Supreme Court of California Justia
Docket No. S099822

Catholic Charities v. Super. Ct.

Filed 3/1/04



IN THE SUPREME COURT OF CALIFORNIA



CATHOLIC CHARITIES OF

SACRAMENTO, INC.,

Petitioner,

S099822

v.

) Ct.App.

3

C037025

THE SUPERIOR COURT OF

SACRAMENTO COUNTY,

Sacramento County

Super. Ct. No. 00AS03942

Respondent;

DEPARTMENT OF MANAGED

HEALTH CARE et al.,

Real Parties in Interest.



In this case, we address a church-affiliated employer’s constitutional

challenges to the Women’s Contraception Equity Act (WCEA),1 under which

certain health and disability insurance contracts must cover prescription

contraceptives. The plaintiff employer, which opposes contraceptives on religious

grounds, claims the statute violates the establishment and free exercise clauses of

the United States and California Constitutions. (U.S. Const., 1st Amend.; Cal.

Const., art. I, § 4.) The lower courts rejected the employer’s claims. We affirm.


1

The WCEA comprises two laws, Health and Safety Code section 1367.25

(Stats. 1999, ch. 532) and Insurance Code section 10123.196 (Stats. 1999,
ch. 538).

1


I. FACTS

The Legislature enacted the WCEA in 1999 to eliminate gender

discrimination in health care benefits and to improve access to prescription

contraceptives. Evidence before the Legislature showed that women during their

reproductive years spent as much as 68 percent more than men in out-of-pocket

health care costs, due in large part to the cost of prescription contraceptives and

the various costs of unintended pregnancies, including health risks, premature

deliveries and increased neonatal care. Evidence also showed that, while most

health maintenance organizations (HMO’s) covered prescription contraceptives,

not all preferred provider organization (PPO) and indemnity plans did. As a

result, approximately 10 percent of commercially insured Californians did not

have coverage for prescription contraceptives.

The Legislature chose to address these problems by regulating the terms of

insurance contracts. The WCEA does not require any employer to offer coverage

for prescription drugs. Under the WCEA, however, certain health and disability

insurance plans that cover prescription drugs must cover prescription

contraceptives. As an exception, the law permits a “religious employer” to request

a policy that includes drug coverage but excludes coverage for “contraceptive

methods that are contrary to the religious employer’s religious tenets.”2 Health

and Safety Code section 1367.25 governs group health care service plan

contracts;3 Insurance Code section 10123.196 governs individual and group

disability insurance policies.4


2

Health and Safety Code section 1367.25, subdivision (b); Insurance Code

section 10123.196, subdivision. (d).
3

Health and Safety Code section 1367.25 provides:

“(a) Every group health care service plan contract, except for a specialized

health care service plan contract, that is issued, amended, renewed, or delivered on


(footnote continued on next page)

2



(footnote continued from previous page)

or after January 1, 2000, and every individual health care service plan contract that
is amended, renewed, or delivered on or after January 1, 2000, except for a
specialized health care service plan contract, shall provide coverage for the
following, under general terms and conditions applicable to all benefits:


“(1) A health care service plan contract that provides coverage for

outpatient prescription drug benefits shall include coverage for a variety of federal
Food and Drug Administration approved prescription contraceptive methods
designated by the plan. In the event the patient’s participating provider, acting
within his or her scope of practice, determines that none of the methods designated
by the plan is medically appropriate for the patient’s medical or personal history,
the plan shall also provide coverage for another federal Food and Drug
Administration approved, medically appropriate prescription contraceptive method
prescribed by the patient’s provider.


“(2) Outpatient prescription benefits for an enrollee shall be the same for an

enrollee’s covered spouse and covered nonspouse dependents.


“(b) Notwithstanding any other provision of this section, a religious

employer may request a health care service plan contract without coverage for
federal Food and Drug Administration approved contraceptive methods that are
contrary to the religious employer’s religious tenets. If so requested, a health care
service plan contract shall be provided without coverage for contraceptive
methods.


“(1) For purposes of this section, a ‘religious employer’ is an entity for

which each of the following is true:


“(A) The inculcation of religious values is the purpose of the entity.

“(B) The entity primarily employs persons who share the religious tenets of

the entity.


“(C) The entity serves primarily persons who share the religious tenets of

the entity.


“(D) The entity is a nonprofit organization as described in Section

6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.


“(2) Every religious employer that invokes the exemption provided under

this section shall provide written notice to prospective enrollees prior to
enrollment with the plan, listing the contraceptive health care services the
employer refuses to cover for religious reasons.


“(c) Nothing in this section shall be construed to exclude coverage for

prescription contraceptive supplies ordered by a health care provider with
prescriptive authority for reasons other than contraceptive purposes, such as
decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or


(footnote continued on next page)

3

Plaintiff Catholic Charities of Sacramento, Inc. (hereafter Catholic

Charities) is a California nonprofit public benefit corporation. (See Corp. Code,

§ 5110 et seq.) Although independently incorporated, Catholic Charities describes

itself as “operated in connection with the Roman Catholic Bishop of Sacramento”

and as “an organ of the Roman Catholic Church.” The nonprofit corporation

“offer[s] a multitude of social services and private welfare programs to the general

public, as part of the social justice ministry of the Roman Catholic Church.”

These services and programs include “providing immigrant resettlement programs,

elder care, counseling, food, clothing and affordable housing for the poor and

needy, housing and vocational training of the developmentally disabled and the

like.”

Catholic Charities offers health insurance, including prescription drug

coverage, to its 183 full-time employees through group health care plans

underwritten by Blue Shield of California and Kaiser Permanente. Catholic

Charities does not, however, offer insurance for prescription contraceptives

because it considers itself obliged to follow the Roman Catholic Church’s


(footnote continued from previous page)

for prescription contraception that is necessary to preserve the life or health of an
enrollee.


“(d) Nothing in this section shall be construed to deny or restrict in any way

the [D]epartment[ of Managed Care’s] authority to ensure plan compliance with
this chapter when a plan provides coverage for prescription drugs.


“(e) Nothing in this section shall be construed to require an individual or

group health care services plan to cover experimental or investigational
treatments.”


4

Insurance Code section 10123.196 is essentially the same as Health and

Safety Code section 1367.26 (see fn. 3, ante), except that it regulates disability
insurance policies instead of health care service plan contracts. For the sake of
convenience, subsequent references to the WCEA will include only the Health and
Safety Code.

4

religious teachings, because the Church considers contraception a sin, and because

Catholic Charities believes it cannot offer insurance for prescription

contraceptives without improperly facilitating that sin.

As mentioned, the WCEA permits a “religious employer” to offer

prescription drug insurance without coverage for contraceptives that violate the

employer’s religious tenets. (Health & Saf. Code, § 1367.25, subd. (b).) The act

defines a “religious employer” as “an entity for which each of the following is

true: [¶] (A) The inculcation of religious values is the purpose of the entity. [¶]

(B) The entity primarily employs persons who share the religious tenets of the

entity. [¶] (C) The entity serves primarily persons who share the religious tenets

of the entity. [¶] (D) The entity is a nonprofit organization as described in Section

6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.” (Ibid.)

The cited provisions of the Internal Revenue Code exempt, from the obligation to

file an annual return, “churches, their integrated auxiliaries, and conventions or

associations of churches” (26 U.S.C. § 6033(a)(2)(A)(i)) and “the exclusively

religious activities of any religious order” (id., § 6033(a)(2)(A)(i) and (iii)).

Catholic Charities does not qualify as a “religious employer” under the

WCEA because it does not meet any of the definition’s four criteria. (See Health

& Saf. Code, § 1367.25, subd. (b)(1)(A)-(D).) The organization candidly

acknowledges this in its complaint, offering the following explanation: “The

corporate purpose of Catholic Charities is not the direct inculcation of religious

values. Rather, [its] purpose . . . is to offer social services to the general public

that promote a just, compassionate society that supports the dignity of individuals

and families, to reduce the causes and results of poverty, and to build healthy

communities through social service programs such as counseling, mental health

and immigration services, low-income housing, and supportive social services to

the poor and vulnerable. Further, Catholic Charities does not primarily employ

5

persons who share its Roman Catholic religious beliefs, but, rather, employs a

diverse group of persons of many religious backgrounds, all of whom share [its]

Gospel-based commitment to promote a just, compassionate society that supports

the dignity of individuals and families. Moreover, Catholic Charities serves

people of all faith backgrounds, a significant majority of [whom] do not share [its]

Roman Catholic faith. Finally, . . . Catholic Charities, although an exempt

organization under 26 U.S.C. § 501(c)(3), is not a nonprofit organization pursuant

to [s]ection 6033(a)(2)(A)(i) or (iii) of the Internal Revenue Code of 1986.

Consequently, . . . Catholic Charities is not entitled . . . to an exemption from the

mandate imposed by [the WCEA].”

As mentioned, the WCEA implicitly permits any employer to avoid

covering contraceptives by not offering coverage for prescription drugs. But this

option, according to Catholic Charities, does not eliminate all conflict between the

law and its religious beliefs. Catholic Charities feels obliged to offer prescription

drug insurance to its employees under what it describes as the “Roman Catholic

religious teaching” that “an employer has a moral obligation at all times to

consider the well-being of its employees and to offer just wages and benefits in

order to provide a dignified livelihood for the employee and his or her family.”

Perceiving no option consistent with both its beliefs and the law, Catholic

Charities filed this action seeking a declaratory judgment that the WCEA is

unconstitutional and an injunction barring the law’s enforcement. Defendants are

the State of California, the Department of Managed Health Care and the

Department of Insurance.5 Catholic Charities’ challenges to the WCEA arise


5

The Department of Managed Health Care regulates health care service

plans. (Health & Saf. Code, § 1341 et seq.) The Department of Insurance and the
Insurance Commissioner regulate disability insurance policies. (See id., § 1343,
subd. (e)(1), and Ins. Code, § 10290 et seq.)

6

under the establishment and free exercise clauses of the United States and

California Constitutions. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4.) The

superior court, finding no reasonable likelihood that Catholic Charities would

prevail on the merits, denied its motion for a preliminary injunction. Catholic

Charities sought review of this ruling by petition for writ of mandate, which the

Court of Appeal denied. We granted review of the Court of Appeal’s decision.

II. DISCUSSION

Catholic Charities, in its brief to this court, asserts eight constitutional

challenges to the WCEA. All refer to the religion clauses of the federal and state

Constitutions. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4.) Catholic

Charities begins with a set of three arguments to the effect that the WCEA

impermissibly interferes with the autonomy of religious organizations. (See p. 7 et

seq., post.) Next, Catholic Charities claims the WCEA impermissibly burdens its

right of free exercise. As part of this claim, Catholic Charities offers four

arguments for subjecting the WCEA to strict scrutiny, despite the United States

Supreme Court’s holding that the right of free exercise does not excuse

compliance with neutral, generally applicable laws. (Employment Div., Ore. Dept.

of Human Res. v. Smith (1990) 494 U.S. 872, 876-890; see p. 16 et seq., post.)

Finally, Catholic Charities contends the WCEA fails even the rational basis test.

(See p. 44 et seq., post.)

A. Religious Autonomy

1. Interference with matters of religious doctrine and internal church

governance

Catholic Charities contends the WCEA impermissibly interferes with

matters of religious doctrine and internal church governance. In support of the

contention, Catholic Charities invokes the rule that the state must accept the

decision of appropriate church authorities on such matters. This is the rule of the

so-called church property cases. (E.g., Serbian Orthodox Diocese v. Milivojevich


7

(1976) 426 U.S. 696, 708-709; Presbyterian Church v. Hull Church (1969) 393

U.S. 440, 445-449; Kreshik v. St. Nicholas Cathedral (1960) 363 U.S. 190, 191;

Kedroff v. St. Nicholas Cathedral (1952) 344 U.S. 94, 109-121; Gonzalez v.

Archbishop (1929) 280 U.S. 1, 16-17; Watson v. Jones (1871) 80 U.S. 679, 727.)

That rule does not dispose of this case.

The first church property case to reach the United States Supreme Court,

Watson v. Jones, supra, 80 U.S. 679 (Watson), articulates the rule and illustrates

its proper application. The case arose from a schism in the Presbyterian Church

during the Civil War. When the church’s national governing body, the General

Assembly, expressed its opposition to slavery, various congregations responded by

declaring the General Assembly’s view heretical and renouncing that body’s

authority. The General Assembly, in turn, dissolved the schismatic congregations.

Civil disputes ensued between rival congregations, each asserting a religious claim

to be the only true congregation entitled to use certain local church property. The

high court resolved the competing religious claims by deferring to the decision of

the General Assembly, thus adopting the rule still in effect today: “[W]henever

. . . questions of discipline, or of faith, or ecclesiastical rule, custom, or law have

been decided by the highest of [the] church judicatories to which the matter has

been carried, the legal tribunals must accept such decisions as final, and as binding

on them, in their application to the case before them.” (Id., at p. 727.) The rule’s

modern formulation is similar. (Serbian Orthodox Diocese v. Milivojevich, supra,
426 U.S. 696, 709.)

The high court in Watson, supra, 80 U.S. 679, offered two reasons for

deferring to religious authorities on religious questions. The first justification was

that civil courts are simply “incompetent” to decide matters of faith and doctrine.

(Id., at p. 732.) Courts have no expertise in religious matters, and courts “so

unwise” as to attempt to decide them “would only involve themselves in a sea of

8

uncertainty and doubt . . . .” (Ibid.; see also Serbian Orthodox Diocese v.

Milivojevich, supra, 426 U.S. 696, 714-715 & fn. 8.) The second reason was that

the members of a church, by joining, implictly consent to the church’s governance

in religious matters; for civil courts to review the church’s judgments would

“deprive these bodies of the right of construing their own church laws” (Watson, at

pp. 733-734; see also id., at pp. 728-729) and, thus, impair the right to form

voluntary religious organizations (id., at pp. 728-729; cf. Serbian Orthodox

Diocese v. Milivojevich, supra, at pp. 724-725).

Because Watson, supra, 80 U.S. 679, preceded the First Amendment’s

incorporation into the Fourteenth, the court did not base its decision on the

Constitution. In subsequent cases, however, the court described Watson’s

reasoning as having a “ ‘clear constitutional ring’ ” (Serbian Orthodox Diocese v.

Milivojevich, supra, 426 U.S. 696, 710, quoting Presbyterian Church v. Hull

Church, supra, 393 U.S. 440, 446; cf. Watson, at pp. 728-729) and Watson’s

holding as compelled by the religion clauses of the First Amendment (Serbian

Orthodox Diocese v. Milivojevich, supra, at pp. 724-725; Kedroff v. St. Nicholas

Cathedral, supra, 344 U.S. 94, 115-116; see also Employment Div., Ore. Dept. of

Human Res. v. Smith, supra, 494 U.S. 872, 877). The high court has also held that

legislatures are bound by the same constitutional limitations Watson articulated for

the courts. (Kedroff v. St. Nicholas Cathedral, supra, at pp. 117-121.)

Catholic Charities asserts that the Legislature, in enacting the WCEA,

violated the rule of church property cases by interfering with matters of internal

church governance and by rejecting the Catholic Church’s decision that

prescription contraceptives are sinful. These assertions are incorrect. 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

9

consent to its religious governance on matters of faith and discipline. (Watson,

supra, 80 U.S. 679, 729.) Certainly the WCEA conflicts with Catholic Charities’

religious beliefs, but this does not mean the Legislature has decided a religious

question. Congress has created, and the high court has resolved, similar conflicts

between employment law and religious beliefs without deciding religious

questions and without reference to the church property cases. (E.g., Tony and

Susan Alamo Foundation v. Sec’y of Labor (1985) 471 U.S. 290, 303-306

[religious organization must comply with federal minimum wage laws]; United

States v. Lee (1982) 455 U.S. 252, 256-261 [Amish employer must pay Social

Security and unemployment taxes].) Neither does this case require us to decide

any religious questions. Instead, we need only apply the usual rules for assessing

whether state-imposed burdens on religious exercise are constitutional. (See

Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 531-533;

Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872, 876-

882.) This we do below, in the context of Catholic Charities’ separate claims

under the free exercise clause. (See p.16 et seq., post.)

Catholic Charities also argues the Legislature, by enacting the WCEA,

deliberately intervened in a conflict within the Catholic Church on the side of

those who disagree with the Church’s teachings on contraception. In support of

the argument, Catholic Charities notes that one of WCEA’s sponsors cited, on the

floor of the state Senate, a New York Times poll suggesting that not all Catholic

women accept the Church’s teachings on contraception, and that “someone who

practices artificial birth control can still be a good Catholic.” Commenting on the

poll, the senator said, “I agree with that. I think it’s time to do the right thing.”

Certainly the state may not “lend its power to one or the other side in controversies

over religious authority or dogma . . . .” (Employment Div., Ore. Dept. of Human

Res. v. Smith, supra, 494 U.S. 872, 877.) However, the Legislature’s motivation

10

cannot reliably be inferred from a single senator’s remarks. Other legislators who

voted to enact the WCEA might well have done so because they wished to reduce

the inequitable financial burden of health care on women, without regard to any

religious dispute over the propriety of artificial contraception.

While the church property cases thus do not invalidate the WCEA, the

constitutional principles that underlie those cases may place an outer limit on the

statute’s constitutional application. Relying on the church property cases, lower

federal courts have held that the First Amendment bars courts from reviewing

employment decisions by religious organizations affecting employees with the

religious duties of ministers. (McClure v. Salvation Army (5th Cir. 1972) 460 F.2d

553, 558-561; see also Gellington v. Christian Methodist Episcopal Church (11th

Cir. 2000) 203 F.3d 1299, 1301-1304; Combs v. Cen Tx Ann Conf United

Methodist Church (5th Cir. 1999) 173 F.3d 343, 345-350.) The rule that emerges

from these decisions is sometimes called the “ministerial exception,” because it

operates as a nonstatutory, constitutionally compelled exception to title VII of the

Civil Rights Act of 1964. (42 U.S.C. § 2000e et seq., hereafter title VII.)

The Fifth Circuit first recognized the ministerial exception in McClure v.

Salvation Army, supra, 460 F.2d 553. The plaintiff, a former officer of the

Salvation Army, alleged that her termination was motivated by sex discrimination

violating title VII. To avoid doubts about title VII’s constitutionality as applied to

religious organizations, the court construed the law as not governing the

relationship between a church and its ministers. Judicial review of a minister’s

salary and duties, the court reasoned, would “intrude upon matters of church

administration and government which have so many times before been proclaimed

to be matters of a singular ecclesiastical concern.” (McClure v. Salvation Army,

supra, at p. 560.) Although the United States Supreme Court has not spoken on

the ministerial exception, the lower federal courts have widely embraced it,

11

applying it both to ministers and to a variety of nonordained employees with

duties functionally equivalent to those of ministers. (E.g., Alicea-Hernandez v.

Catholic Bishop of Chicago (7th Cir. 2003) 320 F.3d 698, 700-704 [Hispanic

communications manager for Archdiocese of Chicago, responsible for “shaping

the message that the Church presented to the Hispanic community”]; E.E.O.C. v.

Roman Catholic Diocese of Raleigh, NC (4th Cir. 2000) 213 F.3d 795, 802-805

[cathedral choir director required to assist in planning liturgies]; E.E.O.C. v.

Catholic University of America (D.C. Cir. 1996) 83 F.3d 455, 461 [professor of

canon law at religious university].)

Because the case before us does not involve title VII, the ministerial

exception as currently articulated does not apply. Although the constitutional

reasoning underlying the ministerial exception might bar the State from applying

the WCEA to ministers or clergy employed by a bona fide religious organization

that for whatever reason did not qualify under the act’s exemption for religious

organizations (Health & Saf. Code, § 1367.25, subd. (b); cf. Schmoll v. Chapman

University (1999) 70 Cal.App.4th 1434, 1438-1444 [recognizing a ministerial

exception to the Cal. Fair Employment and Housing Act, Gov. Code, § 12900 et

seq.]), we need not decide the question because Catholic Charities does not claim

that any of its employees have the religious duties of ministers. Indeed, as noted

above, most are not even members of the Catholic Church. In short, the

ministerial exception does not dispose of this case. Catholic Charities

acknowledges as much.

