Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, February 21, 2012

Tweet of the day

Matt Yglesias, a respected blogger and writer for Slate, offered this "tweet" yesterday:

Newfound GOP enthusiasm for religious exemptions from generally applicable laws seems dangerously close to sharia.

Judging from his past writing, my guess is that this was a tongue-in-cheek jab at GOP candidates' disturbing tendency to use the "Sharia" label as a punching bag on the campaign trail.  I fear, though, that it is a harbinger of sincere arguments to come, as reasonable, right-thinking folks are asked to line up in either the Enlightenment camp or the Theocracy camp.  Nuance may be in short supply.


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While googling various topics having to do with the "contraceptive mandate," I discovered to my surprise that Islam opposes insurance. It is a huge topic that I can't begin to summarize, but here is a link:

Catholics are protesting a requirement to include certain drugs and procedures in insurance coverage, but Muslims consider insurance *itself* immoral. However, based on what I have read, they are allowed some flexibility if they live in a society like the United States where, for example, insurance is required to drive a car.

Posted by: David Nickol | Feb 21, 2012 11:13:12 AM

I hope this is relevant enough to the topic at hand. There is a very knowledgeable commenter over on Vox Nova named Kurt who clearly works in government (almost certainly congress) in some capacity, and he noted the following about the narrow exemption for religious organizations:

The Obama Administration did not make up a new definition of religious organization nor declare hospitals and schools non-religious. It applied the same standard used in the Civil Rights Act of 1964. Some of us (myself included) stated in regard to the first proposal that we simply don’t think that historic standard worked in this particular situation. That is different from pretending this is newly invented or attacking any law that uses that definition.

Posted by: David Nickol | Feb 21, 2012 11:18:09 AM

It is absurd to say that the Mandate's definition of religious employer is the same as in the Civil Rights Act of 1964. It is more absurd to cite an anonymous blog commenter for the suggestion. It is thrice absurd to, as I expect will happen, demand that the person who challenges the anonymous blog commenter has the burden to prove the negative of his unfounded, uncited assertion. If you would like to offer the point for reasonable discussion, find an authoritative source for it, or go back to that blog and ask Kurt to document his claim and do so in a demonstrative way. But don't hold your breath.

Posted by: Matt Bowman | Feb 21, 2012 11:20:23 PM

To Rob's point, Mr. Yglesias seems to think that crafting a law with about a dozen varied and widely-discretionary exemptions constitutes a "generally applicable" law, to which religious believers faced with such unprecedented exercise of raw federal power are unjustified in claiming First Amendment rights. So whose world is more like sharia: the world of Sherbert, Yoder and Lukumi, or Mr. Yglesias's world where de facto there is no free exercise clause?

Posted by: Matt Bowman | Feb 21, 2012 11:26:52 PM


I'll be glad to ask Kurt over at Vox Nova to elaborate on his point. Watch this space.

Posted by: David Nickol | Feb 22, 2012 9:54:07 AM

While waiting for Kurt's reply, here is a second message of his on the topic:

The Obama administration is applying the definition in a way that restricts religious actors EXACTLY as has been done before. The Civil Rights Act exempts houses of worship, churches, etc but not church affiliated schools and hospitals that serve the general public.

While I think the historic definition of who would be eligible for a religious exemption is flawed in this particuar case, it is a simple fact that this was the historic defintion of a religious exemption and not something newly invented.

Posted by: David Nickol | Feb 22, 2012 9:58:51 AM

Kurt's response is as follows:

February 22, 2012 2:08 pm

I’m rather shocked that Matt, who I understand is a member of the Maryland Bar, is confused about this. But I do find many conservatives get angry rather than inquisitive when their lack of experience (I guess due to their forbearer’s opposition) to Civil Rights becomes an issue. I did appreciate the late Richard John Neuhaus, a conservative in the second half of his life but who was a strong leader in the Civil Rights Movement earlier. He always got it.

I don’t want to tangle with Matt’s anger. There are two simple, sterile, legal questions: 1) Under the Civil Rights Act of 1964, may a church, parish, congregation or temple discriminate on the basis of race? 2) May a religiously affiliated hospital or school (i.e. Holy Cross Hospital or Fordham University) discriminate on the basis of race?

