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Walking the Line

Definition 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.

“We 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.

“The 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.

“As 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.

“[Extending 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 law.

“Certainly 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.

“I 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.

“We 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.”

—Nicole Klaas

What a Week

Not My Kind of Living Wage

Last 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 big-box stores.

Novak Strikes Back

According 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.”

I like you! Do you like me?

Borat, 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.

Keep Your Legs Closed

Dozens 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.

Locking Out the Little Man

Technological advancements in the auto industry drive business from small repair shops

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 readily available.

“I 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 efficient manner.

“We 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 vehicles.

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.

—Nicole Klaas

Sweeney’s Hammer

A 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 Park).

“ ‘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 particularly odd.

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 chance.

“I 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 behalf.”

“Tom 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.

“Thomas 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 lawyer.”

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.

“What it comes down to is—why isn’t John Sweeney putting his name on it?”

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.

“We 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.

“I 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 congressional race.

“I 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 my campaign.”

Redlich said that he refused the offer.

Sweeney’s office did not return calls for an interview.

—Chet Hardin

Revenge Is a Dish Best Served . . .

PHOTO: Joe Putrock

“The emperor 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

Jennings-backed 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.

In statewide 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.

—David King

Loose Ends

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