Litigation Update: Roman Catholic Diocese of Albany v. Vullo

Marco Lloyd: Hello everyone and welcome to this Federalist Society virtual event. My name is Marco Lloyd and I'm an Assistant Director of Practice Groups with the Federalist Society. Today we're excited to host a litigation update on the Roman Catholic Diocese of Albany v. Vullo featuring Lori Windham. Our moderator today is Whitney Hermandorfer. Ms. Hermandorfer works as the Director of the Strategic Litigation Unit in the office of the Tennessee Attorney General. In that role, she focuses on leading constitutional, statutory, and administrative law challenges to federal agency action, as well as defending the state in complex matters at the trial and appellate level. She previously worked at Williams & Connolly LLP in Washington DC and has clerked for several Supreme Court justices. If you'd like to learn more about today's speakers, their full bios can be viewed on our website fedsoc.org. If you have a question at any point in today's program, please enter it into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that as always, the Federalist Society takes no position on particular legal or public policy issues and all expressions of opinion are those with the speaker. With that Ms. Hermandorfer, thank you for joining us today and the floor is yours.

Whitney D. Hermandorfer: Thank you so much. It's great to be with everybody. This morning we have an esteemed guest here to discuss the important case Diocese of Albany v. Vullo. Ms. Lori Windham is Vice President and Senior Counsel at Beckett where she has represented clients on cutting-edge religious freedom issues since 2005. She is a graduate of the Harvard Law School and earned her summa cum law at Abilene Christian University. Ms. Windham, among many other remarkable representations, argued and prevailed on behalf of foster families in Fulton versus Pennsylvania, one of the Supreme Court's most important recent free exercise clause cases. She also worked with the Beckett team on their victories in Hosanna-Tabor, Hobby Lobby, and Little Sisters of the Poor. We're thrilled to have you here today, Ms. Windham, to discuss this important case, Diocese of Albany v. Vullo. So just to start things off, this is a case about the intersection of mandated coverage of abortion in health insurance and religious freedoms under the free exercise clause. And I think for some of our listeners and viewers who maybe aren't as steeped in the doctrine every day as you, it might be helpful to just discuss basic principles about the First Amendment and the Free Exercise Clause and what that has been interpreted to require on the part of governments.

Lori Windham: Absolutely. I really appreciate the warm welcome and I'm glad to be here today. This case comes at a really interesting time because there's been a huge amount of development in the pre-exercise clause over the last few years. The short version is that back in the 1990 decision of Employment Division v. Smith, the Supreme Court made it clear that if you had a free exercise claim, the first question was going to be is the lawyer challenging, neutral, and generally applicable? If it is, well then you're probably going to lose only rational basis. Scrutiny will apply, but if it isn't, then strict scrutiny will apply. Smith was controversial at the time that it was decided. Congress passed the Federal Religious Freedom Restoration Act, which was signed into law by President Clinton. Today, about half the states have a similar provision on the books, which says that we will protect religious freedom.

You can bring a religious freedom claim even against a neutral and generally applicable law. And what we've seen in the last few years has been a real focus and attention on well, what makes a law neutral and generally applicable. Just a few years after Smith and the case of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah where the city of Hialeah had banned ritual animal sacrifice that basically only hit the Santos who were part of Church of Lukumi and not other sorts of animal killing. The Supreme Court made it clear that the law does truly have to be neutral. It cannot be targeted at a particular religion. It does truly have to be generally applicable, applying across the board to other kinds of situations. And since that time we've seen a lot of litigation about the Supreme Court and the lower federal courts about what exactly that standard means.

Whitney D. Hermandorfer: Thank you for that background. We just had an audience question about the lemon test, and I do think it's helpful to kind of parse out the two components of the religious liberty pieces of the First Amendment. So here where we're talking about the free exercise clause and that through the 14th Amendment, no government shall make a law that interferes with the free exercise of religion. That's kind of one piece about how individuals carry out their religious freedoms. There's also another part of a religious component of the First Amendment in the establishment clause that the government shall not establish religions. And with respect to that kind of strain of doctrine, there has also been significant movement with respect to how do we tell when a government is establishing religion Impermissibly the court had for years applied the lemon test. As our audience question pointed out, there is some ongoing debate about whether that test is still viable.

