On January 11, the United States Supreme Court reproved the Obama Administration by issuing a 9-0 decision against the Government in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (Case No. 10-553). It unanimously rejected the Administration’s cramped view of the religious rights of church congregations in regard to whom they employ as their ministers. An explanation of the case has appeared in MercatorNet.

In Hosanna-Tabor, the Administration advocated the view that ministers of churches should be defined for legal purposes only as “those employees who perform exclusively religious functions.” (Brief of EEOC, p. 51.)  The Court found the Administration’s position to be extreme and unacceptable. “Indeed, we are unsure whether any such employees exist.” Religious ministers often have a mix of duties that include such secular ones as managing finances and personnel, and these duties would disqualify them from the exception under the Administration’s view. (Slip Opinion, p. 19.)

On January 20, undeterred by the Supreme Court’s rebuff, the Administration continued its attacks on religious rights in this country by announcing a severely constricted religious exemption to the services that every health-care plan must include under the Patient Protection and Affordable Care Act unless it is a “grandfathered” plan. The mandated services were actually promulgated on August 1, 2011, pursuant to 42 U.S.C. § 300gg-13. They include “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” The official notice in the Federal Register, specified that all plans must include these services (among others) on and after August 1, 2012, except those plans that are “grandfathered” by HHS and those exempted under the religious exemption.

An important point should be made here about FDA-approved “contraceptive methods.”  At least one contraceptive operates in some cases to prevent implantation after conception has occurred. The FDA-required labeling on “Plan B” packages concedes this. “…Plan B may also work by preventing fertilization of an egg (the uniting of sperm with the egg) or by preventing attachment (implantation) to the uterus (womb), which usually occurs beginning 7 days after release of an egg from the ovary” (emphasis supplied). A new, unique human individual is created upon fertilization, so preventing implantation after fertilization is a form of abortion.

This regulation, then, forces churches to participate in abortions as well as to provide true contraceptives.  In connection with religious rights, it is appropriate to note that the Catholic Church has clearly stated that because of the risk that “morning after” pills may operate as abortifacients, they cannot be used.

In August, 2011, the Department of Health & Human Services (HHS) requested further comments on the religious exemption from the requirements. On January 20, 2012, the Department announced that it was not going to change the definition of the exemption. It would merely delay the deadline for implementation by nonprofit organization who do not now offer contraceptive services for one year, to August 2013. Critics characterized the Administration’s announcement as just kicking the can down the road to get past the fall elections before confronting the churches on this issue.

The official regulation defines those exempt from the contraceptive requirement as follows 45 CFR Part 147.130(a)(1)(iv) (promulgated August 3, 2011):

(iv) For purposes of this subsection, a “religious employer” is an organization that 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 as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.

The first criterion is worded in the singular—“the” purpose of the organization has to be the “inculcation of religious values.” In the law, as the Attorney General and other Administration lawyers well know, there is a maxim that inclusion of one instance of a group of related items implies an intent to exclude all the others. Inclusio unius est exclusio alterius. If that maxim is applied to this regulation, then stating “inculcation of religious values” as the purpose of a religious employer will disqualify the employer if the religious employer has any other purposes.

Perhaps the local secular Ethical Society limits its purpose to inculcation of values (although it would disclaim that they are religious), but most churches profess to do more. They would include as one of their major purposes, it is safe to say, helping their members achieve salvation. Achieving salvation is far broader than inculcating values. Worship goes further than moral formation, and so does charity.

The Administration claims that the religious exemption seeks “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” (76 Fed. Reg. 46623.) It is therefore appropriate to ask whether worship is fully encompassed in the phrase, “inculcation of religious values.” It is likely most Christians would say that it is not.

In worship, Christians offer praise to God for His beauty, majesty, truth, and goodness; they thank God for the many gifts that He has bestowed on them; they acknowledge their sins and failures; they petition God for His grace and for help with particular needs. Adherents of other religions may not do these things in their religious services, but Christians comprise the great majority of religious people in this country. For the regulation to limit the purpose of the organization to one of education and training in “values,” without any indication that any other purpose—like worshiping God — is allowable, smacks of either an intent to exclude Christian from the exemption or a breathtaking ignorance of what a Christian “house of worship” is about.

Moreover, to limit the religious exemption to accommodating “houses of worship” and their “ministerial employees” does not begin to reach the charitable functions that religious organizations perform. If a church does not merely inculcate values, but it also performs other functions, such as operating soup kitchens, sponsoring youth sports leagues and adult recreational activities, participating in neighborhood and community betterment efforts, and offering pastoral counseling to help members cope with life’s problems, is it to be disqualified? If one considers the Obama Administration’s extreme position on who should be considered ministers in the Hosanna-Tabor case, it is likely.

