Catholic Charities of Sacramento, Inc. v. Superior Court

85 P.3d 67, 10 Cal. Rptr. 3d 283, 32 Cal. 4th 527, 32 Employee Benefits Cas. (BNA) 2346, 2004 Cal. Daily Op. Serv. 1737, 2004 Daily Journal DAR 2614, 2004 Cal. LEXIS 1667

• Court: California Supreme Court
• Decided: March 1, 2004
• Docket: S099822
• Status: Published

Opinions

Opinion

WERDEGAR, J.

In this case, we address a church-affiliated employer’s constitutional challenges to the Women’s Contraception Equity Act (WCEA),¹ under which certain health and disability insurance contracts must cover prescription contraceptives. The plaintiff employer, which opposes contraceptives on religious grounds, claims the statute violates the establishment and free exercise clauses of the United States and California Constitutions. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4.) The lower courts rejected the employer’s claims. We affirm.

I. Facts

The Legislature enacted the WCEA in 1999 to eliminate gender discrimination in health care benefits and to improve access to prescription contraceptives. Evidence before the Legislature showed that women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in large part to the cost of prescription contraceptives and the various costs of unintended pregnancies, including health risks, premature deliveries and increased neonatal care. Evidence also showed that, while most health maintenance organizations (HMO’s) covered prescription contraceptives, not all preferred provider organization (PPO) and indemnity plans did. As a result, approximately 10 percent of commercially insured Californians did not have coverage for prescription contraceptives.

The Legislature chose to address these problems by regulating the terms of insurance contracts. The WCEA does not require any employer to offer coverage for prescription drugs. Under the WCEA, however, certain health and disability insurance plans that cover prescription drugs must cover prescription contraceptives. As an exception, the law permits a “religious employer” to request a policy that includes drug coverage but excludes coverage for “contraceptive methods that are contrary to the religious employer’s religious tenets.”² Health and Safety Code section 1367.25 governs group health care service plan contracts;³ Insurance Code section 10123.196 governs individual and group disability insurance policies.⁴

Plaintiff Catholic Charities of Sacramento, Inc. (hereafter Catholic Charities) is a California nonprofit public benefit corporation. (See Corp. Code, § 5110 et seq.) Although independently incorporated, Catholic Charities describes itself as “operated in connection with the Roman Catholic Bishop of Sacramento” and as “an organ of the Roman Catholic Church.” The nonprofit corporation “offer[s] a multitude of social services and private welfare programs to the general public, as part of the social justice ministry of the Roman Catholic Church.” These services and programs include “providing immigrant resettlement programs, elder care, counseling, food, clothing and affordable housing for the poor and needy, housing and vocational training of the developmental^ disabled and the like.”

Catholic Charities offers health insurance, including prescription drug coverage, to its 183 full-time employees through group health care plans underwritten by Blue Shield of California and Kaiser Permanente. Catholic Charities does not, however, offer insurance for prescription contraceptives because it considers itself obliged to follow the Roman Catholic Church’s religious teachings, because the Church considers contraception a sin, and because Catholic Charities believes it cannot offer insurance for prescription contraceptives without improperly facilitating that sin.

As mentioned, the WCEA permits a “religious employer” to offer prescription drug insurance without coverage for contraceptives that violate the employer’s religious tenets. (Health & Saf. Code, § 1367.25, subd. (b).) The act defines a “religious employer” as “an entity for which each of the following is true: [J[] (A) The inculcation of religious values is the purpose of the entity, [f] (B) The entity primarily employs persons who share the religious tenets of the entity, [f] (C) The entity serves primarily persons who share the religious tenets of the entity. [j[] (D) The entity is a nonprofit organization as described in Section 6033(a)(2)(A) i or iii, of the Internal Revenue Code of 1986, as amended.” {Ibid.) The cited provisions of the Internal Revenue Code exempt, from the obligation to file an annual return, “churches, their integrated auxiliaries, and conventions or associations of churches” (26 U.S.C. § 6033(a)(2)(A)(i)) and “the exclusively religious activities of any religious order” (id., § 6033(a)(2)(A)(i) and (iii)).

Catholic Charities does not qualify as a “religious employer” under the WCEA because it does not meet any of the definition’s four criteria. (See Health & Saf. Code, § 1367.25, subd. (b)(l)(A)-(D).) The organization candidly acknowledges this in its complaint, offering the following explanation: “The corporate purpose of Catholic Charities is not the direct inculcation of religious values. Rather, [its] purpose ... is to offer social services to the general public that promote a just, compassionate society that supports the dignity of individuals and families, to reduce the causes and results of poverty, and to build healthy communities through social service programs such as counseling, mental health and immigration services, low-income housing, and supportive social services to the poor and vulnerable. Further, Catholic Charities does not primarily employ persons who share its Roman Catholic religious beliefs, but, rather, employs a diverse group of persons of many religious backgrounds, all of whom share [its] Gospel-based commitment to promote a just, compassionate society that supports the dignity of individuals and families. Moreover, Catholic Charities serves people of all faith backgrounds, a significant majority of [whom] do not share [its] Roman Catholic faith. Finally, . . . Catholic Charities, although an exempt organization under 26 U.S.C. § 501(c)(3), is not a nonprofit organization pursuant to [s]ection 6033(a)(2)(A)(i) or (iii) of the Internal Revenue Code of 1986. Consequently, . . . Catholic Charities is not entitled ... to an exemption from the mandate imposed by [the WCEA].”

As mentioned, the WCEA implicitly permits any employer to avoid covering contraceptives by not offering coverage for prescription drugs. But this option, according to Catholic Charities, does not eliminate all conflict between the law and its religious beliefs. Catholic Charities feels obliged to offer prescription drug insurance to its employees under what it describes as the “Roman Catholic religious teaching” that “an employer has a moral obligation at all times to consider the well-being of its employees and to offer just wages and benefits in order to provide a dignified livelihood for the employee and his or her family.”

Perceiving no option consistent with both its beliefs and the law, Catholic Charities filed this action seeking a declaratory judgment that the WCEA is unconstitutional and an injunction barring the law’s enforcement. Defendants are the State of California, the Department of Managed Health Care and the Department of Insurance.⁵ Catholic Charities’ challenges to the WCEA arise under the establishment and free exercise clauses of the United States and California Constitutions. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4.) The superior court, finding no reasonable likelihood that Catholic Charities would prevail on the merits, denied its motion for a preliminary injunction. Catholic Charities sought review of this ruling by petition for writ of mandate, which the Court of Appeal denied. We granted review of the Court of Appeal’s decision.

II. Discussion

Catholic Charities, in its brief to this court, asserts eight constitutional challenges to the WCEA. All refer to the religion clauses of the federal and state Constitutions. (U.S. Const., 1st Amend.;Cal. Const., art. I, § 4.) Catholic Charities begins with a set of three arguments to the effect that the WCEA impermissibly interferes with the autonomy of religious organizations. (See p. 541 et seq., post.) Next, Catholic Charities claims the WCEA impermissibly burdens its right of free exercise. As part of this claim, Catholic Charities offers four arguments for subjecting the WCEA to strict scrutiny, despite the United States Supreme Court’s holding that the right of free exercise does not excuse compliance with neutral, generally applicable laws. (Employment Div., Ore. Dept, of Human Res. v. Smith (1990) 494 U.S. 872, 876-890 [108 L.Ed.2d 876, 110 S.Ct. 1595]; see p. 547 et seq., post.) Finally, Catholic Charities contends the WCEA fails even the rational basis test. (See p. 566 et seq., post.)

A. Religious Autonomy

1. Interference with matters of religious doctrine and internal church governance

Catholic Charities contends the WCEA impermissibly interferes with matters of religious doctrine and internal church governance. In support of the contention, Catholic Charities invokes the rule that the state must accept the decision of appropriate church authorities on such matters. This is the rule of the so-called church property cases. (E.g., Serbian Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696, 708-709 [49 L.Ed.2d 151, 96 S.Ct. 2372]; Presbyterian Church v. Hull Church (1969) 393 U.S. 440, 445-449 [21 L.Ed.2d 658, 89 S.Ct. 601]; Kreshik v. St. Nicholas Cathedral (1960) 363 U.S. 190, 191 [4 L.Ed.2d 1140, 80 S.Ct. 1037]; Kedroff v. St. Nicholas Cathedral (1952) 344 U.S. 94, 109-121 [97 L.Ed. 120, 73 S.Ct. 143]; Gonzalez v. Archbishop (1929) 280 U.S. 1, 16-17 [74 L.Ed. 131, 50 S.Ct. 5]; Watson v. Jones (1871) 80 U.S. 679, 727 [20 L.Ed. 666].) That rule does not dispose of this case.

The first church property case to reach the United States Supreme Court, Watson v. Jones, supra, 80 U.S. 679 (Watson), articulates the rule and illustrates its proper application. The case arose from a schism in the Presbyterian Church during the Civil War. When the church’s national governing body, the General Assembly, expressed its opposition to slavery, various congregations responded by declaring the General Assembly’s view heretical and renouncing that body’s authority. The General Assembly, in turn, dissolved the schismatic congregations. Civil disputes ensued between rival congregations, each asserting a religious claim to be the only true congregation entitled to use certain local church property. The high court resolved the competing religious claims by deferring to the decision of the General Assembly, thus adopting the rule still in effect today: “[W]henever . . . questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” (Id., at p. 727.) The rule’s modem formulation is similar. (Serbian Orthodox Diocese v. Milivojevich, supra, 426 U.S. 696, 709.)

The high court in Watson, supra, 80 U.S. 679, offered two reasons for deferring to religious authorities on religious questions. The first justification was that civil courts are simply “incompetent” to decide matters of faith and doctrine. (Id., at p. 732.) Courts have no expertise in religious matters, and courts “so unwise” as to attempt to decide them “would only involve themselves in a sea of uncertainty and doubt ...” (Ibid.; see also Serbian Orthodox Diocese v. Milivojevich, supra, 426 U.S. 696, 714-715 & fn. 8.) The second reason was that the members of a church, by joining, implictly consent to the church’s governance in religious matters; for civil courts to review the church’s judgments would “deprive these bodies of the right of construing their own church laws” (Watson, at pp. 733-734; see also id., at pp. 728-729) and, thus, impair the right to form voluntary religious organizations (id., at pp. 728-729; cf. Serbian Orthodox Diocese v. Milivojevich, supra, at pp. 724-725).