2. Distinction between religious and secular activities

Catholic Charities next argues that the First Amendment forbids the

government to “premis[e] a religious institution’s eligibility for an exemption from

government regulation upon whether the activities of the institution are deemed by

the government to be ‘religious’ or ‘secular’ . . . .” The argument is directed

12

against the four statutory criteria an employer must satisfy to claim exemption

from the WCEA as a “religious employer.” (Health & Saf. Code, § 1367.25, subd.

(b)(1)(A)-(D); see p. 5, ante.) The argument lacks merit.

The exception to the WCEA accommodates religious exercise by relieving

statutorily defined “religious employers” (Health & Saf. Code, § 1367.25, subd.

(b)) of the burden of paying for contraceptive methods that violate their religious

beliefs. The United States Supreme Court has long recognized that the alleviation

of significant governmentally created burdens on religious exercise is a

permissible legislative purpose that does not offend the establishment clause.

(Corporation of Presiding Bishop v. Amos (1978) 483 U.S. 327, 334-335; Hobbie

v. Unemployment Appeals Comm’n of Fla. (1987) 480 U.S. 136, 144-145; cf.

Employment Div., Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872, 890.)

Such 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. In fact, Congress and the state

legislatures have drawn such distinctions for this purpose, and laws embodying

such distinctions have passed constitutional muster. (E.g., Corporation of

Presiding Bishop v. Amos, supra, 483 U.S. 327, 334-340 [upholding statutory

exemption of “religious” employers from liability for religious discrimination; 42

U.S.C. § 2000e-1(a)]; East Bay Asian Local Development Corp. v. State of

California (2000) 24 Cal.4th 693, 704-718 [upholding state laws exempting

“religiously affiliated” organizations from landmark preservation laws, Gov.

Code, §§ 25373, subds. (c) & (d), 37361, subd. (c)].)

Catholic Charities’ argument to the contrary largely depends on a single

lower federal court decision, Espinosa v. Rusk (10th Cir. 1980) 634 F.2d 477

(Espinosa). In that case, the court invalidated an antisolicitation ordinance

13

because, among other things, it “involve[d] municipal officials in the definition of

what is religious.” (Id., at p. 481.) But whatever Espinosa might purport to hold,

the decision could not supersede the United States Supreme Court’s repeated

holding that the government may constitutionally exempt religious organizations

from generally applicable laws in order to alleviate significant governmentally

imposed burdens on religious exercise. (Corporation of Presiding Bishop v.

Amos, supra, 483 U.S. 327, 334-335; Hobbie v. Unemployment Appeals Comm’n

of Fla., supra, 480 U.S. 136, 144-145; Employment Div., Ore. Dept. of Human

Res. v. Smith, supra, 494 U.S. 872, 890.) In any event, the court in Espinosa

addressed the different problem of content-based prior restraints on speech. The

court struck down an ordinance that gave municipal officials, in effect, the power

to decide in advance which messages the city’s residents would be permitted to

hear by requiring the officials, before granting a permit, to determine that the

applicant’s purpose for soliciting funds was truly religious. The ordinance thus

violated Cantwell v. Connecticut (1940) 310 U.S. 296, 305-307, which permits the

government to regulate the time, place and manner of religious solicitations but

not to censor them altogether based on an assessment of the content of speech.

(Espinosa, at pp. 480-482.) The WCEA, which places no restrictions on speech,

does not present the problem addressed in Cantwell v. Connecticut and Espinosa.

Our conclusion that the government may properly distinguish between

secular and religious entities and activities for the purpose of accommodating

religious exercise does not mean that any given statute purporting to draw such

distinctions necessarily passes muster under the free exercise clause. “[A] law

targeting religious beliefs as such is never permissible,” and a court “ ‘must survey

meticulously the circumstances of governmental categories to eliminate, as it

were, religious gerrymanders.’ ” (Church of Lukumi Babalu Aye, Inc. v. Hialeah,

supra, 508 U.S. 520, 533-534, quoting Walz v. Tax Commission (1970) 397 U.S.

14

664, 696 (conc. opn. of Harlan, J.).) We address below Catholic Charities’

separate argument that the WCEA’s definition of “religious employer” in fact

embodies a legislative effort to target Catholic organizations for unfavorable

treatment. (See p. 23 et seq., post.)

3. Excessive entanglement

Catholic Charities contends that the WCEA’s exemption for “religious

employer[s]” (Health & Saf. Code, § 1367.25, subd. (b)) violates the establishment

clause by mandating an entangling inquiry into the employer’s religious purpose

and into its employees’ and clients’ religious beliefs. The argument refers to the

first three of the four statutory criteria for identifying a “religious employer,”

namely, whether “[t]he inculcation of religious values is the purpose of the entity”

(id., subd. (b)(1)(A)), whether “[t]he entity primarily employs persons who share

the religious tenets of the entity” (id., subd. (b)(1)(B)), and whether “[t]he entity

serves primarily persons who share the religious tenets of the entity” (id., subd.

(b)(1)(C)). A law that fosters an excessive governmental entanglement with

religion can for that reason violate the establishment clause. (Lemon v. Kurtzman

(1971) 403 U.S. 602, 612-613.) 6 Moreover, recent judicial opinions have

criticized rules and laws that invite official “trolling through a person’s or

institution’s religious beliefs.” (Mitchell v. Helms (2000) 530 U.S. 793, 828 (plur.

opn. of Thomas, J.); University of Great Falls v. N.L.R.B. (D.C. Cir. 2002) 278

F.3d 1335, 1342-1348.)


6

The court in Lemon v. Kurtzman, supra, 403 U.S. 602, “gleaned from [its

prior] cases” three tests for determining whether a statute violates the
establishment clause: “First, the statute must have a secular legislative purpose;
second its principal or primary effect must be one that neither advances nor
inhibits religion . . . ; finally, the statute must not foster ‘an excessive
governmental entanglement with religion.’ ” (Id., at pp. 612-613, quoting Walz v.
Tax Commission
, supra, 397 U.S. 664, 674.)

15

The argument might have merit as applied to a hypothetical employer that

sought to qualify under the WCEA’s exemption for religious employers (Health &

Saf. Code, § 1367.25, subd. (b)) but objected on establishment clause grounds to

an entangling official effort to verify that its purpose was the inculcation of

religious values, and that it primarily employed and served persons who shared its

religious tenets. But Catholic Charities candidly alleges in its complaint that it

does not qualify under the exemption because it does not satisfy any of the four

criteria. More specifically, Catholic Charities concedes that its purpose is not the

inculcation of religious values, that it does not primarily hire and serve Catholics,

and that it does not fall within either of the relevant provisions of the Internal

Revenue Code (26 U.S.C. § 6033(a)(2)(A)(i) and (iii), cited in Health & Saf.

Code, § 1367.25, subd. (b)(1)(D)). Consequently, no entangling inquiry into

Catholic Charities’ purpose or beliefs, or the beliefs of its employees and clients,

has occurred or is likely to occur. Therefore, even if in some other case the statute

might require an entangling inquiry, in this case, as applied to Catholic Charities,

the establishment clause offers no basis for holding the statute unconstitutional.

B. Free Exercise of Religion

Catholic Charities argues the WCEA violates the free exercise clauses of

the federal and state Constitutions (U.S. Const., 1st Amend.; Cal. Const., art. I,

§ 4) by coercing the organization to violate its religious beliefs, in that the WCEA,

by regulating the content of insurance policies, in effect requires employers who

offer their workers insurance for prescription drugs to offer coverage for

prescription contraceptives. Catholic Charities wishes to offer insurance, but may

not facilitate the use of contraceptives without violating its religious beliefs.

Any analysis of Catholic Charities’ free exercise claim must take into

consideration the United States Supreme Court’s decision in Employment Div.,

Ore. Dept. of Human Res. v. Smith, supra, 494 U.S. 872 (Smith). In Smith, the

16

high court articulated the general rule that religious beliefs do not excuse

compliance with otherwise valid laws regulating matters the state is free to

regulate. (Id., at pp. 877-882.) The government may not regulate religious beliefs

as such by compelling or punishing their affirmation. (Id., at p. 877.) Nor may it

target conduct for regulation only because it is undertaken for religious reasons.

(Ibid.) But “the right of free exercise does not relieve an individual of the

obligation to comply with a ‘valid and neutral law of general applicability on the

ground that the law proscribes (or prescribes) conduct that his religion prescribes

(or proscribes).’ ” (Smith, at p. 879, quoting United States v. Lee, supra, 455 U.S.

252, 263, fn. 3 (conc. opn. of Stevens, J.).) To permit religious beliefs to excuse

acts contrary to law, the Smith court reasoned, “ ‘would be to make the professed

doctrines of religious belief superior to the law of the land, and in effect to permit

every citizen to become a law unto himself.’ ” (Smith, at p. 879, quoting Reynolds

v. United States (1879) 98 U.S. 145, 167.)

Before Smith, supra, 494 U.S. 872, the high court had taken a variety of

approaches to assessing the constitutionality of laws claimed to burden the free

exercise of religion. In some cases, notably Sherbert v. Verner (1963) 374 U.S.

398, 403-409 (Sherbert) and Wisconsin v. Yoder (1972) 406 U.S. 205, 220-229,

the court had examined such laws under strict scrutiny, reasoning that a law

substantially burdening religious practice must be narrowly tailored to serve a

compelling state interest. In other cases, both before and after Sherbert, the court

had upheld laws and governmental actions challenged under the free exercise

clause without applying strict scrutiny.7

7

Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439

(Native American free exercise challenge to governmental logging and road
construction activities); O’Lone v. Estate of Shabazz (1987) 482 U.S. 342 (prison
regulations); Goldman v. Weinberger (1986) 475 U.S. 503 (military dress
regulations); Gillette v. United States (1971) 401 U.S. 437 (selective service law);


(footnote continued on next page)

17

Eight years before Smith, supra, 494 U.S. 872, Justice Stevens wrote that

most of the court’s holdings were better explained not by the strict scrutiny test of

Sherbert, supra, 374 U.S. 398, as by “a standard that places an almost

insurmountable burden on any individual who objects to a valid and neutral law of

general applicability on the ground that the law proscribes (or prescribes) conduct

that his religious prescribes (or proscribes) . . . .” (United States v. Lee, supra, 455

U.S. 252, 263, fn. 3 (conc. opn. of Stevens, J.).) After Lee, the court again upheld

laws claimed to burden free exercise, either without mentioning Sherbert, or while

mentioning Sherbert but declining to apply its test.8 This inconsistency ended

with Smith, in which the high court repudiated the Sherbert test and expressly

adopted the standard Justice Stevens had articulated. (Smith, at pp. 879, 882-890.)

More recently, the court has reaffirmed Smith and reiterated “the general

proposition that a law that is neutral and of general applicability need not be

justified by a compelling government interest even if the law has the incidental



(footnote continued from previous page)

Braunfeld v. Brown (1961) 366 U.S. 599 (Sunday closing law); Prince v.
Massachusetts
(1944) 321 U.S. 158 (child labor law); Jacobson v. Massachusetts
(1905) 197 U.S. 11 (compulsory vaccination law); Reynolds v. United States,
supra, 98 U.S. 145 (polygamy law).
8

Lyng v. Northwest Indian Cemetery Prot. Assn., supra, 485 U.S. 439, 450-

453; O’Lone v. Estate of Shabazz, supra, 482 U.S. 342, 348-353; Goldman v.
Weinberger
, supra, 475 U.S. 503, 506-510.
In

Bowen v. Roy (1986) 476 U.S. 693, the high court did not decide whether

the free exercise clause barred the federal government from requiring Native
American welfare applicants, over their religious objections, to provide Social
Security numbers. In separate opinions, six justices expressed the view that
Sherbert would govern the question. (Id., at pp. 715-716 (opn. of Blackmun, J.,
conc. in part); id., at p. 722 & fn. 17 (opn. of Stevens, J., conc. in part); id., at
p. 728 (opn. of O’Connor, J., conc. in part, with Brennan and Marshall, JJ., conc.);
id., at p. 733 (dis. opn. of White, J.).) Three justices disagreed. (Id., at p. 708
(plur. opn. of Burger, C.J., with Powell and Rehnquist, JJ., conc.).)

18

effect of burdening a particular religious practice.” (Church of Lukumi Babalu

Aye, Inc. v. Hialeah, supra, 508 U.S. 520, 531.)

The general rule affirmed in Smith, supra, 494 U.S. 872, would at first

glance appear to dispose of Catholic Charities’ free exercise claim. The WCEA’s

requirements apply neutrally and generally to all employers, regardless of

religious affiliation, except to those few who satisfy the statute’s strict

requirements for exemption on religious grounds. (Health & Saf. Code,

§ 1367.25, subd. (b).) The act also addresses a matter the state is free to regulate;

it regulates the content of insurance policies for the purpose of eliminating a form

of gender discrimination in health benefits. The act conflicts with Catholic

Charities’ religious beliefs only incidentally, because those beliefs happen to make

prescription contraceptives sinful. Accordingly, it appears Catholic Charities may

successfully challenge the WCEA only by demonstrating an exception to the

general rule.

To demonstrate an exception to the general rule is, in fact, precisely what

Catholic Charities seeks to do. On four separate grounds, Catholic Charities

argues we should examine the WCEA under strict scrutiny despite the holding of

Smith, supra, 494 U.S. 872. Specifically, Catholic Charities argues that the

WCEA is not neutral and generally applicable (see Church of Lukumi Babalu Aye,

Inc. v. Hialeah, supra, 508 U.S. 520, 533-547), that it constitutes a religious

“gerrymander” (see id., at p. 534), and that it violates so-called hybrid rights (cf.

Smith, supra, 494 U.S. at pp. 881-882). Finally, Catholic Charities argues that the

California Constitution requires us to apply strict scrutiny in any event, and that

the WCEA fails that test. We address each of these arguments below.

1. Neutrality and general applicability

Catholic Charities offers two arguments why the WCEA should be not

considered neutral or generally applicable and should, thus, be subject to strict

19

scrutiny under an exception to the rule of Smith, supra, 494 U.S. 872. First,

Catholic Charities contends the face of the statute demonstrates a lack of

neutrality; second, Catholic Charities relies on the WCEA’s legislative history and

practical effect to argue the Legislature “gerrymandered” the law to reach only

Catholic employers. We address these arguments separately, as Catholic Charities

has stated them in its brief.

A law is not neutral towards religion if its “object . . . is to infringe upon or

restrict practices because of their religious motivation . . . .” (Church of Lukumi

Babalu Aye, Inc. v. Hialeah, supra, 508 U.S. 520, 533 (Lukumi).) A law is not

generally applicable if it “in a selective manner impose[s] burdens only on conduct

motivated by religious belief . . . .” (Id., at p. 543.) Thus, “[n]eutrality and

general applicability are interrelated, and . . . [a] failure to satisfy one requirement

is a likely indication that the other has not been satisfied.” (Id., at p. 531.)

In determining whether the object of a law is to suppress religion or

religiously motivated conduct, a court “must begin with [the law’s] text, for the

minimum requirement of neutrality is that a law not discriminate on its face. A

law lacks facial neutrality if it refers to a religious practice without a secular

meaning discernable from the language or context.” (Lukumi, supra, 508 U.S.

520, 533.) Following this approach, the high court in Lukumi found that a city

council’s use of the words “sacrifice” and “ritual” in an ordinance regulating

animal slaughter helped to show, together with other evidence, that the ordinance

had been motivated by a desire to suppress the Santeria religion. The lack of

facial neutrality fit into a “pattern” of “animosity to Santeria adherents and their

religious practices . . . .” (Id., at p. 542.) Not only did “the ordinances by their

own terms target [Santeria] religious exercise,” so too were “the texts of the

ordinances . . . gerrymandered with care to proscribe religious killings of animals

but to exclude almost all secular killings . . . .” (Ibid.) Finally, “the ordinances

20

suppress[ed] much more religious conduct than [was] necessary in order to

achieve the legitimate ends asserted in their defense [i.e., protecting health and

preventing cruelty to animals].” (Ibid.)

Relying on Lukumi, supra, 508 U.S. 520, Catholic Charities argues the

WCEA is not neutral because its exemption for religious employers contains

religious terms and terminology that lack any secular meaning or purpose.

Catholic Charities specifically refers to the terms “inculcation of religious values”

and “religious tenets,” both of which appear in criteria used in the WCEA to

define and exempt “religious employer[s].” (Health & Saf. Code, § 1367.25, subd.

(b)(1)(A), (B) & (C).)

Lukumi, supra, 508 U.S. 520, is inapposite. The animal sacrifice ordinance

challenged in that case referred to religious practices (“sacrifice” and “ritual”) in

order to prohibit them. In that context, the statute’s use of religious terminology

supported the court’s conclusion “that suppression of the central element of the

Santeria worship service was the object of the ordinances” there at issue. (Id., at

p. 534.) In contrast, the WCEA refers to the religious characteristics of

organizations in order to identify and exempt those organizations from an

otherwise generally applicable duty. Although Catholic Charities cannot claim the

statutory exemption for religious employers, other Catholic organizations may be

able to claim it. If the WCEA burdens Catholic Charities’ religious beliefs, the

burden arises not from the religious terminology used in the exemption, but from

the generally applicable requirement to provide coverage for contraceptives. The

high court has never prohibited statutory references to religion for the purpose of

accommodating religious practice. To the contrary, the court has repeatedly

indicated that “it is a permissible legislative purpose to alleviate significant

governmental interference with the ability of religious organizations to define and

carry out their religious missions.” (Corporation of Presiding Bishop v. Amos,

21

supra, 483 U.S. 327, 335 (Amos); see also Hobbie v. Unemployment Appeals

Comm’n of Fla., supra, 480 U.S. 136, 144-145; cf. Smith, supra, 494 U.S. 872,

890.) Furthermore, the state may require an organization “claiming the benefits of

[a] religious-organization exemption” from a regulatory statute “to prove that [it]

is a religious organization within the meaning of the [statute].” (Larson v. Valente

(1982) 456 U.S. 228, 255, fn. 30, italics added.) To accomplish these purposes

without explicitly defining the religious groups and practices to be accommodated,

in order to distinguish them from secular groups and practices not entitled to

accommodation, would often be impossible.

Because a legislative accommodation benefits religion, it is tested not under

the free exercise clause but under the establishment clause. (Amos, supra, 483

U.S. 327, 334-336.) To comply with the establishment clause, a law must among

other things serve a “ ‘secular legislative purpose.’ ” (Id., at p. 335, quoting

Lemon v. Kurtzman, supra, 403 U.S. 602, 612.) In this context, the requirement of

a secular legislative purpose “does not mean that the law’s purpose must be

unrelated to religion—that would amount to a requirement ‘that the government

show a callous indifference to religious groups,’ . . . and the Establishment Clause

has never been so interpreted.” (Amos, at p. 335, quoting Zorach v. Clauson

(1952) 343 U.S. 306, 314.) Instead, “it is a permissible legislative purpose to

alleviate significant governmental interference with the ability of religious

organizations to define and carry out their religious missions.” (Amos, at p. 335.)

The references to religion in the WCEA have no other purpose than this. The high

court has not “required that legislative categories make no explicit reference to

religion.” (Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1, 10 (plur. opn. of

Brennan, J.).)