Certainly certain justices think it might've been overruled in some recent cases, but I think the point is the court in both areas, free exercise and establishment cause have been moving the doctrine and I think clarifying the interaction between religion and government in a way that I think like you said, is only going to develop further. You mentioned employment division versus Smith and just kind of to give the facts of that case, I think the facts were driving the decision in no small part. There was an individual who wanted to kind of do the ritual smoking of peyote and I think Justice Scalia writing for the court had some real skepticism about how the parade of horribles would unfold if people were allowed to assert religious exemptions from criminal laws, for example, against drugs and other things. So before we launch kind of forward into Fulton and how the game has changed there, can you just provide some background on, we're talking in pre Smith world what the test was for upholding or rejecting a law that interacted with the exercise of religion pre-Smith?

Lori Windham: Certainly. And so this really got started back in the late sixties, early seventies when the Supreme Court decided the Sherbert decision and was looking at this question of what happens when you have a law that burdens someone's religious exercise? How do you deal with that? How do you deal with that? And this came up through a couple of decisions like Sherbert and Thomas that came up through actually through the unemployment system where Adele Sherbert was unable to - lost her job, wasn't able to get a new one because she observed a Saturday Sabbath and Sabbath work. Mr. Thomas was a Seventh-Day Adventist who, excuse me, a Jehovah's Witness. Sherbert was a Seventh-Day Adventist. Thomas was a Jehovah's Witness who, because of his commitment to pacifism, was unable to accept work at a factory that produced materials used to create tank turrets. And so the Supreme Court determined that in those situations by denying them access to a government program because of their religious beliefs had burdened their religious beliefs.

You looked at whether there's been a burden on your religious beliefs and that those laws could not pass strict scrutiny. And so that was the standard that was used. We saw the same standard used in the Yoder case involving Amish parents who did not engage in traditional schooling for their students in the high school years, but taught them how to work on the farm and carry out the tasks that you needed to be a community member. And the Supreme Court ruled in their favor as well. So that had been the standard. Many people think that it had really been progressively weakened throughout the 1980s in cases like Ling, where Native American tribal members were unable to successfully challenge federal activity that was going to inhibit and damage some of their sacred lands, Bowen, which had to do with social security numbers, United States v. Lee, which also had to do with paying into social security system. And so you saw a number of different challenges to government programs and you saw the Supreme Court sort of weakening and lowering the standard and that really led us up to the moment of Smith decision saying, if it's a neutral, generally applicable law, it's too bad you're going to have to comply with the law and that that was really going to be the standard for whether you could bring a successful free exercise claim going forward,

Whitney D. Hermandorfer: So you mentioned Lukumi and the application of this neutrally and generally applicable test, and this was when to flash forward to Fulton, when you all were litigating that case, can you describe the facts of Fulton and kind of the ask you made with respect to Smith in that case and what the court ultimately ended up doing? And there's a lot to talk about here. So I think if we just kind of set the table on Fulton then we can get into more of the details on the separate writings.

Lori Windham: Certainly. So, Fulton, this case began when the city of Philadelphia shut down foster care services by Catholic Social Services of Philadelphia and all the families who work with Catholic social services like Sharonell Fulton and Toni Lynn Simms-Busch, who had been serving as foster parents for many years. The debate here was over marriage. Catholic Social Services was asked by a reporter what their policy would be if a same sex couple approached them and asked to become foster parents. They had never actually had that happen. Nobody had come to them and say, Hey, we want you to come to certify our family and do this home study for us. But they answered the report of truthfully, which was that they would refer them to one of the 29 other agencies who were happy to receive more foster parent applications and walk with them Through that process, city of Philadelphia officials heard about this, became very angry, it was condemned in a city council meeting saying they needed to terminate the contract with CSS and they ultimately froze all future placements of foster children with CSS.

And that meant that no families who partnered with that agency could receive any more foster children into their home. This was especially heartbreaking because Philadelphia had a tremendous need for more foster families and because Catholic Social Services had been doing this work for longer than the city of Philadelphia had been pioneering care for orphans and for neglected children for the past 200 years. Starting interestingly enough, in a prior pandemic, this was by the time it got to the court happening in the middle of Covid and so you had a 200 year history that was suddenly going to be cut off over this question of whether the Catholic Church and Catholic Social Services had the freedom to continue following the tenets of their faith while they followed other tenets of their faith, which was to serve those in need.

Whitney D. Hermandorfer: So the lower courts did not rule for Catholic social services and held that it was not a free exercise violation to effectively put them to this choice of penalizing them unless they gave up key tenets of their faith when fulfilling these duties they felt called to do in terms of placing children in foster care. So what was the ask in your cert petition and what did the court ultimately hold?

