizing a right on the part of religious organizations to order their own affairs and run their own institutions). Indeed, Smith distinguished and cited with approval cases that have recognized the right of church autonomy, 494 U.S., at 877, and all lower courts taking up the question have concluded that Smith does not overrule or undermine the principles announced in those cases. See note 15, infra (and cases cited therein).

Another problem with a rule that validates a State's self-proclaimed "generally applicable laws" that violate church autonomy is that it is a reductio ad absurdum. Under such a regime, the government could regulate selection of clergy under a neutral law forbidding discrimination based on sex, forbid the celebration of the Mass through a neutral law forbidding possession and consumption of alcohol, and outlaw kosher slaughterhouses under neutral laws regulating food handling. The legislation challenged here is the camel's nose under the tent, the cutting edge of an attempt, by making the church pay for what it explicitly opposes, in effect to silence a church's message and mission anytime it does not conform to the prevailing secular wisdom. That is a bad law, a bad policy, and unconstitutional.

The challenged mandate is a direct assault on the internal organization of a church and its agencies in violation of that agency's constitutionally protected freedom of religion. That affront standing alone is sufficient to warrant reversal of the judgment below. The case for reversal is, however, all the more persuasive when one considers the free speech and associational interests that are also at stake.

We address these constitutional interests -- religion, speech and association -- in turn.

1. Freedom of Religion

The Free Exercise and Establishment Clauses (collectively "Religion Clauses") represent an historic moment in church-state relations. As distinct from earlier eras in which the lines of government power and religious authority were either non-existent or indistinct,^4/ the federal Constitution provides that government will stay out of the precincts of churches, while churches stay out of the precincts of the state. Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 212 (1948) ("the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere"); Everson v. Board of Educ., 330 U.S. 1, 15 (1947) ("The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasions of the civil authority."), quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 730 (1872); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 259 (1963) (Brennan, J., concurring) ("[G]overnment and religion have discrete interests which are mutually best served when each avoids too close a proximity to the other"); see also Lemon v. Kurtzman, 403 U.S. 602, 620 (1971) (government is unconstitutionally entangled with religion when, among other things, there exists "dangers of excessive government direction" of church institutions); Lynch v. Donnelly, 465 U.S. 668, 687-88 (1984) (O'Connor, J., concurring) (one way government can run afoul of the Establishment Clause is through "excessive entanglement with religious institutions, which may interfere with the independence of the institutions").^5/

Church autonomy is one aspect of the constitutionally mandated separation between government and religious bodies. E.g., Walz v. Tax Commission, 397 U.S. 664, 672 (1970) (our cases have tried to "chart a course that preserve[s] the autonomy and freedom of religious bodies"). The principle of church autonomy and self-governance is well settled. Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872) (concluding that a church's decisions on questions of ecclesial discipline, faith or church law belong to the church, not the government, and hence are not subject to the review of civil courts). A half century after Watson, the Court applied the same rule to hold that the government may not prescribe the standards of church office. Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16 (1929) ("it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them").

Decided before the First Amendment had been applied to states through the Fourteenth Amendment, Watson and Gonzalez were based on non-constitutional grounds, but those decisions and the principles they stand for were elevated to constitutional status in Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94 (1952).^6/ In Kedroff, the New York legislature, in an attempt to free the Russian Church in America from "infiltration of ... atheistic or subversive influences" by the Russian government, and out of fear that church pulpits would be used for political purposes, had passed a law transferring complete control of Russian Orthodox churches from the hierarchy of the Russian Orthodox Church in Russia to the church's diocese in America. 344 U.S., at 109. The Supreme Court invalidated the legislation, holding that the Free Exercise Clause bars a state legislature from regulating "church administration, the operation of the churches, [or] the appointment of clergy...." Id. at 107-08.^7/ The Watson decision, the Court explained in Kedroff, "radiates ... a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine," freedom that "must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference." Id. at 116.

The principle of church autonomy and self-governance was again dispositive in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The "right to organize voluntary religious associations," the Court wrote, "is unquestioned." 426 U.S., at 711, quoting Watson, 80 U.S., at 728-29. The First Amendment permits religious organizations "to establish their own rules and regulations for internal discipline and government...." 426 U.S., at 724.^8/ See Corporation of Presiding Bishop v. Amos, 483 U.S., at 341 (Brennan, J., concurring in the judgment) ("religious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions") (internal quotation marks omitted).