A rule barring religious references in statutes intended to relieve burdens on

religious exercise would invalidate a large number of statutes. A few examples

22

suffice. The federal statute upheld in Amos, supra, 483 U.S. 327, for example,

exempted from title VII of the Civil Rights Act of 1964 “a religious corporation,

association, or educational institution, or society with respect to the employment

of individuals of a particular religion to perform work connected with the carrying

on by such a corporation, association, education institution, or society of its

activities.” (42 U.S.C. § 2000e-1(a).) Similarly, the California Fair Employment

and Housing Act uses the term “religious association or corporation” (Gov. Code,

§ 12926, subd. (d)) in order to exempt certain employers from liability for

unlawful employment practices. We recently upheld statutes that refer to

“religiously affiliated” associations and their “religious mission[s]” for the

purpose of exempting such associations from burdens imposed by a landmark

preservation ordinance. (East Bay Asian Local Development Corp. v. State of

California, supra, 24 Cal.4th 693, 702, quoting Gov. Code, §§ 25373, subd. (d),

and 37361, subd. (c).) The rule Catholic Charities proposes would invalidate these

and many similar laws. Because the high court’s decisions provide no support for

such a rule, we reject it.

2. Religious gerrymander

Our analysis does not end with the conclusion that the WCEA is facially

neutral towards religion. The First Amendment requires more than facial

neutrality. It protects against “ ‘subtle departures from neutrality’ ” and

“governmental hostility which is masked as well as overt.” (Lukumi, supra, 508

U.S. 520, 534, quoting Gillette v. United States, supra, 401 U.S. 437, 452.) Thus,

a court “ ‘must survey meticulously the circumstances of governmental categories

to eliminate, as it were, religious gerrymanders.’ ” (Ibid., quoting Walz v. Tax

Commission, supra, 397 U.S. 664, 696 (conc. opn. of Harlan, J.).) Catholic

Charities argues the Legislature gerrymandered the WCEA to deny the benefit of

the exemption to Catholic organizations. The law discriminates, Catholic

23

Charities contends, both against the Catholic Church and against religious

organizations of any denomination that engage in charitable work, as opposed to

work that is purely spiritual or evangelical.

We find no merit in the argument that the WCEA discriminates against the

Catholic Church. It was at the request of Catholic organizations that the

Legislature added an exception permitting religious employers to deny coverage

for “contraceptive methods that are contrary to the religious employer’s religious

tenets.” (Health & Saf. Code, § 1367.25, subd. (b).) Because most religions do

not object to prescription contraceptives, most religious employers are subject to

the WCEA. The Legislature’s decision to grant preferential treatment to religious

employers who do object is justifiable as an accommodation of religious exercise

under the principles discussed above. (Amos, supra, 483 U.S. 327, 334-335.)

That the exemption is not sufficiently broad to cover all organizations affiliated

with the Catholic Church does not mean the exemption discriminates against the

Catholic Church. 9

We find nothing to the contrary in Larson v. Valente, supra, 456 U.S. 228

(Larson), the decision on which Catholic Charities principally relies. The high

court in Larson held unconstitutional under the establishment clause a Minnesota

9

Indeed, rather than discriminating against the Catholic Church, the WCEA

can more plausibly be viewed as benefiting the Catholic Church in practical effect,
since no other religious group opposed to prescription contraceptives has been
identified. But the WCEA does not for this reason violate the establishment
clause. A law intended not to discriminate among religions but to alleviate a
governmentally created burden on religious exercise does not necessarily violate
the establishment clause, even though only a single religion in need of
accommodation has been identified, if the law is phrased neutrally, to allow for the
possibility that other as-yet-unidentified religions in need of the same
accommodation will be able to claim it. (See, e.g., Kong v. Scully (9th Cir. 2003)
341 F.3d 1132; Children’s Health. Is A Legal Duty v. Min De Parle (8th Cir.
2000) 212 F.3d 1084; Droz v. Commissioner of I.R.S. (9th Cir. 1995) 48 F.3d
1120.)

24

statute that discriminated, in effect, against the Reverend Sun Myung Moon’s

Unification Church. For many years prior to Larson, Minnesota law had regulated

charitable solicitations generally but exempted from regulation all solicitations by

religious organizations. In 1978, the Minnesota Legislature amended the law to

exempt only those religious organizations that received more than 50 percent of

their contributions from members or affiliated organizations. Minnesota defended

the exemption as intended to prevent abusive solicitations of the public, reasoning

that the members of well-established, internally funded churches would exercise

enough supervision over fund-raising activities to justify dispensing with state

supervision. The high court rejected the argument. In the court’s view, the 50-

percent rule violated “[t]he clearest command of the Establishment Clause,”

namely, “that one religious denomination cannot be officially preferred over

another.” (Id., at p. 244.) Laws granting denominational preferences must serve

compelling governmental interests and be closely fitted to further those interests.

(Id., at pp. 246-247.) Minnesota’s law failed that test.

The reasoning of Larson, supra, 456 U.S. 228, does not invalidate the

WCEA. The statute invalidated in Larson drew an explicit distinction between

religious denominations based on their sources of income, and used that

distinction to impose a regulatory burden only on certain denominations. In

contrast, the WCEA applies to religious and nonreligious organizations equally.

The WCEA confers the special benefit of exemption only on those religious

organizations whose tenets are opposed to prescription contraceptives and that

meet the other requirements for exemption. This benefit, as explained above, is

justifiable as a legislative accommodation—an effort to alleviate a governmentally

imposed burden on religious exercise. (See Amos, supra, 483 U.S. 327, 334-335.)

Those Catholic employers that do not qualify for exemption are treated precisely

the same as all other employers in the state, whether religious or nonreligious.

25

Thus, while the WCEA may treat some Catholic employers more favorably than

other employers, the WCEA does not under any circumstance treat Catholic

employers less favorably than any other employers. About a law such as this,

Larson has nothing to say. 10

Catholic Charities argues the WCEA violates Larson, supra, 456 U.S. 228,

for the additional reason that the law draws a distinction between religious

organizations whose purpose is the “inculcation of religious values” (Health &

Saf. Code, § 1367.25, subd. (b)(1)(A)) and other religious organizations that, in

Catholic Charities’ words, “have the temerity to engage in ministries other than

the ‘inculcation of religious values.’ ” (Italics in original.) We accept Catholic

Charities’ assertion that the Catholic Church’s “self-understanding compels it to

engage in ‘corporal works of mercy,’ which ‘consist especially in feeding the

hungry, sheltering the homeless, clothing the naked, visiting the sick and

imprisoned, and burying the dead.’ ” (Quoting Catechism of the Catholic Church

(1994) ¶ 2447, p. 588.) However, to the extent Catholic Charities is arguing the


10

We read Larson, supra, 456 U.S. 228, as condemning laws that

discriminate among religions or religious denominations. The law held
unconstitutional in Larson reflected the Minnesota Legislature’s “express design
. . . to burden or favor selected religious denominations” (id., at p. 255, italics
added), specifically the Unification Church (id., at pp. 232, 255, fn. 30). Here, in
contrast, nothing about the Catholic religion prevents a Catholic religious
organization from qualifying under the WCEA’s exemption for religious
organizations. We assume, for example, that a Catholic diocese or parish, acting
as an employer, would typically qualify under the exemption.
In

contrast,

Larson, supra, 456 U.S. 228, does not purport to bar a state

from attempting for valid regulatory purposes to distinguish among organizations
based on sect-neutral grounds, even if those organizations claim a religious
character. Indeed, Larson expressly permits the state to require an organization
“claiming the benefits of [a] religious-organization exemption” from a regulatory
statute “to prove that [it] is a religious organization within the meaning of the
[statute].” (Id., at p. 255, fn. 30, italics added.) Were this not true, the mere claim
of religious character would effectively preclude state regulation.

26

WCEA embodies a preference for non-Catholic denominations, the argument fails

for the reasons already given.

Catholic Charities’ intent may be to argue that the WCEA discriminates

against charitable social work as a religious practice. Such an argument would

implicate “[t]he principle that government, in pursuit of legitimate interests,

cannot in a selective manner impose burdens only on conduct motivated by

religious belief . . . .” (Lukumi, supra, 508 U.S 520, 543.) Applying this principle,

the high court in Lukumi held unconstitutional an ordinance that permitted the

killing of animals for food or sport, but not in religious rituals. The ordinance had

“ ‘every appearance of a prohibition that society is prepared to impose upon

[Santeria worshippers] but not upon itself.’ ” (Id., at p. 545, quoting The Florida

Star v. B.J.F. (1989) 491 U.S. U.S. 524, 542.) The WCEA is not similar. If a

religiously affiliated organization fails to qualify for exemption because its

purpose is something other than the “inculcation of religious values” (Health &

Saf. Code, § 1367.25, subd. (b)(1)(A)), then the result is simply that the

organization becomes subject to the same obligations that apply to all other

employers. Because the WCEA applies to all nonreligious employers engaged in

charitable social work, no argument can logically be made that the WCEA

imposes a burden on charitable social work only when performed for religious

reasons.

As additional support for its claim that the WCEA’s purpose is to

discriminate against the Catholic Church, Catholic Charities contends the

Legislature drafted the “religious employer” exception (Health & Saf. Code,

§ 1367.25, subd. (b)) with the specific intention of excluding Catholic hospitals

and social service agencies like Catholic Charities. Catholic Charities draws an

analogy to Lukumi, supra, 508 U.S. 520, 540-542, in which the high court

considered specific statements by members of the Hialeah City Council as

27

evidence that the ordinance prohibiting animal sacrifice was intended to suppress

the Santeria religion. Catholic Charities’ assertions about the legislative history of

the WCEA do not justify a similar conclusion in this case.

According to Catholic Charities, the history of the WCEA suggests the

Legislature intended the law to close a “Catholic gap” in insurance coverage for

prescription contraceptives. The evidence does not support the contention. The

phrase “Catholic gap” appears only in Catholic Charities’ brief, not in the

legislative history. Catholic Charities refers to the Senate testimony of a

representative of Planned Parenthood, which opposed any exception for religious

employers. Explaining that organization’s position, the witness stated: “Primarily

our intent was to close the gap in insurance coverage for contraception and

prescription benefit plans. Our concern with granting an exemption is that that

defeats the original purpose of the bill.” The “gap” to which the witness

apparently referred was the gap identified by a national consulting firm’s 1999

study of health insurance for prescription contraceptives. This study, which

received much attention in the Legislature, concluded that approximately 10

percent of commercially insured Californians did not already have insurance

coverage for prescription contraceptives. The study identified this minority not as

the employees of Catholic organizations, but as persons covered by PPO and

indemnity plans. While most HMO’s covered prescription contraceptives, not all

PPO and indemnity plans did. Catholic Charities’ assertion that the purpose of the

WCEA was to close a “Catholic gap” rather than a statewide statistical gap in

coverage has no apparent evidentiary support.11

11

Catholic Charities also argues that the Legislature acted out of antipathy

and spite towards the Catholic Church. Through this argument, Catholic Charities
seeks to compare the Legislature’s consideration of the WCEA with the Hialeah
City Council’s decision (see Lukumi, supra, 508 U.S. 520) to ban animal sacrifice
as a way of suppressing the Santeria religion. In discussing the council’s decision,


(footnote continued on next page)

28

Next, Catholic Charities argues the Legislature deliberately narrowed the

statutory exception for “religious employer[s]” (Health & Saf. Code, § 1367.25,

subd. (b)) to include as few Catholic organizations as possible and specifically to

exclude Catholic hospitals and social service organizations. The legislative

history does show that the bill’s sponsors argued against a broader exception. The

bill’s Senate sponsor, for example, stated in a committee hearing that “the

intention of the authors as it relates to creating a religious exemption may not be

the same intentions of the religions themselves in wanting to be exempted. [¶]

The intention of the religious exemption in both these bills is an intention to

provide for exemption for what is religious activity. The more secular the activity

gets, the less religiously based it is, and the more we believe that they should be

required to cover prescription drug benefits for contraception.” Catholic Charities

describes this and similar statements as evidence that the Legislature targeted

specific Catholic organizations for disadvantageous treatment. But we have

already examined and rejected that argument. The law treats some Catholic

organizations more favorably than all other employers by exempting them;

nonexempt Catholic organizations are treated the same as all other employers.

3. Hybrid rights

As an additional argument for applying strict scrutiny to its federal free

exercise claim, Catholic Charities argues that the WCEA violates so-called hybrid



(footnote continued from previous page)

the high court noted that Hialeah city officials had castigated Santeria as an
“abomination to the Lord” and “the worship of demons,” and that a public crowd
attending the city council’s meeting had interrupted with jeers and taunts the
President of the Santeria Church. (Id., at p. 541.) The legislative history of the
WCEA discloses no comparable antipathy to the Catholic Church.


29

rights. The term “hybrid rights” is loosely derived from Smith, supra, 494 U.S.

872, in which the high court repudiated the strict scrutiny test of Sherbert, 374

U.S. 398. (See Smith, at pp. 882-884.) Along the way to that conclusion, the

court distinguished certain of its prior decisions as having involved not just the

free exercise clause but other constitutional provisions as well. Specifically, the

court stated that “[t]he only decisions in which we have held that the First

Amendment bars application of a neutral, generally applicable law to religiously

motivated action have involved not the Free Exercise Clause alone, but the Free

Exercise Clause in conjunction with other constitutional protections, such as

freedom of speech and of the press [12] . . . , or the right of parents . . . to direct the

education of their children [13] . . . .” (Id., at p. 881.) The facts of Smith, the court

observed, did “not present such a hybrid situation, but a free exercise claim

unconnected with any communicative activity or parental right.” (Smith, at

p. 882.)

Relying on this passage from Smith, supra, 494 U.S. 872, Catholic

Charities argues the WCEA violates hybrid rights and, thus, requires us to apply

strict scrutiny to its free exercise claim. The other rights violated, Catholic

Charities asserts, are those protected by the free speech and establishment clauses

of the First Amendment. (U.S. Const., 1st Amend.)

The high court has not, since the decision in Smith, supra, 494 U.S. 872,

determined whether the hybrid rights theory is valid or invoked it to justify

applying strict scrutiny to a free exercise claim. Justice Souter has mentioned

hybrid rights in a concurring opinion, but only to criticize Smith’s reliance on the

12

Namely, Follett v. McCormick (1944) 321 U.S. 573, Murdock v.

Pennsylvania (1943) 319 U.S. 105, and Cantwell v. Connecticut, supra, 310 U.S.
296; see Smith, supra, 494 U.S. 872, 881.
13

Namely, Wisconsin v. Yoder, supra, 406 U.S. 205, and Pierce v. Society of

Sisters (1925) 268 U.S. 510; see Smith, supra, 494 U.S. 872, 881.

30

concept. (Lukumi, supra, 508 U.S. 520, 567 (opn. of Souter, J., conc. in part).)

Some of the lower federal courts have treated the relevant passage from Smith as

dictum and declined to apply, to assertedly hybrid claims, a standard stricter than

the rational basis test. (Leebaert v. Harrington (2d Cir. 2003) 332 F.3d 134, 143-

144; Kissinger v. Board of Trustees (6th Cir. 1993) 5 F.3d 177, 180.) Other lower

federal courts appear to have assumed that hybrid claims trigger a higher level of

scrutiny, but have concluded that “a plaintiff does not allege a hybrid-rights claim

entitled to strict scrutiny analysis merely by combining a free exercise claim with

an utterly meritless claim of the violation of another alleged fundamental right.”

(Miller v. Reed (9th Cir. 1999) 176 F.3d 1202, 1208; see also Civil Lib. for Urban

Believers v. City of Chicago (7th Cir. 2003) 342 F.3d 752, 765; Swanson by and

through Swanson v. Guthrie ISD I-L (10th Cir. 1998) 135 F.3d 694, 700.)

Catholic Charities argues that the non-free-exercise component of a hybrid

claim need only be “colorable” and not ultimately meritorious. While some courts

have proposed such a rule (e.g., Miller v. Reed, supra, 176 F.3d 1202, 1207;

Swanson by and through Swanson v. Guthrie ISD I-L, supra, 135 F.3d 694, 700),

no court has relied on it to grant relief. Nor would such a rule make sense. As

Justice Souter has explained, “[i]f a hybrid claim is simply one in which another

constitutional right is implicated, then the hybrid exception would probably be so

vast as to swallow the Smith rule . . . .” (Lukumi, supra, 508 U.S. 520, 567 (opn.

of Souter, J., conc. in part).) For this reason, the Sixth Circuit has rejected as

“completely illogical” the proposition that “the legal standard [of review] under

the Free Exercise Clause depends on whether a free-exercise claim is coupled with

other constitutional rights.” (Kissinger v. Board of Trustees, supra, 5 F.3d 177,

180 & fn. 1.)

We are aware of no decision in which a federal court has actually relied

solely on the hybrid rights theory to justify applying strict scrutiny to a free

31

exercise claim. Indeed, the only federal decision that can properly be said to have

relied on the theory at all is E.E.O.C. v. Catholic University of America, supra, 83

F.3d 455, 467, in which the court mentioned hybrid rights as an alternative basis

for its conclusion that federal employment law could not be applied to require a

Catholic educational institution to grant tenure to a professor of canon law. The

principal basis for the court’s holding was the ministerial exception. (Id., at

pp. 463-465; see ante, at p. 11 et seq.)14

Assuming for the sake of argument the hybrid rights theory is not merely a

misreading of Smith, supra, 494 U.S. 872, Catholic Charities has not alleged a

meritorious constitutional claim that might justify the theory’s application to this

case. Catholic Charities argues that to assist in providing employees with

insurance for prescription contraceptives would be viewed as an endorsement of

their use and that the WCEA, by compelling such assistance, violates the free

speech clause by requiring the organization to engage in symbolic speech it finds

objectionable. The argument lacks merit. Certainly “the First Amendment may

prevent the government from compelling individuals to express certain views

. . . .” (United States v. United Foods, Inc. (2001) 533 U.S. 405, 410, citing

Wooley v. Maynard (1977) 430 U.S. 705, 713-717 [state may not compel

unwilling motorists to display state motto, “Live Free or Die,” on vehicle license

plates], and Board of Education v. Barnette (1943) 319 U.S. 624, 630-642 [state

may not compel public school pupils to salute the flag or recite the Pledge of

Allegiance].) However, Catholic Charities’ compliance with a law regulating

health care benefits is not speech. The law leaves Catholic Charities free to


14

A few state courts have mentioned the hybrid-rights theory. (First

Covenant Church v. Seattle (Wash. 1992) 840 P.2d 174, 181-182 [alternative
ground for decision]; City Chapel v. South Bend (Ind. 2001) 744 N.E.2d 443, 452-
454 (plur. opn. of Dickson, J.).)

32

express its disapproval of prescription contraceptives and to encourage its

employees not to use them. For purposes of the free speech clause, simple

obedience to a law that does not require one to convey a verbal or symbolic

message cannot reasonably be seen a statement of support for the law or its

purpose. Such a rule would, in effect, permit each individual to choose which

laws he would obey merely by declaring his agreement or opposition. (Cf. Buhl v.

Hannigan (1993) 16 Cal.App.4th 1612, 1626 & fn. 11 [dismissing as “ludicrous” a

motorcyclist’s claim that compliance with a law requiring the wearing of helmets

in effect compelled speech supporting the law, regardless of the motivation for

noncompliance].)15

4. California Constitution

Catholic Charities’ final argument for applying strict scrutiny invokes the

free exercise clause of the California Constitution. (Cal. Const., art. I, § 4.)16

That clause, Catholic Charities contends, forbids the state to burden the practice of

religion, even incidentally, through a neutral, generally applicable law, unless the

law in question serves a compelling governmental interest and is narrowly tailored

to achieve that interest. Catholic Charities asserts, in other words, that we must

interpret the California Constitution the same way the United States Supreme

Court interpreted the federal Constitution’s free exercise clause in Sherbert, supra,
374 U.S. 398.


15

Catholic Charities perfunctorily asserts that its claims under the

establishment clause (U.S. Const., 1st Amend.) also justify treating this case as
involving hybrid rights. We have, however, already determined that those claims
lack merit.
16

“Free exercise and enjoyment of religion without discrimination or

preference are guaranteed. This liberty of conscience does not excuse acts that are
licentious or inconsistent with the peace or safety of the State. . . .” (Cal Const.,
art. I, § 4.)

