Respondeo: A Reply to Michael Sean Winters (part 1)
Many thanks to Michael Sean Winters for continuing the conversation about the HHS regulations and religious liberty. I appreciate his comments very much. And I want to address his questions, which are very important Since he raises a number of issues, however, rather than doing one super-long blog post, I am going to be doing a few smaller blog posts over the next few days, trying to take the issues he raises one at a time. Even these posts will be longer than they should be, since I don’t have time to write something shorter!
1. Defining Exemptions does not equal Defining Religion
The point of my column was to distinguish between two sets of concerns that the bishops seem to have about the mandate. First and most obviously, they are worried that it will make Catholic institutions cover contraception. That’s where most of the ink has been spilled in the discussion of this controversy. And I think Winters is focusing on this aspect of the dispute.
But I really want to point out that this wasn’t my main focus in the column. I wanted to address the second and deeper worry expressed by the bishops. They worry about what the mandate says about what the Catholic Church is. The original mandate exempts a narrow class of religious institutions (such as parishes and dioceses), but doesn’t exempt Catholic universities and hospitals. So the bishops—and many other Catholics—felt insulted and misunderstood. They sensed that the government was “defining religion” in too narrow a way way, and not appreciating the key fact that Catholic universities and hospitals are also imbued with a religious mission—the very same Catholic mission as parishes and dioceses.
But here’s the thing: In a nutshell, the government wasn’t defining religion. It was defining an exemption to a particular law that applies to some but not all religious institutions. This is a crucial point. Only very rarely does the government say that you’re religious or not religious. (When it does happen, it’s a clear case of someone scamming for something—a group of prisoners who feel called to start a Church of Beer, Pizza, and Football, for example.) In the vast majority of cases, it accepts an institution’s word that it is religious, in part because it doesn’t want to get into the business of certifying religion thanks to Establishment Clause concerns. The government accepts an institution’s religiosity, and then goes on to apply the other criteria at issue in addition to religiosity in order to say whether the institution is exempt from a particular law.
Some people have said, “Why not use the tax code definition of religion to define the exemption from the HHS mandate.” But the answer here is that the tax code doesn’t define religion either. In this situation too, it defines an exemption to taxation applicable to some but not all religious institutions. The government generally accepts an organization’s claim to be religious, but goes on to apply other criteria for exemption from taxation. So, for example, a group can be as religious as it wants, but if it’s not organized as a not-for-profit charitable corporation, it won’t be exempt from taxation—it will still have to pay taxes! Catholic schools and hospitals are exempt from taxation not simply because they are religious, but because they also meet the other characteristics necessary for tax exemption—they are not-for-profit charities. One could imagine a for-profit Catholic facility (say, a rehab center) that wouldn’t get tax exempt status. The rehabbing patients could be personally blessed and supervised by the pope himself (or Archbishop Ganswein, who looks like he would be very motivating to rehab patients), but if the center isn’t organized as a not-for-profit entity, it’s just not going to get tax-exempt status.
So the question that has to be asked is why the criteria for determining whether a religious institution is tax exempt are appropriate for determining whether it is exempt from other laws? Surely, we wouldn’t say that the criteria for tax exemption should determine whether a Catholic institution was exempt from health and safety laws, or mandated reporter laws. The scope of any exemption has to depend upon the purpose of the law to which it attaches. A church-sponsored day-care institution, for example, might be exempt from taxation—but it should not be exempt from fire codes, despite the fact that the historic church building itself would be. And no one would say the day care center should be exempt!
The same approach applies in determining the nature of the exemption from the contraception mandate. We need to ask what the scope of a religious exemption to a mandate to provide preventive services as part of a basic benefit package should be—which is not at all the same question of what the scope of exemption to taxation should be.
The original, narrow exemption generated a political, moral, and religious firestorm. It was a bad idea. But motives matter. Procedure matters. HHS did not pull the narrow original exemption out of thin air. Sensibly, it looked around, not just at religious exemptions in general, but at religious exemptions to contraceptive mandates. Twenty-eight states have contraception mandates. Some have religious exemptions, others have none. Some have broader exemptions, others have narrower ones. Federal anti-discrimination law requires coverage of contraception. So does the Medicaid program—a federal-state partnership. HHS modeled its exemption on the language already in place in California and New York.
This was not a legally rash move. Why is that? That language had been tested in two populous states, and more importantly, had already been challenged on religious freedom grounds and upheld by the highest courts in those states (see here and here; the church lost). So the language was at least somewhat road-tested, for a religious exemption to a comprehensive contraceptive mandate, not for an exemption to something else. If you’re a lawyer looking for statutory or regulatory language, it’s generally a good idea to turn to provisions that have been litigated and upheld. It’s very true that the road-test wasn’t perfect; RFRA doesn’t apply to the states, and does apply to HHS regulations. But it wasn’t just a shot in the dark, either.
(A technical aside: The Becket Fund and the Bishops would distinguish the California and New York laws on the grounds that self-funded employers could escape the mandate through ERISA pre-emption. That’s true but beside the point, I think. One of the reasons we needed comprehensive health-care reform was that ERISA allowed self-funded employers to escape a whole raft of state-insurance laws, not just the contraceptive mandates. The point of national health care reform was to make a standard benefit package available to most people—and the contents of that benefit package are going to be controversial around the margins, for a range of reasons. Moreover, from a practical perspective, self-funding is only viable for employers of a certain size.)
I understand the objections of the USSCB, Michael Sean Winters, and others that the original exemption was too narrow. I strongly agree with the objection that it was politically unwise—in fact, it was clearly almost disastrous. But as a lawyer, I just can’t go along with those who say that the original exemption was some sort of half-baked, new-fangled, anti-religious plot.
And I think that matters. It is very important to me that President Obama and HHS not be anti-religious, given the enormous role that faith-based health care has played and will continue to play in this country. Political mistakes can be fixed by parties of good will. But anti-religious bias can’t be fixed.
Tomorrow: the current accommodation