In each case -- Watson, Gonzalez, Kedroff, and Milivojevich -- interference with church governance was per se unlawful, and the Court made no attempt to apply a balancing test. An interest as compelling as the avoidance of Communist infiltration at the height of the Cold War made absolutely no difference to the Court's conclusion that New York had stepped out of constitutional bounds when it attempted to interpose itself in a church's organization and self-governance. See also Church of Scientology v. City of Clearwater, 2 F.3d at 1539-40 ("The criteria adopted in Lemon and elaborated in its progeny are absolute in themselves, and a law that fails to meet any of them is per se invalid.... The Establishment Clause prevents seemingly important justifications from becoming a shield to defend the subtle and incremental advance of government administration into the field of church activities."); see Carl H. Esbeck, "The Establishment Clause as a Structural Restraint on Governmental Power," 84 Iowa L. Rev. 1 (Oct. 1998) (the Establishment Clause is an affirmative restraint on government, depriving it of any power whatever to interfere with religion); Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 194 (1986) ("Americans in 1789 ... agreed that the federal government had no power in [religious] matters").

Direct attempts to interfere with the internal organization and governance of churches are thankfully rare, which perhaps accounts for the relatively few cases on the subject. One particular application of the principle of church autonomy, however, which continues to recur and to be restated and affirmed by the courts, is the constitutionally compelled ministerial exception to laws forbidding discrimination in employment. EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795 (4th Cir. 2000); Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299 (11th Cir. 2000); Combs v. Central Texas Annual Conf. of United Methodist Church, 173 F.3d 343 (5th Cir. 1999); EEOC v. Catholic University of America, 83 F.3d 455 (D.C. Cir. 1996); Young v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184 (7th Cir.), cert. denied, 513 U.S. 929 (1994); Scharon v. St. Luke's Episcopal Presbyterian Hosps., 929 F.2d 360 (8th Cir. 1991). The ministerial exception demonstrates the continuing strength of the constitutional right of churches to organize and govern themselves free of state interference. As these cases hold, the government may not second guess a church's choice of ministers, even if that choice is not based on religious conviction. The infringement on Catholic Charities' right of self-organization is more serious here because the agency's decision not to pay for contraceptive in its own workplace is based on religious reasons.

The principle of church autonomy applies not only to intra-church disputes (e.g., Watson) and discrimination claims by ousted ministers (e.g., Gellington), but to any attempt by government to regulate the internal affairs and organization of churches. The State concedes that the former involves religious questions but believes that the line is drawn at property and ministry cases (Real Parties in Interest's Answer Brief on the Merits, at 33-35), notwithstanding the contrary authority of Gonzalez and Kedroff. Gonzalez involved an attempt, through judicial enforcement of a private trust, to vary church rules on the choice of ministers. Kedroff involved a legislative attempt to decide who would hold power in a church. Any government attempt, whether judicial or legislative, to intrude into the inner workings of a church by artificially declaring some matters non-religious is per se unconstitutional. Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960) (neither courts nor legislatures may decide questions of church governance). The State lacks the constitutional power to determine which issues are "religious" for a religion, or "determine the place of a particular belief in a religion." Smith, 494 U.S., at 887; Thomas v. Review Board, 450 U.S. 707, 714 (1981).

Church of Scientology, supra, provides another example of the wide application of the autonomy principle in protecting the internal workings of churches. In that case, the City of Clearwater had enacted an ordinance requiring the Church of Scientology to disclose to the public, and -- more importantly -- to church members, detailed financial and other information. The Eleventh Circuit held that it was constitutionally impermissible for the government to impose its own preferences concerning what information the church should disclose to its members. 2 F.3d at 1536-37. The court of appeals held that a civil mandate requiring disclosure of information to church members subtly, yet impermissibly, shifted the balance of power from church authorities to church members, an effect that was "as offensive to the Establishment Clause as the delegation of such authority to church leaders that was condemned in Larkin...." Id. at 1536.

Catholic Charities' claims are even stronger than those presented by Church of Scientology because (a) the latter had no apparent religious objection to disclosing information to its members, and (b) the mandate at issue here involves far more than the mere disclosure of information; it requires Catholic Charities itself to pay in its own workplace for what it explicitly condemns as sinful. This case therefore involves a reordering of decision-making within a church agency that contravenes not only the agency's internal structure, but the religious convictions that are its raison d'etre. This reordering of authority is accomplished by giving each employee of Catholic Charities the power to decide whether Catholic Charities, notwithstanding its religious convictions, will pay for contraceptives for him or her -- in effect, allowing employees to control and invade the agency's purse by allowing the employees to extract payments for purposes the agency regards as sinful. Cf. Amos, 483 U.S., at 341 (Brennan, J., concurring in the judgment); Church of Scientology, 2 F.3d at 1536.