33

What might be the proper standard of review for challenges to neutral,

generally applicable laws under the state Constitution’s free exercise clause is a

question we left open in Smith v. Fair Employment & Housing Com. (1996) 12

Cal.4th 1143, 1177-1179 (Smith v. FEHC). There we rejected, under both federal

and state law, a landlord’s religiously based claim to exemption from a fair

housing statute prohibiting discrimination on the basis of marital status. (Gov.

Code, § 12955, subd. (a).) Although the case arose after the high court’s decision

in Smith, supra, 494 U.S. 872, we nevertheless applied strict scrutiny to the

landlord’s federal claim because the Religious Freedom Restoration Act required

us to do so. (42 U.S.C. § 2000bb et seq., hereafter RFRA; see Smith v. FEHC, at

pp. 1165-1167.) 17 We did not decide whether the landlord’s claim under the state

Constitution’s free exercise clause required strict scrutiny. A plurality of three

justices assumed for the sake of argument that it did, but declined to “address the

scope and proper interpretation of California Constitution, article I, section 4.”

(Smith v. FEHC, at p. 1179 (plur. opn. of Werdegar, J., George and Arabian, JJ.,

conc.).) “These important questions,” the plurality wrote, “should await a case in

which their resolution affects the outcome.” (Ibid.) Justice Mosk’s concurring

opinion provided a fourth vote for the disposition. (Id., at pp. 1179-1192 (conc.

opn. of Mosk, J.).)

No decision about the appropriate standard of review can be gleaned from

the various separate opinions in Smith v. FEHC, supra, 12 Cal.4th 1143. The

subject of Justice Mosk’s concurring opinion was his view that RFRA was

unconstitutional; he did not address the state Constitution. (Smith v. FEHC, at

pp. 1179-1192 (conc. opn. of Mosk, J.).) Justice Kennard, who also wrote


17

The United States Supreme Court subsequently held RFRA unconstitu-

tional. (City of Boerne v. Flores (1997) 521 U.S. 507.)

34

separately, would have held that the challenged law violated RFRA; she, too, did

not address the state Constitution. (Id., at pp. 1192-1218 (conc. & dis. opn. of

Kennard, J.).) Justice Baxter, who otherwise agreed with Justice Kennard, wrote

separately to emphasize the point we now make, namely, that the court’s various

opinions left unsettled “the scope of protection of religious liberty under the free

exercise clause of our state Constitution.” (Id., at p. 1250 (conc. & dis. opn. of

Baxter, J., with Lucas, C.J., conc.).)

The only published decision purporting to determine the standard of review

for claims under the California Constitution’s free exercise clause is Brunson v.

Department of Motor Vehicles (1999) 72 Cal.App.4th 1251. The Court of Appeal

in Brunson rejected the contention that the plaintiffs’ religious beliefs excused

them from complying with a statutory duty (Veh. Code, §§ 1653.5, 12800, subd.

(a)) to provide their Social Security numbers to the Department of Motor Vehicles

when applying for drivers’ licenses. The court interpreted Smith v. FEHC, supra,

12 Cal.4th 1143, as mandating application of the rational basis test to the

petitioners’ claims under the state free exercise clause. (Brunson v. Department of

Motor Vehicles, supra, at pp. 1255-1256.) The court’s reading of Smith v. FEHC

was erroneous. As we have just explained, in Smith v. FEHC we left the question

open.18 The Court of Appeal in the case before us, while acknowledging Brunson,

examined the question independently and concluded that challenges under the


18

While the court in Brunson v. Department of Motor Vehicles, supra, 72

Cal.App.4th 1251, thus misinterpreted Smith v. FEHC, supra, 12 Cal.4th 1143, we
have no occasion to reexamine the Brunson court’s ultimate conclusion about the
validity of the statutes at issue in that case. We note the Legislature recently
amended Vehicle Code sections 1653.5 and 12800, subdivision (a), to permit the
Department of Motor Vehicles to accept appropriate numbers and identifiers other
than Social Security numbers. (Stats. 2003, ch. 326, §§ 1, 2.)

35

state free exercise clause to neutral, generally applicable laws should be evaluated

under the rational basis standard of Smith, supra, 494 U.S. 872.

Certainly the high court’s decision in Smith, supra, 494 U.S. 872, does not

control our interpretation of the state Constitution’s free exercise clause. Neither

does the decision in Sherbert, supra, 374 U.S. 398. We have observed many times

“that the meaning of the California Constitution article I, section 4 . . . is not

dependent on the meaning of any provision of the federal Constitution. The state

charter declares in so many words that ‘[r]ights guaranteed by this Constitution are

not dependent on those guaranteed by the United States Constitution.’ (Cal.

Const., art. I, § 24.) ‘Respect for our Constitution as ‘a document of independent

force’ [citation] forbids us to abandon settled applications of its terms every time

changes are announced in the interpretation of the federal charter.’ ” (Smith v.

FEHC, supra, 12 Cal.4th 1143, 1177, quoting People v. Pettingill (1978) 21

Cal.3d 231, 248, and People v. Brisendine (1975) 13 Cal.3d 528, 549-550.) Thus,

if a settled interpretation of the California Constitution’s free exercise clause had

existed before 1990, when the United States Supreme Court abandoned the

Sherbert test, we would simply adhere to that interpretation, regardless of Smith,

supra, 494 U.S. 872.

However, no settled interpretation of the state Constitution’s free exercise

clause existed in 1990. Between the dates of Sherbert, supra, 374 U.S. 398, and

Smith, supra, 494 U.S. 872, our own decisions assessing the constitutionality of

neutral, generally applicable laws that incidentally burdened religious practices

applied the federal and state free exercise clauses interchangeably, without

ascribing any independent meaning to the state clause. (Walker v. Superior Court

(1988) 47 Cal.3d 112, 138-141; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092,

1112-1120; In re Arias (1986) 42 Cal.3d 667, 692 & fn. 28; People v. Woody

(1964) 61 Cal.2d 716, 718, fn. 1.) In decisions prior to Sherbert, we generally

36

took an approach similar to the high court’s decisions of the same era, declining to

exempt religiously motivated conduct from neutral, generally applicable laws. We

wrote, for example, that “a person is free to hold whatever belief his conscience

dictates, but when he translates his belief into action he may be required to

conform to reasonable regulations which are applicable to all persons and are

designed to accomplish a permissible objective.” (Rescue Army v. Municipal

Court (1946) 28 Cal.2d 460, 470.) We also wrote that, “[i]f the applicability of

government regulation turned on the religious motivation of activities, plausible

motivations would multiply and in the end vitiate any regulation.” (Gospel Army v.

City of Los Angeles (1945) 27 Cal.2d 232, 243; see also Gabrielli v.

Knickerbocker (1938) 12 Cal.2d 85, 90-92 [declining to reinstate a pupil expelled

from public school for refusing on religious grounds to salute the flag]; Ex parte

Andrews (1861) 18 Cal. 678, 683-685 [upholding a Sunday closing law].)

In view of this history, we may safely agree with the scholars who

concluded in 1993, years after the high court decided Smith, supra, 494 U.S. 872,

that “[s]ection 4 has not so far played an independent role in free exercise claims.”

(Grodin et al., The Cal. State Constitution: A Reference Guide (1993) p. 44.)

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. (Cal. Const., art. I, § 4.)

Here, however, we need not do so because Catholic Charities’ challenge to the

WCEA fails in any event. As we explain below, the statute passes strict scrutiny.

A future case might lead us to choose the rule of Sherbert, supra, 374 U.S. 398,

the rule of Smith, supra, 494 U.S. 872, or an as-yet unidentified rule that more

precisely reflects the language and history of the California Constitution and our

own understanding of its import. But “[t]hese important questions should await a

37

case in which their resolution affects the outcome.” (Smith v. FEHC, supra, 12

Cal.4th 1143, 1179.)

We therefore review Catholic Charities’ challenge to the WCEA under the

free exercise clause of the California Constitution in the same way we might have

reviewed a similar challenge under the federal Constitution after Sherbert, supra,
374 U.S. 398, and before Smith, supra, 494 U.S. 872. In other words, we apply

strict scrutiny. Under that standard, a law could not be applied in a manner that

substantially burdened a religious belief or practice unless the state showed that

the law represented the least restrictive means of achieving a compelling interest

or, in other words, was narrowly tailored. (See Thomas v. Review Bd., Ind. Empl.

Sec. Div. (1981) 450 U.S. 707, 718; Sherbert, supra, 374 U.S. 398, 403, 406, 407-

408.) For these purposes, a law substantially burdens a religious belief if it

“conditions receipt of an important benefit upon conduct proscribed by a religious

faith, or where it denies such a benefit because of conduct mandated by religious

belief, thereby putting substantial pressure on an adherent to modify his behavior

and to violate his beliefs . . . .” (Thomas v. Rev. Bd., Ind. Empl. Sec. Div., supra,
450 U.S. 707, 717-718.)

Applying this standard, we consider first whether the WCEA in fact

burdens Catholic Charities’ religious beliefs. We do not doubt Catholic Charities’

assertion that to offer insurance coverage for prescription contraceptives to its

employees would be religiously unacceptable. Catholic Charities adequately

supports the assertion with the declaration of a Roman Catholic priest who serves

as Executive Director of the Secretariat for Doctrine and Pastoral Practices of the

National Conference of Roman Catholic Bishops. Catholic Charities may,

however, avoid this conflict with its religious beliefs simply by not offering

coverage for prescription drugs. The WCEA applies only to employers who

38

choose to offer insurance coverage for prescription drugs; it does not require any

employer to offer such coverage.

Anticipating this objection, Catholic Charities argues that its religious

beliefs also require it to offer its employees insurance for prescription drugs. On

this point, however, the declaration just mentioned seems open to interpretation.

The declarant states: “The clear teaching and firm doctrine of the Roman Catholic

Church is that all employers, religious or otherwise, are to provide just wages and

benefits to employees, regardless of their religious affiliations and beliefs, as an

obligation arising from the Gospel message of justice and charity. The goal of the

Roman Catholic Church, also as a matter of justice and charity, is that all workers

regardless of their circumstances should receive adequate health-care coverage.”

In the present context—that of weighing an asserted burden on religious beliefs

against the state interests supporting a challenged statute—the declaration raises

the question whether Catholic Charities’ beliefs about the requirements of “justice

and charity” are necessarily equivalent to religious beliefs. We must ask this

question because a claim under the free exercise clause must be “rooted in

religious belief” and not on “philosophical” choices or “[a] way of life, however

virtuous and admirable.” (Wisconsin v. Yoder, supra, 406 U.S. 205, 215, 216.)

“Although a determination of what is a ‘religious’ belief or practice entitled to

constitutional protection may present a most delicate question, the very concept of

ordered liberty precludes allowing every person to make his own standards on

matters of conduct in which society as a whole has important interests.” (Id.,

pp. 215-216, footnote omitted.)19

19

Assuming the obligation to provide adequate health care coverage is a

religious belief, one might also ask whether a religious employer opposed to
contraceptives on religious grounds could avoid all conflict with its beliefs by
declining coverage for prescription drugs (thus satisfying the WCEA) while
offering its employees a raise to offset the reduced benefits, accompanied by


(footnote continued on next page)

39

The need to ask questions such as these places a court in an uncomfortable

position. “Repeatedly and in many different contexts,” the high court has “warned

that courts must not presume to determine the place of a particular belief in a

religion or the plausibility of a religious claim.” (Smith, supra, 494 U.S. 872,

887.) The line between construing Catholic Charities’ declaration, which we must

do, and determining the plausibility of religious claims, which we may not do, is

fine indeed. Equally fine is the line between construing the declaration and

determining whether the asserted burden falls on a protected religious belief or an

unprotected philosophical choice, which we also must do. (Wisconsin v. Yoder,

supra, 406 U.S. 205, 215-216.) If we had to ask and answer these difficult

questions, we would. But we need not do so 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.

The WCEA serves the compelling state interest of eliminating gender

discrimination. Evidence before the Legislature showed that women during their

reproductive years spent as much as 68 percent more than men in out-of-pocket

health care costs, due in part to the cost of prescription contraceptives and the

various costs of unintended pregnancies, including health risks, premature



(footnote continued from previous page)

whatever condemnations of contraceptives the employer wished to offer. A raise
might be far more expensive for the employer than insurance, and a law that
indirectly made a religious practice more expensive might at some point become a
constitutionally significant burden on religious exercise. However, “it cannot be
expected, much less required that legislators enact no law regulating conduct that
may in some way result in an economic disadvantage to some religious sects and
not to others because of the special practices of the various religions.” (Braunfeld
v. Brown
, supra, 366 U.S. 599, 605.)

40

deliveries and increased neonatal care. (See p. 2, ante.) Assembly, Senate and

legislative staff analyses of the bills that became the WCEA consistently identify

the elimination of this economic inequity as the bills’ principal object. Catholic

Charities, which pays men and women equal wages, argues the type of inequity

that prompted the WCEA cannot properly be viewed as gender discrimination. To

identify subtle forms of gender discrimination, however, is within the

Legislature’s competence. Nor is the identification irrational.20 Congress, making

a similar identification, amended title VII to define discrimination “on the basis of

sex” as including discrimination in benefits “on the basis of pregnancy, childbirth,

or related medical conditions . . . .” (42 U.S.C. § 2000e(k) (Pregnancy

Discrimination Act), abrogating General Electric Co. v. Gilbert (1976) 429 U.S.

125; see Newport News Shipbuilding & Dry Dock v. EEOC (1983) 462 U.S. 669,

678 [acknowledging abrogation].) The only reported federal decision addressing

the issue holds that the statute just quoted requires employers to include coverage

for prescription contraceptives when offering health care plans that cover

prescription drugs. (Erickson v. Bartell Drug Co. (W.D.Wash. 2001) 141

F.Supp.2d 1266, 1270-1272; but cf. Glaubach v. Regence Blueshield (Wash. 2003)

74 P.3d 115, 116-119 [holding that a Washington statute requiring insurers to

provide coverage regardless of sex does not mandate coverage of prescription

contraceptives].) Certainly the interest in eradicating gender discrimination is

compelling. We long ago concluded that discrimination based on gender violates

the equal protection clause of the California Constitution (art. I, § 7(a)) and


20

At least 19 other states have adopted laws requiring that employers or

insurers provide coverage for prescription contraceptives. (See Note, The Quest
for Equality: Comprehensive Insurance Coverage of Prescription Contraceptives

(2002) 82 Boston U. L.Rev. 1289, 1290, 1298-1301; Comment, Contraceptive
Coverage Laws: Eliminating Gender Discrimination or Infringing on Religious
Liberties?
(2002) 69 U. Chicago L.Rev. 1867, 1877, fn. 68.)

41

triggers the highest level of scrutiny. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1,

17-20.)

Strongly enhancing the state’s interest is the circumstance that any

exemption from the WCEA sacrifices the affected women’s interest in receiving

equitable treatment with respect to health benefits. We are unaware of any

decision in which this court, or the United States Supreme Court, has exempted 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. The high court in Wisconsin v. Yoder, supra, 406 U.S. 205,

painstakingly limited its holding to avoid endorsing any such result. While

concluding that the Amish parents in that case were entitled under the strict

scrutiny standard of Sherbert, supra, 374 U.S. 398, to an exemption from a general

law requiring their older children to attend public school, the court emphasized

that its conclusion depended on the assumption that no Amish child wished to

attend. (Wisconsin v. Yoder, supra, at pp. 230-232.) Similarly, in rejecting a

religious employer’s challenge to a law requiring him to pay Social Security and

unemployment taxes for his employees, the court wrote that “[g]ranting an

exemption from social security taxes to an employer operates to impose the

employer’s religious faith on the employees.” (United States v. Lee, supra, 455

U.S. 252, 261.) “Congress and the courts have been sensitive to the needs flowing

from the Free Exercise Clause, but every person cannot be shielded from all the

burdens incident to exercising every aspect of the right to practice religious

beliefs. When followers of a particular sect enter into commercial activity as a

matter of choice, the limits they accept on their own conduct as a matter of

conscience and faith are not to be superimposed on the statutory schemes which

are binding on others in that activity.” (Ibid.; cf. Tony and Susan Alamo

Foundation v. Sec’y of Labor, supra, 471 U.S. 290, 303-306 [religious

42

organization must comply with federal minimum wage laws]; Dole v. Shenandoah

Baptist Church (4th Cir. 1990) 899 F.2d 1389, 1393-1400 [religious school must

comply with federal law requiring equal pay for men and women].) We see no

reason why a different rule should apply when a nonprofit corporation enters the

general labor market.

Nor are any less restrictive (or more narrowly tailored) means readily

available for achieving the state’s interest in eliminating gender discrimination.

Any broader exemption increases the number of women affected by discrimination

in the provision of health care benefits. Catholic Charities argues the Legislature

could more widely exempt employers from the WCEA without increasing the

number of affected women by mandating public funding of prescription

contraceptives for the employees of exempted employers. The Legislature

included such a provision in an earlier version of the WCEA (Assem. Bill

No. 1112 (1997-1998 Reg. Sess.)), which the Governor vetoed. But Catholic

Charities points to no authority requiring the state to subsidize private religious

practices. (Cf. Lyng v. Northwest Indian Cemetery Prot. Assn., supra, 485 U.S.

439, 447-453 [government need not forgo road building or timber harvesting on its

own property to avoid interference with Native American religious practices].)

Catholic Charities next argues the WCEA is underinclusive, and therefore

not narrowly tailored, because it does not facilitate access to prescription

contraceptives for “indigent women, unemployed women, stay-at-home mothers,

women whose employers do not offer health insurance benefits, and women in

part-time employment [who] do not qualify for health benefits.” But this

argument misconceives the principal purpose of the WCEA, which is not to

facilitate access to contraceptives but to eliminate a form of gender discrimination

in the provision of health benefits. The situations Catholic Charities identifies, in

43

which no employer or insurer is providing health benefits, do not entail such

discrimination.

Finally on this point, Catholic Charities argues the WCEA is not narrowly

tailored because it is overinclusive. Catholic Charities justifies this surprising

assertion by arguing that the law must be overinclusive if it applies to employers

that do not discriminate on the basis of gender, and that Catholic Charities does

not discriminate on that basis because it does not provide contraceptive coverage

to women or to men (e.g., vasectomies). With this argument, however, Catholic

Charities merely restates its disagreement with the Legislature’s determination that

the exclusion of prescription contraceptives from health care plans constitutes a

form of gender discrimination. As we have already explained, the Legislature was

entitled to reach that conclusion.

For these reasons, applying the strict scrutiny test of Sherbert, supra, 374

U.S. 398, to Catholic Charities’ claim against the WCEA under the free exercise

clause of the state Constitution, we find the WCEA meets that test. We do not

hold that the state free exercise clause requires courts to apply the Sherbert test to

neutral, generally applicable laws that incidentally burden religious practice.

Instead, as explained above, we leave that question for another day.

C. Rational Basis

Catholic Charities’ final challenge to the WCEA is that it violates the

rational basis test. More specifically, Catholic Charities argues the State has

defined the exempt category of “religious employer” (Health & Saf. Code,

§ 1367.25, subd. (b)) with arbitrary criteria. “In effect,” according to Catholic

Charities, “the Legislature decided that any religious institution that employs

individuals of other faiths or that ministers to persons of all faiths (or no faith)—in

effect any ‘missionary’ church or church with social outreach—is not sufficiently

44

‘religious’ to qualify for exemption,” and that these classifications are “wholly

unrelated to any legitimate state interest.”

The argument lacks merit. The WCEA’s exemption for religious

organizations, even if not applicable to Catholic Charities, rationally serves the

legitimate interest of complying with the rule barring interference with the

relationship between a church and its ministers. (See ante, at p. 11 et seq.)

