ROMAN CATHOLIC DIOCESE OF ALBANY v. (And Another Related Action.) (2022)

MEMORANDUM AND ORDER

Appeal (upon remand from the Supreme Court of the United States) from an order of the Supreme Court (McNally Jr., J.), entered January 10, 2019 in Albany County, which, among other things, granted a motion by defendants Superintendent of Financial Services and Department of Financial Services for summary judgment dismissing the complaints against them.

The present matter is before us on remand from the Supreme Court of the United States for further consideration in light of its decision in (Fulton v. Philadelphia 593 U.S. ––––, 141 S. Ct. 1868, 210 L.Ed.2d 137 [2021]).  The underlying facts are set out in our original decision (185 A.D.3d 11, 127 N.Y.S.3d 171 [2020], appeal dismissed and lv. denied 36 N.Y.3d 927, 135 N.Y.S.3d 663, 160 N.E.3d 321 [2020], vacated and remanded sub nom.  Roman Catholic Diocese of Albany v. Emami, ––– U.S. ––––, 142 S. Ct. 421, 211 L.Ed.2d 247 [2021]).  Briefly, plaintiffs challenge a regulatory scheme that, as amended, requires that health insurance policies in New York cover “medically necessary abortions” but exempts those policies provided by entities falling within the regulatory definition of “religious employers” (11 NYCRR 52.1[p];  see 11 NYCRR 52.2[y]).  Plaintiffs argue, in relevant part, that the regulatory provisions impair their right to the free exercise of religion guaranteed by the U.S. Constitution (see U.S. Const 1st, 14th Amends;  Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 [1940]).  We determined that the Court of Appeals had considered and rejected an indistinguishable challenge in (Catholic Charities of Diocese of Albany v. Serio, 7 N.Y.3d 510, 825 N.Y.S.2d 653, 859 N.E.2d 459 [2006], cert denied 552 U.S. 816, 128 S.Ct. 97, 169 L.Ed.2d 22 [2007]) and that plaintiffs’ contention failed “by operation of the doctrine of stare decisis” (185 A.D.3d at 16, 127 N.Y.S.3d 171).  Our task upon remand is therefore the limited one of assessing whether Catholic Charities remains valid and controlling precedent in the wake of Fulton.

In that regard, Fulton did not explicitly overrule Catholic Charities.  Fulton also did not revisit or overturn the existing rule “that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable” (Fulton v. Philadelphia, 141 S. Ct. at 1876;  see Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878–879, 110 S.Ct. 1595, 108 L.Ed.2d 876 [1990]).  It was that standard that formed the basis for the Court of Appeals’ decision in Catholic Charities (see 7 N.Y.3d at 521–523, 825 N.Y.S.2d 653, 859 N.E.2d 459), and that standard remains good law.

As for whether anything in Fulton clearly conflicts with the holding of Catholic Charities, plaintiffs note that Fulton emphasizes aspects of prior rulings of the Supreme Court of the United States that Catholic Charities did not, such as that “[a] law is not generally applicable if it invites the government to consider the particular reasons for a person's conduct by providing a mechanism for individualized exemptions” or “if it prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way” (Fulton v. Philadelphia, 141 S. Ct. at 1877 [internal quotation marks, brackets and citations omitted];  see Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 [1993];  Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. at 884, 110 S.Ct. 1595).  Those qualifications predated the decision in Catholic Charities, however, and the cases establishing them were cited in it (see Catholic Charities of Diocese of Albany v. Serio, 7 N.Y.3d at 521–523, 825 N.Y.S.2d 653, 859 N.E.2d 459).  Plaintiffs’ further belief that Fulton held that a regulatory scheme cannot be generally applicable due to the presence of any exemptions – as opposed to “a formal system of entirely discretionary exceptions” that invited the government to decide what motives for not complying with the regulatory requirement were worthy – is not compelled by the language of Fulton and is not shared by subsequent cases interpreting it (Fulton v. Philadelphia, 141 S. Ct. at 1878;  see Kane v. De Blasio, 19 F.4th 152, 165–166 [2d Cir. 2021];  We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 288–289 [2d Cir. 2021];  Does 1–6 v. Mills, 16 F.4th 20, 29–30 [1st Cir. 2021], cert denied ––– U.S. ––––, 142 S. Ct. 1112, 212 L.Ed.2d 9 [2022];  303 Creative LLC v. Elenis, 6 F.4th 1160, 1187 [10th Cir. 2021], cert granted ––– U.S. ––––, 142 S. Ct. 1106, 212 L.Ed.2d 6 [2022]).  Accordingly, Fulton does not bar the holding of Catholic Charities that a regulation, like the one at issue here, was neutral and generally applicable despite the presence of exemptions based upon specified criteria (see Catholic Charities of Diocese of Albany v. Serio, 7 N.Y.3d at 519–520, 522–523, 825 N.Y.S.2d 653, 859 N.E.2d 459).

In sum, even assuming that Fulton renders it “debatable” whether the Court of Appeals would reach the same result in Catholic Charities today or suggests that the Supreme Court of the United States might not approve of that result, Catholic Charities “is not directly inconsistent with the rationale employed by the United States Supreme Court in any subsequent case, and is thus binding on us as an intermediate appellate court” (Torres v. City of New York, 177 A.D.2d 97, 105, 581 N.Y.S.2d 194 [1992], lv denied 80 N.Y.2d 759, 589 N.Y.S.2d 309, 602 N.E.2d 1125 [1992], cert denied 507 U.S. 986, 113 S.Ct. 1584, 123 L.Ed.2d 151 [1993];  see People v. Costello, 101 A.D.2d 244, 247, 476 N.Y.S.2d 210 [1984]).  It follows that, upon our consideration of Fulton Catholic Charities remains controlling and entitled to stare decisis effect.  Plaintiffs’ remaining arguments, to the extent that they fall within the limited scope of the remand and are properly preserved for our review, are unavailing.  Thus, we affirm for the reasons stated in our original opinion and order.

ORDERED that the order is affirmed, without costs.

Egan Jr., J.P.

Colangelo, Ceresia and Fisher, JJ., concur.