Lori Windham: So in our cert petition, we raised three issues for the court and the court did accept on all those issues. One of them was a speech question of whether this was actually compelled speech because you were compelling CSS to issue certifications about families that were different than its beliefs. That issue effectively played no role in the decision and very little in the briefing and argument, the two big ones where all the attention was, well first is this a neutral and generally applicable policy. Even under Smith, the lower courts had said, yes it is. They would penalize a secular agency for doing this and so therefore that's neutral and generally applicable, refuse to really engage with other exceptions that were in the system said, oh, those are hypothetical and you don't really know what's going to happen and said it was neutral and generally applicable. So question one is does this case fall under Smith or does it fall outside Smith?

And question number two was should the Supreme Court revisit employment division versus Smith prior to the Fulton case reaching the court, there had been a concurrence actually in the Coach Kennedy case you mentioned with regard to the establishment clause where four justices had said that the court should consider the continued viability of Smith. And so after you had four justices signaling that this was an open issue, you then saw a number of certain petitions raise this question of should Smith still be, is it still good law? Should it still be the binding precedent? Those were the two questions that really got all the attention before the court.

Whitney D. Hermandorfer: And did ended up that at least some justices would have gone all the way and overruled Smith Justice Alito wrote a 70 some page opinion joined by Justices Gorsuch and Thomas and that would indeed have overruled Smith stepping through both the original understanding of the free exercise clause state and colony colonial practice around the time and the stare decisis factors. But that was not ultimately the path the court chose and instead in an opinion by the chief justice the court, the remainder of the court at least in part joined his opinion. And can you explain the chief justice kind of centered more on question two about what it means to be a neutrally and generally applicable law under Smith. Can you talk about the chief's, I guess bottom line holding, and where you see that opinion doing work with respect to the doctrine that was already out there on defining generally applicable in particular?

Lori Windham: Absolutely. You would think after 30 years we'd have a pretty good idea of what neutral and generally applicable means, but it turns out that this was still very controversial. One question was if you have a law that treats some people better than the religious objectors and others the same as the religious objectors, is that a neutral generally applicable law? The third circuit said yes because you treated at least some people as badly. Our argument was always no, because you're treating some people better than religion. This is a fundamental first Amendment, right? You need to treat them better than that and if you're willing to make exceptions for others, you have to be willing to make an exception for religious exercise unless you can pass strict scrutiny.

The chief's opinion for the court really focused on a subset of that question, which is what if you just have a system of individualized exemptions? This comes up because the Sherbert and Thomas Cases, as I mentioned, were individualized exemptions. They look at your employment status and your religious claim and decide whether or not you were protected. And here in Philadelphia, they had adopted a lot of different rules and a lot of different arguments for why they thought they could exclude Catholic social services and their families, but they had a provision in their contract that they could make exceptions at the commissioner's sole discretion. And that was it. That was all that was said about why you could make the exceptions. They were just vesting the commissioner with the discretion to be able to do that when she wanted to. And so the chief's opinion pointed to that section.

This was an argument we'd raised below that the third circuit was just not interested in, but it was this question of, well, if you do have a provision that allows a lot of discretion and allows these kind of discretionary exemptions, is that a neutral generally applicable law? And the Supreme Court very clearly said, no it is not. And so because the law was not generally applicable, it had these exceptions, it had to pass strict scrutiny and it couldn't pass strict scrutiny. Here we have this long history of CSS doing wonderful work, the system working well, lots of other agencies available and so it was insufficient. And so that was what the majority, the primary opinion of the court decided the concurrence is, I want to be clear, it's a nine oh decision. The concurrences also agreed we should win. It was just for different reasoning.

Whitney D. Hermandorfer: Right. And the concurrence that got the most attention was Justice Barrett's concurrence joined, I believe by Justice Kavanaugh and maybe Justice Breyer. My memory is fuzzy. And in that concurrence Justice Barrett I think expressed she was, I would say a bit "debutante" about whether Smith was correctly decided as an original matter thought it was a hard question, but it seemed as though what based on the opinion, her concern with overruling Smith at that moment in time was the lack of a framework for governing these claims moving forward. What do you take that opinion to mean, and do you think there have been developments trying to advance what a post-Smith world would look like in light of Justice Barrett's opinion?

Lori Windham: Yes. I think that there are a few developments and things that are still happening within the law to kind of test out these questions. One of these questions that her opinion raised is, well, what about institutional religious groups versus individuals or is anything different there? And one thing that's been happening kind of in parallel with this is the development of the exception and broader church autonomy rights. And this is seen as a separate thread of free exercise law. It's also rounded in the establishment clause, which has to do with the rights of religious bodies to run themselves, choose their own ministers, make their own decisions. And the understanding that this is something that is a province that is left to the religious bodies. It is not the business of civil courts to get in and start messing around with. And so I think we have seen increasingly that we have this category of cases which is really outside of Smith not governed by it, and there continue to be a number of cases on that question that are working their way through the lower courts.