Although the high court has not spoken on the subject, the lower federal courts

have held that the constitutionally based ministerial exemption survives the

decision in Smith, supra, 494 U.S. 872. (See, e.g., Gellington v. Christian

Methodist Episcopal Church, Inc., supra, 203 F.3d 1299, 1302-1304; Combs v.

Cen Tx Ann Conf United Methodist Church, supra, 173 F.3d 343, 347-350;

E.E.O.C. v. Catholic University of America, supra, 83 F.3d 455, 460-463; cf.

Schmoll v. Chapman University, supra, 70 Cal.App.4th 1434, 1438-1445

[recognizing a ministerial exception to state employment laws].) Most

organizations entitled to invoke the ministerial exemption will be involved in the

“inculcation of religious values,” which the first criterion requires. (Health & Saf.

Code, § 1367.25, subd. (b)(1)(A).) Many will also satisfy the WCEA’s fourth

exemption criterion, which requires that a religious employer qualify for federal

tax exemption as a church, an integrated auxiliary of a church, a convention or

association of churches, or a religious order. (See 26 U.S.C. § 6033(a)(2)(A)(i)

and (iii), cited in Health & Saf. Code, § 1367.25, subd. (b)(1)(D).) If in any case

the constitutionally required ministerial exception were broader than the statutory

exemption, the former would of course take precedence.

The second criterion, to which Catholic Charities specifically objects as

lacking a rational basis, requires that an employer “primarily employ[] persons

who share the religious tenets of the entity.” (Health & Saf. Code, § 1367.25,

subd. (b)(1)(B).) This provision, in effect, accommodates religious employers

45

more broadly than the ministerial exemption requires by extending the WCEA’s

exemption to employees who could not fall within the ministerial exemption. The

provision has the legitimate, rational purpose of accommodating a state-imposed

burden on religious exercise. (Amos, supra, 483 U.S. 327, 334-335.)

The third criterion, to which Catholic Charities also objects, is problematic.

To qualify under it, an employer must “serve[] primarily persons who share the

religious tenets of the entity.” (Health & Saf. Code, § 1367.25, subd. (b)(1)(C).)

To imagine a legitimate purpose for such a requirement is difficult. Reading the

provision literally, a hypothetical soup kitchen run entirely by the ministers of a

church, which inculcates religious values to those who come to eat (thus satisfying

the first, second, and fourth criteria), would lose its claim to an exemption from

the WCEA if it chose to serve the hungry without discrimination instead of

serving co-religionists only. The Legislature may wish to address this problem.

Catholic Charities, however, cannot successfully challenge the WCEA 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. (Health & Saf. Code, § 1367.25, subd.

(b)(1)(D).) Catholic Charities thus cannot qualify for exemption in any event.

46



III. DISPOSITION

The decision of the Court of Appeal is affirmed.

WERDEGAR, J.

WE CONCUR:
GEORGE, C.J.
BAXTER, J.
CHIN, J.
MORENO, J.

47










CONCURRING OPINION BY KENNARD, J.




In September 1999, the Legislature enacted the Women’s Contraception

Equity Act (WCEA). Under this law, every group health care policy that

“provides coverage for outpatient prescription drug benefits” must, as of January

1, 2000, include coverage for contraceptives. (Health & Saf. Code, § 1367.25.)1

Exempt from the WCEA are policies sold to entities that are religious employers.

To fall within the act’s definition of “religious employer,” each of these four

requirements must be satisfied:

“(A) The inculcation of religious values is the purpose of the entity.

“(B) The entity primarily employs persons who share the religious tenets

of the entity.

“(C) The entity serves primarily persons who share the religious tenets of

the entity.

“(D) The entity is a nonprofit organization as described in Section

6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.”

(§ 1367.25, subd. (b)(1).)

Plaintiff Catholic Charities of Sacramento (Catholic Charities), which has

brought this lawsuit challenging the constitutionality of the religious employer

exemption, acknowledges that it does not satisfy any of the four requirements for

1

Further undesignated statutory references are to the Health and Safety

Code.

1

that exemption. Catholic Charities’ complaint alleges that it is a nonprofit public

benefit corporation “operated in connection with the Roman Catholic Bishop of

Sacramento” as “an organ of the Roman Catholic Church.” The complaint further

alleges that Catholic Charities’ mission is to perform good works, such as

“providing immigrant resettlement programs, elder care, counseling, food,

clothing and affordable housing for the poor and needy, housing and vocational

training of the developmentally disabled and the like.” According to the

complaint, Catholic Charities provided prescription drug coverage to its 183

employees before the WCEA’s effective date; for it to continue to do so now

would be promoting the use of contraceptives, a sinful practice under Catholic

Church doctrine. For the purposes of deciding the legal issues in this case, the

majority accepts these allegations as true, as do I.

I agree with the majority that Catholic Charities is properly subject to the

WCEA. In the course of its discussion, however, the majority rejects Catholic

Charities’ argument that the religious employer exemption discriminates against

“religious organizations . . . that engage in charitable work, as opposed to work

that is purely spiritual or evangelical.” (Maj. opn., ante, at p. 24.) I am not

persuaded that the first requirement of the religious employer exemption, limiting

the exemption to entities whose primary purpose is the “inculcation of religious

values” (§ 1367.25, subd. (b)(1)(A)), can be reconciled with the establishment

clauses of the federal and state Constitutions. This is a close and difficult issue. I

need not resolve it, however, because Catholic Charities does not meet the

exemption’s fourth requirement that it is a religious entity exempt from federal tax

filing, a requirement that both the majority and I agree is constitutional.

I

The United States Constitution’s First Amendment provides that “Congress

shall make no law respecting an establishment of religion.” (U.S. Const., 1st

2

Amend.) This provision applies to the states through the Fourteenth Amendment;

thus, state governments too are prohibited from making such laws. Like its federal

counterpart, California’s Constitution provides that the Legislature “shall make no

law respecting an establishment of religion.” (Cal. Const., art. I, § 4.) Laws that

prefer one religion or religious organization over another (often called

“denominational preferences”) violate these provisions. (See Epperson v.

Arkansas (1968) 393 U.S. 97, 106 [“State may not adopt programs or practices . . .

which ‘aid or oppose’ any religion.”]; Everson v. Board of Education (1947) 330

U.S. 1, 15 [no state can “pass laws which aid one religion” or that “prefer one

religion over another”].)

On this basis, the United States Supreme Court in Larson v. Valente (1982)
456 U.S. 228 invalidated a Minnesota law that treated religious organizations

differently. The law in question generally required charitable organizations that

solicited contributions to register with the state and to disclose their income and its

sources, as well as costs of management, fundraising, and public education.

Exempt from this law were religious organizations that received more than 50

percent of their charitable contributions from their own members or affiliates,

rather than from the general public. Not exempt were religious organizations such

as the Holy Spirit Associations for the Unification of World Christianity

(Unification Church) that received more than half of their charitable contributions

from “ ‘door-to-door and public-place proselytizing and solicitation of funds,’ ” a

practice emphasized by the tenets of that religion. (Id. at p. 234.) Unification

Church members sued, seeking exemption from the law. The federal district court

granted the plaintiffs a preliminary injunction, which was affirmed on appeal. The

United States Supreme Court, in turn, agreed that the law impermissibly

“impose[d] the registration and reporting requirements . . . on some religious

organizations but not on others”; it thus, did “not operate evenhandedly,” but

3

instead, “effect[ed] the selective legislative imposition of burdens and advantages

upon particular denominations.” (Id. at pp. 253-254.)

Catholic Charities argues here that the WCEA’s religious employer

exemption similarly imposes its burdens and advantages on some religious

organizations but not others. Catholic Charities points out that the exemption

favors those religious organizations whose purpose is “[t]he inculcation of

religious values” (§ 1367.25, subd. (b)(1)(A)), while disfavoring those entities,

such as Catholic Charities, whose purpose is to perform good works. Comparing

the WCEA to the Minnesota law struck down by the high court in Larson v.

Valente, supra, 456 U.S. 228, 253, which “impose[d] the registrative and reporting

requirements on some religious organizations but not on others,” Catholic

Charities argues that similarly here the WCEA imposes the contraceptive

insurance coverage on some religious organizations but not on others.

To distinguish the WCEA’s religious employer exemption from the

religious organization charitable reporting exemption invalidated in Larson v.

Valente, supra, 456 U.S. 228, the majority states: “The WCEA confers the special

benefit of exemption only on those religious organizations whose tenets are

opposed to prescription contraceptives and that meet the other requirements for

exemption. . . . Those Catholic employers that do not qualify for exemption are

treated precisely the same as all other employers in the state, whether religious or

nonreligious.” (Maj. opn., ante, at p. 25, italics added.) But the Minnesota

charitable solicitation registration law struck down in Larson v. Valente treated

religious organizations not qualifying for its exemption “precisely the same as”

nonreligious charitable solicitors and other nonqualifying religious solicitors.

Thus, in treating religious entities that do not qualify for its exemption just like

nonreligious entities subject to its requirements, the WCEA seems substantially

similar to that unconstitutional Minnesota law.

4



Under the high court’s analysis in Larson v. Valente, supra, 456 U.S. 228, a

law that selectively discriminates among religious organizations might still not

violate the establishment clause if it is “closely fitted to the furtherance” of a

“compelling governmental interest.” (Id. at p. 255.) As the majority explains, and

I agree, the WCEA serves the compelling state interest of eliminating gender

discrimination. (Maj. opn., ante, at p. 40.) But in upholding the first requirement

of the religious employer exemption (limiting it to those religious entities whose

purpose is inculcating religious values), the majority does not explain how that

limitation is “closely fitted” to the elimination of gender discrimination. I have

serious doubts that the First Amendment, as construed by the United States

Supreme Court, 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, like Catholic Charities, that are

organized for the purpose of feeding the hungry, caring for the sick, and providing

shelter to the homeless.2

II

As I noted at the outset, dispositive here is Catholic Charities’ concession

that it does not meet the fourth requirement for the WCEA’s religious employer

exemption as a religious entity exempt from federal tax filing. (See § 1367.25,

subd. (b)(1)(D).) Because the concerns expressed above about the

2

The majority construes Larson v. Valente, supra, 456 U.S. 228, as

prohibiting only those laws that discriminate among religious denominations and
thus as having no effect on Catholic Charities, an entity affiliated with the Roman
Catholic denomination. (Maj. opn., ante, at p. 26, fn. 10.) Even under this view,
the first requirement of the WCEA’s religious employer exemption is of
questionable constitutionality because it disfavors those denominations that have
as their primary purpose something other than the inculcation of religious values.
Thus any organization or entity established by a religious denomination whose
primary purpose was attending to the needy would on that basis be denied the
religious employer exemption.

5

constitutionality of the exemption’s first requirement—that “inculcation of

religious values” (§ 1367.25, subd. (b)(1)(A)) is the purpose of the entity—can

have no effect on the judgment, I agree with the majority that if Catholic Charities

is to afford its employees health coverage that would include outpatient

prescription drugs, it must do so through a policy that provides coverage for

prescription contraceptives.

KENNARD,

J.

6









DISSENTING OPINION BY BROWN, J.

This case presents questions on which reasonable minds can differ—

especially in light of the whimsical and somewhat erratic path of free exercise

jurisprudence after the Supreme Court’s decision in Employment Div., Ore. Dept.

of Human Res. v. Smith (1990) 494 U.S. 872 (Smith). However, as a court pledged

to defend constitutional limits, operating in the post-Smith environment, we ought

to think very carefully about our role in defining the road ahead. Instead of being

dismissive of the very serious claims presented here, we should treat them with the

highest respect.

After

Smith, neutral, generally applicable laws do not have to survive

compelling state interest review. Such laws require no justification no matter how

severely they burden the individual religious claimant and no matter how

inconsequential the government interest. (See Smith v. Fair Employment &

Housing Com. (1996) 12 Cal.4th 1143, 1195 (conc. & dis. opn. of Kennard, J.)

(Smith v. FEHC).) It is, however, far from self-evident, if or how, Smith applies to

laws that directly contravene the religious conduct of religious organizations. The

Women’s Contraceptive Equity Act (WCEA) attempts to circumvent this

potentially substantial hurdle by creating a very narrow exemption for churches.

But that begs an even more fundamental question: may the government determine

what parts of bona fide religious organizations are religious and what parts are

secular? And, in particular, may the government make such distinctions in order

to infringe the religious freedom of that portion of the organization the

1

government characterizes as secular? Because, unlike the majority, I do not think

Smith provides obvious answers to these questions, I respectfully dissent.

I

The proponents of the WCEA make an argument with which no one can

disagree. Women in the workplace are entitled to be treated fairly and equitably

and to be free from discrimination on the basis of gender. Government has not

only the authority, but the obligation, to discourage invidious discrimination in the

workplace, and this includes discrimination in the distribution of benefits. (See,

e.g., Erickson v. Bartell Drug Company (W.D.Wash. 2001) 141 F.Supp.2d 1266,

1271 [title VII, as amended by the Pregnancy Discrimination Act, prevented

exclusion of contraception from prescription drug coverage offered by employer];

42 U.S.C. § 2000e(k) [prohibiting, under title VII, discrimination on the basis of

“pregnancy, childbirth, or related medical conditions”]; U.S. EEOC, Commission

Decision (Dec. 14, 2000) [coverage of contraception] <http://eeoc.gov/policy/

docs/decision-contraception.html> [as of Mar. 1, 2004]; Conn. Gen. Stat.,

§ 38a-503e (2001) [mandating insurance coverage of prescription contraception];

Mass. Gen. Laws, ch. 176B, § 4W(b) (2002) [same]; Vt. Stat. Ann., tit. 8, § 4099c

(2000) [same].)

Neither the propriety, nor the wisdom of, nor the government’s authority to

impose a prescription contraceptive mandate on California employers is at issue

here. The question is a very narrow one. May the government impose a mandate

on a religiously affiliated employer that requires the employer to pay for

contraceptives—in violation of an acknowledged religious tenet—or to redefine

what constitutes religious conduct?1 While antidiscrimination laws reflect a


1

The question has to be stated in the alternative because the California

enactment has some peculiarities. Despite the state’s argument that it has a
compelling interest in ensuring that all working women who desire prescription


(footnote continued on next page)

2

constitutional value, religious liberty occupies a commensurate level in the

constitutional hierarchy. As often happens with First Amendment cases, this is “a

collision between two interests of the highest order: the Government’s interest in

eradicating discrimination in employment and the constitutional right of a church

to manage its own affairs free from governmental interference.” (Equal Emp.

Opp. Comm’n v. The Catholic Univ. of America (D.C. Cir. 1996) 83 F.3d 455, 460

(Catholic University).) Thus, the desire to prevent discrimination cannot be the

beginning and the end of the discussion.

A.

Why Religious Liberty Is Important

A strong argument can be made that it was the primacy of religious liberty

in the early history of this country, with its acknowledgment of the separate

spheres of church and state, that gave rise to our notions of limited government

and equal protection—the constitutional precursors of our antidiscrimination laws.

(McConnell, Why Is Religious Liberty the “First Freedom”? (2000) 21 Cardozo

L.Rev. 1243, 1244 [“the division between temporal and spiritual authority gave

rise to the most fundamental features of liberal democratic order: the idea of

limited government, the idea of individual conscience and hence of individual

rights, and the idea of civil society, as apart from government, bearing primary

responsibility for the formation and transmission of opinions and ideas”].)

Our ability to create a space for religious perspectives is both instrumental

and regenerative for democracy. Religious institutions enhance individual



(footnote continued from previous page)

contraceptive coverage have that option available, the mandate is imposed only on
employers that provide prescription coverage. Thus, Catholic Charities of
Sacramento, Inc. (Catholic Charities), can choose either to provide contraceptives
or not to provide prescription coverage to employees at all. This option would
arguably make everyone worse off, but, in theory at least, equally so.

3

autonomy “by challenging the sovereign power of the liberal state” (Noonan, The

End of Free Exercise? (1992) 42 De Paul L.R. 567, 579-580) and by articulating

alternative visions—“counter-cultural visions that challenge and push the larger

community in . . . directions unimagined by prevailing beliefs.” (Brady, Religious

Organizations and Mandatory Collective Bargaining Under Federal and State

Labor Laws: Freedom From and Freedom For (2004) 49 Vill. L.Rev. 77, 156.)

By protecting religious groups from gratuitous state interference, we convey broad

benefits on individuals and society. By underestimating the transformative

potential of religious organizations, we impoverish our political discourse and

imperil the foundations of liberal democracy.

B. Does

Smith Apply to Religious Organizations?

Despite its surface simplicity, Smith is not an easy case to understand or

apply. The majority correctly quotes the critical passages from Smith: “ ‘[T]he

right of free exercise does not relieve an individual of the obligation to comply

with a “valid and neutral law of general applicability on the ground that the law

proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” ’

(Smith, [supra, 494 U.S.] at p. 879, quoting United States v. Lee [(1982)] 455 U.S.

252, 263, fn. 3 (conc. opn. of Stevens, J.).) To permit religious beliefs to excuse

acts contrary to law, the Smith court reasoned, ‘ “would be to make the professed

doctrines of religious belief superior to the law of the land, and in effect to permit

every citizen to become a law unto himself. ” ’ (Smith, at p. 879, quoting Reynolds

v. United States (1879) 98 U.S. 145, 167.)” (Maj. opn., ante, at p. 17, italics

added.)

Since

Smith focused exclusively on the individual’s free exercise of

religion, some courts have reasoned that religious institutions are exempted

entirely from the Smith analysis. (Gellington v. Christian Methodist Episcopal

Church, Inc. (11th Cir. 2000) 203 F.3d 1299, 1303; see Kaplan, The Devil Is in the

4

Details: Neutral, Generally Applicable Laws and Exceptions from Smith (2000)

75 N.Y.U. L.Rev. 1045, 1070.)

1. Individuals v. Institutions

This case involves a religious organization and not an individual. Perhaps

more importantly, it does not deal with the denial of a benefit because of a

violation of existing law. Rather, it attempts to assess the constitutional

implications of a law that requires a religious organization to provide a benefit

despite its theological objections. These fundamental differences are simply

ignored in the majority’s analysis.

Under

Smith, the right of free exercise does not relieve an individual of the

obligation to comply with a valid and neutral law of general applicability even if

the law requires conduct that contravenes a religious belief, but “[i]t does not

follow . . . that Smith stands for the proposition that a church may never be

relieved from such an obligation.” (Catholic University, supra, 83 F.3d at p. 462.)

The majority may have made an abortive attempt to deal with this obvious

distinction by citing, and dismissing, the so-called ministerial exception. It is true,

as the majority notes, that the ministerial exception is not directly at issue here.

(See, e.g., Alicea-Hernandez v. Catholic Bishop of Chicago (7th Cir. 2003) 320

F.3d 698 [ministerial exception to title VII]; E.E.O.C. v. Roman Catholic Diocese

of Raleigh (4th Cir. 2000) 213 F.3d 795 [same]; Combs v. Central Texas Ann.

Conf. of United Methodist Church (5th Cir. 1999) 173 F.3d 343 [same].)

Likewise, it is certainly debatable whether the legislative action challenged here

invades the narrow domain labeled church autonomy. (See, e.g., Serbian Eastern

Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696 [state court impermissibly

encroached on church autonomy]; Kedroff v. St. Nicholas Cathedral (1952) 344

U.S. 94 [state statute impermissibly encroached on church autonomy].) And yet,

the logic of these cases suggests that the constitutionally protected space for

5

religious organizations is actually broader than these obvious categories. In short,

the ministerial exception and the church autonomy doctrine are ways of describing

spheres of constitutionally required protection, but these categories are not

exhaustive.

The court in Catholic University summarized the distinction it was making

this way: “We conclude from our review of the Supreme Court’s First

Amendment jurisprudence that whereas the Free Exercise Clause guarantees a

church’s freedom to decide how it will govern itself, what it will teach, and to

whom it will entrust its ministerial responsibilities, it does not guarantee the right

of its members to practice what their church may preach if that practice is

forbidden by a neutral law of general application.” (Catholic University, supra, 83

F.3d at p. 463.) In fact, the Legislature apparently takes a similar view of the

breadth of Smith because it provided an exemption from the WCEA for churches.

