Sunday, May 30, 2004
A friend who is working as an associate at the powerhouse law firm of Williams & Connolly tells me that a petition for certiorari was filed this past week in Catholic Charities of Sacramento v. California. (Unfortunately, I do not yet have a link for the petition.) The petition is a top-notch piece of work. The "question presented" is as follows: "Whether the State may may compel an organ of the Catholic Church, contrary to its religious teachings, to include contraceptives in the prescription drug plan it provides to its employees, and thereby to finance conduct that the Church teaches is sinful."
The petition proposes three "reasons for granting the petition": First, the petition asks the Court to "clarify the scope" of the Smith decision, noting that -- among other things -- the law at issue in the case was not, in fact, "generally applicable" (because both the law itself, and the narrow "religious employer" exemption, were designed to guarantee that Catholic institutions in particular would be subject to contraception-funding mandate). Second, the petition asks the Court to address the question whether the government has an interest -- let alone a "compelling" one -- in "forcing" a religious institution to subsidize conduct that it holds to be sinful. Third, the petition addresses the question whether there are limits -- and what they might be -- on the ability of the State to decide whether a "church entity is sufficienty religious to exercise its religion freely."
Although the petition for certiorari is excellent, I am not confident that the Court will agree to hear this case. That said, as I mentioned in a short op-ed a few months ago (link), I believe that the California Supreme Court's decision is on the front lines of the struggle for authentic religious freedom. I will post a link to the petition for certiorari as soon as one is available.