If Matt can’t answer a simple “yes” to the first and “no” to the second, I don’t think he is a very good lawyer.

Posted by: David Nickol | Feb 22, 2012 4:03:28 PM


Before you respond, let me clarify, since I think Kurt meant "on the basis of religion" and not "on the basis of race."


Posted by: David Nickol | Feb 22, 2012 4:21:27 PM

Wow, an anonymous commenter making sneering remarks, ignorant of any of the facts he claims are true, and refusing to answer the question but instead just asking different, distracting questions. How novel.

I'm more interested in having a conversation with David Nickol on the point he raised above. David, you offered for discussion the idea that the "definition of religious organization" is "the same standard used in the Civil Rights Act of 1964." Your sole authority for this idea was not a citation to the Act or maybe an applicable court case comparing its "definition" to the Mandate's definition. It was only the authoritative quality of an anonymous blog commenter from another site.

My point is very simple: dozens of people who are not anonymous and who have renowned expertise (namimg just one, the USCCB's general counsel who signed their comments to HHS including extensive argumentation and citations) have contended that the Mandate's definition is unprecedented in federal law. If the entire world is stupid and anonymous Kurt is right, then it should be simple for the person hiding behind his handle to simply quite the definition of religious employer "used in the Civil Rights Act of 1964" from a non-anonymous and authoritative source, put it side by side with the Mandate's definition, and illustrate for all to see that they are identical. So, for a second time, I am glad to invite you to do exactly that. Or, if not, that's fine too. You can leave the assertion resting on no further grounds than the authoritative character of a bitter blog commenter who won't give his name.

But far more likely to happen next is that the anonymous, sneering commenter will refuse to answer the question, again, and sneer further in accusation of others for refusing to answer his additional, distracting and uninformed claims. Such is the quality of discourse today. Thankfully people who put their known-identities in discussions can still, sometimes, have productive discourse amidst that clamor.

Posted by: Matt Bowman | Feb 22, 2012 4:55:35 PM


It seems to me that the point is really fairly simple. The Civil Rights Act of 1964 does not define which religious organizations do and do not qualify for the §702 exemption, but as the statute has been interpreted by the courts, the religious organizations that qualify for the §702 exemption (e.g., dioceses, parishes, parish-operated schools) are the same organizations that are exempted from the contraceptive mandate, and the religious organizations that do not qualify for the §702 exemption (e.g., Catholic universities, hospitals) did not, under the original mandate, qualify for an exemption.

The point is that the Obama administration did not set up some new dividing line, with a parish-operated school on one side and a Catholic hospital on the other. It followed the same principles as the courts have followed interpreting the Civil Rights Act of 1964, when they have put the parish-operated school in one category and the Catholic hospital in another.

So we have the two questions:

1. Under the Civil Rights Act of 1964, may a church, parish, congregation or temple discriminate on the basis of religion?

2. May a religiously affiliated hospital or school (i.e. Holy Cross Hospital or Fordham University) discriminate on the basis of religion?

The answer to question 1 is yes, and the answer to question 2 is no. Likewise, if the questions were (1) whether under the contraceptive mandate, a church, parish, congregation or temple would be exempt, and (2) whether a religiously affiliated hospital or school (i.e. Holy Cross Hospital or Fordham University) would have been exempt under the original regulation, the answers would again be (1) yes and (2) no.

Posted by: David Nickol | Feb 22, 2012 7:21:46 PM

The answer to question 2 is not no. Can you cite an authoritative source other than anonymous Kurt for your assertion that it is "no"? Can you cite a source for the proposition that unless, like the Mandate says, an entity primarily serves its coreligionists it isn't a religious employer under Title VII? Can you cite a source for the proposition that unless, like the Mandate says, an entity is a church, religious order or integrated auxiliary it is not a religious employer under Title VII? You cannot, because it simply isn't true, and no reputable person contends it is true. Waiting, waiting for a source; this is the third time I have asked.

