March 19, 2013
Helfand: "What is a 'Church'"?"
For those of us -- and that should be all of us! -- who are interested in the religious-freedom-under-law issue, this new paper by Michael Helfand should be of interest. It's called "What is a 'Church'? Implied Consent and the Contraception Mandate." Here is the abstract:
This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules related to accomplishing these uniquely religious objectives. Building on this implied consent framework, this Article argues that the First Amendment should protect institutions from the requirements of the contraception mandate so long as these institutions were both organized around a core religious mission and where that religious mission was open and obvious to employees. In such circumstances, courts should presume that employees recognized the unique religious objectives of their employer and thereby implicitly authorized their employer to make rules related to achieving these religious goals.
It's an interesting article. It risks or sometimes seems to actually veer into two false premises. The first is to conceive of First Amendment religious exercise to be no greater than First Amendment ministerial autonomy. There is no reason to believe that, generally, only a ministerial group can exercise religion as understood by the First Amendment. This would turn the ministerial exception into a ceiling on religious exercise as such. The second troubling tendency of this article is to suggest that because ministerial autonomy is justified by employee implied consent, religious exercise itself depends on "employees implicitly grant[ing] their employer enhanced autonomy over matters" that are in question. The religious exercise of an employer is not derived from the consent of employees. It is included in the free exercise belonging to everyone under the First Amendment. The First Amendment does not say "Congress shall make no law prohibiting the free exercise of religion, if it has been granted by employees."
NB: All of my discussion of the First Amendment here includes RFRA to the extent that the question of "what is religious exercise" is the same under both. Of course the scrutiny triggered by either is different depending on the circumstances. But that is not the question in this piece, since RFRA scrutiny is strict and this article does not raise the substantial burden issue. Mandate opponents are saying that plaintiffs are not exercising religion in the first place. So yes the Mandate violates RFRA by exempting only houses of worship. But the problem does not go away by exempting only implied-consent ministerial entities. All free exercise must be exempted from the Mandate under RFRA, once the separate questions of substantial burden and strict scrutiny are satisfied.
Posted by: Matt Bowman | Mar 19, 2013 11:48:42 AM