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SACRAMENTO, California, MARCH 24, 2004 (Zenit) - In an unprecedented decision that could affect hundreds of Catholic institutions, the California Supreme Court recently ruled that Catholic Charities must include contraceptive coverage in its insurance plan for employees.

Ned Dolejsi, executive director of the California Catholic Conference www.cacatholic.org , shared how the ruling will affect Catholic organizations, what Catholic Charities might do next, and why he thinks that the court shirked its responsibility in its decision.

Q: What could this ruling mean for other Church organizations, especially Catholic hospitals?

Dolejsi: The Catholic Charities case is the first time anyone can find in legal research where a state has compelled a religious entity to actually fund something to which its has a moral objection. I think it is important to emphasize that there were and are ways for society to accomplish its goals without infringing on the religious freedom of others. Such a compromise was worked out prior to the passage of this law and could be revisited again.

To date, other religious organizations have already been affected by similar rulings. Beginning January 1, 2000, unless an institution met the very narrow definition of a religious organization, it could not purchase prescription drug coverage that did not contain contraceptives in its formulary.

A "religious employer" is defined as an entity for which each of the following is true: The inculcation of religious values is the purpose of the entity; the entity primarily employs persons who share the religious tenets of the entity; the entity serves primarily persons who share the religious tenets of the entity; and the entity is a nonprofit organization according to certain state and federal tax codes.

That means Catholic social services, Catholic health care and Catholic institutions of higher education were defined as "secular" and subject to the contraceptive mandate.

The bishops, realizing the enormity of this breach of religious freedom, supported Catholic Charities of Sacramento Incorporated as the plaintiff in the effort to get the Women's Contraceptive Equity Act [WCEA] enjoined.

Since 2000, those impacted Catholic institutions have continued to offer their employees prescription-drug coverage.

In a few cases, the insurance company was willing to practice "civil disobedience" and provide a contraceptive-free drug plan. In most cases, the Catholic institutions, unwilling to drop all coverage for pharmaceuticals, have provided the mandated plan with the caveat that it was "under duress."

Q: Some commentators have noted that Catholic Charities does not demand that its workers are Catholic or share the Church's beliefs, and that if the organization had a more religious character it would have had a much greater chance of winning the case. Wouldn't it be better for a Catholic organization to retain a specifically religious nature -- otherwise, how is it different from any other philanthropic group?

Dolejsi: Catholic social services, health care and higher education apply for and receive federal and state funds that are used to enhance their mission of serving those who are in need. Catholic institutions have been pleased to partner with the government in this manner.

Catholic social and health care institutions have never limited their services or job opportunities to Catholics, nor have they made the reason for their existence to "inculcate" the faith.

In fact, they would not be able to access those government funds -- which have a huge multiplier effect in serving the wider community -- if they turned inward in order to meet the California Legislature's definition of a religious organization.

In addition, historically, government has contracted with Catholic institutions that can more efficiently and more compassionately deliver the needed services.

Up until the passage of the WCEA, "conscience clauses" were respectfully and readily available for conflicts between government policy and religious teaching, that is, for performing abortions in Catholic hospitals and for covering contraceptives, in vitro fertilization and sterilization in employee health plans.

Q: How will this court decision affect similar cases in other states?

Dolejsi: Laws similar to the WCEA have been passed in about 20 states. The New York law, virtually identical to California's mandate, has been challenged by the Catholic bishops in their state courts.

It is important to note that these laws were the result of concerted effort on the part of various women's groups and, in particular, the Reproductive Freedom Project of the American Civil Liberties Union, which is committed to advancing "reproductive rights."

Their lawyers developed the language used by the California Legislature -- and many other states -- to so narrowly define a religious organization as to "gerrymander" out Catholic social services, health care and institutions of higher education.

In addition, they are bent on undermining the long-standing respect shown to religion by relentlessly and publicly re-labeling "conscience clauses" as "refusal clauses."

Q: The charity argued unsuccessfully that it should be exempted from state law along with the Catholic Church. What does this ruling say for the future of Church-state relations and the freedom of religious practice and expression?

Dolejsi: The decision is both disappointing and alarming, not to say ironic. In fact there is a supreme irony at work here in the state of California.

In a July 2003 decision, U.S. District Judge Napoleon Jones Jr. ruled that a lease between the city of San Diego and the Boy Scouts violated the constitutional separation of church and state because there was "overwhelming and uncontradicted evidence" showing that the Boy Scouts of America is a religious organization.

Yet in its March 1, 2004, decision, the California Supreme Court ruled that "Catholic Charities does not qualify as a 'religious employer' under the WCEA because it does not meet any of the [state Legislature's crafted] definition's four criteria."

Making jurisprudence even more puzzling in California, the same court that rendered the Charities decision ruled in 1998 that Mercy Healthcare [a Catholic institution] was a religious organization and was therefore excluded from the binding rules of the Fair Employment and Housing Act.

And even more recently, in May 2002, that same court ruled that Catholic Healthcare West was a religious organization, concluding that "there is also a ... policy rooted in the free exercise of religion clause of the First Amendment of the United States Constitution, as well as the comparable California constitutional right that permits religious organizations to define themselves and their religious message."

What is also troubling about the Charities decision is that the state Supreme Court shirked its responsibility to construe the affirmative religious liberty guarantee of the California Constitution, dismissing that issue by saying "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 (Article I, Section 4). Here, however, we need not do so because Catholic Charities challenge to the WCEA fails in any event."

The court conveniently found that Charities was not a religious organization by virtue of the Legislature's definition -- the very definition Catholic Charities had challenged on the basis of the California Constitution's guarantee of religious liberty and the free exercise thereof -- so the court it did not truly grapple with the violation of Charities' religious freedom.

Q: Will Catholic Charities seek an appeal? What are the chances of overturning this ruling?

Dolejsi: The case has exhausted the judicial appeals in the state of California. Catholic Charities has 90 days from March 1, 2004, the date the ruling was issued, to seek the intervention of the United States Supreme Court.

The California Conference of Catholic Bishops will make that decision in consultation with their attorneys and with attorneys for the U.S. Conference of Catholic Bishops.

Because the California decision has nationwide significance and was based in large part on federal law, there is a reasonable chance that the case will interest the U.S. Supreme Court, which hears fewer than 100 cases per year. That remains to be seen.

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