Comparing and Contrasting Two Recent Church-State Cases
Before the U.S. and California Supreme Courts



Friday, Dec. 12, 2003

On a single day last week, December 2, two supreme courts heard oral arguments in two important church-state cases. The United States Supreme Court took up Locke v Davey, and the California Supreme Court listened to counsel debate the merits of Catholic Charities v. Superior Court.

Many analysts have talked about each of the two cases, but to our knowledge none has placed the cases side by side and discussed them together. That is a shame, because we think analyzing the cases in relation to each other powerfully illuminates many of the core questions, challenges, and potential inconsistencies that confront modern religion clause jurisprudence. To see all this, some brief background on each case is necessary.

Locke v. Davey: The U.S. Supreme Court Case

In Locke v. Davey, the plaintiff is a student in the state of Washington who wants to use the money from a state-funded college scholarship program to pursue theological studies toward a degree in pastoral ministry. But as construed by the state courts, the Washington Constitution forbids the use of public funds for education of the clergy. As a result, Davey - even though he was otherwise qualified to receive the scholarship money -- was denied funding. He sued, claiming among other things that his federal constitutional Free Exercise Clause right to practice his religion had been violated.

An important precedent here is the Supreme Court's Zelman v. Simmons-Harris decision. There, the Court upheld a state's decision to include religious schools in its primary and secondary school voucher program. Under Zelman, it may well be the case that the State of Washington could, consistent with the Federal Constitution, fund Davey's religious education if it so chose. But the question before the Supreme Court right now is whether Washington must do so because it funds scholarships that may be used for nonreligious pursuits.

Catholic Charities: The California Supreme Court Case

The California Supreme Court case, Catholic Charities v. Superior Court, involves several constitutional challenges to the application of California's Women's Contraceptive Equity Act (WCEA) to Catholic Charities. (Catholic Charities is a religious charity affiliated with the Catholic Church that provides a wide range of social services to its clients.) The WCEA places a requirement upon employers in California that provide their employees health insurance plans that cover prescription drugs. Under the statute, these employers must include medical contraceptives within the coverage of such plans.

The use of medical contraceptives is prohibited by Catholic doctrine. Accordingly, Catholic Charities argues that the WCEA impermissibly intrudes into the internal operations of religious institutions by compelling them to violate their religious obligations.

The WCEA does contain a so-called "conscience clause" that exempts religious organizations from its mandate, but the clause is sharply limited in its scope. To avoid the duty to purchase medical contraceptive insurance coverage for employees, a religious employer must demonstrate that it discriminates on the basis of religion in hiring its staff, serves clients who share the religious beliefs of the organization, proselytizes its clients, and operates as a church or other religious organization as defined in certain sections of the Internal Revenue Code.

Catholic Charities does not discriminate in hiring, proselytize those it serves, or serve primarily Catholic clients. Thus, it is ineligible for this statutory exemption.

The Catholic Charities litigation raises several important church-state issues. Catholic Charities points out, for example, that different religious communities operate their charitable ministries according to different understandings of their religious duties. Some faith-based organizations feel compelled by religious obligation to proselytize those they serve, and to hire only members of their own faiths. But other religious institutions, including those affiliated with the Catholic Church, obey tenets that preclude both discrimination in hiring and the proselytizing of clients. Because of this, Catholic Charities urges, a conscience clause such as the WCEA's that distinguishes among religious faiths, and exempts only those that operate under certain religious teachings, violates the Establishment Clause prohibition against religious favoritism.

Perhaps the most important claim raised by Catholic Charities -- and the one we focus on in this column -- is that the Free Exercise Clause of the California Constitution is more protective than its counterpart in the U.S. Constitution. In other words, Catholic Charities argues that the California provision should be interpreted to provide more extensive and rigorous protection to religious practice and institutions than that required by the Federal Free Exercise Clause under current U.S. Supreme Court case law.

In 1990, the U.S. Supreme Court in Employment Division v. Smith made clear that so long as a law is neutral and of general applicability, any burden it imposes on religiously-inspired activity does not create a federal free exercise problem. But Catholic Charities contends that the California Constitution need not be limited to this minimalistic understanding of free exercise rights. Instead, it argues, religious individuals and organizations should, under the California Constitution, be exempt from all laws that incidentally but substantially burden religion, unless the exemptions would undermine some compelling state interest.

The State of California, not surprisingly, has argued that the California Constitution should track its federal counterpart. Furthermore, the State, and various amicus ("friend of the court") briefs, contend that plaintiff's free exercise claim should be rejected even under an expansive reading of the state constitution because the WCEA does not substantially burden the free exercise of religion in a way that justifies a constitutionally mandated exemption from this law.

