Wednesday, May 23, 2012
One of the more interesting issues in the controversy over the HHS mandate (or perhaps I should say one of the few that hasn't been flogged to death in the blogosphere) is the precise language regarding the scope of the exemption that HHS included for some religious employers. The final rule states that an institution is a "religious employer" for purposes of the exemption if it "meets all of the following criteria:"
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization [under the Internal Revenue Code].
45 C.F.R. § 147.130(a)(iv)(A)-(B).
Not surprisingly, those of us who object to the mandate regard this exemption as impermissibly narrow and, moreover, illegitimate government interference in deciding what does and does not constitute a "religious employer." I'm prompted to make this point because of a comment over at dotCommonweal that the exemption "is deliberately vague, of course, and there are good reasons to object to the way the Department of Health and Human Services designed the exemption--although that the government would try to figure out which institutions are religious and which are not is hardly unprecedented" (and linking to an earlier post on America's blog saying that the langauge of the exemption comes from labor and employment law). A few quick points for discussion:
The language of the HHS mandate is not (pace the author at America's blog and others inclined to view this as rulemaking as usual) borrowed from (and is substantially narrower than) religious exemptions in other regulatory settings such as labor and employment law. NLRB v. Catholic Bishop. 440 U.S. 490 (1979) and lower court interpretations of Catholic Bishop in such cases as Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc) stand for the proposition that the state cannot (as a matter of statutory interpretation of the NLRA operating under a doctrine of constitutional avoidance) pick and choose which church-affiliated institutions are "sufficiently" or "completely" religious. See also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343 (1987) (Brennan, J., concurring in the judgment) ("[D]etermining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree.”)
In employment law, cases such as LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), hold that the exemption for religious institutions from Title VII's prohibition on discrimination based on religion is reasonably broad. As Judge Roth puts it in LeBoon:
First, religious organizations may engage in secular activities without forfeiting protection under Section 702....
Second, religious organizations need not adhere absolutely to the strictest tenets of their faiths to qualify for Section 702 protection....
Third, religious organizations may declare their intention not to discriminate, as the LJCC did to the United Way and in its employee handbook, without losing the protection of Section 702....
Fourth, the organization need not enforce an across-the-board policy of hiring only coreligionists....
We disagree with LeBoon's contention that the LJCC's willingness to welcome Gentile members and even to host Hindu services is incompatible with the view that the LJCC was a religious organization. Indeed, these characteristics are clearly tied to some of the Jewish principles that guided the LJCC-tolerance toward other faiths, healing the world, and doing the right thing. We will not deprive the LJCC of the protection of Section 702 because it sought to abide by its principles of “tolerance” and “healing the world” through extending its welcome to non-Jews.
503 F.3d 217 at 230.
So where did the HHS mandate exemption language come from? As one of the lawyers on the cert petition in 2004 challenging California's contraceptive mandate, I am fairly certain that the narrow, four-prong test in the HHS mandate initially appeared in a revised 1999 draft bill by then-California state senator Jackie Speier (now a US representative). In short, the language in the HHS exemption has always been about coercing Catholic social service agencies, hospitals, and universities and colleges to provide contraceptive coverage, and the problem now is the same that my colleagues and I stated then:
Catholic Charities’ stated purpose is not to “inculcat[e]” religious values, but to carry out the Church’s religious mission to perform corporal works of mercy. It provides social services to anyone in need, whatever his or her religious beliefs. And it employs those who, regardless of their own religion, embrace Catholic Charities’ mission and understand that it is pursued in conformity with the faith and teachings of the Church of which it is a part. In the judgment of the State, Catholic Charities’ religious rights are forfeited for these reasons—because, to put it bluntly, it puts its religion into practice and does so in an all-inclusive way. There is, California seems to say, something less religious about such an organization. A truly religious organization, in its view, would be more exclusive in its associations, more single-minded in its purpose, and less concerned about the welfare of others. It would be concerned only with drilling, or “inculcating,” its beliefs into the minds of its adherents.
There is no precedent for such a narrow view of religion.