The Supreme Court has already ruled in this a couple of times recently in Beckett's cases in Hosanna Tabor and Our Lady of Guadalupe about, and I expect that we're going to be more development on this idea of church autonomy rights more broadly. And so that's one development we have seen since that time. I think another really interesting development that's been going on is the experiments that are going on in the states with state RFRAs with having, I believe it's half the states now have a standard that is more like the RFRA standard, more like the old Sherbert standard. And so we've been able to see how that works in practice. Is it courting anarchy? Does it create a lot of problems? And what we're seeing is that the state courts are able to manage these things pretty well. They've been able to weed out sham claims, they've been able to apply compelling interest when it does apply. And so I think that we're continuing to see development in the law in a way that will resolve some.

Whitney D. Hermandorfer: Thank you very much for that great summary of Fulton. I don't want to take too much time on the setup. I do want to get into the Diocese of Albany case, but you mentioned one thing that I think is essential to understanding this moment in time in terms of the posture of your case, which is Fulton happened during the midst of Covid where we saw an immense number of religious liberty applications hitting the court around churches being closed down and significant burdens on religious practice during Covid and the court over a series of, I think you could see the court kind of grappling with these issues in real time as different justices were issuing writings on these stay applications and ultimately there was an emergency docket opinion issued in a case called Tandon. I think Tandon like Fulton ended up being about how do we apply the generally applicable conception under Smith.

And you mentioned in Fulton that the chief's opinion came down to this sole discretion. I would say Tandem seemed to adopt your other top-line argument on generally applicable, which is if we're talking about a scheme of exemptions and there are secular entities being treated differently and better than religious ones that renders a law or a COVID policy in that case, not generally applicable. So basically most favored nation status as I've heard it called, needs to be applied to religious entities on par with whatever other entities are receiving the most favored treatment. Do you agree with that understanding or are there other different things you would draw from that opinion as it pertains in particular to your upcoming Diocese of Albany petition?

Lori Windham: I think Tandon is incredibly helpful on that score. For listeners, it's short. You can read it and it's very clear because you had recalcitrant state officials. I mean they had been told repeatedly by the Supreme Court, you need to knock this off. And they kept doing it. And so the Tandon opinion is very clear about what the standard ought to be. I will tell you we were very happy when we saw that opinion come down. This was between the argument and the eventual decision in Fulton and seeing that we thought, well, this is the exact opposite of what the third circuit said was the governing rule in Fulton. And so that cannot govern our case. I do think that tandem is really helpful in saying, look, if you're going to make exceptions elsewhere, you have to make exceptions for religion. You have to protect that. And I think that that ends up being important in the diocese of all any case because you have a couple of different flavors of exceptions going on, both exceptions or lack of coverage for other sorts of situations. This is not a universal law. There are other kinds of gaps and exceptions that apply to some religious bodies but not others, which really does open up a whole other can of worms.

Whitney D. Hermandorfer: Right. And before fully launching in, I think I'd be remiss not to mention the masterpiece line of free exercise jurisprudence, which by masterpiece referring to the series of cases arising from the Masterpiece Cake Shop controversy in Colorado, in which Colorado officials continually enforce the public accommodations laws there, which are interpreted to require accommodations to serve individuals irrespective of their sexual orientation as relevant in that case. And so there's Mr. Phillips, the owner of Masterpiece Cake Shop, would not due to his religious beliefs create a customized cake for a same-sex marriage. And there were some statements made in the first iteration of Masterpiece by officials indicating real animus towards religion and religious beliefs. And arising from that, the Supreme Court issued an opinion that effectively said if there's some sort of adjudicatory system or if we have record statements from the relevant governmental officials expressing this sort of animus, that can be a separate reason why kind of on a Lukumi theory that the free exercise clause is being infringed and a separate theory for showing that a law is not neutral or generally applicable.

So I think arguably in your case there's some flavor of treatment that suggests at a minimum misunderstanding of religion and at worst, I don't want to cast aspersions, but I'll just leave it at that. Not a full, I would say respect for religious beliefs going on in your case. So I think that segues into the controversy and Albany, so we'll take this chronologically. You mentioned I think before, there's an interesting background of state level mandated healthcare coverage of abortions. Many of us are familiar with the federal controversy under the Affordable Care Act. So maybe if you can start us off with the New York scheme and we can go from there.