The State maintains that no religious exemption can be constitutionally mandated if doing so imposes substantial burdens or costs on third parties (here, those employees of Catholic Charities who would not receive insurance coverage for medical contraceptives). Amici argue that the connection between the purchase of employee health insurance by a religious employer, and the decision by some of those employees to use medical contraceptives obtained through their health plan, is too attenuated and indirect to constitute a constitutionally cognizable burden on the employer's Free Exercise rights.

What the Two Cases, Taken Together, Teach

Viewed from on high, the two cases we have discussed here have interesting similarities. For example, the plaintiffs in both cases assert constitutional rights protecting the free exercise of religion. And in both cases, the extent to which state constitutional law should differ from federal guarantees is at issue.

But even viewed from this high level of generality, the contentions by the plaintiffs in the two cases seem dramatically different as well. In Locke, the plaintiff argues that the state constitution cannot provide a stronger establishment clause and a more rigorous separation between church and state than that required by the federal First Amendment. In contrast, in Catholic Charities, the plaintiff insists that the state constitution must be interpreted to provide stronger free exercise protection than that offered by its federal counterpart.

More importantly, in Locke, the plaintiff argues that federal free exercise principles prohibit the state from treating religious education differently than secular educational opportunities. In contrast, in Catholic Charities, the plaintiff passionately argues that free exercise principles (embodied in California's Free Exercise Clause) should prohibit the state from treating religious institutions the same as secular ones.

An Issue Both Cases Raise: Attenuation

Each case also raises an issue of attenuation. For instance, supporters of the WCEA, in Catholic Charities, argue that any connection between the allegedly sinful conduct of using medical contraceptives, on the one hand, and the legal requirements imposed by the WCEA, on the other, is too attenuated to constitute a substantial burden on religious liberty.

Why? Because, in the end, it is each employee's decision whether or not she will use medical contraceptives. True, by purchasing insurance that includes medical contraceptives within its coverage, Catholic Charities may facilitate the exercise of that decision. But each employee is an intermediary who makes her own private choice about whether that insurance coverage will be utilized to purchase medical contraceptives. Pursuant to this argument, Catholic Charities cannot claim to be responsible for, and therefore should not feel burdened by, its employees' decisions.

Catholic Charities challenges this contention. It argues that it is complicit in its employees' decisions, through the purchase of health insurance covering medical contraceptives. Thus, the corresponding burden on the institution's commitment to the Catholic faith is not mitigated by the employees' independent health care choices. Locke also turns in part on attenuation, but the arguments about attenuation are exactly inverted -- for this time, it is supporters of the religious plaintiff who argue that the connection at issue is too indirect.

The State claims the religious liberty of taxpayers would be burdened if the money they pay in taxes is used for religious instruction in a faith other than their own. But now it is the religious plaintiff's side that argues attenuation. They argue that the State provides grants to students in the form of scholarships that may be used for a wide range of educational purposes, only one of which is the study of theology.

Thus, it is up to the individual scholarship beneficiary to decide whether he or she chooses to use public funds for religious instruction. This independent decision-making by the scholarship recipient on how to spend the scholarship money breaks the link between the student's religious study and the taxpayers' religious liberty concerns. (The State, of course, disagrees.)

A Second Issue Common to the Two Cases: Control

A similar analysis pertains to the issue of control. For Catholic Charities, its status as a religious organization entitles it to control and define the parameters of its religiosity with appropriate flexibility. Thus, while Catholic Charities may not insist that its employees subscribe to all the tenets of the Catholic religion, it should be free to insist that those employees do not demand that it subsidize behavior (here, contraception use) that it views as fundamentally inconsistent with the core of its commitments as a religious institution.

In contrast, in Locke, it is the State that argues it needs institutional flexibility and control. The State of Washington does not prohibit the use of scholarships at religiously-affiliated schools. Nor does it prohibit scholarship holders from using state funds to attend classes in theology. But, it argues, it is entitled to draw the line at subsidizing theology majors who will in many cases be training for the ministry.

In sum, the State seeks the flexibility to control and define for itself what, if any, its relationship to religion, and the training of clergy, ought to be.

A Third Common Issue: The Cost to Individuals

Yet another parallel between the two cases involves the cost to individuals of state constitutional mandates concerning religion. Suppose that, in Catholic Charities, the court decides in favor of the religious institution, and embraces a strong reading of California's Free Exercise Clause. The result may be that its workers are denied insurance coverage available to the staff of all other organizations that provide their employees health plans that cover prescription drugs.

