Welcome to the Religion Section of our webpage. This front page will reflect our most current information on either constitutional law or statutory law on religion affecting educational institutions.
For summary of key contraceptive mandate cases and regulations see the OGC mandate page as well as the Becket Fund page for a full summary as well as briefs and news releases. This page will have updates on The Catholic University case, as well as significant Supreme Court and federal decisions on the mandate and other cases involving religion, as well as government regulations that affect religious entities.
Pacific Lutheran University and SEIU, Local 925, Petitioner, Case 19-RC-102521, 361 NLRB No. 157, December 16, 2014, Tacoma, Washington
Region 19 of the NLRB reexamined two key bodies of caselaw in deciding this case. The facts involved a petition by the Service Employees International Union to represent all nontenure-eligible contingent faculty members employed by Pacific Lutheran University. The University challenged the petition on two grounds:
1) Pacific Lutheran (PLU) argued it is a church operated institution exempt from the Board's jurisdiction under NLRB v. Catholic Bishop of Chicago, 440 US 490 (1979) and
2) Certain of its contingent faculty are managerial under the test set forth in NLRB v. Yeshiva University, 444 US 672 (1980) and thus must be excluded from the unit proposed.
The NLRB held that it will exercise jurisdiction over faculty members at a college or university that claims to be a religious institution unless the college or university first demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment, and, once that threshold is met, the university “must then show that it holds out the petitioned-for faculty members themselves as a performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representation to current or potential students and faculty members, and the community at large.”
A new test was also set forth in determining managerial status, with different factors set forth than used in Yeshiva.
First Amendment Issue
The analysis that led the Board to exercise jurisdiction over a religious university did not follow the test set forth in University of Great Falls, 331 NLRB 1663 (2000). In Great Falls, a three part test was proposed. The Board would assert jurisdiction unless the college or university (a) holds itself out to students, faculty and community as providing a religious educational environment; (b) is organized as a non-profit; and (c) is affiliated with, or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, as least in part, with reference to religion.The NLRB only followed the first two prongs of the Great Falls test, and made the third prong much more restrictive.
Applying the new test, the NLRB found PLU to not meet the new standard and jurisdiction was thus exercised. In revising prong three of the Great Falls test, the NLRB decided to zero in on the faculty members themselves instead of the University as a whole. The faculty member, to be excluded, would have to be shown to be performing a specific religious function. The examples included integrating religion into the coursework, serving as religious advisors, propagating tenets of the faith, or engaging in religious indoctrination. Documents recruiting faculty would be looked at to see if an applicant would conclude that performance of faculty responsibilities would require furtherance of the religious mission.
This new test was seen by two members of the Board as suffering from same infirmities and pitfalls identified and denounced by the Supreme Court in Catholic Bishop and by the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002): a risk of conflict with the Religion Clauses of the First Amendment. Member Johnson noted that the majority test seems to require "proselytization, orthodoxy, and exclusion" something he concludes is a total misread of the religious values of the Lutheran religion and an "outright caricature-of all that a religion is and how a religion's conception of its earthly mission may translate into a university environment."
In determining if faculty exercise managerial control, the new test would ask whether faculty actually or effectively exercise control over decision-making pertaining to central university policies by examining the faculty’s participation in the following decision-making areas: academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions, and giving greater weight to the first three areas than the last two. The Board concluded that the contingent faculty's involvement in decision making areas was short of actual control or effective recommendation. Member Johnson stated the religious impediment should have prevented the Board from reaching this issue, but he and Member Miscimarra believed the Board was wrong to increase the burden of proof for what it considers to be "effective" recommendation of policies to establish managerial status.
For more see Labor Board Sets New Tests for whether Private-College Faculty Members Can Unionize. (Chronicle of Higher Education-Dec. 21, 2014)
Status of the Catholic University of America case against the contraceptive mandate 1-6-15 update
On November 14th, 2014, the Court of Appeals for the DC Circuit denied religious non-profits, including The Catholic University of America, relief from compliance with the contraceptive mandate imposed by the Affordable Care Act. See Priests for Life, et al. v. DHSS & Roman Catholic Archdiocese of Washington, et al. v. Burwell, Nos. 13-5368 and 14-5201 (D.C. Cir. 2014).
On December 26, 2014, The Catholic University of America, along with The Roman Catholic Archbishop of Washington, Priests for Life, and other religious non-profits (Plaintiffs) filed a joint petition with the U.S. Court of Appeals for the DC Circuit, requesting review of the DC Circuit decision. This petition seeks review by the full Court of Appeals, rather than a panel of three of the judges. Plaintiffs argue enforcement of the HHS mandate rule compelling Plaintiffs to contract with third party insurance companies to provide payments for contraceptives (including Plan B and Ella) as well as facilitating delivery of the drugs/devices through documentation to the insurance company substantially burdens the Plaintiffs’ Exercise of Religion, as provided for in the Religious Freedom Restoration Act (RFRA).