Lori Windham: Certainly. So this actually goes back a number of years that Diocese Albany case has been going on since 2016, but it goes back a number of years. New York among some other states mandated first contraceptive coverage, which can include a board of patients. There were religious groups who challenged that went all the way up to the New York Court of Appeals, which is the highest court in the state, and that court said, Nope, this is a neutral, generally applicable law under Smith. Too bad you lose. And that decision was in place. That decision actually was part of the basis for the original federal contraceptive mandate under Obamacare where HHS began to impose requirements on employers to cover contraceptives, even aortic patients. The federal rule was the first model on the New York rule created a huge outcry that's been up to the Supreme Court three times on the merits Hobby Lobby, the little sisters of the poor and Little Sisters of the Poor again, and challenged thoroughly every single time the Supreme Court has ruled a favor of religious objectors. So New York said, well, instead of just having a contraceptive mandate that penalizes religious objectors, let's add an abortion mandate too. Let's just go all the way in the face of these three Supreme Court decisions. And so that's what they did first through a state insurance regulation. And then the New York legislature went ahead and codified that and make it law.

Whitney D. Hermandorfer: And under that, I guess, so there's the abortion coverage mandate. Can you talk about there are exceptions and how those exceptions apply what religious groups are and are not subject to the exception?

Lori Windham: So the New York Abortion Mandate applies to employers who provide insurance within the state of New York. So it doesn't apply to you if you don't provide insurance. It doesn't do anything for women who do not have employer sponsored insurance, and it does not apply to those who have an insurance plan that is governed by federal law under ERISA rather than by regulated by the state of New York. So it does not cover everyone, but it does cover those like the Sisters of St. Mary and Theresa House Nursing Home and others who operate in New York and want to be able to provide health coverage to their employees, but have to do that under New York law. The other and very controversial piece of this is that they adopted the religious exemption that had previously been a contraceptive mandate previously in the federal contraceptive mandate and was axed very quickly because it was so widely criticized. But you had to meet a four factor test. And the one that really is controversial here is if you primarily serve people of your own faith, then you can have an exception. But if you open your doors to all, if you're like the there and house nursing home who will care for anyone regardless of your faith, if you're out there offering cup of soup to anyone who's hungry regardless of what their faith background is, then you lose your religious freedom protections, you lose your exemption under the statute and you must also pay for abortions.

Whitney D. Hermandorfer: I'm having a hard time even understanding what it means to serve people of your own faith. Can you give some examples of what types of entities that serve own faith exemption captures?

Lori Windham: It's difficult to even know because so many religious groups and bodies open their door to all and generally speaking, those who are providing social services of some sort are going to be able to provide those or want to provide those to the community without asking first for some sort of religious test. And so it's never been clear to me exactly who would be captured by that serve people of your own faith. I think that once you step out and you start to actually engage in social services for the community, it's hard for me to imagine who would be covered by that. The criticism that has been made is that this would not cover Mother Teresa's ministry. It would not cover the ministry of Jesus Christ. It would not cover work done by so many other leaders of different faith groups because if you're going out and saying, I will offer help, I'll offer service, I will offer food and a bunk to sleep in to anyone who's in need, then you've lost your religious freedom protections.

Whitney D. Hermandorfer: Is there any sort of rhyme or reason to that line? What is New York's basis for even setting that as the line in their exemptions or they might not have one?

Lori Windham: It's been really unclear all along exactly what work that does. They have other provisions having to do with how you're organized, having to do with who you employ. And they've made arguments on that, but they've never really had a compelling argument as to this question of who you serve. That's a mismatch with the people who would be covered by the insurance mandate. And so other than just saying that they're trying to define who a religion is and who's covered by this, they've never had a really great answer for why that is part of the test. And you have to meet all four factors. You can't just meet three of them.

Whitney D. Hermandorfer: So this cash is out for your clients. Can you just give a rundown of some of who your clients are and these are entities that are not covered by the exemption and thus have to provide and pay for abortion and contraceptive coverage for their employees through the health insurance plans.

Lori Windham: It involves vibrant religious communities across New York, like the Sisters of St. Mary who raise cashmere goats. They have to be covered by the Teresa House nursing home, which offers services to those in need and cares for the sick and dying. First Baptist Church, which also opens its doors and welcomes those who want to come and learn, and Catholic charities who are out there providing a variety of services to the community, all of these different groups are stuck with this abortion mandate and all of them because of the work they do and because of the good that they try to do within their communities are being hit by this.

Whitney D. Hermandorfer: And I presume many of them also, or I guess tell me if this is on track, that providing insurance for their employees is something that they also feel is mandated by their faith principles. Is that so they're put to a Hobson's choice of how they can carry that out?