Because Watson, supra, 80 U.S. 679, preceded the First Amendment’s incorporation into the Fourteenth, the court did not base its decision on the Constitution. In subsequent cases, however, the court has described Watson’s reasoning as having a “ ‘clear constitutional ring’ ” (Serbian Orthodox Diocese v. Milivojevich, supra, 426 U.S. 696, 710, quoting Presbyterian Church v. Hull Church, supra, 393 U.S. 440, 446; cf. Watson, at pp. 728-729) and Watson’s holding as compelled by the religion clauses of the First Amendment (Serbian Orthodox Diocese v. Milivojevich, supra, at pp. 724—725; Kedroffv. St. Nicholas Cathedral, supra, 344 U.S. 94, 115-116; see also Employment Div., Ore. Dept, of Human Res. v. Smith, supra, 494 U.S. 872, 877). The high court has also held that legislatures are bound by the same constitutional limitations Watson articulated for the courts. (Kedroffv. St. Nicholas Cathedral, supra, at pp. 117-121.)

Catholic Charities asserts that the Legislature, in enacting the WCEA, violated the mle of the church property cases by interfering with matters of internal church governance and by rejecting the Catholic Church’s decision that prescription contraceptives are sinful. These assertions are incorrect. This case does not implicate internal church governance; it implicates the relationship between a nonprofit public benefit corporation and its employees, most of whom do not belong to the Catholic Church. Only those who join a church impliedly consent to its religious governance on matters of faith and discipline. (Watson, supra, 80 U.S. 679, 729.) Certainly the WCEA conflicts with Catholic Charities’ religious beliefs, but this does not mean the Legislature has decided a religious question. Congress has created, and the high court has resolved, similar conflicts between employment law and religious beliefs without deciding religious questions and without reference to the church property cases. (E.g., Tony and Susan Alamo Foundation v. Sec’y of Labor (1985) 471 U.S. 290, 303-306 [85 L.Ed.2d 278, 105 S.Ct. 1953] [religious organization must comply with federal minimum wage laws]; United States v. Lee (1982) 455 U.S. 252, 256-261 [71 L.Ed.2d 127, 102 S.Ct. 1051] [Amish employer must pay Social Security and unemployment taxes].) Neither does this case require us to decide any religious questions. Instead, we need only apply the usual rules for assessing whether state-imposed burdens on religious exercise are constitutional. (See Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 531-533 [124 L.Ed.2d 472, 113 S.Ct. 2217]; Employment Div., Ore. Dept, of Human Res. v. Smith, supra, 494 U.S. 872, 876-882.) This we do below, in the context of Catholic Charities’ separate claims under the free exercise clause. (See p. 547 et seq., post.)

Catholic Charities also argues the Legislature, by enacting the WCEA, deliberately intervened in a conflict within the Catholic Church on the side of those who disagree with the Church’s teachings on contraception. In support of the argument, Catholic Charities notes that one of WCEA’s sponsors cited, on the floor of the state Senate, a New York Times poll suggesting that not all Catholic women accept the Church’s teachings on contraception, and that “someone who practices artificial birth control can still be a good Catholic.” Commenting on the poll, the senator said, “I agree with that. I think it’s time to do the right thing.” Certainly the state may not “lend its power to one or the other side in controversies over religious authority or dogma . . . .” (Employment Div., Ore. Dept, of Human Res. v. Smith, supra, 494 U.S. 872, 877.) However, the Legislature’s motivation cannot reliably be inferred from a single senator’s remarks. Other legislators who voted to enact the WCEA might well have done so because they wished to reduce the inequitable financial burden of health care on women, without regard to any religious dispute over the propriety of artificial contraception.

While the church property cases thus do not invalidate the WCEA, the constitutional principles that underlie those cases may place an outer limit on the statute’s constitutional application. Relying on the church property cases, lower federal courts have held that the First Amendment bars courts from reviewing employment decisions by religious organizations affecting employees who have the religious duties of ministers. (McClure v. Salvation Army (5th Cir. 1972) 460 F.2d 553, 558-561; see also Gellington v. Christian Methodist Episcopal Church (11th Cir. 2000) 203 F.3d 1299, 1301-1304; Combs v. Cen Tx Ann Conf United Methodist Church (5th Cir. 1999) 173 F.3d 343, 345-350.) The rule that emerges from these decisions is sometimes called the “ministerial exception,” because it operates as a nonstatutory, constitutionally compelled exception to title VII of the Civil Rights Act of 1964. (42 U.S.C. § 2000e et seq., hereafter title VII.)

The Fifth Circuit first recognized the ministerial exception in McClure v. Salvation Army, supra, 460 F.2d 553. The plaintiff, a former officer of the Salvation Army, alleged that her termination was motivated by sex discrimination violating title VII. To avoid doubts about title VII’s constitutionality as applied to religious organizations, the court construed the law as not governing the relationship between a church and its ministers. Judicial review of a minister’s salary and duties, the court reasoned, would “intrude upon matters of church administration and government which have so many times before been proclaimed to be matters of a singular ecclesiastical concern.” (McClure v. Salvation Army, supra, at p. 560.) Although the United States Supreme Court has not spoken on the ministerial exception, the lower federal courts have widely embraced it, applying it both to ministers and to a variety of nonordained employees with duties functionally equivalent to those of ministers. (E.g., Alicea-Hernandez v. Catholic Bishop of Chicago (7th Cir. 2003) 320 F.3d 698, 700-704 [Hispanic communications manager for Archdiocese of Chicago, responsible for “shaping the message that the Church presented to the Hispanic community”]; E.E.O.C. v. Roman Catholic Diocese of Raleigh, NC (4th Cir. 2000) 213 F.3d 795, 802-805 [cathedral choir director required to assist in planning liturgies]; E.E.O.C. v. Catholic University of America (D.C. Cir. 1996) 317 U.S. App. D.C. 343 [83 F.3d 455, 461] [professor of canon law at religious university].)

Because the case before us does not involve title VII, the ministerial exception as currently articulated does not apply. Although the constitutional reasoning underlying the ministerial exception might bar the state from applying the WCEA to ministers or clergy employed by a bona fide religious organization that for whatever reason did not qualify under the act’s exemption for religious organizations (Health & Saf. Code, § 1367.25, subd. (b); cf. Schmoll v. Chapman University (1999) 70 Cal.App.4th 1434, 1438-1444 [83 Cal.Rptr.2d 426] [recognizing a ministerial exception to the Cal. Fair Employment and Housing Act, Gov. Code, § 12900 et seq.]), we need not decide the question because Catholic Charities does not claim that any of its employees have the religious duties of ministers. Indeed, as noted above, most are not even members of the Catholic Church. In short, the ministerial exception does not dispose of this case. Catholic Charities acknowledges as much.

2. Distinction between religious and secular activities

Catholic Charities next argues that the First Amendment forbids the government to “premis[e] a religious institution’s eligibility for an exemption from government regulation upon whether the activities of the institution are deemed by the government to be ‘religious’ or ‘secular’ . . . .” The argument is directed against the four statutory criteria an employer must satisfy to claim exemption from the WCEA as a “religious employer.” (Health & Saf. Code, § 1367.25, subd. (b)(l)(A)-(D); see p. 539, ante.) The argument lacks merit.

The exception to the WCEA accommodates religious exercise by relieving statutorily defined “religious employers” (Health & Saf. Code, § 1367.25, subd. (b)) of the burden of paying for contraceptive methods that violate their religious beliefs. The United States Supreme Court has long recognized that the alleviation of significant govemmentally created burdens on religious exercise is a permissible legislative purpose that does not offend the establishment clause. (Corporation of Presiding Bishop v. Amos (1978) 483 U.S. 327, 334-335 [97 L.Ed.2d 273, 107 S.Ct. 2862]; Hobbie v. Unemployment Appeals Comm’n of Fla. (1987) 480 U.S. 136, 144—145 [94 L.Ed.2d 190, 107 S.Ct. 1046]; cf. Employment Div., Ore. Dept, of Human Res. v. Smith, supra, 494 U.S. 872, 890.) Such legislative accommodations would be impossible as a practical matter if the government were, as Catholic Charities argues, forbidden to distinguish between the religious entities and activities that are entitled to accommodation and the secular entities and activities that are not. In fact, Congress and the state legislatures have drawn such distinctions for this purpose, and laws embodying such distinctions have passed constitutional muster. (E.g., Corporation of Presiding Bishop v. Amos, supra, 483 U.S. 327, 334—340 [upholding statutory exemption of “religious” employers from liability for religious discrimination; 42 U.S.C. § 2000e-l(a)]; East Bay Asian Local Development Corp. v. State of California (2000) 24 Cal.4th 693, 704-718 [102 Cal.Rptr.2d 280, 13 P.3d 1122] [upholding state laws exempting “religiously affiliated” organizations from landmark preservation laws; Gov. Code, §§ 25373, subds. (c) & (d), 37361, subd. (c)].)