In assessing the goal of the Administration in regard to this religious exemption, it is instructive to consider the scope of the religious exemption that was allowed for individuals to opt out of the mandate to buy health insurance that goes into effect on January 1, 2014.

In parsing the Affordable Care Act, one finds that under new 26 U.S.C. § 5000A(d)(2)(A), the “religious conscience exemption” is reserved for those who have a religious objection to the Social Security and Medicaid systems or to other insurance for death, disability, old-age, retirement or health—and then, only if one is a self-employed person and if one’s religious “sect or division thereof” satisfies the Social Security Administration that it makes provision for dependent members that is “reasonable.”

The “religious conscience exemption” for the individual responsibility requirement appears designed for self-employed Amish people, but few others. Anyone who is not self-employed and does not belong to a church or religious group that denounces Social Security or private health insurance is not eligible.

There is a pattern here of severely limiting religious exemptions that it would be naïve to ignore.

The second and third criteria for the religious exemption require churches to hire only their own members and to minister only to their own members in order to be called “religious.” There may exist such churches and church organizations, but one can confidently say the majority of social service, educational, and charitable organizations sponsored by religious groups do not limit their employment or their services in that way. Did the Administration do any research on how churches actually operate before it drafted these regulations?

The attempt to limit the religious exemption to almost nothing in connection with the required coverages in health plans ought to boomerang on the Administration just as its attempt to severely limit the scope of the ministerial exemption failed in the Hosanna-Tabor case. In both instances, the Administration is attempting to interfere in the administration of church organizations. That in this case the interference is in connection with the provision of health insurance, which is not especially a religious function, should not make a difference.

What is interfered with is the church’s application of its own beliefs to its own employees, and thus its ability to carry out its work as it sees fit, whether or not ministerial functions are being performed.  Hosanna-Tabor should stand as solid precedent against the Government’s attempt to circumscribe religion by defining it only as “inculcation of religious values.”

It is likely that one argument that the Government will raise in the inevitable litigation over the contraception-abortion requirement is that the Affordable Care Act and the regulations adopted to execute it are neutral laws of general application. As the Government argued in Hosanna-Tabor, it will no doubt argue in the new litigation that the First Amendment does not provide a religious exemption from the requirements of a neutral law.

The case, Employment Division of Oregon v. Smith (494 U.S. 872 1990), will play a prominent role in this argument. In Smith, the Supreme Court reversed decades of religious liberty cases to revive a doctrine that had been announced in 1878. The Court rejected a First Amendment defense to bigamy prosecution of a Mormon man in the Territory of Utah, saying that “Congress was deprived over all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” (Reynolds v. United States, 98 U.S. 145, 164, 1878) .

In Smith, the Court ruled that a person who smoked peyote as required by Native American religious ceremonies could still suffer penalties for breaking a state law. Mr Smith was fired from his job for engaging in this religious practice, and the State of Oregon denied him unemployment benefits. The Supreme Court’s decision upheld Oregon.

In reaction to Smith, Congress enacted the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.) The RFRA incorporates into a statute the general rules concerning religious freedom that the Supreme Court had read into the First Amendment from roughly the 1950s until the Smith case. Under RFRA,

“Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
“(1) is in furtherance of a compelling governmental interest; and
“(2) is the least restrictive means of furthering that compelling governmental interest.”

The Supreme Court determined in 1997 that Congress exceeded its powers when it attempted to make the RFRA applicable against the enforcement of State laws. (City of Boerne v. Flores, 521 U.S. 507, 1997). However, RFRA applies in full to the federal government itself, for Congress has the authority to determine the legal rules that the Government must follow. )Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 2006).

Litigation is never easy, and the Government will put up an energetic defense of the contraceptive mandate against the religious institutions that challenge it. The RFRA will provide a powerful legal tool in the churches’ favor. It will allow them to prove, for example, that women have access to contraceptive services apart from coverage in a health care plan, so there is no compelling reason for the Government for force unwilling churches to provide contraceptives in violation of their own religious tenets.

Perhaps the Government’s own attempt to kick this can down the road until after the elections will be cited as evidence. In its announcement of January 20, 2012, HHS stated that “birth control… is the most commonly taken drug in America by young and middle-aged women.” If contraception is already the most commonly taken drug in America, then it seems hardly necessary to shove a requirement to provide it down the throat of the Catholic Church and other religious organizations. 

James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.

James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.