Posted by: Matt Bowman | Feb 23, 2012 10:37:46 AM


Matt, Here is a summary I found helpful in The New York Law Journal, April 4, 2008, "Religious Organizations Exemption" by by John P. Furfaro and Risa M. Salins:

While the scope of the §702 exemption is largely settled, the question of who qualifies for it is not. The statute does not define what constitutes “a religious corporation, association, educational institution, or society.” Rather, “[a]ll significant religious and secular characteristics must be weighed to determine whether the corporation’s purpose and character are primarily religious.” EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988). The organizations which courts have found to qualify for the §702 exemption have by and large been either formal houses of worship or entities affiliated with such. See, e.g., Amos, 483 U.S. at 327 (nonprofit gymnasium operated by religious entities associated with the Church of Jesus Christ of Latter-Day Saints); Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 238 F.Supp. 174 (D.D.C. 2002) (an affiliated auxiliary of the United Methodist Church); Little v. Wuerl, 929 F.2d 944 (3rd Cir. 1991) (a parish-operated Roman Catholic school). On the other hand, defendant organizations not owned or operated by a formal house of worship have generally not qualified for the exemption, even where the organizations were founded based on religious principles, engage in religious activities or have boards of trustees comprised of church members. For example, in EEOC v. Kamehameha/Bishop Estate, 990 F.2d 458 (9th Cir. 1993), two schools established by a Bishop estate which had a policy of hiring only Protestant teachers did not qualify for the exemption, in part, because “[n]o religious organization ha[d] ever controlled or supported the Schools, and the Schools [were] not affiliated with any denomination of Protestants or with any organization or association of religious schools.” 990 F.2d at 461; see also Fike v. United Methodist Children’s Home of Virginia, 439 F.Supp. 935 (D.C. Va. 1980) (holding children’s home’s “statement of church relatedness” and requirement that its trustees be members “in good standing of the Methodist Church” were not enough for it to qualify for the §702 exemption). . . .

The U.S. Supreme Court denied certiorari this term in a case which would have resolved another issue important to religious organizations -- whether they should be exempt from the New York Women’s Health and Wellness Act which, like laws in some two dozen other states, requires that employers providing group insurance for prescription drugs include coverage for prescription contraceptives. In Catholic Charities v. the Diocese of Albany, 7 NY3d 510 (2006), the Court of Appeals unanimously rejected the argument of 10 faith-based social service organizations that they should be exempt on religious freedom grounds.

I think this is accurate based on everything I have read so far, and it seems to me that §702 does exempt a Catholic parish but does not exempt a Catholic hospital. This is not to say that there are no circumstances under which a Catholic hospital can consider religion in hiring, but in the cases where they can take religion into account, it is not because they are exempted by §702 of Title VII.

Posted by: David Nickol | Feb 23, 2012 11:41:12 AM

World Vision, a Christian organization unaffiliated with a church, that does humanitarian work, and without first asking the people it serves whether they share the same faith, was ruled a religious employer under Title VII, by the Ninth Circuit, and the Supreme Court denied review. World Vision fails the Obama "religious" test on 3 out of four counts. You and "Kurt" are simply wrong about Title VII.

Posted by: Matt Bowman | Feb 23, 2012 11:50:04 AM

Kurt had said that religious organizations could discriminate both on the basis of religion *and* race. I said it was my understanding that they could discriminate only on the basis of religion. These were his two replies:

February 23, 2012 8:43 am
You have both. You have the ministerial exemption which the authors of the Civil Right Act undertstood was guaranteed in the establishment clause, which is why women cannot sue for sex discrimination against the Catholic Church or an African American to sue for race discrimination againt the LDS before they changed their policy/doctrine. Then you have a broader religious exemption that goes further to faith based parachurch organizations under certain conditions. If you want, although a little more complicated, that exemption as well supports the demarcation HHS originally drew. Parachurch groups that hire only their own co-religionists and minister to them (i.e. those using the exemption in Section 702) were also exempted from the contraception rule.
Again, I supported a revision of the original HHS rule. But this rule did not “re-define” what is an exempt religious organization but used existing law. I believe it is reasonable to go beyond existing law.
(If you want further legal complications, there also is the right for employers to hire those who support the mission of the employer, For religious employers, that gives them further freedom to hire those in line with their religious teachings).