Catholic Charities’ argument to the contrary largely depends on a single lower federal court decision, Espinosa v. Rusk (10th Cir. 1980) 634 F.2d 477 (Espinosa). In that case, the court invalidated an antisolicitation ordinance because, among other things, it “involve[d] municipal officials in the definition of what is religious.” (Id., at p. 481.) But whatever Espinosa might purport to hold, the decision could not supersede the United States Supreme Court’s repeated holding that the government may constitutionally exempt religious organizations from generally applicable laws in order to alleviate significant govemmentally imposed burdens on religious exercise. (Corporation of Presiding Bishop v. Amos, supra, 483 U.S. 327, 334—335; Hobbie v. Unemployment Appeals Comm’n of Fla., supra, 480 U.S. 136, 144—145; cf. Employment Div., Ore. Dept, of Human Res. v. Smith, supra, 494 U.S. 872, 890.) In any event, the court in Espinosa addressed the different problem of content-based prior restraints on speech. The court struck down an ordinance that gave municipal officials, in effect, the power to decide in advance which messages the city’s residents would be permitted to hear by requiring the officials, before granting a permit, to determine that the applicant’s purpose for soliciting funds was truly religious. The ordinance thus violated Cantwell v. Connecticut (1940) 310 U.S. 296, 305-307 [84 L.Ed. 1213, 60 S.Ct. 900], which permits the government to regulate the time, place and manner of religious solicitations but not to censor them altogether based on an assessment of the content of speech. (Espinosa, at pp. 480-482.) The WCEA, which places no restrictions on speech, does not present the problem addressed in Cantwell v. Connecticut and Espinosa.

Our conclusion that the government may properly distinguish between secular and religious entities and activities for the purpose of accommodating religious exercise does not mean that any given statute purporting to draw such distinctions necessarily passes muster under the free exercise clause. “[A] law targeting religious beliefs as such is never permissible,” and a court “ ‘must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.’ ” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, 508 U.S. 520, 533-534, quoting Walz v. Tax Commission (1970) 397 U.S. 664, 696 [25 L.Ed.2d 697, 90 S.Ct. 1409] (conc. opn. of Harlan, J.).) We address below Catholic Charities’ separate argument that the WCEA’s definition of “religious employer” in fact embodies a legislative effort to target Catholic organizations for unfavorable treatment. (See p. 552 et seq., post.)

3. Excessive entanglement

Catholic Charities contends that the WCEA’s exemption for “religious employees]” (Health & Saf. Code, § 1367.25, subd. (b)) violates the establishment clause by mandating an entangling inquiry into the employer’s religious purpose and into its employees’ and clients’ religious beliefs. The argument refers to the first three of the four statutory criteria for identifying a “religious employer,” namely, whether “[t]he inculcation of religious values is the purpose of the entity” (id., subd. (b)(1)(A)), whether “[t]he entity primarily employs persons who share the religious tenets of the entity” (id., subd. (b)(1)(B)), and whether “[t]he entity serves primarily persons who share the religious tenets of the entity” (id., subd. (b)(1)(C)). A law that fosters an excessive governmental entanglement with religion can for that reason violate the establishment clause. (Lemon v. Kurtzman (1971) 403 U.S. 602, 612-613 [29 L.Ed.2d 745, 91 S.Ct. 2105].)⁶ Moreover, recent judicial opinions have criticized rules and laws that invite official “trolling through a person’s or institution’s religious beliefs.” (Mitchell v. Helms (2000) 530 U.S. 793, 828 [147 L.Ed.2d 660, 120 S.Ct. 2530] (plur. opn. of Thomas, J.); University of Great Falls v. N.L.R.B. (D.C. Cir. 2002) 349 U.S. App. D.C. 386 [278 F.3d 1335, 1342-1348].)

The argument might have merit as applied to a hypothetical employer that sought to qualify under the WCEA’s exemption for religious employers (Health & Saf. Code, § 1367.25, subd. (b)) but objected on establishment clause grounds to an entangling official effort to verify that its purpose was the inculcation of religious values, and that it primarily employed and served persons who shared its religious tenets. But Catholic Charities candidly alleges in its complaint that it does not qualify under the exemption because it does not satisfy any of the four criteria. More specifically, Catholic Charities concedes that its purpose is not the inculcation of religious values, that it does not primarily hire and serve Catholics, and that it does not fall within either of the relevant provisions of the Internal Revenue Code (26 U.S.C. § 6033(a)(2)(A)(i) and (iii), cited in Health & Saf. Code, § 1367.25, subd. (b)(1)(D)). Consequently, no entangling inquiry into Catholic Charities’ purpose or beliefs, or the beliefs of its employees and clients, has occurred or is likely to occur. Therefore, even if in some other case the statute might require an entangling inquiry, in this case, as applied to Catholic Charities, the establishment clause offers no basis for holding the statute unconstitutional.

B. Free Exercise of Religion

Catholic Charities argues the WCEA violates the free exercise clauses of the federal and state Constitutions (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4) by coercing the organization to violate its religious beliefs, in that the WCEA, by regulating the content of insurance policies, in effect requires employers who offer their workers insurance for prescription drugs to offer coverage for prescription contraceptives. Catholic Charities wishes to offer insurance, but may not facilitate the use of contraceptives without violating its religious beliefs.

Any analysis of Catholic Charities’ free exercise claim must take into consideration the United States Supreme Court’s decision .in Employment Div., Ore. Dept, of Human Res. v. Smith, supra, 494 U.S. 872 {Smith). In Smith, the high court articulated the general rule that religious beliefs do not excuse compliance with otherwise valid laws regulating matters the state is free to regulate. (Id., at pp. 877-882.) The government may not regulate religious beliefs as such by compelling or punishing their affirmation. (Id., at p. 877.) Nor may it target conduct for regulation only because it is undertaken for religious reasons. (Ibid.) But “the right of free exercise does riot relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” (Smith, at p. 879, quoting United States v. Lee, supra, 455 U.S. 252, 263, fn. 3 (cone, opn. of Stevens, J.).) To permit religious beliefs to excuse acts contrary to law, the Smith court reasoned, “ ‘would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.’ ” (Smith, at p. 879, quoting Reynolds v. United States (1879) 98 U.S. 145, 167 [25 L.Ed. 244].)

Before Smith, supra, 494 U.S. 872, the high court had taken a variety of approaches to assessing the constitutionality of laws claimed to burden the free exercise of religion. In some cases, notably Sherbert v. Verner (1963) 374 U.S. 398, 403-409 [10 L.Ed.2d 965, 83 S.Ct. 1790] (Sherbert) and Wisconsin v. Yoder (1972) 406 U.S. 205, 220-229 [32 L.Ed.2d 15, 92 S.Ct. 1526], the court had examined such laws under strict scrutiny, reasoning that a law substantially burdening religious practice must be narrowly tailored to serve a. compelling state interest. In other cases, both before and after Sherbert, the court had upheld laws and governmental actions challenged under the free exercise clause without applying strict scrutiny.⁷

Eight years before Smith, supra, 494 U.S. 872, lustice Stevens wrote that most of the court’s holdings were better explained not by the strict scrutiny test of Sherbert, supra, 374 U.S. 398, but by “a standard that places an almost insurmountable burden on any individual who objects to a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes) . . . .” (United States v. Lee, supra, 455 U.S. 252, 263, fn. 3 (cone. opn. of Stevens, J.).) After Lee, the court again upheld laws claimed to burden free exercise, either without mentioning Sherbert, or while mentioning Sherbert but declining to apply its test.⁸ This inconsistency ended with Smith, in which the high court repudiated the Sherbert test and expressly adopted the standard Justice Stevens had articulated. (Smith, at pp. 879, 882-890.) More recently, the court has reaffirmed Smith and reiterated “the general proposition that a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice.” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, 508 U.S. 520, 531.)

The general rule affirmed in Smith, supra, 494 U.S. 872, would at first glance appear to dispose of Catholic Charities’ free exercise claim. The WCEA’s requirements apply neutrally and generally to all employers, regardless of religious affiliation, except to those few who satisfy the statute’s strict requirements for exemption on religious grounds. (Health & Saf. Code, § 1367.25, subd. (b).) The act also addresses a matter the state is free to regulate; it regulates the content of insurance policies for the purpose of eliminating a form of gender discrimination in health benefits. The act conflicts with Catholic Charities’ religious beliefs only incidentally, because those beliefs happen to' make prescription contraceptives sinful. Accordingly, it appears Catholic Charities may successfully challenge the WCEA only by demonstrating an exception to the general rule.

To demonstrate an exception to the general rule is, in fact, precisely what Catholic Charities seeks to do. On four separate grounds, Catholic Charities argues we should examine the WCEA under strict scrutiny despite the holding of Smith, supra, 494 U.S. 872. Specifically, Catholic Charities argues that the WCEA is not neutral and generally applicable (see Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, 508 U.S. 520, 533-547), that it constitutes a religious “gerrymander” (see id., at p. 534), and that it violates so-called hybrid rights (cf. Smith, supra, 494 U.S. at pp. 881-882). Finally, Catholic Charities argues that the California Constitution requires us to apply strict scrutiny in any event, and that the WCEA fails that test. We address each of these arguments below.

1. Neutrality and general applicability

Catholic Charities offers two arguments why the WCEA should be not considered neutral or generally applicable and should, thus, be subject to strict scrutiny under an exception to the rule of Smith, supra, 494 U.S. 872. First, Catholic Charities contends the face of the statute demonstrates a lack of neutrality; second, Catholic Charities relies on the WCEA’s legislative history and practical effect to argue the Legislature “gerrymandered” the law to reach only Catholic employers. We address these arguments separately, as Catholic Charities has stated them in its brief.

A law is not neutral towards religion if its “object... is to infringe upon or restrict practices because of their religious motivation . . . .” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, 508 U.S. 520, 533 (Lukumi).) A law is not generally applicable if it “in a selective manner impose[s] burdens only on conduct motivated by religious belief . . . .” (Id., at p. 543.) Thus, “[njeutrality and general applicability are interrelated, and ... [a] failure to satisfy one requirement is a likely indication that the other has not been satisfied.” (Id., at p. 531.)

In determining whether the object of a law is to suppress religion or religiously motivated conduct, a court “must begin with [the law’s] text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discemable from the language or context.” (Lukumi, supra, 508 U.S. 520, 533.) Following this approach, the high court in Lukumi found that a city council’s use of the words “sacrifice” and “ritual” in an ordinance regulating animal slaughter helped to show, together with other evidence, that the ordinance had been motivated by a desire to suppress the Santería religion. The lack of facial neutrality fit into a “pattern” of “animosity to Santería adherents and their religious practices . . . .” (Id., at p. 542.) Not only did “the ordinances by their own terms target [Santería] religious exercise,” so too were “the texts of the ordinances . . . gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings . . . .” (Ibid.) Finally, “the ordinances suppressed] much more religious conduct than [was] necessary in order to achieve the legitimate ends asserted in their defense [i.e., protecting health and preventing cruelty to animals].” (Ibid.)