2. The Two Faces of Entanglement

Under venerable establishment clause precedent, however, the exemption

itself is problematic. To put it bluntly, the government may generally separate the

religious from the secular to decide how it will dispense its benefits, but it cannot

parse a bona fide religious organization into “secular” and “religious” components

solely to impose burdens on the secular portion.

As

noted,

ante, the constitutional basis for the distinction seems

indisputable. The United States Supreme Court has recognized that government

action may burden the free exercise of religion in two different ways: “by

interfering with a believer’s ability to observe the commands or practices of his

faith [citations], and by encroaching on the ability of a church to manage its

internal affairs.” (Catholic University, supra, 83 F.3d at p. 460; see, e.g., Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) 508 U.S. 520, 531-533

(Lukumi); Kedroff v. St. Nicholas Cathedral, supra, 344 U.S. at p. 116 [free

6

exercise clause protects power of religious organizations “to decide for

themselves, free from state interference, matters of church government as well as

those of faith and doctrine”].)

If Catholic Charities were a “religious employer” it would be exempt from

the WCEA’s requirement to include coverage for contraceptives in its group

healthcare policy. Under the act, a religious employer must satisfy all of the

following criteria: “(A) The inculcation of religious values is the purpose of the

entity. [¶] (B) The entity primarily employs persons who share the religious

tenets of the entity. [¶] (C) The entity serves primarily persons who share the

religious tenets of the entity. [¶] (D) The entity is a nonprofit organization as

described in Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986,

as amended.” (Health & Saf. Code, § 1367.25, subd. (b)(1).)

As the majority notes, “Catholic Charities does not qualify as a ‘religious

employer’ under the WCEA because it does not meet any of the definition’s four

criteria.” (Maj. opn., ante, at p. 5, italics added.) But Catholic Charities would be

a religious employer if the Legislature had not designed the exemption narrowly

enough to exclude it.2 The plaintiffs contend the Legislature has “deliberately

defined the Catholic Church in a manner entirely inconsistent with Catholic

religious teaching, to exclude critical, constitutive elements of the Catholic

Church—i.e., the Church’s healthcare, social service and educational ministries—

from the definition of ‘religious employer’ included in the exemption provisions.”


2

Earlier versions of the WCEA contained a broader conscience clause—

which Catholic Charities deemed acceptable—exempting bona fide religious
employers and allowing religiously affiliated hospitals, universities, and social
service agencies to opt out. The current version of the act exempts churches,
synagogues, mosques, temples, missions, parochial schools, seminaries and
convents from the requirement to provide contraceptive coverage.

7



The high court “ ‘has long recognized that the government may (and

sometimes must) accommodate religious practices and that it may do so without

violating the Establishment Clause.’ ” (Corporation of the Presiding Bishop v.

Amos (1987) 483 U.S. 327, 334 (Amos).) At the same time, acknowledging that

churches often regard the community services provided by affiliated nonprofits as

“a means of fulfilling religious duty and providing an example of the way of life a

church seeks to foster” (id. at p. 344 (conc. opn. of Brennan, J.)), the court

concluded the case-by-case determination of whether an affiliated nonprofit is

religious or secular is inappropriate under the free exercise clause. (Id. at pp. 341-

342 (conc. opn. of Brennan, J.) [“Religion includes important communal elements

for most believers. They exercise their religion through religious organizations

and these organizations must be protected by the [Free Exercise] Clause. . . .

[R]eligious activity derives meaning in large measure from participation in a

larger religious community”].)

Even

after

Smith, it seems quite clear the government may not discriminate

among religions (Larson v. Valente (1982) 456 U.S. 228, 253) or engender a risk

of politicizing religion (id. at pp. 253-254) or purport to exempt “religious” but not

“secular” activities (Cantwell v. Connecticut (1940) 310 U.S. 296, 301; Espinosa

v. Rusk (10th Cir. 1980) 643 F.2d 477, 480-481, affd. (1982) 456 U.S. 951). In

National Labor Relations Board v. The Catholic Bishop of Chicago (1979) 440

U.S. 490 (Catholic Bishop), the National Labor Relations Board (NLRB) certified

unions as bargaining agents for lay teachers in church-affiliated schools. The

NLRB asserted it was required to decline jurisdiction only when schools were

“ ‘completely religious’ ” and not just “ ‘religiously associated.’ ” (Id. at p. 493.)

The Seventh Circuit Court of Appeals rejected the NLRB’s standard as a

“ ‘simplistic black or white, purported rule’ ” which offered no guide to discretion.

(Id. at p. 495.) “ ‘The real difficulty is found in the chilling aspect that the

8

requirement of bargaining will impose on the exercise of the bishops’ control of

the religious mission of the schools.’ ” (Id. at p. 496.) The Supreme Court, after

acknowledging that the NLRB’s attempt to distinguish between “ ‘completely

religious’ ” and “ ‘religiously associated’ ” was a recognition of its intrusion into

areas protected by the religion clauses, construed the National Labor Relations Act

so as to avoid deciding whether jurisdiction “was constitutionally permissible

under the Religion Clauses of the First Amendment.” (Catholic Bishop, at p. 499.)

Nevertheless, the court expressed concern that NLRB jurisdiction would

inevitably involve “inquiry into the good faith of the position asserted by clergy-

administrators and its relationship to the school’s religious mission,” and the “very

process of inquiry” would impinge on rights guaranteed by the religion clauses.

(Catholic Bishop, at p. 502.)

In

Universidad Central de Bayamon v. NLRB (1st Cir. 1985) 793 F.2d 383,

387, the NLRB sought to avoid the problem by exempting “ ‘pervasively

sectarian’ ” schools. The controlling opinion in Universidad Central de Bayamon

found board jurisdiction posed just as great a risk as the Supreme Court envisioned

in Catholic Bishop, supra, 440 U.S. 490. “For the Board to exercise jurisdiction

over an educational institution where ‘the inculcation of religious values is at least

one purpose of the institution’ and ‘to promise that courts in the future will control

the Board’s efforts to examine religious matters, is to tread the path that Catholic

Bishop forecloses.’ ” (Univ. of Great Falls v. NLRB (D.C. Cir. 2002) 278 F.3d

1335, 1342 (Great Falls), quoting Universidad Central de Bayamon v. NLRB, at

p. 402.)

In

Great Falls, the Court of Appeals for the District of Columbia rejected

the NLRB’s latest effort—the “substantial religious character” test—because the

multifaceted analysis created the same concerns as the approach rejected in

Catholic Bishop. Moreover, the court invoked a long line of precedents which

9

have made it clear that religious tests, inquiries into religious perspectives, or

generally trolling through a person’s or institution’s religious beliefs is “ ‘not only

unnecessary but also offensive.’ ” (Great Falls, supra, 278 F.3d at pp. 1341-1342,

quoting Mitchell v. Helms (2000) 530 U.S. 793, 828; Amos, supra, 483 U.S. 327,

340, 345 (conc. opn. of Brennan, J.).)

The court in Great Falls thus suggested a broad exemption which would

avoid the pitfalls of having the government determine what is religious or how

much religion is sufficient. The court would exempt any school which purports to

provide a religious environment; is organized as a nonprofit; and affiliated with, or

owned, or operated, or controlled directly or indirectly by a recognized religious

organization or entity whose membership is determined at least in part with

reference to religion. (Great Falls, supra, 278 F.3d at p. 1343.) The point of this

bright-line test was to avoid delving into religious doctrine or motive and to avoid

coercing a religiously affiliated educational institution to alter its religious mission

to meet regulatory demands. (Id. at p. 1345.) This approach responds to a

longstanding concern that the religious liberty protected by the Constitution ought

not to depend on a “determination by state authority as to what is a religious

cause.” (Cantwell v. State of Connecticut, supra, 310 U.S. at p. 307.)

Of course, the cited cases are distinguishable. The controversy here does

not involve solicitation, or potential chilling effects, religious schools,

administrative discretion, or ad hoc determinations. In reality, this case is worse.

Here we are dealing with an intentional, purposeful intrusion into a religious

organization’s expression of its religious tenets and sense of mission. 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. This

is precisely the sort of behavior that has been condemned in every other context.

The conduct is hardly less offensive because it is codified. Definition may be just

10

as pernicious as ongoing monitoring if its purpose is to suppress or burden

religious conduct. (Espinosa v. Rusk, supra, 634 F.2d at p. 481 [“The conception

of religion entertained by the City . . . was that it had to be purely spiritual or

evangelical. Thus, the charitable activity of the church having to do with the

feeding of the hungry or the offer of clothing and shelter to the poor was deemed

subject to regulation. This broad definition of secular is part of the problem”].)

3. The Meaning of Neutrality

In theory, when religious liberties are at stake, the state is only neutral

when it does not choose sides. (Laycock, Religious Liberty as Liberty (1996) 7

J. Contemp. Legal Issues 313 [“[T]he core point of religious liberty is that the

government does not take positions on religious questions—not in its daily

administration, not in its laws, and not in its Constitution either”].) This would

mean that the state may not prefer or seek to impose a particular normative view

by squelching a competing religious perspective. Genuine neutrality would “allow

many different and contending voices to be represented in public discourse.”

(McConnell, Why Is Religious Liberty the “First Freedom”?, supra, 21 Cardozo

L.Rev. at p. 1262.)

In the present controversy, one side posits that sex is an aspect of

autonomy, a vital human function in which men and women should be able to

engage, enjoying their sexuality “free from anxiety.” (Hayden, Gender

Discrimination Within the Reproductive Health Care System: Viagra v. Birth

Control (1999) 13 J.L. & Health 171, 181.) This may in fact be the view of a

majority of American adults. The Catholic Church’s view, in contrast, deems all

forms of nonmarital sex immoral, and views sex within marriage as a unitive,

procreative, and sacred reflection of a spiritual, emotional, and biological reality

that comes complete with reproductive anxiety. (See George & Bradley,

Marriage and the Liberal Imagination (1995) 84 Geo. L.J. 301-320.) This is a

11

perspective many people would disparage as archaic. Several of the legislators

debating the WCEA seemed to think so.3

The Catholic Church purports to be one of those different and contending

voices, a church which “has never envisioned a sharp divide between the Church

and the world, the spiritual and the temporal, or religion and politics. For the

Church, the internal spiritual life of its members and institutions must always

move outward as a sign and instrument for the transformation of the larger

society.” (Brady, Religious Organizations and Mandatory Collective Bargaining

Under Federal and State Labor Laws: Freedom From and Freedom For, supra,

49 Vill. L.Rev. at p. 157.)

Petitioner complains the narrow exemption was designed to lend the state’s

“considerable weight to the dissenting side of a conflict within the church about

the legitimacy of contraceptive practice—under the banner of protecting the

‘rights’ of those who disagree . . . and to deny the church exemption based on the

allegedly unpopular nature of a church doctrine that diverges from contemporary

cultural mores.” In petitioner’s words, the state’s “action has the effect of

declaring the Catholic hierarchy’s stand ‘heresy’ in the eyes of secular culture.”

Of course, practice always diverges from theory. In contemporary

American society, the government does take sides on policy issues. The First

Amendment precludes the government from taking sides if the dispute involves

3

(See, e.g., Remarks of Sen. Speier, Sen. Floor Debate on Sen. Bill No. 41

(1999-2000 Reg. Sess.) Apr. 12, 1999, pp. 7-8 [floor statement of Senator Speier
asserting that since 75 percent of all California Catholic hospitals already provide
contraception coverage, the “issue has already been resolved . . . and its time has
come”]; Remarks of Sen. Speier, Sen. Floor Debate on Assem. Bill No. 39 (1999-
2000 Reg. Sess.) Sept. 7, 1999, p. 7 [floor statement of Senator Speier arguing that
“59 percent of all Catholic women of childbearing age practice contraception
[and] 88 percent of Catholics believe . . . that someone who practices artificial
birth control can still be a good Catholic,” and commenting, “I agree with that. I
think it’s time to do the right thing” (italics added)].)

12

internal church governance, but that leaves an area of overlap where the

religiously dictated conduct of churches operating in the world comes into conflict

with public policy. The question then is whether the coercive force of the law may

be brought to bear to compel a religious organization that holds an alternative

view, based on religious scruples, to support a hostile and competing vision of the

good.





a. Religious bigotry

Smith could be read, as the majority apparently reads it, to suggest that

religion is not entitled to constitutional protection unless the government action

expressly and specifically targets religious expression. Under this interpretation,

protection for religious liberty requires proof of religious bigotry, i.e., proof that

government officials acted out of anti-religious motives. Thus, Smith—even as

modified by Lukumi—would prohibit infringements of religious liberties only if a

statute has the “object or purpose of . . . suppress[ing] religion or religious

conduct” or involves “[o]fficial action that targets religious conduct for distinctive

treatment.” (Lukumi, supra, 508 U.S. at pp. 533-534.) Since this statute imposes

a mandate on all employers that provide prescription coverage, it arguably does

not target religious conduct. On one level, religious interests and secular interests

are treated with equal dignity, and since the mandate provides an escape hatch,

Catholic Charities’ attempt to claim specifically unequal treatment faces

formidable obstacles. Consequently, the majority finds Catholic Charities has

failed to prove an anti-religious motive and the statute is neutral.

13



b. Objects and effect

There is, however, more than one way to look at neutrality. As Lukumi

explains it, “[f]acial neutrality is not determinative. . . . The [free exercise] clause

‘forbids subtle departures from neutrality’ [citation] and ‘covert suppression of

particular religious beliefs.’ ” (Lukumi, supra, 508 U.S. at p. 543.) “Apart from

the text, the effect of a law in its real operation is strong evidence of its object.”

(Id. at p. 535.) “[I]f the object of the law is to infringe upon or restrict practices

because of their religious motivation, the law is not neutral [citation]; and it is

invalid unless it is justified by a compelling interest and is narrowly tailored to

advance that interest.” (Id. at p. 533.) “The Free Exercise Clause ‘protect[s]

religious observers against unequal treatment.’ ” (Lukumi, at p. 543.) But equality

in the context of religious liberty must be broadly defined. In effect, the general

applicability requirement is needed to ensure neutrality across broad categories of

regulation. Pursuant to Lukumi, if other activities which cause comparable harm

to the same governmental interests are not regulated, the law is not generally

applicable. Thus, Lukumi makes it clear that strict scrutiny is required if a law is

not neutral—and it considers the question of neutrality broadly.

In this case, for instance, defendants argue that Catholic Charities’ ability to

opt out, i.e., to choose not to provide any prescription coverage, obviates any

concern about infringement. Catholic Charities insists it should not be forced to

relinquish its vision of appropriate employee relations to preserve its right to

object to the use of contraceptives. From the Church’s perspective, to demand that

contraception be funded, despite bona fide religious objections, is to take sides, to

abandon the commitment to public neutrality. In this sense, the WCEA, with its

grudging religious exemption, may not be neutral. The majority’s response that

the WCEA’s narrow exemption is an accommodation and not an imposition seems

entirely unresponsive.

14



In 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.4

At oral argument, counsel indicated the Catholic Church, including Catholic

Charities, employs fewer than 60,000 of California’s millions of employees.5


4

This does not mean that the government may never limit what religious

organizations can do. There are truly neutral laws which may be applied; there are
aggressive interventions which are necessary to prevent harm. (See, e.g., Walker
v. Superior Court
(1988) 47 Cal.3d 112, 139 [finding Christian Scientist who did
not seek medical treatment for her child liable for child’s death, notwithstanding
the “religious infringement of significant dimensions,” since state’s interest is
compelling and child endangerment statute is narrowly tailored]; Brady, Religious
Organizations and Mandatory Collective Bargaining Under Federal and State
Labor Laws: Freedom From and Freedom For
, supra, 49 Vill. L.Rev. at p. 161
[“In rare cases, limitations on the freedom of religious organizations may be
necessary. For example, if a religious group experiments with practices that
endanger the lives of its employees or threaten them with serious bodily injury,
interference may be justified”]; Laycock, Towards a General Theory of the
Religion Clauses: The Case of Church Labor Relations and the Right to Church
Autonomy
(1981) 81 Colum. L.Rev. 1373, 1406 [“Courts have intervened to
protect church members from serious bodily harm even when they voluntarily
submitted”].) In contrast, what this case presents is essentially a clash of ideas.
5

These numbers are approximate. At oral argument, Catholic Charities counsel

asserted that the Catholic Church employs fewer than 50,000 people, including those
in holy orders. Proponents claim there are 52,000 employees in Catholic-affiliated
hospitals alone. Using 60,000 as a point of reference, it appears all Catholic Church
employees in California represent less than .5 percent of the California workforce, and
female employees of the Catholic Church represent about the same percentage of the
number of working women of childbearing age in California. According to recent
Bureau of Labor Statistics publications, the current number of California adults
employed in nonfarm jobs is approximately 14.4 million. (Bur. of Lab. Statistics,
U.S. Dept. of Lab. News Release No. 04-81 (Jan. 27, 2004) Employees on nonfarm
payrolls by state and selected industry sector, table 5<http://www.bls.gov/
news.release/pdf/laus.pdf> [as of Mar. 1, 2004].) A little less than half are women.
Extrapolating from national statistics, around 5 million of that total will be women
between 16 and 45. (Bur. of Lab. Statistics, U.S. Dept. of Lab. News Release No. 04-
120 (Feb. 6, 2004) Selected employment indicators, table A-6 <http://www.bls.gov/


(footnote continued on next page)

15

Some of the Church’s employees belong to religious orders and are presumably

fully in agreement with the church’s position. Some are men, some are women no

longer capable of childbearing, and some are spouses of people employed by other

companies who are covered by their spouses’ health plans. Of the women of

childbearing age who remain, and to whom contraceptive coverage is a critical

concern, none are faced with a pervasive practice which would prevent them from

finding more congenial employment.6 The existence of WCEA’s mandate—to

which the vast majority of California employers apparently have no religious

objection—enhances their employment options. In fact, the defection of talented



(footnote continued from previous page)

newsrelease/pdf/empsit.pdf> [as of Mar. 1, 2004].) Even assuming these numbers
need to be adjusted upward or downward for accuracy, an exemption for Catholic
Charities would seem to have a negligible effect.
6

The majority cites language from United States v. Lee, supra, 455 U.S. 252,

for the proposition that allowing an employer to be exempt from a neutral law
“operates to impose the employer’s religious faith on employees.” (Id. at p. 261.)
This is a curious statement. In Lee, both the employer and the employee were
members of the Old Order Amish and all agreed they should be exempt from
Social Security and unemployment insurance taxes. Even if that were not the
case, it is not clear how an employer is in a position to impose anything on its
employees to which they object. (U.S. Const., 13th Amend. [prohibiting slavery
or involuntary servitude].) Only the state, which holds the monopoly on coercive
force, can compel adults to remain where they do not choose to be and do what
they do not wish to do.
In

Smith v. FEHC, supra, 12 Cal.4th 1143, this court considered whether a

state law prohibiting discrimination against unmarried cohabitating couples
burdened the free exercise of a landlady who objected to renting to the couple on
religious grounds. A majority of the court concluded Smith’s rights were not
substantially burdened because she could simply abandon the rental business and
redeploy her capital. If we reject the challenges of some religious claimants
because they have other options, what logic compels us to assume that employees
have no choice?


16

female employees may cause Catholic Charities to reconsider its position. Such a

result has no First Amendment implications.

A substantial amount of federal case law supports Catholic Charities’ claim

that the Legislature’s attempt to draw distinctions between the religious and

secular activities of a single religious entity is an impermissible government

entanglement in religion. I am inclined to agree. Such an action is

constitutionally invalid and that ends the discussion. If, however, the existence of

the narrow exemption simply shows the statutory scheme is not neutral in

operation or effect, it is invalid only if it fails strict scrutiny.