It is rare indeed that one witnesses such an irruption into the organization and polity of a religious organization. Attempts to require a church to pay for programs or services inside its institutions that it specifically preaches against are virtually unprecedented. The only conscientiously opposed funding even attempted in times leading up to adoption of the Religion Clauses involved not compulsory funding by churches of programs or services to which they objected (that apparently was never attempted), but compulsory funding of churches and ministers by individual taxpayers -- a practice that met with stiff resistance and culminated in the enactment of the Religion Clauses. Curry, The First Freedoms, supra at 89, 106-07, 109, 111, 116, 137, 143-45, 149, 153. Madison's Memorial and Remonstrance, described as "at once the most concise and the most accurate statement of the views of the First Amendment's author concerning what is an 'establishment of religion,'" Everson, 330 U.S., at 37 (Rutledge, J., dissenting), was itself directed at a proposal to impose a tax for the support of religious teachers.^9/ Direct and compulsory funding in contravention of one's ^10/ was therefore one of the evils at which the First Amendment struck, an evil that rears its head in this case in another guise.

The autonomy cases demonstrate that under the Religion Clauses, Catholic Charities has a right to retain its self-identity and distinctiveness as a church organization. The State's attempt to place a wedge between that agency and its employees runs afoul of this vital freedom. NLRB v. Catholic Bishop, 440 U.S. 490 (1979), is illustrative. In that case, the NLRB attempted to insert itself into the relationship between religious schools and their teachers by asserting jurisdiction to certify a union. The Supreme Court held that the Board's attempt would give rise to "serious constitutional questions," and it refused to interpret the authorizing statute to permit such an intrusion. In explaining the decision, a leading commentator writes that "[p]art of the freedom of a church to operate a school is its ability to deal with its agents in accordance with church doctrine; otherwise the church's strength and distinctiveness as a religious educator would be threatened." Michael W. McConnell, "Accommodation of Religion," 1985 Sup. Ct. Rev. 1, 28. The contraceptive mandate forced upon Catholic Charities does what NLRB union certification would have done had the U.S. Supreme Court not intervened; indeed, this case is a more egregious violation of religious liberty because the Catholic Church has a specific religious objection to contraceptives (while its teaching favors unions and bargaining).

Equally troubling is the legislature's implicit attempt, in crafting a limited exception for a narrow range of religious organizations, to decide what is religious and what is not religious. The State may not decide "what is or is not secular, what is or is not religious." Lemon, 403 U.S., at 637 (Douglas, J., concurring). Here the State has decided that organizations are "truly" religious if they serve and employ only their co-religionists. As a result, religious organizations that are, in a manner of speaking, insular in their workplace and ministry are exempted from the law, while religious organizations with a missionary outlook are not. This is blatantly unconstitutional. Larson v. Valente, 456 U.S. 228 (1982) (state may not pick and choose among different religious organizations when it imposes some burden); Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993) (state may not target one religion for a particular burden); Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) (holding that section 19 of the National Labor Relations Act, which exempts from mandatory union membership any employee who "is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations," is unconstitutional because it discriminates among religions and would involve an impermissible judicial inquiry into religious tenets), cert. denied, 505 U.S. 1218 (1992). If the Religion Clauses means anything, they mean that the government is estopped from deciding which church organizations are "religious enough" to qualify for an exemption. Id.; see also Lemon, 403 U.S., at 637 (Douglas, J., concurring); University of Great Falls v. NLRB, 278 F.3d 1335, 1341-42 (D.C. Cir. 2002) (rejecting NLRB's assertion of jurisdiction that college lacked "substantial religious character," and applying Catholic Bishop, supra).^11/ Church agencies with the temerity (in the State's view) to hire and serve persons other than their own members are penalized by this legislation or, alternatively, forced to withdraw from public service. Such a state-imposed choice is offensive, discriminatory, and unconstitutional under the Religion Clauses. Id.

2. Freedom of Speech and Association^12/

The Free Speech Clause protects not only the spoken and written word, but also expressive conduct. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) ("We need not differ with the view of the Court of Appeals that overnight sleeping in connection with [a] demonstration is expressive conduct protected to some extent by the First Amendment."); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-07 (1969) (black armband worn by public school students to protest American policy in Vietnam is speech); Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in by black students in "whites only" library is speech); see also West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 632 (1943) (saluting the flag is speech). The Free Speech Clause requires the government to justify every instance of abridgement, a requirement that stems from the Founders' intent to secure the widest possible dissemination of information and ideas from diverse sources. Associated Press v. United States, 326 U.S. 1, 20 (1945).