Relying on Lukumi, supra, 508 U.S. 520, Catholic Charities argues the WCEA is not neutral because its exemption for religious employers contains religious terms and terminology that lack any secular meaning or purpose. Catholic Charities specifically refers to the terms “inculcation of religious values” and “religious tenets,” both of which appear in criteria used in the WCEA to define and exempt “religious employer[s].” (Health & Saf. Code, § 1367.25, subd. (b)(1)(A), (B) & (C).)

Lukumi, supra, 508 U.S. 520, is inapposite. The animal sacrifice ordinance challenged in that case referred to religious practices (“sacrifice” and “ritual”) in order to prohibit them. In that context, the statute’s use of religious terminology supported the court’s conclusion “that suppression of the central element of the Santería worship service was the object of the ordinances” there at issue. (Id., at p. 534.) In contrast, the WCEA refers to the religious characteristics of organizations in order to identify and exempt those organizations from an otherwise generally applicable duty. Although Catholic Charities cannot claim the statutory exemption for religious employers, other Catholic organizations may be able to claim it. If the WCEA burdens Catholic Charities’ religious beliefs, the burden arises not from the religious terminology used in the exemption, but from the generally applicable requirement to provide coverage for contraceptives. The high court has never prohibited statutory references to religion for the purpose of accommodating religious practice. To the contrary, the court has repeatedly indicated that “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” (Corporation of Presiding Bishop v. Amos, supra, 483 U.S. 327, 335 (Amos)', see also Hobbie v. Unemployment Appeals Comm’n of Fla., supra, 480 U.S. 136, 144-145; cf. Smith, supra, 494 U.S. 872, 890.) Furthermore, the state may require an organization “claiming the benefits of [a] religious-organization exemption” from a regulatory statute “to prove that [it] is a religious organization within the meaning of the [statute].” (Larson v. Valente (1982) 456 U.S. 228, 255, fn. 30 [72 L.Ed.2d 33, 102 S.Ct. 1673], italics added.) To accomplish these purposes without explicitly defining the religious groups and practices to be accommodated, in order to distinguish them from secular groups and practices not entitled to accommodation, would often be impossible.

Because a legislative accommodation benefits religion, it is tested not under the free exercise clause but under the establishment clause. (Amos, supra, 483 U.S. 327, 334—336.) To comply with the establishment clause, a law must among other things serve a “ ‘secular legislative purpose.’ ” (Id., at p. 335, quoting Lemon v. Kurtzman, supra, 403 U.S. 602, 612.) In this context, the requirement of a secular legislative purpose “does not mean that the law’s purpose must be unrelated to religion—that would amount to a requirement ‘that the government show a callous indifference to religious groups,’ . . . and the Establishment Clause has never been so interpreted.” (Amos, at p. 335, quoting Zorach v. Clauson (1952) 343 U.S. 306, 314 [96 L.Ed. 954, 72 S.Ct. 679].) Instead, “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” (Amos, at p. 335.) The references to religion in the WCEA have no other purpose than this. The high court has not “required that legislative categories make no explicit reference to religion.” (Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1, 10 [103 L.Ed.2d 1, 109 S.Ct. 890] (plur. opn. of Brennan, J.).)

A rule barring religious references in statutes intended to relieve burdens on religious exercise would invalidate a large number of statutes. A few examples suffice. The federal statute upheld in Amos, supra, 483 U.S. 327, for example, exempted from title VII “a religious corporation, association, or educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such a corporation, association, educational institution, or society of its activities.” (42 U.S.C. § 2000e-l(a).) Similarly, the California Fair Employment and Housing Act uses the term “religious association or corporation” (Gov. Code, § 12926, subd. (d)) in order to exempt certain employers from liability for unlawful employment practices. We recently upheld statutes that refer to “religiously affiliated” associations and their “religious missionfs]” for the purpose of exempting such associations from burdens imposed by a landmark preservation ordinance. (East Bay Asian Local Development Corp. v. State of California, supra, 24 Cal.4th 693, 702, quoting Gov. Code, §§ 25373, subd. (d), and 37361, subd. (c).) The rule Catholic Charities proposes would invalidate these and many similar laws. Because the high court’s decisions provide no support for such a rule, we reject it.

2. Religious gerrymander

Our analysis does not end with the conclusion that the WCEA is facially neutral towards religion. The First Amendment requires more than facial neutrality. It protects against “ ‘subtle departures from neutrality’ ” and “governmental hostility which is masked as well as overt.” (Lukumi, supra, 508 U.S. 520, 534, quoting Gillette v. United States, supra, 401 U.S. 437, 452.) Thus, a court “ ‘must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.’ ” (Ibid., quoting Walt v. Tax Commission, supra, 397 U.S. 664, 696 (cone. opn. of Harlan, J.).) Catholic Charities argues the Legislature gerrymandered the WCEA to deny the benefit of the exemption to Catholic organizations. The law discriminates, Catholic Charities contends, both against the Catholic Church and against religious organizations of any denomination that engage in charitable work, as opposed to work that is purely spiritual or evangelical.

We find no merit in the argument that the WCEA discriminates against the Catholic Church. It was at the request of Catholic organizations that the Legislature added an exception permitting religious employers to deny coverage for “contraceptive methods that are contrary to the religious employer’s religious tenets.” (Health & Saf. Code, § 1367.25, subd. (b).) Because most religions' do not object to prescription contraceptives, most religious employers are subject to the WCEA. The Legislature’s decision to grant preferential treatment to religious employers who do object is justifiable as an accommodation of religious exercise under the principles discussed above. (Amos, supra, 483 U.S. 327, 334-335.) That the exemption is not sufficiently broad to cover all organizations affiliated with the Catholic Church does not mean the exemption discriminates against the Catholic Church.⁹

We find nothing to the contrary in Larson v. Valente, supra, 456 U.S. 228 (Larson), the decision on which Catholic Charities principally relies. The high court in Larson held unconstitutional under the establishment clause a Minnesota statute that discriminated, in effect, against the Reverend Sun Myung Moon’s Unification Church. For many years prior to Larson, Minnesota law had regulated charitable solicitations generally but exempted from regulation all solicitations by religious organizations. In 1978, the Minnesota Legislature amended the law to exempt only those religious organizations that received more than 50 percent of their contributions from members or affiliated organizations. Minnesota defended the exemption as intended to prevent abusive solicitations of the public, reasoning that the members of well-established, internally funded churches would exercise enough supervision over fund-raising activities to justify dispensing with state supervision. The high court rejected the argument. In the court’s view, the 50-percent rule violated “[t]he clearest command of the Establishment Clause,” namely, “that one religious denomination cannot be officially preferred over another.” (Id., at p. 244.) Laws granting denominational preferences must serve compelling governmental interests and be closely fitted to further those interests. (Id., at pp. 246-247.) Minnesota’s law failed that test.

The reasoning of Larson, supra, 456 U.S. 228, does not invalidate the WCEA. The statute invalidated in Larson drew an explicit distinction between religious denominations based on their sources of income, and used that distinction to impose a regulatory burden only on certain denominations. In contrast, the WCEA applies to religious and nonreligious organizations equally. The WCEA confers the special benefit of exemption only on those religious organizations whose tenets are opposed to prescription contraceptives and that meet the other requirements for exemption. This benefit, as explained above, is justifiable as a legislative accommodation—an effort to alleviate a govemmentally imposed burden on religious exercise. (See Amos, supra, 483 U.S. 327, 334-335.) Those Catholic employers that do not qualify for exemption are treated precisely the same as all other employers in the state, whether religious or nonreligious. Thus, while the WCEA may treat some Catholic employers more favorably than other employers, the WCEA does not under any circumstance treat Catholic employers less favorably than any other employers. About a law such as this, Larson has nothing to say.¹⁰

Catholic Charities argues the WCEA violates Larson, supra, 456 U.S. 228, for the additional reason that the law draws a distinction between religious organizations whose purpose is the “inculcation of religious values” (Health & Saf. Code, § 1367.25, subd. (b)(1)(A)) and other religious organizations that, in Catholic Charities’ words, “have the temerity to engage in ministries other than the ‘inculcation of religious values.’ ” (Italics in original.) We accept Catholic Charities’ assertion that the Catholic Church’s “self-understanding compels it to engage in ‘corporal works of mercy,’ which ‘consist especially in feeding the hungry, sheltering the homeless, clothing the naked, visiting the sick and imprisoned, and burying the dead.’ ” (Quoting Catechism of the Catholic Church (1994) | 2447, p. 588.) However, to the extent Catholic Charities is arguing the WCEA embodies a preference for non-Catholic denominations, the argument fails for the reasons already given.

Catholic Charities’ intent may be to argue that the WCEA discriminates against charitable social work as a religious practice. Such an argument would implicate “[t]he principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief ...” (Lukumi, supra, 508 U.S 520, 543.) Applying this principle, the high court in Lukumi held unconstitutional an ordinance that permitted the killing of animals for food or sport, but not in religious rituals. The ordinance had “ ‘every appearance of a prohibition that society is prepared to impose upon [Santería worshippers] but not upon itself.’ ” (Id., at p. 545, quoting The Florida Star v. B.J.F. (1989) 491 U.S. 524, 542 [105 L.Ed.2d 443, 109 S.Ct. 2603].) The WCEA is not similar. If a religiously affiliated organization fails to qualify for exemption because its purpose is something other than the “inculcation of religious values” (Health & Saf. Code, § 1367.25, subd. (b)(1)(A)), then the result is simply that the organization becomes subject to the same obligations that apply to all other employers. Because the WCEA applies to all nonreligious employers engaged in charitable social work, no argument can logically be made that the WCEA imposes a burden on charitable social work only when performed for religious reasons.