C. Strict

Scrutiny

Strict scrutiny is not what it once was. Described in the past as “strict in

theory and fatal in fact” (Gunther, Foreword: In Search of Evolving Doctrine on a

Changing Court: A Model for Newer Equal Protection (1972) 86 Harv. L.Rev. 1,

8), it has mellowed in recent decades (see, e.g., Grutter v. Bollinger (2003) 539

U.S. 306 [123 S.Ct. 2325, 2338] [holding state law school’s race-based affirmative

action program survived strict scrutiny and noting that “[s]trict scrutiny is not

‘strict in theory, but fatal in fact’ ”]).

If recent precedent is any guide, a state’s interest is compelling if the state

says it is. Thus, consistent with federal precedent compelling interest now seems

more or less coextensive with the state’s asserted exercise of police power.

1. Compelling State Interest

Unquestionably, the desire to eradicate invidious discrimination is a

compelling state interest. But is the desire to force conformity on a single

employer that objects to contraception on religious grounds also a compelling state

interest? In the latter case, the state is not dealing with invidious discrimination; it

is trying to prevent a disparate impact. Catholic Charities does not discriminate

because of an animus against women. It opposes all forms of birth control, except

17

abstinence, whether for men or women, whether prescription or over-the-counter,

whether surgical, oral, or mechanical.

2. Narrow Tailoring

The WCEA defines as religious only those organizations for which the

inculcation of religious values is the sole purpose of the entity, that primarily

employ only adherents of their own faith tradition, that primarily serve only

people who share their religious tenets, and that qualify as nonprofit organizations

described in section 6033(a)(2)(A)i or iii of the Internal Revenue Code of 1986.

This is such a crabbed and constricted view of religion that it would define

the ministry of Jesus Christ as a secular activity.7 The stinginess of the exemption

makes the structure of the act all the more baffling. The mandate applies only to

employers that provide prescription coverage. Thus, Catholic Charities can avoid

the mandate by dropping the coverage. The state wants to make sure that women

are not burdened more than others. Where employers cooperate, the WCEA will

reduce the inequitable financial burden of healthcare for women. If religiously

affiliated employers are serious about their objections, however, women who work

for those employers could actually be worse off.

The only reasons given for narrowing the exemption so drastically is the

alleged concern that the exception could “swallow up” the rule because the

numbers of employees who work for secular organizations affiliated with


7

Even churches that do not operate schools, hospitals, or social service

agencies would have trouble with the WCEA’s religious test. Not all religions
proselytize. Those that do necessarily reach out to people who do not share their
beliefs. Christian denominations, for example, are commanded to seek and save
the lost. “Go ye into all the world and teach the gospel to every creature.” (Mark
15:15.) Catholic Charities suggest that some Catholic congregations might be
“ineligible for the exemption depending . . . upon the demographics of a particular
diocese, the fortuitous nature of hiring patterns, and the particular application of
the theological criteria . . . .”

18

religious entities could easily approach several hundred thousand; the exemption

might deprive thousands of employees of access to nondiscriminatory health and

disability insurance; and a desire exists to extend coverage to as many people as

possible. There are a few problems with this litany. First, the act, as its structure

demonstrates and as the majority candidly admits, has nothing to do with access or

extending coverage. “[T]he principal purpose of the WCEA . . . is not to facilitate

access to contraceptives but to eliminate a form of gender discrimination in the

provision of health benefits.” (Maj. opn., ante, at pp. 43-44.) Moreover, the

record provides no support for the claim that the exemption potentially affects

several hundred thousand employees.

Furthermore, employers have the option of self-insuring. The Employee

Retirement Income Security Act preempts state regulation of self-insured

companies and “prohibits states from mandating benefits or defining

discrimination in self-insured employee benefit plans more broadly than federal

law.” (Law, Sex Discrimination and Insurance for Contraception (1998) 73

Wash. L.Rev. 363, 395; 29 U.S.C. § 1001 et seq.) Such employers would not only

not be subject to mandatory prescription coverage, they would not be subject to

any of California’s more restrictive insurance regulations. Arguably, the existence

of these secular exemptions supports a religiously-affiliated-employer exemption

even under Smith. The state would also need to show its refusal to countenance a

religious exception, in a regulatory arena rife with exceptions, is not “official

action that targets religious conduct for distinctive treatment.” (Lukumi, supra,

508 U.S. at pp. 533-534.)

II.

Thus, whether the WCEA would survive strict scrutiny—even under the

relaxed federal standard—seems a much closer question than the majority

acknowledges. But there may be other good reasons to rely on independent state

19

grounds. Changes in the interpretation of the federal charter are not only

becoming more frequent, the balancing test, and the standards applied to them, are

shifting. Instead of applying Smith, we might view it as effectively returning free

exercise questions to the states.

A.

A Document of Independent Force

“We may take it for granted that the meaning of California Constitution

article I, section 4, . . . is not dependent on the meaning of any provision of the

federal Constitution. The state charter declares in so many words that ‘[r]ights

guaranteed by this Constitution are not dependent on those guaranteed by the

United States Constitution.’ (Cal. Const., art. I, § 24.)” (Smith v. FEHC, supra,

12 Cal.4th at p. 1177.) “Respect for our Constitution as ‘a document of

independent force’ [citation] forbids us to abandon settled applications of its terms

every time changes are announced in the interpretation of the federal charter.”

(People v. Pettingill (1978) 21 Cal.3d 231, 248, quoting People v. Brisendine

(1975) 13 Cal.3d 528, 549-550.)

This is true even when the language is identical to the federal Constitution,

but is particularly true when the language differs. (See, e.g., Golden Gateway

Center v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1019 [“Unlike

the United States Constitution, which couches the right to free speech as a limit on

congressional power (see U.S. Const., 1st Amend.), the California Constitution

gives ‘[e]very person’ an affirmative right to free speech. [Citation.]

Accordingly, we have held that our free speech clause is ‘more definitive and

inclusive than the First Amendment’ ” (fn. omitted)].)

Similarly, although we have said California’s establishment clause is

coextensive with the federal provision (East Bay Asian Local Development Corp.

v. State of California (2000) 24 Cal.4th 693, 718), California’s free exercise clause

guarantees “free exercise and enjoyment of religion without discrimination or

20

preference” and specifies that “liberty of conscience does not excuse acts that are

licentious or inconsistent with the peace and safety of the state.” (Cal. Const., art.

I, § 4.) We do not have to decide that this language literally embodies the strict

scrutiny test. The drafting history of California’s free exercise clause is not clear

enough to resolve the question definitively. Although the proponents of the

licentious acts clause may simply have wanted to preserve the ability of the state

to regulate specific practices they considered immoral or dangerous (Browne, Rep.

of the Debates in Convention of Cal. on Formation of State Const. (1850) p. 39),

that does not mean they thought the language was otherwise synonymous with the

language of the federal Constitution.

B.

The Compelling State Interest Analysis

The majority carefully avoids deciding whether strict scrutiny would be

required under the California Constitution. Other states with very similar

constitutional liberty of conscience clauses have found that infringement requires

strict scrutiny. (See, e.g., Humphrey v. Lane (Ohio 2000) 728 N.E.2d 1039, 1043

[holding that under the Ohio Constitution, “the standard for reviewing a generally

applicable, religion-neutral state regulation that allegedly violates a person’s right

to free exercise of religion is whether the regulation serves a compelling state

interest and is the least restrictive means of furthering that interest” and finding the

regulation at bar not the least restrictive]; State v. Hershberger (Minn. 1990) 462

N.W.2d 393 [under the Minnesota Constitution, neutral motor vehicle statute,

which burdened Amish religious exercise, failed compelling state interest test

since state failed to show lack of reasonable alternative means]; First Covenant

Church v. City of Seattle (Wash. 1992) 840 P.2d 174, 187 [statute that burdened

free exercise failed state compelling interest test under Washington Constitution

since the state’s interest was not of sufficient magnitude to outweigh free exercise

of religion].)

21



At 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. Where strict scrutiny applies, the state “may abridge

religious practices only upon a demonstration that some compelling state interest

outweighs the defendants’ interests in religious freedom.” (People v. Woody

(1964) 61 Cal.2d 716, 718 (Woody).)

It may also be true that “[s]ection 4 has not played an independent role in

free exercise claims” (Grodin et al., The Cal. State Constitution: A Reference

Guide (1993) p. 44), but does that mean it should remain dormant? In Woody, the

court relied on the First Amendment rather than the California provision, but in

doing so, the court applied strict scrutiny and insisted on a searching inquiry.

Under California law—at least up to now—the compelling state interest test had

bite and required the court to “weigh[] the competing values represented . . . on the

symbolic scale of constitutionality.” (Woody, supra, 61 Cal.2d at p. 727.)

Untested assertions of a possible deleterious effect on a statutory scheme were not

sufficient. (Id. at p. 724.) In Woody, the court concluded that uniform

enforcement of neutral criminal drug laws (similar to the laws at issue in Smith)

was not a compelling reason to intrude upon sincere religious practices. In

explaining why the interest in drug enforcement—while undeniably important—

was not compelling enough, the court said: “In a mass society, which presses at

every point toward conformity, the protection of self-expression, however unique,

of the individual and the group becomes ever more important. The varying

currents of the subcultures that flow into the mainstream of our national life give it

depth and beauty.” (Woody, at p. 727.) These concerns should be heightened

when the government seeks to redefine the core theology of religious

organizations.

22



Under the standard enunciated in Woody, the state has actually failed to

meet its burden. The whole debate ensues because the state found that

“approximately 10 percent of commercially insured Californians do not have

coverage for prescription contraceptives.” (Maj. opn., ante, at p. 2.) Presumably

that 10 percent includes both men and women. Still, it means that 90 percent of

Californians who are commercially insured do have such coverage! The insurance

gap itself is not large, and Catholic Church employers can constitute only a small

percentage of that small percentage.

Moreover, even if we assume the interests at issue here are both compelling

and of equal weight, the Legislature’s refusal to grant a broader exemption—one

which would not embroil the government in the unseemly task of deciding what is

“religious”—is inexplicable. The state has produced no substantial evidence that

the exemption of Catholic Charities from this particular mandate would render the

whole scheme ineffective or would be so administratively burdensome as to

preclude enforcement. As petitioner poses the question: “[I]f closing the Catholic

gap [was] not the problem,” how can “ ‘granting an exemption to Catholic

employers’ . . . ‘defeat the purpose of the bill’ ”? There has been no showing that

the interests served by the WCEA—which focuses on a modest 10 percent gap in

coverage—cannot be achieved by less restrictive means.

CONCLUSION

Equality is one of those words, like justice, like freedom, which no one is

against. But the invocation of the word “equality” often reduces analysis to empty

platitudes. It is important to remember that in America we seek equality because

it is a concomitant of freedom. When it is possible to accommodate both, that is

what we should do.

BROWN, J.

23

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Catholic Charities v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX 90 Cal.App.4th 425
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S099822
Date Filed: March 1, 2004
__________________________________________________________________________________

Court:
Superior
County: Sacramento
Judge: Joe S. Gray

__________________________________________________________________________________

Attorneys for Appellant:

Law Office of James Francis Sweeney, Sweeney & Grant, James F. Sweeney, Eric Grant; Tobin & Tobin,
Paul E. Gaspari and Lawrence R. Jannuzzi for Petitioner.

Gaglione, Coleman & Greene, Robert J. Gaglione; and Michael D. Ramsey for Catholic Charities USA as
Amici Curiae on behalf of Petitioner.

Diepenbrock & Costa, Law Offices of Daniel P. Costa, Daniel P. Costa; and William W. Bassett for
California Catholic Conference as Amicus Curiae for Petitioner.

Richard D. Ackerman and Gary G. Kreep for Life Legal Defense Fund as Amicus Curiae on behalf of
Petitioner.

Reed & Brown, Stephen W. Reed; Stuart J. Lark and Gregory S Baylor for Christian Legal Society, Focus
on the Family, Family Research Council and Ethics and Religious Liberty Commission of the Southern
Baptist Convention as Amici Curiae on behalf of Petitioner.

McNicholas & McNicholas and John P. McNicholas for the Lutheran Church-Missouri Synod, The
International Church of the Foursquare Gospel, the Worldwide Church of God and the United States
Conference of Catholic Bishops as Amici Curiae on behalf of Petitioner.

Alan J. Reinach; Alan E. Brownstein; Bassi, Martinin & Blum and Fred Blum for California Coalition for
the Free Exercise of Religion as Amicus Curiae on behalf of Petitioner.

Sidley & Austin, Sidley Austin Brown & Wood, Jeffrey A. Berman, James M. Harris, Gene C. Schaerr,
Michael S. Lee, Rebecca K. Smith and Eric A. Shumsky for Adventist Health, Alliance of Catholic Health
Care, Association of Christian Schools International, Catholic Charities of California, Catholic Charities
USA, Inc., Loma Linda University and Loma Linda University Medical Center as Amici Curiae on behalf
of Petitioner.



1

Page 2- counsel continued - S099822

Attorneys for Respondent:

No appearance for Respondent.

Attorneys for Real Party in Interest:

Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Manuel M.
Medeiros and Andrea Lynn Hoch, Assistant Attorneys General, Catherine M. Van Aken, Meg Halloran,
Christopher Krueger, Kenneth R. Williams, Kathleen W. Mikkelson, Daniel G. Stone and Timothy M.
Muscat, Deputy Attorneys General, for Real Parties in Interest.

Catherine Weiss, Julie Sternberg; Margaret C. Crosby, Ann Brick; Jordan Budd; Rocio L. Cordoba and
Mark Rosenbaum for American Civil Liberties Union, American Civil Liberties Union of Northern
California, ACLU Foundation of Southern California and American Civl Liberties Union of San Diego and
Imperial Counties as Amici Curiae on behalf of Real Parties in Interest.

Rosina K. Abramson, Steven M. Freeman, Tamar Galatzan, Erica Broido; Rachel Zenner; Doug Mirell,
Daniel Sokatch; Jerome J. Shestack, Jeffrey P. Sinensky, Kara H. Stein, Danielle A. Samulon; Morrison &
Foerster, J. Michael Stusiak, Sunil R. Kulkarni and Felton T. Newell for Anti-Defamation League,
Hadassah, The American Jewish Committee and The Progressive Jewish Alliance as Amici Curiae on
behalf of Real Parties in Interest.

Eisen & Johnston Law Corporation, Jay-Allen Eisen and Marian M. Johnston for Assemblymember Robert
J. Hertzberg and Senator Jackie Speier as Amici Curiae on behalf of Real Parties in Interest.

Edward Tabash; Ayesha Khan; and Steve K. Green for Americans United for Separation of Church and
State as Amicus Curiae on behalf of Real Parties in Interest.

Nancy M. Solomon for California Women’s Law Center, California Women Lawyers, Women Lawyers
Association of Los Angeles and Queen’s Bench Bar Association of the San Francisco Bay Area as Amici
Curiae on behalf of Respondent and Real Parties in Interest.

Eve C. Gartner, Donna Lee; Roberta Riley; Lilly Spitz; and Deborah Baumgarten for Planned Parenthood
Affiliates of California, California Planned Parenthood Education Fund, All Planned Parenthood Affiliates
and Planned Parenthood Federation of America as Amici Curiae on behalf of Respondent and Real Parties
in Interest.

Catherine I. Hanson and Astrid G. Meghrigian for the American College of Obstetricians and
Gynecologists and the California Medical Association as Amici Curiae on behalf of Respondent and Real
Parties in Interest.

McCutchen, Doyle, Brown & Enersen, Beth H. Parker and Alison R. Beck for Catholics for a Free Choice,
California Catholics for a Free Choice, Catholics Speak Out, Dignity/USA, Vermont Catholics for a Free
Conscience, Women’s Alliance for Theology, Ethics and Ritual and Women’s Ordination Conference as
Amici Curiae on behalf of Respondent and Real Parties in Interest.



2


Page 3- counsel continued - S099822

Attorneys for Real Party in Interest:

Bebe J. Anderson; Farella Braun & Martel, Claudia A. Lewis, Sarah L. Kowalski; and Ronora Pawelko for
The California Abortion and Reproductive Rights Action League, The Caral Pro-Choice Education Fund,
The Center for Reproductive Law and Policy, The Education Fund of Family Planning Advocates of New
York State, Inc., and National Women’s Law Center as Amici Curiae on behalf of Respondent and Real
Party in Interest.

Christyne L. Neff and Barry Broad for International Union, AFL-CIO & CLC, Coalition of Labor Union
Women, Service Employees International Union, Local 535 and California Nurses Association as Amici
Curiae on behalf of Respondent and Real Parties Interest.













3





Counsel who argued in Supreme Court (not intended for publication with opinion):

James F. Sweeney
Sweeney & Grant
Wells Fargo Center
400 Capitol Mall, Suite 900
Sacramento, CA 95814
(916) 341-0321

Timothy M. Muscat
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5502

4

Opinion Information
Date:Docket Number:
Mon, 03/01/2004S099822

Parties
1Catholic Charities Of Sacramento, Inc. (Petitioner)
Represented by James F. Sweeney
Sweeney & Grant
1527 "I" Street
Sacramento, CA

2Catholic Charities Of Sacramento, Inc. (Petitioner)
Represented by Paul E. Gaspari
Tobin & Tobin
500 Sansome Street, 8th Floor
San Francisco, CA

3Superior Court Of Sacramento County (Respondent)
800 H Street, Dept. 54
Sacramento, CA 95814

4Department Of Managed Health Care (Real Party in Interest)
5Department Of Insurance (Real Party in Interest)
Represented by Manuel M. Medeiros
Office Of The Attorney General - Sacramento
1300 I Street, P. O. Box 944255
Sacramento, CA

6Department Of Insurance (Real Party in Interest)
Represented by Pamela Lynn Smith-Steward
Superior Court-Sacramento
720 Ninth Street, Department 37
Sacramento, CA

7United Food & Commercial Workers Union Afl-Cio (Amicus curiae)
attn: Christyne L. Neff
1775 "K" Street, N.W.
Washington, DC 20006

Represented by Barry David Broad
California Teamsters Public Affairs Council
1127 11th Street, Suite 501
Sacramento, CA

8Planned Parenthood Affiliates Of California (Amicus curiae)
Represented by Lilly Therese Spitz
Attorney at Law
555 Capitol Mall, Suite 510
Sacramento, CA

9Aclu Foundation Of Northern California, Inc. (Amicus curiae)
attn: Catherine Weiss
128 Broad Street, 18th Floor
New York, NY 10004

Represented by Margaret Campbell Crosby
A C L U Foundation Of No. Calif.
1663 Mission Street, 4th Floor
San Francisco, CA

10Aclu Foundation Of San Diego & Imperial Counties, Inc. (Amicus curiae)
Represented by Jordan Charles Budd
Amer Civil Liberties Union
P.O. Box 87131
San Diego, CA

11Americans United For Separation Of Church & State (Amicus curiae)
Represented by Edward Z. Tabash
Attorney at Law
8484 Wilshire Blvd, Suite 850
Beverly Hills, CA

12Americans United For Separation Of Church & State (Amicus curiae)
Represented by Steven K. Green
Wilamette University School of Law
245 Winter Street S.E.
Salem, OR

13Christian Legal Society (Amicus curiae)
Represented by Stephen Wesley Reed
Reed & Brown
35 N. Lake Avenue, Suite 960
Pasadena, CA

14Focus On The Family (Amicus curiae)
15American College Of Obstetricians & Gynecologists (Amicus curiae)
Represented by Astrid Gloria Meghrigian
California Medical Assoc.
221 Main Street, 3rd Floor
San Francisco, CA

16California Medical Association (Amicus curiae)
Represented by Catherine I. Hanson
California Medical Association
221 Main Street, 3rd Floor
San Francisco, CA

17California Catholic Conference (Amicus curiae)
Represented by William Wood Bassett
University Of San Francisco
2190 Fulton Street
San Francisco, CA