The U.S. Supreme Court also recognizes that "'implicit in the right to engage in activities protected by the First Amendment' is 'a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.'" Boy Scouts of America v. Dale, 120 S.Ct. 2446, 2451 (2000), quoting Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). The right to associate "is crucial in preventing the majority from imposing its view on groups that would rather express other, perhaps unpopular, ideas." Dale, 120 S.Ct. at 2451; see also Roberts, 468 U.S., at 622 ("According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority."). "Government actions that may unconstitutionally burden this freedom [to associate] may take many forms, one of which is 'intrusion into the internal structure or affairs of an association'...." Dale, 120 S.Ct., at 2451, quoting Roberts, 468 U.S., at 623. Thus, like free speech, the right of association is a protection against state-enforced ideology, a guarantee that diversity of thought and belief will be permitted and not banished by the state.

There is no question that compulsory funding can violate the constitutional guarantees of free speech and association. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222, 235 (1977) (requiring public employees, as a condition of employment, to contribute to union's support of ideological causes violates the First Amendment); Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435, 455-57 (1984) (applying Abood to private sector employees); Keller v. State Bar of California, 496 U.S. 1 (1990) (requiring lawyers, through mandatory bar dues, to finance political and ideological activities with which they disagree violates the First Amendment). In each of the cited cases, the First Amendment was not only implicated, but affirmatively violated, notwithstanding some rather impressive competing interests. In Ellis, for example, "vital national interests in preserving industrial peace," Keller, 496 U.S., at 13 (describing Ellis), did not trump the right to be free from having to contribute to political and ideological causes to which one was opposed. Even an interest as important as non-discrimination is insufficient to trump an organization's constitutional rights. Dale, 120 S.Ct., at 2454 (Boy Scouts may not constitutionally be forced under New Jersey's public accommodations law to permit gay rights advocate to be Scout leader; his presence "would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior").

Dale recognizes for purposes of association, just as Clark and Brown recognize for purposes of speech, that what one says and what one does are inseparably linked. Just as sleeping (Clark, supra) and sitting (Brown, supra) were protected expressive conduct for demonstrators opposed to homelessness and racial segregation, and just as the refusal to hire a gay advocate by an organization opposed to homosexual conduct was protected association (Dale, supra), so too are speech and associational interests implicated by a church's refusal to participate in or pay for programs in its own workplace that are morally repugnant to it. Conduct does as much (indeed, it often does more) to express one's true religious convictions than mere words. See University of Great Falls, 278 F.3d at 1346 ("Religion may have as much to do with why one takes an action as it does with what action one takes").

In the Christian tradition, a religious faith not expressed in conduct is inauthentic. E.g., James 2:14-26. Centuries of Christian belief and practice demonstrate that orthopraxy (right conduct) flows, and is inseparable, from orthodoxy (right belief). See 1 John 2:3-6. Catholic Charities cannot say one thing and, at the state's bidding, do another without severing this vital link between words and conduct. Indeed, most observers would assume, even if the assumption were incorrect, that a church organization paying for contraceptives in its own house did not genuinely oppose contraceptive practices. Payment of contraceptives by Catholic Charities, a practice it explicitly condemns, "sends a distinctly different message" than the one the church wishes to convey. Dale, 120 S.Ct. at 2455; see also id. at 2454 (organization has a right "not to propound a point of view contrary to its beliefs"). The challenged mandate forces Catholic Charities to "affirm in one breath that which [it] den[ies] in the next," Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 576 (1995), quoting Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 16 (1986), turning this private religious agency into a kind of human billboard for practices that contradict its religious and associational purposes, cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977), something the State constitutionally may not do.^13/ Cf. Real Parties in Interest's Answer Brief on the Merits, at 47-48.

A mandate that an organization, in its own workplace, pay for a program or service that contradicts the organization's very raison d'etre is serious enough even when one sets aside the religious interests at stake here. One can imagine how Planned Parenthood, a sponsor of the legislation challenged here, might react were the facts altered so that it was required to pay its own employees for services that directly contradicted its associational mission and message. Suppose a legislature were to require that all insurance plans that pay for abortion also pay for post-abortion trauma services and counseling based on a legislative finding that such trauma poses a significant public health risk. Planned Parenthood denies that women suffer trauma as a result of abortion, just as Catholic Charities denies that contraceptives benefit either women or men.^14/ Planned Parenthood would be required to notify its employees of available, insured services for post-abortion trauma, all the while denying that such trauma exists, just as Catholic Charities is here required to notify its employees of coverage for contraceptives. The same speech and associational interests Planned Parenthood would undoubtedly raise in such circumstances become dispositive when it involves the internal operations of a church, for the latter has a right to autonomy arising out of the Religion Clauses that Planned Parenthood, as a secular organization, does not. In this case, a church agency (Catholic Charities) has employed persons to further an explicitly religious mission, a mission known to its employees and tacitly agreed to by them. Cf. Watson, 80 U.S. (13 Wall.), at 729 ("All who unite themselves to ... a [religious] body do so with an implied consent to this government, and are bound to submit to it"). Yet Catholic Charities has been forced by the State to insure these same employees for that which contravenes the body of religious teachings that identify Catholic Charities as Catholic.