February 23, 2012 8:54 am
And another point! :)
The Republican proposal actively supported by the USCCB goes totally outside historic practice by giving private, for-profit, commerical employers the right to claim a religious exemption. Is is a radical deviation from civil rights law.

Posted by: David Nickol | Feb 23, 2012 11:52:38 AM

World Vision, David. Anonymous Kurt cannot wish it away.

Posted by: Matt Bowman | Feb 23, 2012 11:53:42 AM

David, before we are flooded with more chains of block quotes, I would just like you to concede that World Vision is, as a matter of law, a religious employer under the meaning of Title VII, and is NOT one under Obama's Mandate (it is not a church auxiliary; and in addition, it does not primarily serve adherents; and it's primary purpose is humanitarian not the inculcation of values). A simple "yes, the HHS's Mandate is more restrictive than 'religious employer' under Title VII," contrary to the wheel-spinning of this entire string, is what I am looking for.

If you're not prepared to admit that, I think the original point of my posts is proven: assertions based on unreliable anonymous authorities are worth exactly what they seem to be worth, which is much less than the effort put into this discussion.

Posted by: Matt Bowman | Feb 23, 2012 12:14:39 PM

Hosanna Tabor certainly changed the answer for #2, as to "ministerial" employees. The statutory answer, unmodified by constitutional overrides, might be different. The constitutional answer might be the same as the statutory answer for all non-ministerial employees. But for many, and maybe most or all teachers at some religious schools, the school/employer may discriminate by religion, race, disability, or any basis, in choosing ministerial employees.

More important, though, is that choosing an employee is far different from providing a product as part of a benefits package. I still don't understand why, under even the most pro-mandate theory of the world, an employer loses its exemption, even if it HIRES only employees of the same religion, merely because it SERVES those of other religions.

I get how a non-Catholic nurse is affected at a hospital. But how is a non-Catholic patient affected by the benefits package offered to an all-Catholic staff? A non-Catholic patient might be affected by a refusal to perform certain procedures, but not by the employees' benefits.

I understand that for most or all institutions at issue, non-Catholic employees are common, so this might be purely hypothetical. But it shows how narrow the exemption is in this context. It's also telling that in Sebelius' op-ed, she described the exemption as covering all-co-religious employees, but omitted the customer requirement.

Posted by: joe reader | Feb 23, 2012 5:19:42 PM

The statutory answer isn't different, as shown by the World Vision case. I am just waiting for David to concede that World Vision and some other employers who fail the Obama Mandate 4-part test are indeed religious employers under Title VII, contrary to his anonymous source.

Posted by: Matt Bowman | Feb 23, 2012 5:28:35 PM


You are trying to prove that the HHS regulations for what constitutes a religious employer when it comes to the contraceptive mandate are not exactly identical to the courts' interpretation of what constitutes a religious employer when it comes to interpretations of §702 of Title VII. I have no argument with that.

But that is not really the point. HHS clearly cannot formulate regulations that will identically match all court decisions (including those not yet made) regarding who is a religious employer according to §702 of Title VII. The point is that HHS, in drawing up a definition of what constitutes a religious employer for purposes of the contraceptive mandate, did not shockingly make a distinction between a Catholic parish and a Catholic hospital following some kind of restricted views that had never been heard of before. The HHS guidelines are in general agreement with congressional intent and court rulings for §702 of Title VII. The sentences we are discussing are: "The Obama Administration did not make up a new definition of religious organization nor declare hospitals and schools non-religious. It applied the same standard used in the Civil Rights Act of 1964." I think that is still perfectly defensible, even acknowledging that two judges in a three-judge panel decided Word Vision qualified as a religious employer and the Supreme Court declined to consider an appeal. I think the Wold Vision case broke new ground and broadened the interpretation of §702, and I am not quite sure how one could formulate an HHS rule that was consistent with past interpretations of §702 and also included organizations like World Vision (except perhaps to add World Vision by name).

