Health & Human Services: Religious Employers Still Ain’t “Religious”

First Amendment:
Congress shall make no law…prohibiting the free exercise [of religion.]

The U.S. Department of Health and Human Services (HHS) recently blew a chance to exempt any conscientious “religious employer,” such as Christian-owned Hobby Lobby, from HHS’ contraception/abortifacient mandate. Since August 2012, HHS had only exempted “religious employers” that are non-profit organizations, inculcate religious values, and primarily serve and employ persons of the same religion.

But two weeks ago and amid growing pressure to accommodate employers’ religious liberty, HHS revised its mandate to increase the number of exemptions for “religious employers.” HHS dropped its exemption of “religious employers” fitting the above description, and HHS now exempts any “religious employer” that meets all of the following qualifications:

1. Opposes providing coverage for some or all of the contraceptive services required to be covered…on account of religious objections
2. Is organized and operates as a nonprofit entity
3. Holds itself out as a religious organization
4. Self-certifies¹ that it satisfies the first three criteria

This revision may exempt some schools, hospitals, and other organizations affiliated with churches that the original mandate didn’t exempt. However, according to the Catholic News Agency the revision may not exempt “faith-based organizations – such as soup kitchens, hospitals and schools – that are not affiliated with a specific house of worship.” Also, the revision doesn’t exempt for-profit employers that are religious, such as Hobby Lobby, which “close[s] all … [its] stores on Sundays.”

HHS appears incapable of correctly describing a “religious employer” according to the First Amendment’s original meaning. As I’ve argued before, the Founders understood “religious employers” to be simply “employers who, in any way, are disposed to religious duties or teach religion.” And certainly the Founders, contrary to HHS, didn’t consider employers’ non-profit status, an invention of the modern tax code, a qualification for being “religious.” To exempt any conscientious “religious employer,” HHS could use the following form:

Or, to borrow language from HHS’ revised description of “religious employers,” HHS could simply exempt all conscientious employers who “hold themselves out as religious employers.”

According to HHS, its revised mandate “strike[s] the appropriate [balance] [sic] between respecting…religious considerations…and increasing access to important preventive services for women.” However, as HHS can’t correctly describe a “religious employer,” people shouldn’t take HHS seriously.

¹ HHS’ guidelines for employers to self-certify as “religious” are as follows: “An eligible organization must simply maintain the self-certification (executed by an authorized representative of the organization) in its records, in a manner consistent with the record retention requirements under section 107 of ERISA [the Employee Retirement Income Security Act of 1974], and make the self-certification available for examination upon request…The form to be used for the self-certification is being finalized contemporaneous with the issuance of these final regulations through the process provided for under the Paperwork Reduction Act of 1995.”