III. The Contraceptive Mandate is Per Se Unconstitutional; in the Alternative, the Mandate is Not the Most Restrictive Means of Furthering a Compelling State Interest.

For at least three reasons, no balancing test is appropriate in this case. First, the autonomy cases posit an absolute rule against intrusion; those cases do not engage in balancing. When, for example, courts hold that no anti-discrimination claim can be brought by a minister against a church, no consideration is given (nor should any be) to the state's claimed interest in eradicating discrimination.^15/ Second, insofar as the autonomy cases rely on the Establishment Clause, no balancing is appropriate because a law is per se invalid if it fails to meet the tests which have been articulated for deciding Establishment Clause claims. Lemon v. Kurtzman, 403 U.S., at 612-13 (setting out a three-pronged test which on its face calls for no evaluation of competing state interests); Church of Scientology v. City of Clearwater, 2 F.3d at 1539-40 (noting that Lemon and subsequent cases require no balancing test in the evaluation of Establishment Clause claims); Esbeck, "The Establishment Clause as a Structural Restraint on Governmental Power," supra (the government has no power over religion).^16/ Third, the challenged mandate is not neutral and generally applicable, but instead specifically targets Catholic institutions. See Petitioner's Brief at 6-10. The mandate is not generally applicable because it includes an exemption for some church organizations; the exemption, in turn, is not neutral because it discriminates among religions, Larson v. Valente, 456 U.S. 228 (1982), and uses religious criteria in deciding which are "religious enough" to be exempt. Lemon, 403 U.S., at 637 (Douglas, J., concurring) (the state may not decide "what is or is not religious").

Were this Court, however, to apply a balancing test, strict scrutiny would apply because, as we have demonstrated, this case implicates religious, speech, and associational rights, each a fundamental right standing alone and in combination triggering Smith's hybrid rights exception.^17/ Smith, 494 U.S., at 881-82 (strict scrutiny applies when free exercise is combined with some other constitutional interest). California's contraceptives mandate does not pass that test. We offer the following reflections, not in any way to denigrate the importance of the issues California raises, but to illustrate that the facts do not justify the State's assertions.

Here the State claims an interest in promoting gender equality. But Catholic Charities' insurance plan excludes all artificial means of preventing procreation -- whether unique to women (e.g., contraceptive drugs, tubal ligations), unique to men (e.g., condoms, vasectomies) or common to both sexes. Catholic Charities' action is explained by religious principles, and is gender-neutral. Accordingly, no interest in gender equality is legally furthered by requiring Catholic Charities to pay for contraceptives.

A useful analogy is found in court cases that uphold, against a claim of employment discrimination, the termination of an employee who engages in conduct incompatible with the employer's mission. Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 627 (6th Cir. 2000) (Baptist Memorial College did not engage in religious discrimination when it fired an employee for taking a leadership position in an organization that expressed public support for homosexual conduct); Pedreira v. Kentucky Baptist Homes for Children, 2001 WL 1775350 (W.D. Ky. July 23, 2001) (Kentucky Baptist Homes did not engage in religious discrimination when it fired an employee engaged in homosexual lifestyle). Catholic Charities likewise does not engage in sex discrimination when it excludes from its insurance plan programs and services that violate Catholic teaching.

As applied to employers with serious objections to contraceptive use, the mandate may actually undermine the state's claimed interests in advancing health and expanding insurance coverage by encouraging employers to drop prescription coverage^18/ as a means of avoiding the mandate. As a purely economic matter, one would expect that expanding benefits for persons with prescription drug coverage would tend to decrease the pool of employers who offer such coverage at all. Given the large numbers of persons without any kind of prescription drug coverage, or who are wholly uninsured,^19/ one can fairly question whether the creation of such reverse incentives truly advances public health. It is especially hard to defend the claim that the public welfare is served by penalizing Catholic Charities for not paying for prescription contraceptives when other employers pay for no prescription drugs or services whatsoever.