Suppose that in Locke, the Court decides in favor of the State, and embraces a strong reading of Washington's Establishment Clause guarantee of church-state separation. The result may be to deny an otherwise eligible and deserving student access to a state scholarship for higher education.

In sum, giving states the power to diverge from the federal religion clauses in their own state constitutions can generate costs for individuals in both cases. If the cost to individuals is a relevant factor to consider in determining the scope of constitutional guarantees, it should not be taken into account in one case and not the other.

Both Cases Are Likely to Have a Strong Effect on Future Doctrine

Finally, both these cases are burdened by the consequences they may have for future decisions. The Court's decision in Locke will have an important impact on the constitutionality of a wide range of government funding programs, including school vouchers, which may attempt to limit religious institutions' participation and eligibility. If the plaintiff in Locke prevails, many programs that exclude religious groups or individuals will likely be struck down.

Similarly, the decision in Catholic Charities implicates subsequent cases on the horizon regarding mandated domestic partnership benefits and other laws that may intrude into the autonomy of religious institutions. Granted, the free exercise test at issue in Catholic Charities involves more context-specific balancing than the per-se rule of non-discrimination that would probably result from a victory for plaintiff in Locke. Nevertheless, a judgment for Catholic Charities under the California Free Exercise Clause will force the state to grant many more exemptions for religiously-inspired conduct than it currently does.

Important Symmetry and Asymmetry Among Different Constitutional Approaches

Overall, we think the parallels between these cases support an important conclusion. Church-state cases today trigger a range of constitutional instincts and approaches among judges, legislators and commentators. Two models, or approaches, in particular have a symmetrical quality to them. That is, they treat Establishment Clause and Free Exercise Clause principles with the same degree of (or lack of) rigor.

One of these models would couple a strong Establishment Clause with a strong Free Exercise clause. Put another way, courts, under this model, would vigilantly police against both state promotion and support for religion, and incursions on individuals' and institutions' religious freedoms. On this model, Davey would lose, and the State of Washington would not have to fund his theological education. But Catholic Charities would win, and would be exempt from the state's contraceptive coverage mandate. (One of us strongly endorses this result.)

The other model would couple a weak Establishment Clause with a weak Free Exercise clause. Put another way, courts would tolerate both a certain amount of church/state intermingling, and a certain degree of interference with individuals' and institutions' religious freedoms. On this model, the exact opposite outcomes would result. Davey would win, and be allowed to obtain state funding for his theological studies. But Catholic Charities would lose, and be forced to provide insurance coverage for medical contraceptives.

Symmetry between free exercise and anti-establishment values, in this setting, would also mean that state constitutional law should either be free to protect both free exercise and establishment clause values more than the Federal Constitution requires, or, conversely, that states should be limited in the extent to which their state constitutions can depart from the federal model for both religion clauses.

Either of these two symmetrical approaches seems consistent with the parallels between these cases that we have described. One model often requires religion to be treated differently than secular beliefs and institutions under both of the religion clauses. The other tends to require equality of treatment under both clauses.

Two other possible models are asymmetrical. One would endorse a strong establishment clause and a weak free exercise clause. It would vigilantly police church/state intermingling, but would provide only limited protection against incursions on individual and institutional religious freedoms.

The other would endorse a weak establishment clause and a strong free exercise clause. It would allow for greater state support of religious activities, as well as providing rigorous protection against state interference with individual and institutional religious freedoms.

This latter model is sometimes described as "neutrality theory." It has considerable support among religion clause commentators. Under this analysis, plaintiffs should win in both Locke and Catholic Charities. Davey would receive funding for his theological education, and Catholic Charities would be exempt from the insurance coverage requirements it opposes on religious grounds.

This approach is not easily reconciled with the parallels we have described. It presupposes that for regulatory purposes religion must be treated differently than its secular counterparts, but that equality of treatment is required when subsidies are at issue. A corollary proposition is that states should have the discretion to provide religion greater protection than the federal Free Exercise Clause requires, but cannot extend Establishment Clause principles beyond the scope of federal mandates.

Further, neutrality theory would seem to suggest that the loss of the ministry scholarship at issue in Locke is too high a price to pay to support Establishment Clause values. But it also suggests that the cost that third parties (or the public fisc) may incur as the price of protecting religious liberty in Catholic Charities is acceptable.

In cases with as many parallels as Locke and Catholic Charities present, it is difficult in our minds to accept an approach that treats cases with so many similarities so differently.

Vikram David Amar is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a professor of law at UC-Davis School of Law.