As additional support for its claim that the WCEA’s purpose is to discriminate against the Catholic Church, Catholic Charities contends the Legislature drafted the “religious employer” exception (Health & Saf. Code, § 1367.25, subd. (b)) with the specific intention of excluding Catholic hospitals and social service agencies like Catholic Charities. Catholic Charities draws an analogy to Lukumi, supra, 508 U.S. 520, 540-542, in which the high court considered specific statements by members of the Hialeah City Council as evidence that the ordinance prohibiting animal sacrifice was intended to suppress the Santería religion. Catholic Charities’ assertions about the legislative history of the WCEA do not justify a similar conclusion in this case.

According to Catholic Charities, the history of the WCEA suggests the Legislature intended the law to close a “Catholic gap” in insurance coverage for prescription contraceptives. The evidence does not support the contention. The phrase “Catholic gap” appears only in Catholic Charities’ brief, not in the legislative history. Catholic Charities refers to the Senate testimony of a representative of Planned Parenthood, which opposed any exception for religious employers. Explaining that organization’s position, the witness stated: “Primarily our intent was to close the gap in insurance coverage for contraception and prescription benefit plans. Our concern with granting an exemption is that that defeats the original purpose of the bill.” The “gap” to which the witness apparently referred was the gap identified by a national consulting firm’s 1999 study of health insurance for prescription contraceptives. This study, which received much attention in the Legislature, concluded that approximately 10 percent of commercially insured Californians did not already have insurance coverage for prescription contraceptives. The study identified this minority not as the employees of Catholic organizations, but as persons covered by PPO and indemnity plans. While most HMD’s covered prescription contraceptives, not all PPO and indemnity plans did. Catholic Charities’ assertion that the purpose of the WCEA was to close a “Catholic gap” rather than a statewide statistical gap in coverage has no apparent evidentiary support.¹¹

Next, Catholic Charities argues the Legislature deliberately narrowed the statutory exception for “religious employees]” (Health & Saf. Code, § 1367.25, subd. (b)) to include as few Catholic organizations as possible and specifically to exclude Catholic hospitals and social service organizations. The legislative history does show that the bill’s sponsors argued against a broader exception. The bill’s Senate sponsor, for example, stated in a committee hearing that “the intention of the authors as it relates to creating a religious exemption may not be the same intentions of the religions themselves in wanting to be exempted. [f] The intention of the religious exemption in both these bills is an intention to provide for exemption for what is religious activity. The more secular the activity gets, the less religiously based it is, and the more we believe that they should be required to cover prescription drug benefits for contraception.” Catholic Charities describes this and similar statements as evidence that the Legislature targeted specific Catholic organizations for disadvantageous treatment. But we have already examined and rejected that argument. The law treats some Catholic organizations more favorably than all other employers by exempting them; nonexempt Catholic organizations are treated the same as all other employers.

3. Hybrid rights

As an additional argument for applying strict scrutiny to its federal free exercise claim, Catholic Charities argues that the WCEA violates so-called hybrid rights. The term “hybrid rights” is loosely derived from Smith, supra, 494 U.S. 872, in which the high court repudiated the strict scrutiny test of Sherbert, 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790], (See Smith, at pp. 882-884.) Along the way to that conclusion, the court distinguished certain of its prior decisions as having involved not just the free exercise clause but other constitutional provisions as well. Specifically, the court stated that “[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press[¹²] . . . , or the right of parents ... to direct the education of their children[¹³] . . . .” (Id., at p. 881.) The facts of Smith, the court observed, did “not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.” (Smith, at p. 882.)

Relying on this passage from Smith, supra, 494 U.S. 872, Catholic Charities argues the WCEA violates hybrid rights and, thus, requires us to apply strict scrutiny to its free exercise claim. The other rights violated, Catholic Charities asserts, are those protected by the free speech and establishment clauses of the First Amendment. (U.S. Const., 1st Amend.)

The high court has not, since the decision in Smith, supra, 494 U.S. 872, determined whether the hybrid rights theory is valid or invoked it to justify applying strict scrutiny to a free exercise claim. Justice Souter has mentioned hybrid rights in a concurring opinion, but only to criticize Smith’s reliance on the concept. (Lukumi, supra, 508 U.S. 520, 567 (opn. of Souter, J., cone, in part).) Some of the lower federal courts have treated the relevant passage from Smith as dictum and declined to apply, to assertedly hybrid claims, a standard stricter than the rational basis test. (Leebaert v. Harrington (2d Cir. 2003) 332 F.3d 134, 143-144; Kissinger v. Board of Trustees (6th Cir. 1993) 5 F.3d 177, 180.) Other lower federal courts appear to have assumed that hybrid claims trigger a higher level of scrutiny, but have concluded that “a plaintiff does not allege a hybrid-rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right.” (Miller v. Reed (9th Cir. 1999) 176 F.3d 1202, 1208; see also Civil Lib. for Urban Believers v. City of Chicago (7th Cir. 2003) 342 F.3d 752, 765; Swanson by and through Swanson v. Guthrie ISD I-L (10th Cir. 1998) 135 F.3d 694, 700.)

Catholic Charities argues that the non-free-exercise component of a hybrid claim need only be “colorable” and not ultimately meritorious. While some courts have proposed such a rule (e.g., Miller v. Reed, supra, 176 F.3d 1202, 1207; Swanson by and through Swanson v. Guthrie ISD I-L, supra, 135 F.3d 694, 700), no court has relied on it to grant relief. Nor would such a rule make sense. As Justice Souter has explained, “[i]f a hybrid claim is simply one in wMch another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule . . . .” (Lukumi, supra, 508 U.S. 520, 567 (opn. of Souter, I., cone, in part).) For this reason, the Sixth Circuit has rejected as “completely illogical” the proposition that “the legal standard [of review] under the Free Exercise Clause depends on whether a free-exercise claim is coupled with other constitutional rights.” (Kissinger v. Board of Trustees, supra, 5 F.3d 177, 180 & fn. 1.)

We are aware of no decision in which a federal court has actually relied solely on the hybrid rights theory to justify applying strict scrutiny to a free exercise claim. Indeed, the only federal decision that can properly be said to have relied on the theory at all is E.E.O.C. v. Catholic University of America, supra, 83 F.3d 455, 467, in which the court mentioned hybrid rights as an alternative basis for its conclusion that federal employment law could not be applied to require a Catholic educational institution to grant tenure to a professor of canon law. The principal basis for the court’s holding was the ministerial exception. (Id., at pp. 463-465; see ante, at p. 543 et seq.)¹⁴

Assuming for the sake of argument the hybrid rights theory is not merely a misreading of Smith, supra, 494 U.S. 872, Catholic Charities has not alleged a meritorious constitutional claim that might justify the theory’s application to this case. Catholic Charities argues that to assist in providing employees with insurance for prescription contraceptives would be viewed as an endorsement of their use and that the WCEA, by compelling such assistance, violates the free speech clause by requiring the organization to engage in symbolic speech it finds objectionable. The argument lacks merit. Certainly “the First Amendment may prevent the government from compelling individuals to express certain views . . . .” (United States v. United Foods, Inc. (2001) 533 U.S. 405, 410 [150 L.Ed.2d 438, 121 S.Ct. 2334], citing Wooley v. Maynard (1977) 430 U.S. 705, 713-717 [51 L.Ed.2d 752, 97 S.Ct. 1428] [state may not compel unwilling motorists to display state motto, “Live Free or Die,” on vehicle license plates], and Board of Education v. Barnette (1943) 319 U.S. 624, 630-642 [87 L.Ed. 1628, 63 S.Ct. 1178] [state may not compel public school pupils to salute the flag or recite the Pledge of Allegiance].) However, Catholic Charities’ compliance with a law regulating health care benefits is not speech. The law leaves Catholic Charities free to express its disapproval of prescription contraceptives and to encourage its employees not to use them. For purposes of the free speech clause, simple obedience to a law that does not require one to convey a verbal or symbolic message cannot reasonably be seen as a statement of support for the law or its purpose. Such a rule would, in effect, permit each individual to choose which laws he would obey merely by declaring his agreement or opposition. (Cf. Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1626 [20 Cal.Rptr.2d 740] & fn. 11 [dismissing as “ludicrous” a motorcyclist’s claim that compliance with a law requiring the wearing of helmets in effect compelled speech supporting the law, regardless of the motivation for noncompliance].)¹⁵

4. California Constitution

Catholic Charities’ final argument for applying strict scrutiny invokes the free exercise clause of the California Constitution. (Cal. Const., art. I, § 4.)¹⁶ That clause, Catholic Charities contends, forbids the state to burden the practice of religion, even incidentally, through a neutral, generally applicable law, unless the law in question serves a compelling governmental interest and is narrowly tailored to achieve that interest. Catholic Charities asserts, in other words, that we must interpret the California Constitution the same way the United States Supreme Court interpreted the federal Constitution’s free exercise clause in Sherbert, supra, 374 U.S. 398.

What might be the proper standard of review for challenges to neutral, generally applicable laws under the state Constitution’s free exercise clause is a question we left open in Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1177-1179 [51 Cal.Rptr.2d 700, 913 P.2d 909] (Smith v. FEHC). There we rejected, under both federal and state law, a landlord’s religiously based claim to exemption from a fair housing statute prohibiting discrimination on the basis of marital status. (Gov. Code, § 12955, subd. (a).) Although the case arose after the high court’s decision in Smith, supra, 494 U.S. 872, we nevertheless applied strict scrutiny to the landlord’s federal claim because the Religious Freedom Restoration Act required us to do so. (42 U.S.C. § 2000bb et seq., hereafter RFRA; see Smith v. FEHC, at pp. 1165-1167.)¹⁷ We did not decide whether the landlord’s claim under the state Constitution’s free exercise clause required strict scrutiny. A plurality of three justices assumed for the sake of argument that it did, but declined to “address the scope and proper interpretation of California Constitution, article I, section 4.” (Smith v. FEHC, at p. 1179 (plur. opn. of Werdegar, J., with George and Arabian, JJ., cone.).) “These important questions,” the plurality wrote, “should await a case in which their resolution affects the outcome.” (Ibid.) Justice Mosk’s concurring opinion provided a fourth vote for the disposition. (Id., at pp. 1179-1192 (cone. opn. of Mosk, J.).)

