of Catholic and Baptist organizations as nonreligious raises
First Amendment questions in state’s highest court
For nearly three years, eight Catholic and two Baptist organizations
have been embroiled in lawsuits surrounding a state law they
argue violates their First Amendment rights by requiring them
to provide prescription contraceptive coverage to employees—financial
support they say forces them to commit sin.
Despite defeats in two lower appeals courts, the appellant
organizations are hoping a forthcoming decision from New York’s
highest court of appeals will affirm their allegations that
the state’s Women’s Health and Wellness Act constitutes unlawful
restraint on the free exercise of religion.
The act, which was signed into law in 2002, requires employers
to provide insurance coverage for women’s-health services,
including prescription contraceptives. Although the law specifies
criteria allowing certain religious organizations to exempt
themselves from the requirement, this definition primarily
protects churches, and not religiously affiliated charitable,
educational or medical groups.
don’t think the state has the right to define religion at
all,” said Dennis Poust, director of communications for New
York State Catholic Conference, which represents the state’s
bishops. “In Catholic teaching, performing charitable works
is part of our essential mission. It’s Jesus’ own commandment,
and the church has always done that. You can’t separate the
church’s charitable ministries from the church itself.”
According to the state, it can, and it does. The law’s exemption
criteria specify that an organization must qualify as a nonprofit,
operate with teaching religious values as its primary purpose,
mostly employ persons who share those values, and serve primarily
those who also share the religious tenets. Religious-based
organizations, despite their affiliation with the church,
fail to satisfy all these criteria, especially in that they
typically employ and serve people of all faiths. The appellants
allege that the criteria are unconstitutionally narrow and
argue for broadening the definition of religion in the law.
government certainly wouldn’t be violating anybody’s constitutional
rights if it expanded the exemption and allowed all of the
plaintiff organizations to be treated as exempt under the
statute,” said Robert Tuttle, professor of law at George Washington
University and legal analyst for the Albany-based Roundtable
on Religion and Social Welfare Policy. “So, the question is
whether the government’s doing anything impermissible with
what it has done with this more narrow definition.”
It’s a tough argument for religious organizations to make,
Tuttle said, though not impossible.
a practical matter, the churches’ argument seems pretty compelling
because there are very limited justifications for the state
not going ahead and extending the exemption to take in the
other folks,” he said. This is especially true because the
level of harm to the state and individuals would be low, thanks
in part to a rider program that allows employees of exempt
organizations to purchase contraceptive insurance for a minimal
monthly fee of about $1.50.
While the rider program may be a good-faith idea, JoAnn Smith,
president and CEO of Family Planning Advocates, said she’s
hesitant to call it a workable solution. That’s because employees
still would have to purchase the waiver through their employer’s
insurance provider, potentially subjecting themselves to the
scorn of an employer who openly objects to contraceptives.
The rider also does not address the central purpose of ending
the discrimination against women that fueled creation of the
act, she said.
the exemption] would be for the state to authorize discrimination
because women of all faiths are affected by this, women of
all income levels are affected by this,” Smith said. “So this
is very clearly a serious situation where discrimination would
be institutionalized, and that would be unacceptable.”
She said FPA members are confident the New York Court of Appeals
will reaffirm the lower court decisions by ruling the Women’s
Health and Wellness Act constitutional.
A case involving similar legislation in California also establishes
a degree of precedence for the New York Court of Appeals,
Smith said. The First Amendment question surrounding the California
law was put to rest in 2004 when the U.S. Supreme Court refused
to review the state supreme court’s decision that upheld the
we wish it would have gone the other way,” Poust said of the
California case. “It would have been helpful, but we don’t
see that as being overly burdensome to proving our case” due
to several critical differences between the two laws.
The California legislation contains no rider provision for
employees of exempt religious employers. Whereas 10 plaintiffs
have appealed the New York law, only Catholic Charities challenged
the California version. “We also believe that New York state’s
constitution has stronger religious-liberty protection than
California,” Poust said.
Attorneys on both sides argued the New York case before the
Court of Appeals last Wednesday. A decision is expected in
a matter of weeks.
think it’s a hard argument,” Tuttle said of the appellants’
case. “I think it’s more likely that the government will win,
but I think it’s close.”
In January, the previous appellate decision came back split
three-to-two in favor of the state.
supported the aspects of the bill that mandated coverage for
mammograms and pap smears and cancer screenings,” Poust said.
“What we objected to is, very simply, forcing religious institutions
to pay for the contraceptive coverage. For us it’s simply
a religious teaching. Every religion is entitled to its teaching
and should not have to be forced to violate it.”
My Kind of Living Wage
week, Chicago Mayor Richard Daley exercised his
first veto in his 17 years in office. Daley nixed
an ordinance that would have required companies
with more than $1 billion in annual sales and
stores of at least 90,000 square feet to pay their
workers more than the current Illinois minimum
wage of $6.50 an hour. The ordinance would have
provided workers with at least $10 an hour plus
$3 in fringe benefits by mid-2010. Supporters
claim this measure would guarantee employees a
“living wage.” The veto came after threats from
to Robert Novak, Richard Armitage has not properly
characterized the way he leaked Valerie Plame’s
name to the press. Novak claims in a column to
be released this week that Armitage’s characterization
of the leak as accidental is false. He said Armitage
explicitly detailed what CIA department Plame
worked for and that he “said flatly that she recommended
the mission to Niger by her husband, former Amb.
