Mandate Fact #1 — The Religious Employer Exception is Very Narrow

The Church has been spending a great deal of energy trying to educate people about the HHS Mandate that all health insurance policies cover contraceptives (including drugs that cause early abortions) and sterilizations.  There are many misconceptions about the scope of the mandate.

I have now blogged on this subject several times, but now I’d like to explain some of the essential facts that people need to know about the impact of the mandate.

We frequently hear the argument that the Church is not justified in objecting to the mandate, because  the employer exemption — the main subject of the series of “compromises” and “accommodations” announced by the Administration — encompasses all churches and religious orders.

This is not accurate.  The extent of the religious exemption in the health care law (officially known as the “Affordable Care Act” or “ACA”) is so narrow that it will reach very few Church institutions.

We must recall that, in the Archdiocese and in many other dioceses, each individual parish, school, and institution is a separate legal corporation.  Under the law, they are considered the actual “employer” of their staff — not the diocese as a whole.  It is also important to recognize that the ACA imposes inter-related mandates on individuals, employers and insurers — but only employers are afforded any possibility of conscience protection.

In applying the actual exemption, we will have to do an institution-by-institution analysis.  Under the law, our parishes, schools, and other agencies would be exempt only if all four of the following criteria are met:

(a) its purpose is the inculcation of religious values,
(b) it primarily hires persons who share the organization’s religious tenets,
(c) it primarily serves person who share those tenets, and
(d) it is a nonprofit as described in sections of the IRS code relating to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of a religious order.

It is likely that the exemption would cover most parish churches.  But note that it is only “likely” and “most”, since it is by no means certain that all Catholic parishes “primarily hire” Catholics.  Under federal, state and local laws that ban religious discrimination, only a few parish positions that would be considered ministerial (e.g., Director of Religious Education, music directors) can be reserved for Catholics, and all other non-ministerial positions (e.g., secretaries, maintenance men) must be open to non-Catholics.  In fact, for those positions, it is probably illegal even to ask about an applicant’s religious beliefs.  As a result, it is entirely conceivable that some parishes would fail to satisfy the “primarily hires Catholics” requirement of the exemption — an astonishing result.

I also wonder how many of our schools would be covered by the exemption.  Certainly, one of the primary purposes of our Catholic schools is to inculcate religious values, but what if HHS decides that it has to be the sole purpose, in order to qualify?  In addition, our schools are open to children of every faith, and many of them have a majority of non-Catholic students — which means they would fail the “primarily serves Catholics” requirement.  Again, this would be an amazing result — that the government would decide that a Catholic school is not enough of a religious institution to qualify for the exemption.

As for our social service agencies, and hospitals, there is no question that they fail each part of the test, and could not avail themselves of the exception — their purpose is not to teach religious values, and they neither serve nor employ primarily Catholics.  Once again, we have the absurd result in which agencies who absolutely consider themselves to be religious in nature and in mission, will be found by the government to be not sufficiently religious.

These basic facts are important for people to understand, if they are going to fully appreciate the extreme nature of the HHS mandate, and how it will violate our religious liberties.

More to follow.


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