No decision about the appropriate standard of review can be gleaned from the various separate opinions in Smith v. FEHC, supra, 12 Cal.4th 1143. The subject of Justice Mosk’s concurring opinion was his view that RFRA was unconstitutional; he did not address the state Constitution. (Smith v. FEHC, at pp. 1179-1192 (cone. opn. of Mosk, J.).) Justice Kennard, who also wrote separately, would have held that the challenged law violated RFRA; she, too, did not address the state Constitution. (Id., at pp. 1192-1218 (cone. & dis. opn. of Kennard, J.).) Justice Baxter, who otherwise agreed with Justice Kennard, wrote separately to emphasize the point we now make, namely, that the court’s various opinions left unsettled “the scope of protection of religious liberty under the free exercise clause of our state Constitution.” (Id., at p. 1250 (cone. & dis. opn. of Baxter, J., with Lucas, C. J., cone.).)

The only published decision purporting to determine the standard of review for claims under the California Constitution’s free exercise clause is Brunson v. Department of Motor Vehicles (1999) 72 Cal.App.4th 1251 [85 Cal.Rptr.2d 710]. The Court of Appeal in Brunson rejected the contention that the plaintiffs’ religious beliefs excused them from complying with a statutory duty (Veh. Code, §§ 1653.5, 12800, subd. (a)) to provide their Social Security numbers to the Department of Motor Vehicles when applying for drivers’ licenses. The court interpreted Smith v. FEHC, supra, 12 Cal.4th 1143, as mandating application of the rational basis test to the petitioners’ claims under the state free exercise clause. (Brunson v. Department of Motor Vehicles, supra, at pp. 1255-1256.) The court’s reading of Smith v. FEHC was erroneous. As we have just explained, in Smith v. FEHC we left the question open.¹⁸ The Court of Appeal in the case before us, while acknowledging Brunson, examined the question independently and concluded that challenges under the state free exercise clause to neutral, generally applicable laws should be evaluated under the rational basis standard of Smith, supra, 494 U.S. 872.

Certainly the high court’s decision in Smith, supra, 494 U.S. 872, does not control our interpretation of the state Constitution’s free exercise clause. Neither does the decision in Sherbert, supra, 374 U.S. 398. We have observed many times “that the meaning of California Constitution article I, section 4 ... is not dependent on the meaning of any provision of the federal Constitution. The state charter declares in so many words that ‘[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.’ (Cal. Const., art. I, § 24.) ‘Respect for our Constitution as “a document of independent force” [citation] forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter.’ ” (Smith v. FEHC, supra, 12 Cal.4th 1143, 1177, quoting People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861, 578 P.2d 108], and People v. Brisendine (1975) 13 Cal.3d 528, 549-550 [119 Cal.Rptr. 315, 531 P.2d 1099].) Thus, if a settled interpretation of the California Constitution’s free exercise clause had existed before 1990, when the United States Supreme Court abandoned the Sherbert test, we would simply adhere to that interpretation, regardless of Smith, supra, 494 U.S. 872.

However, no settled interpretation of the state Constitution’s free exercise clause existed in 1990. Between the dates of Sherbert, supra, 374 U.S. 398, and Smith, supra, 494 U.S. 872, our own decisions assessing the constitutionality of neutral, generally applicable laws that incidentally burdened religious practices applied the federal and state free exercise clauses interchangeably, without ascribing any independent meaning to the state clause. (Walker v. Superior Court (1988) 47 Cal.3d 112, 138-141 [253 Cal.Rptr. 1, 763 P.2d 852]; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1112-1120 [252 Cal.Rptr. 122]; In re Arias (1986) 42 Cal.3d 667, 692 [230 Cal.Rptr. 505, 725 P.2d 664] & fn. 28, 42 Cal.3d 667 [230 Cal.Rptr. 505, 725 P.2d 664]; People v. Woody (1964) 61 Cal.2d 716, 718, fn. 1 [40 Cal.Rptr. 69, 394 P.2d 813].) In decisions prior to Sherbert, we generally took an approach similar to the high court’s decisions of the same era, declining to exempt religiously motivated conduct from neutral, generally applicable laws. We wrote, for example, that “a person is free to hold whatever belief his conscience dictates, but when he translates his belief into action he may be required to conform to reasonable regulations which are applicable to all persons and are designed to accomplish a permissible objective.” (Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 470 [171 P.2d 8].) We also wrote that, “[i]f the applicability of government regulation turned on the religious motivation of activities, plausible motivations would multiply and in the end vitiate any regulation.” (Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232, 243 [163 P.2d 704]; see also Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 90-92 [82 P.2d 391] [declining to reinstate a pupil expelled from public school for refusing on religious grounds to salute the flag]; Ex parte Andrews (1861) 18 Cal. 678, 683-685 [upholding a Sunday closing law].)

In view of this history, we may safely agree with the scholars who concluded in 1993, years after the high court decided Smith, supra, 494 U.S. , that “[s]ection 4 has not so far played an independent role in free exercise claims.” (Grodin et al., The Cal. State Constitution: A Reference Guide (1993) p. 44.)

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. (Cal. Const., art. I, § 4.) Here, however, we need not do so because Catholic Charities’ challenge to the WCEA fails in any event. As we explain below, the statute passes strict scrutiny. A future case might lead us to choose the rule of Sherbert, supra, 374 U.S. 398 [83 S.Ct. 1790], the rule of Smith, supra, 494 U.S. 872, or an as-yet unidentified rule that more precisely reflects the language and history of the California Constitution and our own understanding of its import. But “[t]hese important questions should await a case in which their resolution affects the outcome.” (Smith v. FEHC, supra, 12 Cal.4th 1143, 1179.)

We therefore review Catholic Charities’ challenge to the WCEA under the free exercise clause of the California Constitution in the same way we might have reviewed a similar challenge under the federal Constitution after Sherbert, supra, 374 U.S. 398, and before Smith, supra, 494 U.S. 872. In other words, we apply strict scrutiny. Under that standard, a law could not be applied in a manner that substantially burdened a religious belief or practice unless the state showed that the law represented the least restrictive means of achieving a compelling interest or, in other words, was narrowly tailored.' (See Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 718 [67 L.Ed.2d 624, 101 S.Ct. 1425]; Sherbert, supra, 374 U.S. 398, 403, 406, 407-408.) For these purposes, a law substantially burdens a religious belief if it “conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs . . . .” (Thomas v. Rev. Bd., Ind. Empl. Sec. Div., supra, 450 U.S. 707, 717-718.)

Applying this standard, we consider first whether the WCEA in fact burdens Catholic Charities’ religious beliefs. We do not doubt Catholic Charities’ assertion that to offer insurance coverage for prescription contraceptives to its employees would be religiously unacceptable. Catholic Charities adequately supports the assertion with the declaration of a Roman Catholic priest who serves as Executive Director of the Secretariat for Doctrine and Pastoral Practices of the National Conference of Roman Catholic Bishops. Catholic Charities may, however, avoid this conflict with its religious beliefs simply by not offering coverage for prescription drugs. The WCEA applies only to employers who choose to offer insurance coverage for prescription drugs; it does not require any employer to offer such coverage.

Anticipating this objection, Catholic Charities argues that its religious beliefs also require it to offer its employees insurance for prescription drugs. On this point, however, the declaration just mentioned seems open to interpretation. The declarant states: “The clear teaching and firm doctrine of the Roman Catholic Church is that all employers, religious or otherwise, are to provide just wages and benefits to employees, regardless of their religious affiliations and beliefs, as an obligation arising from the Gospel message of justice and charity. The goal of the Roman Catholic Church, also as a matter of justice and charity, is that all workers regardless of their circumstances should receive adequate health-care coverage.” In the present context—that of weighing an asserted burden on religious beliefs against the state interests supporting a challenged statute—the declaration raises the question whether Catholic Charities’ beliefs about the requirements of “justice and charity” are necessarily equivalent to religious beliefs. We must ask this question because a claim under the free exercise clause must be “rooted in religious belief’ and not on “philosophical” choices or “[a] way of life, however virtuous and admirable.” (Wisconsin v. Yoder, supra, 406 U.S. 205, 215, 216.) “Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” (Id., pp. 215-216, fn. omitted.)¹⁹

The need to ask questions such as these places a court in an uncomfortable position. “Repeatedly and in many different contexts,” the high court has “warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” (Smith, supra, 494 U.S. 872, 887.) The line between construing Catholic Charities’ declaration, which we must do, and determining the plausibility of religious claims, which we may not do, is fine indeed. Equally fine is the line between construing the declaration and determining whether the asserted burden falls on a protected religious belief or an unprotected philosophical choice, which we also must do. (Wisconsin v. Yoder, supra, 406 U.S. 205, 215-216.) If we had to ask and answer these difficult questions, we would. But we need not do so because Catholic Charities’ claim fails in any event: Assuming for the sake of argument the WCEA substantially burdens a religious belief or practice, the law nevertheless serves a compelling state interest and is narrowly tailored to achieve that interest.