Joseph Wilson.” Novak goes on to insist, “Armitage
did not slip me this information as idle chitchat,
as he now suggests.”
like you! Do you like me?
the Kazakhstani alter ego of British comedian
Sacha Baron Cohen, stormed the Toronto International
Film Festival last week on a cart drawn by large
peasant women, seated next to a miniature pony.
Cohen has been promoting his film Borat: Cultural
Learnings of America for Make Benefit Glorious
Nation of Kazakhstan and raising a fuss wherever
he goes. Borat’s greatest critic may be the country
he claims as his motherland: Kazakhstan. According
to The Daily Mail, Kazakh president Nazarbayev
plans to discuss his distaste for Borat with George
Bush on an upcoming visit.
Your Legs Closed
of women have declared a sex strike against their
gang-member husbands and boyfriends in Pereiras,
Colombia, and they say they’ll keep their legs
crossed until their men give up the gun. To encourage
others to follow their lead, the women have recorded
a rap song to be aired on local radio. Supporters
of the disarmament program include Pereiras Mayor
Luis Alberto Duque.
Out the Little Man
advancements in the auto industry drive business from small
Automotive innovation, while vital in improving the safety,
reliability and aesthetics of the modern automobile, may be
stifling independent repair shops and limiting consumer choices,
according to several aftermarket, small-business and consumer
organizations advocating for the federal Motor Vehicle Owners’
Right to Repair Act.
The act, which was introduced in the U.S. House of Representatives
more than one year ago, would require car companies to provide
independent service-and-repair businesses with the same information
and tools made available to dealerships. Such resources, some
supporters allege, often are withheld by manufacturers seeking
to drive customers to franchise shops.
As a result, independent repair businesses across the nation
turn away 1.2 million customers and lose $5.8 billion in service
and parts sales annually, according to an independent study
prepared in June for the Automotive Aftermarket Industry Association
by the Opinion Research Corp.
Derek Walsh, owner of Capital Tech Auto Repairs in Albany,
estimated he turns away about one or two customers each week.
Most often he’s unable to service European cars, including
Mercedes or BMW models for which diagnostic equipment is not
know [manufacturers] will give you online support, but for
a fee,” he said. “The way we get around it is that we belong
to a group called IATN [International Automotive Technicians’
Network]. It’s an Internet group, and they have 50 or 70 thousand
members from all dealerships and garages, so there’s a pretty
good database of other technicians helping you out.”
Despite these support tools and general promises on the part
of manufacturers to supply information, advocates of the federal
bill argue concrete assurance is necessary to guarantee that
independent shops can service all vehicles in a timely and
turn away as little as we have to,” Walsh said. “Sometimes
it really isn’t cost-effective. I’d probably make a lot more
money if I just cut my losses when they first came in, but
we like to take pride in our work.” In such instances, Walsh
said the time required to identify the problem and how to
fix it is hours that could have been spent servicing other
While requiring car companies to release information about
their vehicles, the bill also protects manufacturers by enumerating
protections against the release of trade secrets.
Although 100 representatives have signed on as cosponsors,
the proposed legislation languishes in the House committee
on energy and commerce. If passed, the federal trade commission
would assume responsibility for enforcing the act.
third-party candidate learns the hard way what it means to
be considered a threat
Eric Sundwall, Libertarian and for mer candidate for the 20th
Congressional District, has had an exciting, if not exhausting,
past six months. “I’m Joe Nobody,” he said. “But I’ve been
on TV. I’ve been on radio. I’ve been in the paper. And I had
a lot more planned.”
A lot more, that is, had his application to be included on
the Nov. 4 ballot not failed through objections orchestrated,
he said, by top Republican players.
Sundwall got the idea to run for U.S. Congress back in January
while attending Libertarian Party meetings, he said. At the
time, he was irritated that no one was planning to challenge
his district’s incumbent representative, John Sweeney (R-Clifton
‘I’ll Goddamn do it,’ ” he remembered saying to the group
of Libertarians. “ ‘Let’s see what we can do here. Let’s raise
some awareness. Let’s do something. Let’s not just sit around
and whine and debate. . . . Let’s fight! Let’s fight!’ ”
So when July 11 (the legal starting date for third-party candidates’
canvassing period) came around, Sundwall began to scour the
district, hitting parades, fairs, farmers’ markets, petitioning
to get those 3,500 signatures required by New York state law
in order to secure his place on the ballot. By the time the
six-week canvassing period was up, he and his volunteers had
collected more than 5,300 signatures.
A strong showing, Sundwall believed, but it would still prove
to be too low. He was in for a taste of what he identified
with a smirk as “hardball politics.”
