Religious Employer Exemption under the Federal Mandate for All Health Plans

The "Patient Protection and Affordable Care Act" was signed into law by President Barack Obama on March 23, 2010. The Act requires "group health plans" to provide "preventative care and screening" for women, which includes contraceptive services that some religious organizations object to for religious reasons. The Religion Clauses of the First Amendment require a "religious conscience exemption," but the question most commentators have been asking is how broad or narrow would the Obama Administration make this exemption? On August 3, 2011, we found out: narrow.

The long-awaited interim federal regulation proposed that "religious employer" (hence, eli­gible for the exemption) be defined as one that: "(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under [certain provisions of the Internal Revenue Code that] refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclu­sively religious activities of any religious order." See 76 Fed. Reg. 46623 (Aug. 3, 2011).

Some suggest that this is the narrowest reli­gious exemption ever adopted in federal law. It is undoubtedly narrower than the exemption for religious employers under Title VII of the 1964 Civil Rights Act. Title VII permits religious orga­nizations to discriminate "with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [religious organization] of its activities." See 42 U.S.C. § 2000e-1(a). Thus, a religious col­lege may choose to hire professors of the same religion to advance the college's religious mission.

This example highlights how narrow the regulation is. Most religious organizations would fail at least three of the four elements: they do not have "inculcation of religious values as [their] purpose," they do not "primarily serve persons who share [their] religious tenets," and they do not qualify as "churches" or related organizations under the Code. At most, and consistent with Title VII, many religious entities hire like-minded employees to carry out their religious mission.

Religious organizations that provide services to the general public—like hospitals, adoption ser­vices, soup kitchens, prison ministries, and many others—are excluded under the third part of the regulation. This result runs contrary to President Obama's Executive Order regarding "Fundamental Principles and Policymaking Criteria" for gov­ernment partnerships with faith-based organiza­tions, which states that "[a]ll organizations that receive federal financial assistance under social service programs should be prohibited from dis­criminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of religion or religious belief." Execu­tive Order 13559, sec. 2(d). See also 45 C.F.R. § 87.2(e) (implementing this principle for Health and Human Services formula and block grants).

Comments are being taken by the Depart­ment of Labor or the Department of Health and Human Services. The Federal Register discusses the numerous ways a person can make a comment to either of these two federal agencies. See 76 Fed. Reg. 46623 (Aug. 3, 2011). Many religious groups have voiced their opposition to this narrow defini­tion. Time will tell whether it will be changed.

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