The WCEA serves the compelling state interest of eliminating gender discrimination. Evidence before the Legislature showed that women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in part to the cost of prescription contraceptives and the various costs of unintended pregnancies, including health risks, premature deliveries and increased neonatal care. (See p. 537, ante.) Assembly, Senate, and legislative staff analyses of the bills that became the WCEA consistently identify the elimination of this economic inequity as the bills’ principal object. Catholic Charities, which pays men and women equal wages, argues the type of inequity that prompted the WCEA cannot properly be viewed as gender discrimination. To identify subtle forms of gender discrimination, however, is within the Legislature’s competence. Nor is the identification irrational.²⁰ Congress, making a similar identification, amended title VII to define discrimination “on the basis of sex” as including discrimination in benefits “on the basis of pregnancy, childbirth, or related medical conditions . . . .” (42 U.S.C. § 2000e(k) (Pregnancy Discrimination Act), abrogating General Electric Co. v. Gilbert (1976) 429 U.S. 125 [50 L.Ed.2d 343, 97 S.Ct. 401]; see Newport News Shipbuilding & Dry Dock. v. EEOC (1983) 462 U.S. 669, 678 [77 L.Ed.2d 89, 103 S.Ct. 2622] [acknowledging abrogation].) The only reported federal decision addressing the issue holds that the statute just quoted requires employers to include coverage for prescription contraceptives when offering health care plans that cover prescription drugs. (Erickson v. Bartell Drug Co. (W.D.Wash. 2001) 141 F.Supp.2d 1266, 1270-1272; but cf. Glaubach v. Regence Blueshield (2003) 149 Wn.2d 827 [74 P.3d 115, 116-119] [holding that a Washington statute requiring insurers to provide coverage regardless of sex does not mandate coverage of prescription contraceptives].) Certainly the interest in eradicating gender discrimination is compelling. We long ago concluded that discrimination based on gender violates the equal protection clause of the California Constitution (art. I, § 7, subd. (a)) and triggers the highest level of scrutiny. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17-20 [95 Cal.Rptr. 329, 485 P.2d 529].)

Strongly enhancing the state’s interest is the circumstance that any exemption from the WCEA sacrifices the affected women’s interest in receiving equitable treatment with respect to health benefits. We are unaware of any decision in which this court, or the United States Supreme Court, has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties. The high court in Wisconsin v. Yoder, supra, 406 U.S. 205, painstakingly limited its holding to avoid endorsing any such result. While concluding that the Amish parents in that case were entitled under the strict scrutiny standard of Sherbert, supra, 374 U.S. 398, to an exemption from a general law requiring their older children to attend public school, the court emphasized that its conclusion depended on the assumption that no Amish child wished to attend. (’Wisconsin v. Yoder, supra, at pp. 230-232.) Similarly, in rejecting a religious employer’s challenge to a law requiring him to pay Social Security and unemployment taxes for his employees, the court wrote that “[gjranting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” (United States v. Lee, supra, 455 U.S. 252, 261.) “Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” (Ibid.; cf. Tony and Susan Alamo Foundation v. Sec’y of Labor, supra, 471 U.S. 290, 303-306 [religious organization must comply with federal minimum wage laws]; Dole v. Shenandoah Baptist Church (4th Cir. 1990) 899 F.2d 1389, 1393-1400 [religious school must comply with federal law requiring equal pay for men and women].) We see no reason why a different rule should apply when a nonprofit corporation enters the general labor market.

Nor are any less restrictive (or more narrowly tailored) means readily available for achieving the state’s interest in eliminating gender discrimination. Any broader exemption increases the number of women affected by discrimination in the provision of health care benefits. Catholic Charities argues the Legislature could more widely exempt employers from the WCEA without increasing the number of affected women by mandating public funding of prescription contraceptives for the employees of exempted employers. The Legislature included such a provision in an earlier version of the WCEA (Assem. Bill No. 1112 (1997-1998 Reg. Sess.)), which the Governor vetoed. But Catholic Charities points to no authority requiring the state to subsidize private religious practices. (Cf. Lyng v. Northwest Indian Cemetery Prot. Assn., supra, 485 U.S. 439, 447-453 [government need not forgo road building or timber harvesting on its own property to avoid interference with Native American religious practices].)

Catholic Charities next argues the WCEA is underinclusive, and therefore not narrowly tailored, because it does not facilitate access to prescription contraceptives for “indigent women, unemployed women, stay-at-home mothers, women whose employers do not offer health insurance benefits, and women in part-time employment [who] do not qualify for health benefits.” But this argument misconceives the principal purpose of the WCEA, which is not to facilitate access to contraceptives but to eliminate a form of gender discrimination in the provision of health benefits. The situations Catholic Charities identifies, in which no employer or insurer is providing health benefits, do not entail such discrimination.

Finally on this point, Catholic Charities argues the WCEA is not narrowly tailored because it is overinclusive. Catholic Charities justifies this surprising assertion by arguing that the law must be overinclusive if it applies to employers that do not discriminate on the basis of gender, and that Catholic Charities does not discriminate on that basis because it does not provide contraceptive coverage to women or to men (e.g., vasectomies). With this argument, however, Catholic Charities merely restates its disagreement with the Legislature’s determination that the exclusion of prescription contraceptives from health care plans constitutes a form of gender discrimination. As we have already explained, the Legislature was entitled to reach that conclusion.

For these reasons, applying the strict scrutiny test of Sherbert, supra, 374 U.S. 398, to Catholic Charities’ claim against the WCEA under the free exercise clause of the state Constitution, we find the WCEA meets that test. We do not hold that the state free exercise clause requires courts to apply the Sherbert test to neutral, generally applicable laws that incidentally burden religious practice. Instead, as explained above, we leave that question for another day.

C. Rational Basis

Catholic Charities’ final challenge to the WCEA is that it violates the rational basis test. More specifically, Catholic Charities argues the state has defined the exempt category of “religious employer” (Health & Saf. Code, § 1367.25, subd. (b)) with arbitrary criteria. “In effect,” according to Catholic Charities, “the Legislature decided that any religious institution that employs individuals of other faiths or that ministers to persons of all faiths (or no faith)—in effect any ‘missionary’ church or church with social outreach—is not sufficiently ‘religious’ to qualify for exemption,” and that these classifications are “wholly unrelated to any legitimate state interest.”

The argument lacks merit. The WCEA’s exemption for religious organizations, even if not applicable to Catholic Charities, rationally serves the legitimate interest of complying with the rule barring interference with the relationship between a church and its ministers. (See ante, at p. 543 et seq.) Although the high court has not spoken on the subject, the lower federal courts have held that the constitutionally based ministerial exemption survives the decision in Smith, supra, 494 U.S. 872. (See, e.g., Gellington v. Christian Methodist Episcopal Church, supra, 203 F.3d 1299, 1302-1304; Combs v. Cen Tx Ann Conf United Methodist Church, supra, 173 F.3d 343, 347-350; E.E.O.C. v. Catholic University of America, supra, 83 F.3d 455, 460-463; cf. Schmoll v. Chapman University, supra, 70 Cal.App.4th 1434, 1438-1445 [recognizing a ministerial exception to state employment laws].) Most organizations entitled to invoke the ministerial exemption will be involved in the “inculcation of religious values,” which the first criterion requires. (Health & Saf. Code, § 1367.25, subd. (b)(1)(A).) Many will also satisfy the WCEA’s fourth exemption criterion, which requires that a religious employer qualify for federal tax exemption as a church, an integrated auxiliary of a church, a convention or association of churches, or a religious order. (See 26 U.S.C. § 6033(a)(2)(A)(i) and (iii), cited in Health & Saf. Code, § 1367.25, subd. (b)(1)(D).) If in any case the constitutionally required ministerial exception were broader than the statutory exemption, the former would of course take precedence.

The second criterion, to which Catholic Charities specifically objects as lacking a rational basis, requires that an employer “primarily employ[] persons who share the religious tenets of the entity.” (Health & Saf. Code, § 1367.25, subd. (b)(1)(B).) This provision, in effect, accommodates religious employers more broadly than the ministerial exemption requires by extending the WCEA’s exemption to employees who could not fall within the ministerial exemption. The provision has the legitimate, rational purpose of accommodating a state-imposed burden on religious exercise. {Amos, supra, 483 U.S. 327, 334-335.)

The third criterion, to which Catholic Charities also objects, is problematic. To qualify under it, an employer must “serve[] primarily persons who share the religious tenets of the entity.” (Health & Saf. Code, § 1367.25, subd. (b)(1)(C).) To imagine a legitimate purpose for such a requirement is difficult. Reading the provision literally, a hypothetical soup kitchen run entirely by the ministers of a church, which inculcates religious values to those who come to eat (thus satisfying the first, second, and fourth criteria), would lose its claim to an exemption from the WCEA if it chose to serve the hungry without discrimination instead of serving co-religionists only. The Legislature may wish to address this problem. Catholic Charities, however, cannot successfully challenge the WCEA on this ground because the organization concedes it does not qualify under any of the criteria for exemption, including the relatively objective terms of the federal tax statute cited in the fourth criterion. (Health & Saf. Code, § 1367.25, subd. (b)(1)(D).) Catholic Charities thus cannot qualify for exemption in any event.

III. Disposition

The decision of the Court of Appeal is affirmed.

George, C. J., Baxter, J., Chin, J., and Moreno, J., concurred.

1 The WCEA comprises two laws, Health and Safety Code section 1367.25 (Stats. 1999, ch. 532) and Insurance Code section 10123.196 (Stats. 1999, ch. 538).

2 Health and Safety Code section 1367.25, subdivision (b); Insurance Code section 10123.196, subdivision, (d).

3 Health and Safety Code section 1367.25 provides:

“(a) Every group health care service plan contract, except for a specialized health care service plan contract, that is issued, amended, renewed, or delivered on or after January 1, 2000, and every individual health care service plan contract that is. amended, renewed, or delivered on or after January 1, 2000, except for a specialized health care service plan contract, shall provide coverage for the following, under general terms and conditions applicable to all benefits:

“(1) A health care service plan contract that provides coverage for outpatient prescription drug benefits shall include coverage for a variety of federal Food and Drug Administration approved prescription contraceptive methods designated by the plan. In the event the patient’s participating provider, acting within his or her scope of practice, determines that none of the methods designated by the plan is medically appropriate for the patient’s medical or personal history, the plan shall also provide coverage for another federal Food and Drug Administration approved, medically appropriate prescription contraceptive method prescribed by the patient’s provider.

“(2) Outpatient prescription benefits for an enrollee shall be the same for an enrollee’s covered spouse and covered nonspouse dependents.

“(b) Notwithstanding any other provision of this section, a religious employer may request a health care service plan contract without coverage for federal Food and Drug Administration approved contraceptive methods that are contrary to the religious employer’s religious tenets. If so requested, a health care service plan contract shall be provided without coverage for contraceptive methods.