The Court of Appeals, in its November decision, concluded the regulations do not substantially burden the Plaintiffs’ religious exercise, nor did the Government have a less restrictive way to provide access.
This decision is at odds with the Supreme Court decision in June in Burwell v. Hobby Lobby Stores, Inc. et al. In that case the Court held the mandate as applied to a closely held for profit corporation with religious objections to the mandate violated the Religious Freedom Restoration Act( RFRA). RFRA prohibits the federal government from taking any action that substantially burdens religion unless the action is the least restrictive means of serving a compelling government interest. Hobby Lobby and other closely held for profit corporations objected to supplying four required drugs that operated after fertilization of an egg, and were thus considered abortifacients. The Court found the Government did not meet the least restrictive means test, and also found that the Religious Freedom Restoration Act was to be broadly applied.
The Petition for Rehearing filed by The Catholic University of America and other Plaintiffs asks the full Court of Appeals for the D.C. Circuit to acknowledge that the provisions of the mandate, including the filing of form EBSA 700 requires Plaintiffs to engage in conduct that violates their sincerely held religious beliefs or suffer substantial economic consequences. Submitting the required documentation would make the Plaintiffs morally complicit in the provision of contraceptive coverage, which is against the Roman Catholic religion. In addition, the third party administrators are to be reimbursed at 115% of their costs, so they are in essence financially rewarded, while Plaintiffs are subject to potential annual fines of $2,000 per employee for non-compliance.
Plaintiffs do not agree with the Government’s contention that the Plaintiffs are not in any way facilitating provision of drugs and devices that violate their sincerely held beliefs, and argue that The Religious Freedom Restoration Act was enacted by Congress to provide protection against such Government action.
The brief filed on behalf of Plaintiffs notes that the holding in November goes against the June Supreme Court decision in Hobby Lobby in the following ways:
- Refusing to acknowledge that filing the government form to facilitate the provision of contraception to employees of the Plaintiffs would in fact be contrary to the free exercise of religion and by failing to acknowledge the broad protection of RFRA.
- The religious entity, and not the court, should be the party deciding if an act makes the entity complicit in violating their religious beliefs.
- Failing to acknowledge that the Government is requiring the Plaintiffs to take actions, and it is not simply third party action that is compelled by the mandate.
- Failing to acknowledge that third party action is in fact contingent on actions the Plaintiffs are being coerced to take under the regulatory scheme as it currently stands.
The brief also reiterates the holding in Hobby Lobby that the Government had failed to meet either the compelling interest test or the least restrictive means test. As the Court noted in Hobby Lobby, the most straightforward way to achieve its goal would be for the Government to assume the cost of independently providing contraceptives to women who are unable to attain them.
Priests for Life, et al. v. DHSS & Roman Catholic Archdiocese of Washington, et al. v. Burwell, Nos. 13-5368 and 14-5201 (C.A. DC Nov. 14, 2014)
Nov. 14, 2014 decision by Court of Appeals for the D.C. Circuit holding that the *accommodation* provided for under the ACA does not substantially burden Plaintiffs' religious exercise, and that this was the least restrictive means by which the Government could accomplish what the court viewed as a compelling government interest. The Plaintiffs have filed a motion for rehearing en banc. See brief above.
Interim Final Rule on Coverage of Certain Preventive Services Under the Affordable Care Act, scheduled for publication in the 8-27-14 Federal Register
Three years after publication of the intial rule, and after many court challenges by both for profits and not for profits, and one Supreme Court decision and one Supreme Court order (Wheaton College), the federal government has published a new interim final rule on the contraceptive mandate. There is a public comment period for 60 days after publication in the Federal Register. This rule gives religious not for profits, such as The Catholic University of America, the option of filling out the form that would be sent to the insurance company to trigger contraceptive coverage or communicating directly with the Department of Health and Human Services (or the Department of Labor for self insured plans) that the employer objects to the coverage. The government would then tell the providers about the objection, but under the rule, the insurer would still be required to offer the coverage. This rule is a recognition by the government that the proffered accommodations would not meet court challenges.
Wheaton College v. Sylvia Burwell, Order in Pending Case, U.S. Supreme Court, July 3, 2014, No. 13A1284
This order granted Wheaton College an injunction from filing the much debated self-certification form which was put forth as an *accommodation* for religious not for profits who did not meet the very narrow definition of a religious employer set forth in the interim final rule published August 3, 2011. Under the proposed accommodation, coverage of the contraceptives would be arranged through a separate plan administered by insurers either directly or through third party administrators.
The form to be signed that would trigger the third party provision of contraceptives is EBSA Form 700, and a number of religiously affiliated employers, including Catholic University, brought suit against the government, claiming both constitutional and RFRA violations, as the form required steps to be taken by the religious employer that facilitated the provision of contraceptives.