18California Catholic Conference (Amicus curiae)
Represented by Molly Ann Mcdonald
Attorney at Law
1119 K Street, Second Floor
Sacramento, CA

19California Abortion & Reproductive Rights Action League (Amicus curiae)
20Caral Pro-Choice Education Fund (Amicus curiae)
Represented by Claudia A Lewis
Farella Braun & Martel
235 Montgomery Street, 30th Floor
San Francisco, CA

21Catholics For A Free Choice (Amicus curiae)
Represented by Alison R. Beck
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Center
San Francisco, CA

22Anti-Defamation League (Amicus curiae)
Represented by John Michael Stusiak
Morrison & Foerster
400 Capitol Mall, Suite 2600
Sacramento, CA

23Speier, Jackie (Amicus curiae)
Represented by Marian Mcclure Johnston
Eisen & Johnston Law Corporation
980 Ninth Street, Ste 1400
Sacramento, CA

24Hertzberg, Robert M. (Amicus curiae)
Represented by Marian Mcclure Johnston
Eisen & Johnston Law Corporation
980 Ninth Street, Ste 1400
Sacramento, CA

25California Coalition For A Free Exercise Of Religion (Amicus curiae)
Represented by Fred M. Blum
Bassi, Martini & Blum
351 California Street, Suite 200
San Francisco, CA

26California Coalition For A Free Exercise Of Religion (Amicus curiae)
Represented by Alan Jay Reinach
Church State Council
2686 Townsgate Road
Westlake Village, CA

27Religious Institutions (Amicus curiae)
Represented by Jeffrey Arn Berman
Sidley And Austin
555 West Fifth Street, 40th Floor
Los Angeles, CA

28National Religious Organizations (Amicus curiae)
Represented by John P. Mcnicholas
Mcnicholas & Mcnicholas Llp
10866 Wilshire Boulevard, Suite 1400
Los Angeles, CA


Disposition
Mar 1 2004Opinion: Affirmed

Dockets
Aug 10 2001Petition for review filed
  In Sacramento by counsel for petitioner {Catholic Charities of Sacramento}
Aug 13 2001Record requested
 
Aug 16 2001Received Court of Appeal record
  1-doghouse
Aug 30 2001Answer to petition for review filed
  RPIS State Department of Managed Health Care et al. (Filed in Sacraento)
Sep 5 2001Received:
  RPIS' Corrected Table of Authorities to the Answer to the Petition for Review (received in Sacto on 8/31/2001)
Sep 10 2001Reply to answer to petition filed
  by petitioner Catholic Charities of Sacramento, Inc. (filed in Sacramento)
Sep 12 2001Second Record Request
  for the missing volume(s) of exhibits which was not in the doghouse received.
Sep 13 2001Received Court of Appeal record
  C037025 -- Additional eight (8) doghouses
Sep 24 2001Received letter from:
  AG-SAC [respondents] dated 9/20/2001
Sep 26 2001VPetition for Review Granted (civil case)
  Votes: Georege, CJ., Kennard, Baxter, Werdegar, Chin and Brown, JJ.
Sep 26 2001Letter sent to:
  Counsel regarding Certification of Interested Entities or Persons.
Oct 1 2001Application for Extension of Time filed
  by petitioner (Catholic Charities) for an 18-day extension to and including 11/13/2001 to file the Opening Brief on the Merits.
Oct 4 2001Certification of interested entities or persons filed
  by Party: Petitioner Catholic Charities of Sacramento, Inc. and by Non-Party: Roman Catholic Bishop of Sacramento.* Nature of Interest: Constitutional Religious Freedom Rights
Oct 9 2001Extension of Time application Granted
  Petitioner Catholic Charities to and including 11/13/2001 to file the opening brief on the merits.
Oct 22 2001Certification of Interested Entities or Persons received
  By counsel for RPI {Department of Managed Health Care et al.,}
Nov 13 2001Opening brief on the merits filed
  Petitioner Catholic Charities of Sacramento, Inc. (Filed in Sacto)
Nov 21 2001Request for extension of time filed
  In Sacramento by counsel for RPI asking for a 22-day extension to file RPIS' Answer Brief on the Merits. Granted - order being prepared.
Nov 30 2001Extension of time granted
  To January 4, 2002, to file RPIS' answer brief on the merits. No further extensions are contemplated.
Dec 17 2001Request for extension of time filed
  by RPIS for an aditional 14 days to file their answer brief on the merits, to and including 1/18/2002.
Dec 18 2001Extension of time granted
  RPIS to file the answer brief on the merits to and incuding January 18, 2002. No further extensions of time will be granted.
Jan 18 2002Answer brief on the merits filed
  in Sacramento by Real Parties In Interest
Feb 7 2002Reply brief filed (case fully briefed)
  in Sacramento
Feb 27 2002Request for extension of time filed
  to file the amicus application and brief of the ACLU, ACLU-Northern Calif., ACLU-Southern Calif., ACLU-San Diego and Imperial Counties in support of RPIS. Time requested to March 29, 2002
Feb 27 2002Application to appear as counsel pro hac vice (granted case)
  appear as counsel pro hac vice of Julie Sternberg of New York on behalf of amicus ACLU.
Feb 27 2002Application filed to:
  appear as counsel pro hac vice of Catherine Weiss of New Jersey on behalf of amicus ACLU
Mar 6 2002Received application to file Amicus brief (extend time)
  in Sacto from United Food and Commercial Workers International Union, AFL-CIO, CLC in support of RPIS, for an extension of time to 3/29/2002, to file the application and brief. [accompanied by pro hac vice application of Christyne L. Neff -- see below]
Mar 6 2002Application to appear as counsel pro hac vice (granted case)
  Christyne L.Neff of Maryland [office in Washington, D.C]. on behalf of amicus United Food and Commercial Workers International Union [Maryland State Bar No. 8036]
Mar 7 2002Received:
  in Sacramento RPIS' [State Dept. et al.] amended table of contents and table of authorities to their answer brief on the merits
Mar 7 2002Request for extension of time filed
  by AC California Catholic Conference to file AC Application and brief. Asking to March 29, 2002.
Mar 8 2002Received application to file amicus curiae brief; with brief
  Planned Parenthood Affiliates ofCalifornia, California Planned Parenthood Education Fund, All Planned Parenthood Affiliates (127 in 49 States), Planned Parenthood Federation of America in support of respondent Superior Court of Sacramento and RPIS State of Caliafornia et al.
Mar 8 2002Received application to file Amicus Curiae Brief
  and brief under same cover; brief of National Religious Organizations [supports petnr., Catholic Charities of Sac.,Inc.,]
Mar 11 2002Received application to file amicus curiae brief; with brief
  The California Abortion and Reproductive Rights Action League, The Caral Pro-Choice Education Fund, The Center for Reproductive Law and Policy, The Education fund of Family Planning Advocates of New York State Inc. and National Women's Law Center in support of Respondent and Real Parties in Interest.
Mar 11 2002Application to appear as counsel pro hac vice (granted case)
  Ronora Marie Pawelko on behalf of amicus curiae Education Fund of Family Planning Advocates of New York
Mar 11 2002Received application to file amicus curiae brief; with brief
  of Religious Institutions, supports petitioner, Catholic Charities of Sacramento [application & brief are under separate covers]
Mar 11 2002Received application to file amicus curiae brief; with brief
  of the Catholics for a Free Choice, California Catholics for a Free Choice, Catholics Speak Out, Dignity/USA, Vermont Catholics for a Free Conscience, Wommen's Alliance for Theology, Ethics and Ritual, and Women' Ordination Conference in support of Respondent and Real Parties in Interest. Receivef in Sacramento.
Mar 11 2002Received application to file Amicus Curiae Brief
  of California Catholic Conference in support of petitioner. Received in Sacramento.
Mar 11 2002Received application to file amicus curiae brief; with brief
  of the Anti-Defamation League, Hadasah, The American Jewish Committe, and the Pregressive Jewish Alliance in support of Real Parties in Interest. Received in Sacramento.
Mar 11 2002Received application to file amicus curiae brief; with brief
  of Assemblymember Robert M. Hertzberg and Senator Jackie Speier in support of Real Parties in Interest. Received in Sacramento,
Mar 11 2002Received application to file amicus curiae brief; with brief
  Americans United for Separation of Church and State in support of RPI {California Department of Managed Health Care et al.,}.
Mar 11 2002Received application to file Amicus Curiae Brief
  of Christian Legal Society, Focus on the Family, Family Research Council, and Ethics and Religious Liberty Commission of the Southern Baptist Convention in support of Petitioner {Catholic Charities of Sacramento Inc.}.
Mar 11 2002Received application to file amicus curiae brief; with brief
  California Women's Law Center, California Women Lawyers, Women Lawyers Association of Los Angeles, and Queens Bench Bar Assn. of The San Francisco Bay Area in support of Respondent and Real Parties in interest.
Mar 11 2002Received application to file Amicus Curiae Brief
  American College of obstetricians and Gynecologists and the California Medical Assn.in support of Respondent and the Real Parties in interest.
Mar 11 2002Received application to file Amicus Curiae Brief
  and brief of California Coalition for the Free Exercise of Religion, [Brief and App. under same cover]
Mar 12 2002Application to appear as counsel pro hac vice (granted case)
  Eve C. Gartner on behalf of amicus curiae California Planned Parenthood Education Fund, Inc. in support of respondent and real parties in interest.
Mar 12 2002Permission to file amicus curiae brief granted
  Planned Parenthood Affiliates of California of California, Planned Parenthood Education Fund. et al., in support of Respondent and Real Parties in Interest.
Mar 12 2002Amicus Curiae Brief filed by:
  Planned Parenthood Affiliates of California, Planned Parenthood Education Fund, All Planned Parenthood Affiliates, Planned Parenthood Federation of America, in support of Respondent and Real Parties in Interest. Answer is due within twenty days.
Mar 12 2002Permission to file amicus curiae brief granted
  Americans United for Separation of Church and State.
Mar 12 2002Amicus Curiae Brief filed by:
  Americans United for Separation of Church and State in support of Real Parties in Interest. Answer is due within twenty days.
Mar 12 2002Permission to file amicus curiae brief granted
  Christian Legal Society, Focus on the Family et al.
Mar 12 2002Amicus Curiae Brief filed by:
  Christian Legal Society, Focus on the Family, Family Research Counsel, and Ethics and Religious Liberty Commission of Southern Baptist Convention in support of Petitioner {California Charities} Answer is due within twenty days.
Mar 12 2002Permission to file amicus curiae brief granted
  The American College of Obstetricians and Gynecologists and the California Medical Assn.
Mar 12 2002Amicus Curiae Brief filed by:
  The American College of Obstetricians and Gynecologists and the California Medical Association in support of Respondent and Real Parties in Interest. Answer is due within twenty days.
Mar 12 2002Permission to file amicus curiae brief granted
  California Women's Law Center, California Women Lawyers et al.,
Mar 12 2002Amicus Curiae Brief filed by:
  California Women's Law Center, California Women Lawyers, Women Lawyers Association of Los Angeles, and Queen's Bench Bar Association of the San Francisco Bay Area in support of Respondent and Real Parties in Interest. Answer is due within twenty days.
Mar 12 2002Extension of time granted
  To March 29, 2002 to file application and Amicus Curiae Brief of the California Catholic Conference in support of petitioner. No Further extensions will be granted.
Mar 12 2002Application to appear as counsel pro hac vice granted
  Christine L. Neff of the District of Columbia on behalf of AC United Food and Commercial Woerker International Union.
Mar 13 2002Extension of time granted
  March 29, 2002 to file application and amicus curiae breif of Amercian Civil Liberties Union, American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, American Civil Liberties Union of San Diego and Imperial Counties in support of Real Parties in Interest. No further extensions will be granted.
Mar 13 2002Extension of time granted
  March 29, 2002 to file application and amicus curiae brief of United Food and Commercial Workers International Union, AFL-CIO in support of Real Parties in Interest. No further extensions will be granted.
Mar 19 2002Application to appear as counsel pro hac vice granted
  The application of Catherine Weiss of the State of New York for admission pro hac vice to appear on behalf of amicus curiae ACLU is granted.
Mar 19 2002Application to appear as counsel pro hac vice granted
  Julie Sternberg of the State of New York to appear on behalf of amicus curiae ACLU.
Mar 19 2002Application to appear as counsel pro hac vice granted
  Donna Lee of the State of New York to appear on behalf of amicus curiae Planned Parenthood Affiliates of California, California Planned Parenthood Education Fund, All Planned Parenthood Affiliates and Planned Parenthood Federation of America.
Mar 19 2002Application to appear as counsel pro hac vice granted
  Eve C. Cartner of the State of New York to appear on behalf of amicus curiae Planned Parenthood Affiliates of California, California Planned Union.
Mar 19 2002Application to appear as counsel pro hac vice granted
  Ronora Marie Pawelko of the State of New York to appear on behalf of amicus curiae Education Fund of Family Planning Advocates of New York.
Mar 19 2002Permission to file amicus curiae brief granted
  California Catholic Conference in support of petitioner. Answer by any party due within 20 days of filing the brief.
Mar 19 2002Permission to file amicus curiae brief granted
  Catholics for a Free Choice, California Catholics for a Free Choice, Catholics Speak Out, Dignity/USA, Vermont Catholics for a Free Conscience, Women's Alliance for Theology, Ethics, and Ritual, and Women's Ordination Conference in support of respondent and RPIS. Answer by any party due within 20 days of filing the brief.
Mar 19 2002Amicus Curiae Brief filed by:
  Catholics for a Free Choice, California Catholics for a Free Choice, Catholics Speak Out, et al. in support of respondent and RPIS.
Mar 19 2002Permission to file amicus curiae brief granted
  California Abortion and Reproductive Rights Action League, The Caral Pro-Choice Education Fund, The Center for Reproductive Law and Policy, The Education Fund of Family Planning Advocates of New York State, Inc., and National Women's Law Center in support of respondent and RPIS. Answer by any party due within 20 days of filing the brief.
Mar 19 2002Amicus Curiae Brief filed by:
  The California Abortion and Reproductive Rights Action League, The Caral Pro-Choice Education Fund, The Center for Reproductive Law and Policy, et al. in support of respondent and RPIS.
Mar 19 2002Permission to file amicus curiae brief granted
  California Coalition for the Free Exercise of Relition in support of petitioner. Answer by any party due within 20 days of filing the brief.
Mar 19 2002Amicus Curiae Brief filed by:
  California Coalition for the Free Exercise of Religion in support of petitioner.
Mar 19 2002Permission to file amicus curiae brief granted
  Religious Institutions in support of petitioner. Answer by any party due within 20 days of filing the brief.
Mar 19 2002Amicus Curiae Brief filed by:
  Religious Institutions in support of petitioner.
Mar 19 2002Permission to file amicus curiae brief granted
  National Religious Organizations in support of petitioner. Answer by any party due within 20 days of the filing of the brief.
Mar 19 2002Amicus Curiae Brief filed by:
  National Religious Organizations in support of petitioner.
Mar 19 2002Permission to file amicus curiae brief granted
  Assemblymember Robert M. Hertzberg and Senator Jackie Speier in support of RPIS. Answer by any party due within 20 days of fiing the brief.
Mar 19 2002Amicus Curiae Brief filed by:
  Assemblymember Robert M. Hertzberg and Senator Jackie Speier in support of RPIS.
Mar 19 2002Permission to file amicus curiae brief granted
  Anti-Defamation League, Hadassah, The American Jewish Committee and The Progressive Jewish Alliance in support of RPIS. Answer by any party due within 20 days of filing the brief.
Mar 19 2002Amicus Curiae Brief filed by:
  Anti-Defamation League, Hadassah, The American Jewish Committee, and The Progressive Jewish Alliance in support of RPIS.
Mar 20 2002Request for extension of time filed
  in Sacto by petitioner [Catholic Charities] joining in E.O.T. filed by real parties to 4/29/2002 to file its answers to various amicus
Mar 20 2002Request for extension of time filed
  by counsel for RPIS to file their answers to amicus briefs, to and including 4/29/2002.
Mar 22 2002Extension of time granted
  all parties to and including 4/29/2002, to file their answers to all amicus curiae briefs.
Mar 28 2002Amicus Curiae Brief filed by:
  International Union, AFL-CIO & CLC, Coalition of Labor Union Women, Service Employees International Union, Local 535, and Caifornia Nurses Association in support of respondent and RPIS. Amended Proof of Service received in Sacramento on 4/2/2002.
Mar 29 2002Amicus Curiae Brief filed by:
  American Civil Liberties Union, The ACLU of Northern California, The ACLU Foundation of Southern California and the American Civil Liberties Union on San Diego and Imperial Counties in support of RPIS
Apr 29 2002Response to amicus curiae brief filed
  in Sacramento by Petitioner's (Catholic Charities) Answer to Amicus Curiae Briefs (all)
Apr 29 2002Response to amicus curiae brief filed
  in Sacramento by RPI'S to Amicus Curiae Briefs (all)
Jul 24 2002Application to appear as counsel pro hac vice (granted case)
  Attorney Steven K. Green, special counsel to amici Americans United for Separtaion of Church and State [amici status granted March 12th]
Aug 19 2002Application to appear as counsel pro hac vice granted
  The application of Steven K. Green, Associate Professor of Law at Willamette University College of Law of the State of Oregon, for permission to appear as counsel pro hac vice on behalf of Amicus Americans Unietd for Separation of Church and State, in support of real parties in interest is hereby granted. (See Cal. Rules of Court, rule 983.)
Oct 30 2003Case ordered on calendar
  12-2-03, 9am, San Jose
Dec 2 2003Cause argued and submitted
 
Mar 1 2004Opinion filed: Judgment affirmed in full
  Majority Opinion by Werdegar, J. -- joined by George, C.J., Baxter, Chin, Moreno, JJ. Concurring Opinion by Kennard, J. Dissenting Opinion by Brown, J. [Court of Appeal Judgment]
Apr 2 2004Remittitur issued (civil case)
 
Apr 6 2004Received:
  Receipt for remittitur from Third Appellate District, signed for by D. B. Kordenbrock, Deputy Clerk
Jun 7 2004Received:
  Letter from U.S.S.C. dated 6-3-2004, advising that petition for writ of certiorari was filed on May 28, 2004 and placed on the docket June 3, 2004 as No. 03-1618.
Jun 11 2004Received:
  One copy of Petition for Writ of Certiorari filed with the U.S.S.C. (Placed with original record)
Sep 10 2004Received:
  Copies of the petition for writ of certiorari, respondent's opposition, and petitioner's reply memorandum filed in the USSC No. 03-1618 -- [ one set only ]
Oct 4 2004Certiorari denied by U.S. Supreme Court
 

Briefs
Nov 13 2001Opening brief on the merits filed
 
Jan 18 2002Answer brief on the merits filed
 
Feb 7 2002Reply brief filed (case fully briefed)
 
Mar 12 2002Amicus Curiae Brief filed by:
 
Mar 12 2002Amicus Curiae Brief filed by:
 
Mar 12 2002Amicus Curiae Brief filed by:
 
Mar 12 2002Amicus Curiae Brief filed by:
 
Mar 12 2002Amicus Curiae Brief filed by:
 
Mar 19 2002Amicus Curiae Brief filed by:
 
Mar 19 2002Amicus Curiae Brief filed by:
 
Mar 19 2002Amicus Curiae Brief filed by:
 
Mar 19 2002Amicus Curiae Brief filed by:
 
Mar 19 2002Amicus Curiae Brief filed by:
 
Mar 19 2002Amicus Curiae Brief filed by:
 
Mar 19 2002Amicus Curiae Brief filed by:
 
Mar 28 2002Amicus Curiae Brief filed by:
 
Mar 29 2002Amicus Curiae Brief filed by:
 
Apr 29 2002Response to amicus curiae brief filed
 
Apr 29 2002Response to amicus curiae brief filed
 
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