Lori Windham: That's exactly right. They want to be able to care for their employees and make sure that they're well taken care of. They believe that this is an important part of how they express their faith is treating their employees well to include employers provided health insurance, which so many of us depend on.

Whitney D. Hermandorfer: So there was round one of this litigation that involved an earlier New York Court of Appeals opinion that purported to apply Smith to uphold this whole scheme. When did that happen and what happened next in terms of the Supreme Court in that round of the litigation?

Lori Windham: So that round of the litigation went all the way up through the New York court system wrapped up, and it would've been 2020 as everything was going a bit nuts with Covid. And the New York Court of Appeals said, well, we're actually bound by an earlier decision that we made on the contraceptive mandate where we said that was hunky dory. And so you're bound by that, you lose. And at that point, Diocese of Albany and all the clients petitioned to the Supreme Court at the time when that cert petition was filed, the Fulton decision was still pending and the various tandem and the various Covid related challenges were also working their way up to the court. This happened and was being appealed to the court the first time with this as the backdrop

Whitney D. Hermandorfer: And ultimately the Supreme Court issued what's called a grant vacate and remand decision or a GDR for short and in light of the decision in Fulton. So for viewers out there in layman's terms, that's a do-over. So it sent it back to the New York Court of Appeals to reconsider the validity of its earlier decision, affirming this regime in light of the guidance it had provided in Fulton. And did the New York Court of Appeals take the Supreme Court up on that offer and how did it decide the case in light of Fulton?

Lori Windham: So the New York Court of Appeals essentially said Fulton didn't change anything for this case with regard to what I think maybe the most problematic part of this scheme, this idea that you're only exempt if you only serve people of your own faith, they said, well, that really goes to whether it's a neutral law, not a generally applicable law. Fulton doesn't have anything to say about that to questions of whether there were other gaps in coverage. It was truly generally applicable and other issues that came up under the Supreme Court's decision in tandem, they said, well, Tandon, even though it came after their earlier decision, was not the basis of the GDR that only referenced Fulton, so we're only looking at Fulton. And then with regard to Fulton, it took a very narrow view of Fulton, much narrower than other state and federal courts, including several federal appellate courts have taken and said, well, this is really just a question of whether there is an individualized exemption process with a whole lot of discretion in it. That's the only time it will apply. And so New York's process, because it had these four written criteria that didn't fall under Fulton, and so there was nothing else they needed to look at, they were just going to leave the old decision alone.

Whitney D. Hermandorfer: So the next step when the state's highest court issues an opinion about the federal Constitution, kind of the next step would be to seek a Supreme Court review. I understand that the time for doing that is around mid August. Can we expect a petition on this matter? And if so to the extent you can just kind of give a high-level sketch of what that will center on? I think that would be helpful.

Lori Windham: Absolutely. There will be a cert petition on this working on that. Now, I'm happy to say Beckett is representing these groups along with lead counsel at Jones Day has done a tremendous job in arguing this, and we're working on that petition now, and it will raise the distinction between what the New York Court of Appeals has said and what the Supreme Court has said in these recent cases. What does it truly mean to have a neutral standard among religions? What does it truly mean to have a generally applicable standard and what level of discretion among the decision makers is too much? This is a very discretionary system because as you've said, how do you decide whether you are serving people of your own faith? This ends being a very tricky thing. And it's interesting, the Supreme Court in other contexts, such as the ministerial exception, has said that this is a real problem to decide who is a coreligionist.

How does a court even decide that "Yes, you are truly a Baptist, but no you are not." And so that's who you're serving. You get the civil courts entangled in a lot of tricky religious decisions to decide who really is a Lutheran, who really is a Catholic, who really is a Hindu, and is this group actually serving people of their own faith. And so I think that in particular raises some big red flags in a way that is neither neutral nor generally applicable under the Supreme Court's precedent. This case also presents the ongoing question of what happens with Smith if this is a neutral, generally applicable law, should Smith continue to be good law? What is really left of that decision after the exemptions have been broadened over the years? And should the Supreme Court continue to follow it

Whitney D. Hermandorfer: In terms of the doctrine, do you see, and it might be too early to answer this, I know you're still working through it. I think there are two things in particular about the way this exception is working that make it potentially problematic under different strains of Supreme Court religious freedom doctrine. The first would be like you mentioned, kind of sending off real ministerial exception based flags on how a court assesses what it means to serve one of religions within your religion. The second would be how is a court supposed to preference certain religions that carry out their faith differently than others? So to the extent there is one religion who is, for lack of a better way of putting it, has a more insular focus on developing people already within the group or serving those people versus a religion that does more outreach like the Catholic faith, for example. In your case, is there something I think should be something troubling about a state official preferencing and pitting religions against each other in this way? How do you see that mapping on to the neutral and generally applicable? Is it a problem with both? Is it a problem with neutrality and there's some room to make some new ground on what neutral means? I'd be interested in hearing how you're thinking about this preliminarily as a matter of Smith, assuming we're in the Smith world, which we might not be.