Finally the State asserts the need to intrude into the internal operations of a religious institution to protect the rights of employees who might disagree with the Catholic Church's teaching on contraception and desire such coverage. That assertion is based on United States v. Lee, 455 U.S. 252 (1982), in which the U.S. Supreme Court stated, without authority or explanation, that allowing a private commercial for-profit company to refuse payment of Social Security taxes for all employees because of the owner's beliefs violated the rights of the employees when protecting the rights of employers. Even if one might say such an interest is compelling for employees of for-profit private commercial institutions, that interest fails when the subject of regulatory interest is religion and its nonprofit operations.

Context matters for constitutional law. In his opinion in Amos, Justice Brennan recognized the commercial status of the employer made a difference for labor exemptions. 483 U.S., at 343-45 (Brennan, J., concurring in the judgment). Lee involves tax resistance, something that the courts have never tolerated in any case for any reason, regarding religious reasons against the payment of taxes as indistinguishable from a number of possible secular justifications. That is not the case here. Catholic Charities was established for the very purpose of espousing specific religious values and beliefs in action; otherwise it could not legitimately represent itself to be "Catholic." The adults who choose employment there see at least two of those principles in action, the extension of health insurance coverage as a matter of workplace justice, when many secular employers choose to forego it, and the refusal to fund those practices the Church holds as evil, artificial contraception and abortion, as a witness to the value the Church places on human life, when many in society eschew those values. In this context, Lee is inapposite, Amos controls.

There are limits to what the State may accomplish with respect to a religious employer, in dealing with its own employees who understand the nature and purposes of the employer and in being forced to fund with donated money that which it condemns. Amos, 483 U.S., at 337 n.15 (recognizing the burden on non-conforming employees). The State has not shown that there is any compelling need based on real complaints about alleged discrimination in Catholic Charities.

Conclusion

It would be a grave mistake for this Court to extinguish the freedom of church agencies to organize and operate internally in a manner consistent with their religious convictions. Deference to laws of general applicability should not, and does not, override the freedom of churches and their agencies to be distinctively different from their secular counterparts. That would be to enforce the state's uniform views over the church's own in contravention of that church's freedom to govern and organize itself in accord with its religious faith. Such intolerance on the part of the state is inconsistent with the First Amendment's commands.

The judgment below should be reversed.

Respectfully submitted,

__________________________
John P. McNicolas (SBN 335300)
McNicholas & McNicholas, LLP
10866 Wilshire Blvd., Suite 1400
Los Angeles, CA 90024
Tel: (310) 474-1582
Fax: (310) 475-7871

March 8, 2002

Endnotes

1. An individual description of each amicus is included in the application to file which accompanies this brief. [Editor's note: The Brief was filed by four national religious organizations - the United States Conference of Catholic Bishops, the Lutheran Church-Missouri Synod, the International Church of the Foursquare Gospel, and the Worldwide Church of God.]

2. Real Parties in Interest's Answer Brief on the Merits, at 4, 7. There is ample evidence in the record demonstrating that Catholic Charities is a religious organization and an inseparable ecclesiastical component of the Catholic Church. See Declaration of Richard S. Mockler, 2 Doc. App. 00341-00348; Declaration of Most Rev. William K. Weigand, 13 Doc. App. 003743; Declaration of James F. Rodgers, 2 Doc. App. 000382-388; Supplemental Declaration of James F. Rodgers, 13 Doc. App. 003644-003647.

3. We use the term "churches" to refer to all religious denominations, not just Christian churches. By using "church" or "church organization," we highlight the assault on the integrity of Catholic Charities of Sacramento.

4. Religious and secular governance in ancient times was merged into a single person or group. In the roughly 1,000 year period bridging the ancient and modern eras, distinctions between religious and secular governance become more recognizable, but secular leaders frequently exercised religious authority and religious leaders in turn exercised secular authority. The First Amendment's historic innovation was to recognize as a rule of law a legitimate distinction between government and religious authority. See, e.g., Thomas J. Curry, Farewell to Christendom: The Future of Church and State in America (Oxford Univ. Press 2001), at 12. As a consequence of that distinction, secular authorities under our constitutional order may not interfere with the governance of churches and their agencies, see cases cited infra, nor may churches exercise government power. Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (allowing church to decide whether liquor license may be issued to neighboring premises is an unconstitutional delegation of government authority). Ninth Circuit Judge John Noonan says of the First Amendment that "[t]here had been nothing like it in history." John T. Noonan, Jr., "The End of Free Exercise?," 42 DePaul L. Rev. 567 (Winter 1992).