The point, it seems to me, is that §702 and the HHS regulations are very much within the same ballpark. Yes, the HHS's mandate is more restrictive than "religious employer" under Title VII in that (only because of a very recent court decision) World Vision is included in the former but not in the latter. I have no problem acknowledging that. But that doesn't render the HHS rules dramatic and unprecedented at all.

Posted by: David Nickol | Feb 23, 2012 5:30:58 PM

"It applied the same standard used in the Civil Rights Act of 1964" is false. You refuse to admit that. That speaks more about you and less about the issue at hand. The HHS Mandate standard is more onerous than Title VII. It is not the same as your anonymous source claims. World Vision fails three of the four HHS prongs and is still religious under Title VII. Thanks for participating.

Posted by: Matt Bowman | Feb 23, 2012 5:44:59 PM


Yes, we still disagree, but I have enjoyed the discussion.


Posted by: David Nickol | Feb 23, 2012 6:23:41 PM

David, it is not "only because of a very recent court decision [World Vision]" that the Title VII exemption is significantly broader than that in the HHS mandate. Decisions dramatizing the difference go back some 30 years.

To take just a couple of examples, with quotes: LeBoon v. Jewish Community Center, 503 F.3d 217 (3d Cir. 2007), held that a JCC qualified for a Title VII exemption even though "its employees were overwhelmingly Gentile"--a feature that alone would disqualify it from the HHS definition of religious. And Feldstein v. Christian Science Monitor, 555 F. Supp. 974 (D. Mass. 1983), held that the Christian Science Monitor fit within the Title VII exemption even though the newspaper "holds itself out as an objective and unbiased reporter of world news and events"--again, in contrast with the HHS mandate, which requires that the primary purpose be to inculcate religious values. That would be enough alone to exclude the Monitor from the HHS exemption even though it employed primarily Christian Scientists at the time.

While some of the factors courts consider under Title VII overlap with some of those in the HHS mandate, and some organizations would flunk (or satisfy) both tests, the HHS mandate is totally different in its rigid insistence that the organization satisfy all four of its stated criteria. No other indicator of religiosity matters, and there is no weighing of factors against each other as in Title VII. That produces very different results, and to assert otherwise is simply not defensible.

Posted by: Tom Berg | Feb 23, 2012 6:47:59 PM

Tom Berg,

Thanks for taking the time to explain in detail. You make a very convincing case.

Posted by: David Nickol | Feb 24, 2012 9:36:24 AM

Kurt's comments made me take a look at Title VII law a little more closely. It's been amended since it was first passed and there are additional exemptions under Title VII for religious organizations and religious schools that go far beyond the strict religious exemption of the HHS rule. Title VII has some exemptions described in 42 USC § 2000e-1(a) and § 2000e-2(e)(2) that cover schools, charities, and other organizations that engage in some secular activities, organizations like Tom Berg is describing, etc., and which all fail the exemption test of the HHS rule.

Posted by: Thales | Feb 24, 2012 10:53:51 AM


I find the naming of laws very confusing, but I don't think 42 USC § 2000e-1(a) and § 2000e-2(e)(2) can be considered to amend Title VII of the Civil Rights Act of 1964.

I do see Tom Berg's point that the religious exemption to the HHS mandates is narrow, but overall I wonder about the number and the nature of the religious organizations that would be exempt under Title VII but not exempt from the HHS mandates. I am no doubt being stubborn and not totally unbiased, but it still seems to me that the two exemptions are similar, although certainly not identical. And, of course, there is no compelling reason, it seems to me, why they *should* be identical.

I do want to point out, and I think you will agree, that Kurt is a very knowledgeable commenter on Vox Nova, and although his opinions have not been well received here, he was not endorsing the initial HHS exemptions. He has made it consistently clear that while he thinks the HHS exemptions "applied the same standard used in the Civil Rights Act of 1964," that he did not think that was adequate for the first proposal (before the announced "accommodation"). I have a great deal of respect for Kurt.