Lori Windham: Yeah, preliminarily, I think it creates problems really under all three parts of the test, at least the way this regulation is written. One of those is on neutrality. Neutrality has often been thought of as whether you're making distinctions among religions, and this is definitely making distinctions among religions for all the reasons you just explained. And so I do think you have a neutrality problem here. Reminded a little bit again of the Lukumi case where they looked at Hialeah's laws and said, well, you prohibit ritual animal slaughter by the Santos, but you permit kosher slaughter and halal slaughter for Jews and Muslims. And so you're really deciding that it's only one particular kind of killing animals. And they actually use the same method, interestingly enough, that is prohibited. And so you're making distinctions among religions that's not neutral, and there's certainly a flavor of that here. It's also, I think, a problem on general applicability because by definition you have an exception.

You're making an exception for some, but not an exception for others. And you're doing that based on religious criteria. And so that raises a really interesting question, which is what happens when you're not pointing at exceptions for secular groups, but you're pointing at exceptions for religious groups. I would argue that makes it even more problematic because you are privileging some religious groups under others or over others. And the last part on this question of individualized exemptions, there is still a problem with that here because you do have a state official having to actually go back and look and make a decision. If you imagine a bureaucrat within the Department of Insurance sitting down here with the documents and deciding, "Well, I think they only serve Baptists, these people are all Baptists, so they're okay, and this other group is not," I think that we don't want the people who brought you the DMV to be in charge of deciding who falls into a particular religion.

Whitney D. Hermandorfer: Right. And with respect to Smith, well actually to go back to that point, is there anything in the record about how this has been adjudicated or applied or is this kind of a black box, which either of those paths could make it bad for New York? I'm just not sure the factual setting of how this exemption plays out on the ground.

Lori Windham: So you have to ask your insurer for the exemption, and then they have to do all the paperwork and everything. And what we have seen on the ground is that in fact, there have been notices from the Department of Insurance to the private insurers saying, Hey, we're not sure if you're doing a good enough job. You need to really police this and really make sure that they definitely fit all four of those criteria. And that was a major issue that was discussed at the oral argument of the New York Court of Appeals. And so I think that what we've seen going from 2016 when this was all getting started to now, and the way that this is being applied in practice shows that you really do have government agencies who are trying to get in there and police, are you really only serving people of your own faith? Are you really only hiring people of your own faith? Do you meet the criteria?

Whitney D. Hermandorfer: That's helpful. And that I think your answer picked up on a question we had received from the audience about the fact that this was distinguishing among religions as opposed to secular versus religion and for the reasons you mentioned that actually could pick up on a different and equally problematic strain of the Supreme Court's doctrine about discriminating between different religions. So I think you've covered that question well, and the last I think bucket to talk about is should this be the case where the Supreme Court rips the Smith bandaid off? I suppose they're getting to an outcome where the nuns are mandated to provide abortion coverage. Is that just a bridge too far in terms of Smith's continued vitality? So I'll give you kind of the last word on Smith in this case and then maybe we can hit a few follow on questions for how it would look in a post Smith world.

Lori Windham: I think it absolutely should be, and I think that this does illustrate the problems with Smith is that you could actually have, according to the state's highest court, you could have a rule that says, yes, nuns are going to have to pay for abortions even though it does it against their most deeply held religious beliefs. And that's not something that the free exercise clause says anything about. I think what we're left with after Fulton, after Tandon, after Masterpiece, and the other developments in the law is that we have many, many ways in which a case falls outside of Smith constitutionally. We have statutes like Federal RFRA, and state RFRA, and so you have many different ways in which something more like the old Sherbert standard applies many different ways in which religious groups are protected. But unfortunately what that means is that you have more religious freedom in some parts of the country than others. If you're in a state with a state RFRA, a state supreme court that has really adopted a robust interpretation of their own free exercise clause, you have a lot more protection. But if you're in New York, if you're in California which has had a similar kind of scheme, then they have a very stingy view of the federal free exercise clause applying a pretty strong, I would say, to put it nicely version of Smith. And you have a lack of state religious freedom protections as well.

