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Supreme Court Turns Down Cases on Religious Separation

By Linda Greenhouse, The New York Times, October 2, 2007

Washington, Oct. 1 — One contentious topic missing from the Supreme Court’s docket as the new term opened on Monday was religion. The justices evidently plan to keep it that way, at least for now.

Among the hundreds of appeals the court turned down on Monday, in a list that printed out at 83 pages, were two cases on the relationship between church and state that might have brought even more visibility to the term.

One was a case from New York on whether church-affiliated employers who object to birth control on religious grounds must nonetheless provide contraceptive coverage to their female employees as part of their medical insurance coverage, as required by laws in New York and some two dozen other states.

The other case challenged the refusal of a public library in California to make a community meeting room available for worship services.

Both cases potentially tested lines that the Supreme Court has drawn to separate those accommodations of religion that governments are required to make from those that are not required or, perhaps, are even forbidden.

The birth control case was brought by Catholic Charities in Albany and eight other New York-based Catholic and Baptist organizations. All the organizations, as part of their religious mission, operate educational and social service programs, like schools and nursing homes, that serve the general public.

They argued that they should be exempted, on religious freedom grounds, from a New York law, the Women’s Health and Wellness Act. The Legislature passed the law in 2002 after finding that the typical employee health insurance coverage left women with greater uncovered expenses because of the common exclusion of contraceptive coverage. The law provides that if employers choose to cover prescription drugs, the plan must include prescription contraceptives for women.

The law includes an exemption for “religious employers,” precisely defined as a nonprofit organization that seeks to inculcate “religious values;” that “primarily employs” people of its religious faith; and that “serves primarily” those who share that faith. There is no debate that organizations that challenged the law do not qualify for the exemption.

Rather, they argued that the law placed them in a “religiously untenable position” because, on the one hand, they felt a religious obligation to provide “just wages and benefits,” while on the other hand, they had a “theologically grounded” objection to birth control. The state was improperly seeking to “coerce a church entity to finance private conduct that the church teaches is morally wrong,” the organizations told the justices.

Their complaint was rejected by all three levels of New York state courts: the state Supreme Court, at the trial level; the Appellate Division; and in a unanimous opinion last October, the New York Court of Appeals. That court ruled on the basis of a 1990 Supreme Court decision, Employment Division v. Smith, which barred most religion-based exemptions from laws that are neutral, generally applicable and that do not single out religion for special burdens.

In opposing the appeal, Catholic Charities v. Dinallo, No. 06-1550, New York argued that the organizations were not being placed in the position of approving birth control, any more than any other employer that provides health coverage is deemed to express “approval of every medication or treatment used by the employees.” The California Supreme Court has also rejected a challenge by Catholic Charities to that state’s similar law.

In the second religion case, an evangelical group, Faith Center Church Evangelistic Ministries, sought to rent a meeting room in a public library in Antioch, Calif., for worship services. After one service, the library withdrew its permission on the basis of a county policy that prohibited the use of libraries for religious services.

The Faith Center filed suit on the ground that the county policy discriminated against religious speech. In Federal District Court in San Francisco, the center won a decision that was then overturned by the United States Court of Appeals for the Ninth Circuit.

In a series of decisions, the Supreme Court has placed religious expression on the same footing as other forms of speech, ruling that it must be permitted in public forums that are generally open to other speakers. The court has not directly confronted a case seeking a public forum for pure religious worship. The question lies at the intersection where the two religion clauses of the First Amendment meet: the protection for the “free exercise” of religion and the prohibition against the official “establishment” of religion. It is not clear where the current justices would draw the line if they were ever to accept a case that presents the question. This case was Faith Center v. Glover, No. 06-1633.

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