Also, some of the most thoughtful and informed commenters on Vox Nova (including yourself) use pseudonyms, and what Kurt, or you, or Morning's Minion (not a mere commenter, but an official contributor) says on Vox Nova should be judged on its merits, not on whether or not the person uses his or her full name. The same is true on Mirror of Justice.

Posted by: David Nickol | Feb 24, 2012 11:54:24 AM

"I find the naming of laws very confusing, but I don't think 42 USC § 2000e-1(a) and § 2000e-2(e)(2) can be considered to amend Title VII of the Civil Rights Act of 1964."

Well, Thales never said that they did. Public law is amended by public law and those amendments are then established in the US Code. The question is whether or not these Code sections codify subsequent statutory amendments to Title VII.

Let's go to the language. 42 USC § 2000e-1(a) starts "This subchapter shall not apply . . . ." "This subchapter" refers to 42 USC Chapter 21, Subchapter VI ("Equal Employment Opportunity"). But I guess that could be any act pertaining to equal employment opportunity, so let's go to the Code sources for 42 USC § 2000e-1. "Pub. L. 88-352, title VII, Sec. 702, July 2, 1964, 78 Stat. 255" Why...that's Title VII! We also have "Pub. L. 92-261, Sec. 3, Mar. 24, 1972, 86 Stat. 103", which is the EEO Act, which--if you look at the statutes at large--amended Title VII! Wouldn't you know it, it's the same sources for 42 USC § 2000e-2. It also seems that in 1991 Pub. L. 102-166 further amended the code section (which is Title VII as amended by the EEO Act) to make 2000e-1(a) a stand-alone subsection. So, yes, 42 USC § 2000e-1(a) and § 2000e-2(e)(2) contain the amended Title VII of the Civil Rights Act of 1964.

But this is statutory interpretation and legislative history, so who knows? Isn't there an authoritative source, like, stuff on the Internet non-lawyers can find via Google? Why yes, there is!



"The following is the text of Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, as it appears in volume 42 of the United States Code, beginning at section 2000e."

"(a) Inapplicability of subchapter to certain aliens and employees of
religious entities"

"(e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin; educational institutions with personnel of particular religion".

Posted by: Mike | Feb 24, 2012 1:02:14 PM

As I've said to Kurt, I don't even understand why the purported similarity between Title VII and HHS exemptions is relevant. They do two totally different things, making two sets of different expectations and burdens on institutions, so it doesn't make sense when Kurt says that "the standard" is the same for both. I'm a huge fan of the legal prohibition of murder, and that doesn't have any religious exemption at all; but it doesn't make sense to say that that same no-religious-exemption standard should also apply to the HHS rule because it's a law too.

Posted by: Thales | Feb 24, 2012 1:13:53 PM

"[The HHS Mandate] applied the *same standard* used in the Civil Rights Act of 1964." DN, quoting Kurt at 11:18 2/21.

"[I]t still seems to me that the two exemptions are similar, although *certainly not identical*." DN at 11:54 2/24.

So Matt was right; Kurt was wrong.

Posted by: Mike | Feb 24, 2012 1:15:31 PM


Thanks for the information. I am not a lawyer, and I don't pretend to be any kind of expert. One of the reasons I enjoy participating in forums like this is because I learn things.

It seems to me that Judges O'Scannlain, Kleinfeld, and Berzon decided the World Vision case applying the same standard, and yet they did not agree. Judge Berson wrote:

Section 2000e-1(a) reflects Congress’s recognition that for a small group of employers—organizations devoted to prayer and religious instruction—the requirement to accommodate employees of different faiths could represent an unwarranted intrusion into the organizations’ own freedom of religion. For those groups, on balance, the restriction of the relatively few affected jobs to those with approved religious beliefs is tolerable.

My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles. But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees.

It seems to me that two sets of rules or regulations based on the same standards can have different results, particularly when interpreted and applied by different groups. It is not at all uncommon for judicial decisions to be split 2-1 or 5-4, and the judges are all working with the same information and the same laws and standards.

Posted by: David Nickol | Feb 24, 2012 2:39:54 PM