Whitney D. Hermandorfer: So we had an audience question that I think actually dovetails nicely with some of the, I think to convince the court to overrule Smith. It's arguable that going to have to kind of address some of the concerns Justice Scalia set out in Smith for why he thought a different rule would kind of create untenable consequences. And I just want to put two concerns on the table and get your reaction to them. One of them is, as an audience member, question suggests the treatment of, I guess religions that are the audience question mentioned satanism or other religions that celebrate darkness or death. What do you do with those religions? And number two, how do you, I think Justice Scalia, I imagine was concerned with people who have started religious exemptions from laws against, whether it's physical abuse or drug usage, things like that. So that's one concern. I think the second concern that's related is watering down strict scrutiny to avoid results that are, I think as a policy matter troubling. So how do you think about those types of inquiries? Because I do think they kind of loom in the foreground of any question about overruling Smith.

Lori Windham: Absolutely. And it's a really important concern. And 35 years ago almost, we didn't have the answer to that. And I would say that we do today. And the reason we do is because we've had almost 30 years now with federal RFRA and we've had about an equivalent amount of time under state RFRAs and Smith really put this question into the spotlight. We had a number of legislative actions which said, no, we're not going to use the Smith standard. We're going to use a different standard. And they've been working on applying that. And the results have been good states. It's usually the kinds of abuse cases that are raised generally come up in the state systems. And they have been very good about weeding out sham claims and applying compelling interests. When you do have issues of abuse, obviously taking the life of another, doing physical abuse of another is one of the strongest compelling interests you can imagine.

And so they've done a good job. They're also good examples of weeding out sham claims. There's a fund decision from Justice Gorsuch back when he was on the 10th circuit where some drug smugglers had created a church just to do the smuggling. It was very obvious said, no, no, no, that's not a sincere religious claim. We get to weed out the insincere claims. And they've done that well. We've seen kind of a new variation of that recently with some of the Satanic temple type of claims. And I think there it's important to look at is this truly, number one, is it truly sincere? And number two, is it truly a religious claim? These groups that have adopted the name of Satan, if you look at their history, are not actually religious. They are trying to parody religion. They're trying to criticize religion, and they use the name Satan because it makes the religious people nervous. And so there's a good question to be raised about, is this actually a religious claim or is this just a secular claim for something you want and you're using this religious name to try and get it? And generally speaking, the courts have been doing a good job of policing those boundaries. And so I really do think what we know now that we didn't know in 1990 is that the courts and the state agencies could actually do a good job of parsing this out and applying the law in a fair way.

Whitney D. Hermandorfer: Well, we just have a few minutes left. There was an audience question. The last one we received goes back to how New York applies the four-part test, and again, raising concern with, does the state administration of that test itself violate church or religious autonomy? Certainly, it would seem as though if we were talking about an actual, I could see the argument, or I guess how are you thinking about this with how it interacts with the ministerial exception and church autonomy doctrines more generally, even if we're not talking about church qua churches, as we might think about them,

Lori Windham: It does raise some really serious questions. And this goes back to the ministerial exception, is this idea that it's the church's job, not the government's job to pick ministers. And that we're not going to get in there and probe for what the church's reasons were for getting rid of a minister decide who's a co-religionist. We leave that to the church to make that decision. And this is part of the broader sphere of religious autonomy, which has to do with the court, the civil courts not getting involved in religious matters. And this will often come up in the case of disgruntled former clergy who are suing. Sometimes it comes up in cases involving church property ownership, other issues like that. And the courts have been clear that it is not the job of the civil courts to probe the mind of the church and to second guess these decisions.

They have a sphere of autonomy that will be respected in making these kinds of decisions. And so you again, raise the risk here of New York getting involved with how does the church decide who is a coreligionist and who should receive their services and who's making that decision? How are you going to make that decision? What church officials are you going to drag in front of the courts to have to testify on, well, this person is a coreligionist and this person is not. It can create a lot of messy entangling inquiries, and it really does get into the civil authorities deciding that they need to intrude on something that is ultimately a matter for religious communities to decide themselves.

Whitney D. Hermandorfer: Thank you for that explanation, and I think we're almost wrapping out of time, and someone asked about gender transition procedures. That's a whole other seminar that I know you and certainly me and my job are interacting with those mandates at an unprecedented level right now. I think the short answer is yes, gender transition procedures also raise significant free exercise concerns, especially mandated with limited exceptions. So that's the short sneak peak. Maybe we'll come back and do a separate seminar on that. But thank you so much for your time, Ms. Windham and to the Federalist Society and all of the participants attending for making this a very informative conversation on a very important topic.

Marco Lloyd: And thank you both so much for that fantastic discussion. And thank you to the audience for joining us. We greatly appreciate your participation. Please check out our website fedsoc.org or follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for joining us. Thank you for tuning in and we are adjourned.