5. There is no denying the preferential value the Founders placed on religious freedom. "Madison looked upon ... religious freedom ... as the fundamental freedom." Everson, 330 U.S., at 34 n.13 (Rutledge, J., dissenting) (quoting Brant, James Madison, The Virginia Revolutionist 243 (1941). Jefferson saw it as "the most inalienable and sacred of all human rights." The Writings of Thomas Jefferson (Memorial ed., 1904) at 414-17, quoted in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 245 n.11 (1948) (Reed, J., dissenting). Madison thought government should not interfere in religion "beyond the necessity of preserving public order, & protecting each sect agst. trespasses on its legal rights by others." IX The Writings of James Madison 484, 487 (Hunt, ed., 1901-10), quoted in Everson, 330 U.S., at 40 n.28 (Rutledge, J., dissenting). See also Prince v. Massachusetts, 321 U.S. 158, 164 (1944) (liberties guaranteed by the First Amendment have a "preferred position in our basic scheme").

Madison's view that government should not interfere in religion "beyond the necessity of preserving public order" is mirrored in the compelling interest test formally adopted in Sherbert v. Verner, 374 U.S. 398 (1963), and foreshadowed in pre-Sherbert case law. In the late 1800s, for example, the U.S. Supreme Court applied a form of this analysis when it refused to require a religious exemption from a polygamy law. The court believed that polygamy would "fetter[] the people in ... despotism"; that it would destroy marriage, an institution upon which "civilized nations" were built; and that polygamous practices had "always been odious" among western peoples and banned in America from colonial times. Reynolds v. United States, 98 U.S. 145, 165-66 (1879). Plainly the State could not make a similar claim here.

6. Presbyterian Church v. Mary E.B. Hull Mem. Presbyterian Church, 393 U.S. 440, 447 (1969) ("In Kedroff ... the Court converted the principle of Watson as qualified by Gonzalez into a constitutional rule.") See also Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1538 n.24 (11th Cir. 1993) (explaining the basis of, and relationship among, Watson, Gonzalez, and Kedroff), cert. denied, 513 U.S. 807 (1994).

7. The Kedroff Court also cited the principle of church-state separation, a principle reflected in both Religion Clauses. Kedroff, 344 U.S., at 110 ("transfer ... of control over churches ... violates our rule of separation between church and state"); see also id. at 119 (stating that the state, by transferring church authority from one administrator to another, "intrudes ... the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment").

8. See also Presbyterian Church v. Mary E.B. Hull Mem. Presbyterian Church, 393 U.S. 440 (1969) (holding that it is constitutionally impermissible for civil courts to adjudicate a church dispute arising out of a church schism). The Court in Presbyterian Church cites the First Amendment, id. at 441, 444 n.3, 449-51, with reference to both free exercise and establishment concerns. Id. at 449.

9. There is nothing to suggest that Madison or Jefferson, principal actors in the Virginia drama on which the Supreme Court has heavily relied in its Religion Clauses jurisprudence (see, e.g., Everson, 330 U.S., at 11-13) would have wanted religious organizations to be forced to pay for services to which they had a religious objection as a condition of being allowed to exist and serve its members or others. If the issue did not arise, it is only because no government was thought to have the power to dictate religious choices to religious institutions.

10. There is, of course, no general constitutional right not to pay a tax. United States v. Lee, 455 U.S. 252 (1982); Droz v. Commissioner, 48 F.3d 1120 (9th Cir. 1995), cert. denied, 516 U.S. 1042 (1996). The present case, however, does not involve a tax of any kind. California is not imposing or collecting tax revenues so that it may pay for contraceptives. The State instead has forced Catholic Charities itself to pay for contraceptives. Put another way, taxpayer cases like Lee involve how the government collects and uses its own funds. Such cases implicate the state's interest in maintaining the viability of the tax system, in part to maximize the collection of revenue; the present case does not. The court in Lee refused to grant a taxpayer engaged in a commercial enterprise (farming) an exemption from a tax, reasoning that the tax system "could not function" if people were allowed to opt out, and that uniform tax collection is "indispensable to the fiscal vitality" of the tax system. Lee, 455 U.S., at 258, 260; see Droz, 48 F.3d at 1122-24 (relying extensively on Lee); accord Smith, 494 U.S., at 880 (the tax system "could not function" if exemptions were granted). The present case involves neither a commercial enterprise nor payment of taxes into government coffers nor use of government money, but a mandate that a private church organization itself provide its own workforce, through a private insurance program, with direct payments for what the church teaches and preaches against. Government can spend its own funds as it wishes, but an attempt to determine how a church agency uses its funds such as is presented here is unconstitutional. See People ex rel. Deukmejian v. Worldwide Church of God, 127 Cal.App.3d 547, 551, 178 Cal.Rptr. 913, 915 (Cal. App. 1981) (stating, in dicta, that a government attempt to control church property and the receipt and expenditure of church funds would violate the constitutional prohibition against government establishment and interference with the free exercise of religion).