After he submitted his application to the state Election Board,
three people came forward to object to his petitions. That
was, to him, a red flag. Traditionally, third-party candidates
fly under the radar, he said, pointing to a fellow Libertarian
candidate in another, less-contested district, who submitted
far fewer signatures than he did and went unchallenged. So
to have three people contest his petitions, he said, seemed
However, there is an accepted rule of thumb among party petitioners:
Get at least double the signatures needed because challenges
to petitions for ballot access are a common occurrence. If
a candidate is perceived to be a threat, their petitions will
almost definitely be challenged.
And as surprising as it may seem, even to Sundwall himself,
he said, it appears that he was considered a threat.
In a poll of the 20th district voters done in June by Zogby
International, Sundwall received 2.4 percent of the vote,
pulling mostly from Sweeney supporters. Though the Democratic
challenger, lawyer Kirsten Gillibrand, still trails Sweeney,
it appears that the Republican camp took that 2.4 percent
seriously, Sundwall said, and decided to leave nothing to
knew the minute that Tom Spargo was involved,” said Sundwall,
that “this was a GOP hatchet job.”
In order to challenge a candidate’s application for ballot
access, a person has to review the candidate’s petitions,
explained Warren Redlich, Sundwall’s pro-bono lawyer. The
only person to review Sundwall’s petitions, Redlich continued,
was Thomas Spargo, noted Republican election-law attorney
and former Albany County Supreme Court justice.
When Spargo filled out the application to look at the petitions,
Redlich said, he indicated that he was doing so “on his own
Spargo doesn’t live in Sweeney’s district,” Redlich said.
“He cannot challenge petitions in that district. There is
no way he was doing that ‘on his own behalf.’ ”
It is clear, Redlich alleged, that Spargo was operating on
behalf of Sweeney, as Sweeney’s lawyer.
Spargo, the lawyer who with John Sweeney was in Florida in
2000 challenging Gore . . .” Redlich said. “Spargo, who represented
Sweeney weeks ago in the Independence Party petition dispute
with Gillibrand; Spargo, who has received $16,000 from John
Sweeney according to Federal Election Campaign Finance filings
in July and August. . . . I am pretty sure he is Sweeney’s
Redlich was quick to point out that he likes and respects
Spargo, however. “I am not trying to criticize Tom Spargo,”
he said. “I am criticizing John Sweeney . . . [who] rather
than challenge the petitions in his own name, utilized three
people who are essentially unknown, who have not stepped forward,”
to object to Sundwall’s petitions.
it comes down to is—why isn’t John Sweeney putting his name
In the end, of Sundwall’s 5,300 signatures, only 2,000 passed
scrutiny. New York state election laws are very strict, Sundwall
said, the smallest infraction in filling out a signatory’s
information will automatically disqualify that signature.
are three hours into this reviewing of the petitions,” Sundwall
said, “and we had only gone through a third of them. It’s
just heartbreaking to see that your wife forgot to fill out
the county. And the guy who’s running for lieutenant governor
and is a mathematics professor put in nine instead of 10 signatures.
And there goes 10 signatures and those 10 signatures are hard-earned
stuff. You are in a farmer’s market, just begging for signatures.”
Redlich agreed, saying that it is his belief that half of
all election-law cases nationwide are brought in New York.
“They make you jump through 17 hoops. Other states don’t have
these hoops,” he said, and added, “They are high hoops.”
Incidentally, Redlich, who is running for Congress in the
21st District on the GOP line, alleged that he had his own
run-in with a Sweeney representative.
was at an event about two weeks ago, like a credit-union-members,
come-and-meet-the-candidates, thing,” Redlich said. “And one
of Sweeney’s guys was there, named Chris Nedwick.” Nedwick
approached him, he continued, and expressed displeasure with
Rep. Mike McNulty (D-Schenectady), Redlich’s opponent in the
guess there is this understanding that a lot of congressmen
have,” Redlich said, that “ ‘I won’t go against you in your
own district.’ And they felt that McNulty, by supporting Gillibrand,
was breaking that deal. So he basically offered me money for
Redlich said that he refused the offer.
Sweeney’s office did not return calls for an interview.
Is a Dish Best Served . . .
has no clothes,” declared Assemblyman John McEneny Tuesday
night as he reacted to his victory over longtime political
rival Albany Mayor Jerry Jennings for an Albany County Democratic
Committee seat. McEneny led an insurgency of committee hopefuls
who ran against
candidates. Notified that the mayor was calling to concede,
McEneny stepped down from his perch on a chair, apologized
to the crowd, and said, “I want to take this.” McEneny characterized
his win as a victory for real Democrats.
races, Eliot Spitzer and Hillary Clinton won their primaries
by large margins, both candidates clocking in with more than
80 percent of the vote. Republican John Spencer won a decisive
victory over K.T. Mcfarland and will face Hillary Clinton
this November. Democratic attorney general candidate Andrew
Cuomo had a less-resounding but still-decisive victory over
Mark Green, taking 53 percent of the vote to Green’s 33 percent.
Rep. Mike McNulty will represent the Democrats this November
in the 21st Congressional District race after handily defeating
his primary challenger, Thomas Raleigh.
loose ends this week-