“(1) For purposes of this section, a ‘religious employer’ is an entity for which each of the following is true:

“(A) The inculcation of religious values is the purpose of the entity.

“(B) The entity primarily employs persons who share the religious tenets of the entity.

“(C) The entity serves primarily persons who share the religious tenets of the entity.

“(D) The entity is a nonprofit organization as described in Section 6033(a)(2)(A)i or iii, of the Internal Revenue Code of 1986, as amended.

“(2) Every religious employer that invokes the exemption provided under this section shall provide written notice to prospective enrollees prior to enrollment with the plan, listing the contraceptive health care services the employer refuses to cover for religious reasons.

“(c) Nothing in this section shall be construed to exclude coverage for prescription contraceptive supplies ordered by a health care provider with prescriptive authority for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or for prescription contraception that is necessary to preserve the life or health of an enrollee.

“(d) Nothing in this section shall be construed to deny or restrict in any way the [D]epartment[of Managed Care’s] authority to ensure plan compliance with this chapter when a plan provides coverage for prescription drugs.

“(e) Nothing in this section shall be construed to require an individual or group health care services plan to cover experimental or investigational treatments.”

4 Insurance Code section 10123.196 is essentially the same as Health and Safety Code section 1367.26 (see fn. 3, ante), except that it regulates disability insurance policies instead of health care service plan contracts. For the sake of convenience, subsequent references to the WCEA will include only the Health and Safety Code.

5 The Department of Managed Health Care regulates health care service plans. (Health & Saf. Code, § 1341 et seq.) The Department of Insurance and the Insurance Commissioner regulate disability insurance policies. (See id., § 1343, subd. (e)(1), and Ins. Code, § 10290 et seq.)

6 The court in Lemon v. Kurtzman, supra, 403 U.S. 602, “gleaned from [its prior] cases” three tests for determining whether a statute violates the establishment clause: “First, the statute must have a secular legislative purpose; second its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster ‘an excessive governmental entanglement with religion.’ ” (Id., at pp. 612-613, quoting Walz v. Tax Commission, supra, 397 U.S. 664, 674.)

7 Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439 [99 L.Ed.2d 534, 108 S.Ct. 1319] (Native American free exercise challenge to governmental logging and road construction activities); O’Lone v. Estate of Shabazz (1987) 482 U.S. 342 [96 L.Ed.2d 282, 107 S.Ct. 2400] (prison regulations); Goldman v. Weinberger (1986) 475 U.S. 503 [89 L.Ed.2d 478, 106 S.Ct. 1310] (military dress regulations); Gillette v. United States (1971) 401 U.S. 437 [28 L.Ed.2d 168, 91 S.Ct. 828] (selective service law); Braunfeld v. Brown (1961) 366 U.S. 599 [6 L.Ed.2d 563, 81 S.Ct. 1144] (Sunday closing law); Prince v. Massachusetts (1944) 321 U.S. 158 [88 L.Ed. 645, 64 S.Ct. 438] (child labor law); Jacobson v. Massachusetts (1905) 197 U.S. 11 [49 L.Ed. 643, 25 S.Ct. 358] (compulsory vaccination law); Reynolds v. United States, supra, 98 U.S. 145 (polygamy law).

8 Lyng v. Northwest Indian Cemetery Prot. Assn., supra, 485 U.S. 439, 450-453; O’Lone v. Estate of Shabazz, supra, 482 U.S. 342, 348-353; Goldman v. Weinberger, supra, 475 U.S. 503, 506-510.

In Bowen v. Roy (1986) 476 U.S. 693 [90 L.Ed.2d 735, 106 S.Ct. 2147], the high court did not decide whether the free exercise clause barred the federal government from requiring Native American welfare applicants, over their religious objections, to provide Social Security numbers. In separate opinions, six justices expressed the view that Sherbert would govern the question. (Id., at pp. 715-716 (opn. of Blackmun, J., cone, in part); id., at p. 722 & fn. 17 (opn. of Stevens, J., cone, in part); id., at p. 728 (opn. of O’Connor, J., cone, in part, with Brennan and Marshall, JJ., cone.); id., at p. 733 (dis. opn. of White, J.).) Three justices disagreed. (Id., at p. 708 (plur. opn. of Burger, C. J., with Powell and Rehnquist, JJ., cone.).)

9 Indeed, rather than discriminating against the Catholic Church, the WCEA can more plausibly be viewed as benefiting the Catholic Church in practical effect, since no other religious group opposed to prescription contraceptives has been identified. But the WCEA does not for this reason violate the establishment clause. A law intended not to discriminate among religions but to alleviate a governmentally created burden on religious exercise does not necessarily violate the establishment clause, even though only a single religion in need of accommodation has been identified, if the law is phrased neutrally, to allow for the possibility that other as-yet-unidentified religions in need of the same accommodation will be able to claim it. (See, e.g., Kong v. Scully (9th Cir. 2003) 341 F.3d 1132; Children’s Health. Is A Legal Duty v. Min De Parle (8th Cir. 2000) 212 F.3d 1084; Droz v. Commissioner of I.R.S. (9th Cir. 1995) 48 F.3d 1120.)

10 We read Larson, supra, 456 U.S. 228, as condemning laws that discriminate among religions or religious denominations. The law held unconstitutional in Larson reflected the Minnesota Legislature’s “express design ... to burden or favor selected religious denominations'” (id., at p. 255, italics added), specifically the Unification Church (id., at pp. 232, 255, fn. 30). Here, in contrast, nothing about the Catholic religion prevents a Catholic religious organization from qualifying under the WCEA’s exemption for religious organizations. We assume, for example, that a Catholic diocese or parish, acting as an employer, would typically qualify under the exemption.

In contrast, Larson, supra, 456 U.S. 228, does not purport to bar a state from attempting for valid regulatory purposes to distinguish among organizations based on sect-neutral grounds, even if those organizations claim a religious character. Indeed, Larson expressly permits the state to require an organization “claiming the benefits of [a] religious-organization exemption” from a regulatory statute “to prove that [it] is a religious organization within the meaning of the [statute].” (Id., at p. 255, fn. 30, italics added.) Were this not true, the mere claim of religious character would effectively preclude state regulation.

11 Catholic Charities also argues that the Legislature acted out of antipathy and spite towards the Catholic Church. Through this argument, Catholic Charities seeks to compare the Legislature’s consideration of the WCEA with the Hialeah City Council’s decision (see Lukumi, supra, 508 U.S. 520) to ban animal sacrifice as a way of suppressing the Santería religion. In discussing the council’s decision, the high court noted that Hialeah city officials had castigated Santería as an “abomination to the Lord” and “the worship of demons,” and that a public crowd attending the city council’s meeting had interrupted with jeers and taunts the President of the Santería Church. (Id., at p. 541.) The legislative history of the WCEA discloses no comparable antipathy to the Catholic Church.

12 Namely, Follett v. McCormick (1944) 321 U.S. 573 [88 L.Ed. 938, 64 S.Ct. 717], Murdock v. Pennsylvania (1943) 319 U.S. 105 [87 L.Ed. 1292, 63 S.Ct. 870], and Cantwell v. Connecticut, supra, 310 U.S. 296; see Smith, supra, 494 U.S. 872, 881.

13 Namely, Wisconsin v. Yoder, supra, 406 U.S. 205, and Pierce v. Society of Sisters (1925) 268 U.S. 510 [69 L.Ed. 1070, 45 S.Ct. 571]; see Smith, supra, 494 U.S. 872, 881.

14 A few state courts have mentioned the hybrid rights theory. (First Covenant Church v. Seattle (1992) 120 Wn.2d 203 [840 P.2d 174, 181-182] [alternative ground for decision]; City Chapel v. South Bend (Ind. 2001) 744 N.E.2d 443, 452-454 (plur. opn. of Dickson, J.).)

15 Catholic Charities perfunctorily asserts that its claims under the establishment clause (U.S. Const., 1st Amend.) also justify treating this case as involving hybrid rights. We have, however, already determined that those claims lack merit.

16 “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. . . .” (Cal Const., art. I, § 4.)

17 The United States Supreme Court subsequently held RFRA unconstitutional. (City of Boerne v. Flores (1997) 521 U.S. 507 [138 L.Ed.2d 624, 117 S.Ct. 2157].)

18 WMle the court in Brunson v. Department of Motor Vehicles, supra, 72 Cal.App.4th 1251, thus misinterpreted Smith v. FEHC, supra, 12 Cal.4th 1143, we have no occasion to reexamine the Brunson court’s ultimate conclusion about the validity of the statutes at issue in that case. We note the Legislature recently amended Vehicle Code sections 1653.5 and 12800, subdivision (a), to permit the Department of Motor Vehicles to accept appropriate numbers and identifiers other than Social Security numbers. (Stats. 2003, ch. 326, §§ 1, 2.)

19 Assuming the obligation to provide adequate health care coverage is a religious belief, one might also ask whether a religious employer opposed to contraceptives on religious grounds could avoid all conflict with its beliefs by declining coverage for prescription drugs (thus satisfying the WCEA) while offering its employees a raise to offset the reduced benefits, accompanied by whatever condemnations of contraceptives the employer wished to offer. A raise might be far more expensive for the employer than insurance, and a law that indirectly made a religious practice more expensive might at some point become a constitutionally significant burden on religious exercise. However, “it cannot be expected, much less required that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions.” (Braunfeld v. Brown, supra, 366 U.S. 599, 605.)

20 At least 19 other states have adopted laws requiring that employers or insurers provide coverage for prescription contraceptives. (See Note, The Quest for Equality: Comprehensive Insurance Coverage of Prescription Contraceptives (2002) 82 Boston U. L.Rev. 1289, 1290, 1298-1301; Comment, Contraceptive Coverage Laws: Eliminating Gender Discrimination or Infringing on Religious Liberties? (2002) 69 U. Chicago L.Rev. 1867, 1877, fn. 68.)