11. In University of Great Falls, the NLRB found the Catholic college to be a "secular institution" because it admitted non-Catholics as students, hired non-Catholics as faculty, and respected other religious expressions on campus. The D.C. Circuit held that "to limit ... exemption to religious institutions with hard-nosed proselytizing ... is an unnecessarily stunted view of the law, and perhaps even itself a violation of the most basic command of the Establishment Clause -- not to prefer some religions (and thereby some approaches to indoctrinating religion) to others." 278 F.3d at 1346.

12. We discuss free speech and association together because, as will become evident, they involve related analyses and court decisions frequently link the two. Petitioner, under a Free Speech rubric, has preserved both claims. Petitioner's Brief at 38-39; Complaint, Counts 11-12. If this Court were to disagree that free speech is implicated, the right of association would still be at issue because it is implicit in the right to engage in all activities protected by the First Amendment, including religion. Boy Scouts of America v. Dale, 120 S.Ct. 2446, 2451 (2000); Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984), cited with approval in Smith, 494 U.S., at 882.

13. In contrast to the diversity of views that the rights of speech and association are meant to protect, California has, in some sense, "uniformized" the issue of contraceptives. It has done so not by converting private functions into public ones, but by forcing private organizations, even religious ones, to do the state's bidding, eliminating any opposing choice by employers, even when based on religious convictions. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."). Choice and diversity are precisely what the State in this instance would deny Catholic Charities as a private religious organization.

14. Planned Parenthood claims that there is "no scientific proof" for claims that "abortion often causes long-lasting emotional problems" or "post-abortion syndrome." Planned Parenthood, "Choosing Abortion -- Questions and Answers," at 3, available at www.plannedparenthood.org/ABOR-TION/chooseabort3.html. Catholic Charities, of course, holds that contraceptives are sinful and therefore would not characterize them as a "service."

15. All subsequent lower courts taking up the question have concluded that Smith does not overrule, or in any way undermine the principles announced in, the autonomy cases. EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d at 800 n.* (Smith does not abolish the ministerial exception); Combs, 173 F.3d at 347-50 (same); Catholic University, 83 F.3d at 461-63 (same); Gellington, 203 F.3d at 1302-04 (same). Smith itself, which cited the autonomy cases with approval (494 U.S., at 877), dealt with claims for religious accommodation on the part of individuals, not institutions. E.g., 494 U.S., at 878-79 ("We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate") (emphasis added); id. at 879 ("the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability...'") (emphasis added).

16. Of course, the absolute character of the prohibition against civil intrusion into church governance, and the absence of balancing, depend on the context. When the State's interest in non-discrimination is pitted against a church's interest in self-governance, the rule against intrusion is absolute and the courts generally engage in no balancing. Thus, one generally finds in the ministerial exception cases no discussion by the courts about the weight to be assigned to the State's interest in non-discrimination. Plainly a different approach would govern in cases where a religious body causes criminal injury to individuals (e.g., choosing ministers by having applicants play russian roulette). In such cases, the State obviously may enforce its criminal law.

17. The rights implicated here are those guaranteed under the Free Exercise Clause, the Establishment Clause, the Free Speech Clause, and the First Amendment right of association.

18. Ironically, the State of California suggests that Catholic Charities can comply with the law simply by "not offering any prescription drug coverage...." Real Parties in Interest's Answer Brief on the Merits, at 25-26. Catholic Charities believes that taking such action would violate the moral imperative to pay just wages. Petitioner's Brief at 3. It is reasonable to infer, however, that other employers will be tempted to drop prescription drug coverage altogether rather than pay for expanded and more expensive coverage. If, as the State suggests, there is a crisis in providing coverage, how does the mandate in such instances advance the public interest?

19. The U.S. Census Bureau estimates that in 2000, 38.7 million Americans were without private or public health insurance coverage. U.S. Census Bureau, Health Insurance Coverage: 2000 (Sept. 2001). The Medical Expenditure Panel Survey, conducted by the Agency for Healthcare Research and Quality ("AHRQ") in conjunction with the National Center or Health Statistics, found that in 1999, the last year for which statistics are available, 41.6 percent of private-sector establishments in the United States offered no health insurance to their employees. AHRQ, 1999 Medical Expenditure Panel Survey, Table I.B.2 (1999).

Email us at ogc@usccb.org
Office of the General Counsel | 3211 4th Street, N.E., Washington DC 20017-1194 | (202) 541-3000 © USCCB. All rights reserved.