In the Wheaton case, the Court basically stated that Wheaton had already informed the government it objected to providing contraceptive coverage, and thus Form 700 need not be provided by the College. The Court seems to be saying those with objections can dispense with the Form, and simply notify HHS in writing of religious objections to providing coverage for contraceptive services, and the Government may then proceed to facilitate this coverage.
Justice Sotomayor, joined by Kagan and Ginsburg, filed a lengthy dissent, accusing the Court of backing off from its seeming approval of the accommodation in Hobby Lobby. Students and employees who desire the coverage would still receive it, but the agent would be the government rather than the religious employer.
The Court stated “Nothing in this order precludes the Government from relying on [Wheaton’s] notice [of its religious objection], to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” This sentence may be critical in allowing the Government to proceed to mandate participation by insurance companies, who by some reports have not agreed with the Government that the cost of the accommodation is zero, and thus are less inclined to make the process as seamless as the Government advertised. For an interesting commentary on the case see Tom Goldstein, Where was Justice Breyer in the Wheaton College fight? (Updated), SCOTUSblog (Jul. 6, 2014, 8:09 AM).
Burwell v. Hobby Lobby Stores, Inc., et al., Decided June 30, 2014 Supreme Court.
The Court holds the HHS ACA regulations as applied to closely held for profit corporations violate RFRA, which prohibits the federal government from taking any action that substantially burdens religion unless the action is the least restrictive means of serving a compelling government interest. Hobby Lobby and other closely held for profit corporations objected to supplying four required drugs that operated after fertilization of an egg, and were thus considered abortifacients. The Court found the Government did not meet the least restrictive means test, and also found that the Religious Freedom Restoration Act was to be broadly applied. While the Court discussed the accommodation provided for religious not for profits as an alternative, the Court specifically noted at page 44:
We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.
Joint Principal Brief in Priests for Life, et al. and Roman Catholic Archbishop of Washington, et al. v. Sebelius, et al., filed on Feb. 28, 2014 in the U.S. Court of Appeals for the D.C. Circuit.
(includes Catholic University case)
Final Rule, Coverage of Certain Preventive Services Under the Affordable Care Act, HHS, June 28, 2013. Extends the safe harbor for student health plans of religious institutions of higher education until Jan. 1, 2014. Most of the rest of the rule remains similar to proposed rule. See HHS Press Release and HHS Guidance.
Student Health Insurance Final Rule, 77 Fed. Reg. 16453, March 21, 2012
This rule brings all except for self funded student health plans under the purview of the PPACA by defining student health insurance as a type of individual health coverage. The contraceptive mandate is made applicable to student health insurance plans as well, through this action. The amendment applies to plans effective for policy years beginning after July 1, 2012, with non-profit religious institutions of higher edcation qualifying for a one year transition plan until the plan year beginning after August 1, 2013. The rule becomes effective April 20, 2012. There is a phase in for restrictions on annual dollar limits, with no annual dollar limits for policy years beginning on or after Jan. 1, 2014. If the student health insurance plan is not a grandfathered plan, then effective with the upcoming policy year, religious institutions of higher education will be required to maintain on file a self certification as to the qualification for the exemption and sending a *requisite notice* to students enrolled in the plan. This notice presumably means the notice that the institution the plan qualifies for a safe harbor, and may have to direct the student as to where to find contraceptive coverage. As with much of the mandate and related abortion coverage (see below on health exchanges) the rules are anything but clear.
See "Catholic Colleges Upset by HHS Rule Requiring Student Health Plans to Comply with Mandate" posted 3/21/12 in the National Catholic Register. The article notes as follows:
Catholic colleges and universities do not qualify for the narrow religious exemption to the mandate. Rather, they will likely fall under a second set of guidelines that the Obama administration describes as its “accommodation” for religious freedom.
The implementation of that accommodation has not yet been finalized and is currently the subject of a 90-day public comment period.
However, initial statements by the administration have suggested that religious organizations will be required to contract with an insurance provider, or third-party administrator, in the case of self-insured organizations, that will offer the coverage that the organizations find objectionable
Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16501, March 21, 2012.
Advanced Notice of Proposed Rulemaking. Comments due June 19, 2012.
This rule sets up the questions and proposals for making insurance companies and third party administrators cover the cost of contraceptive coverage when the entity with the plan is a religious entity with objections to the contraceptive mandate. This is the so called Obama *accommodation* for religious employers. All religious employers should read this rule and other rules on this page. The rule notes that states with religious exemptions to contraceptive mandates would not be allowed to continue offering the exemption for religious organizations to the extent it conflicts with this rule.
PPACA: Establishment of Exchanges and Qualified Health Plans: Exchange Standards for Employers; Final Rule, Interim Final Rule to be posted March 27, 2012 in Federal Register. See page 627 forward for segregation of funds for abortion services, along with the requirement when calculating cost of providing abortion services, to estimate the cost at not less then $1 per month per enrollee. See also Section 1303 of the PPACA.
Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under PPACA, 77 Fed. Reg. 8725 (Feb. 15, 2012)
These regulations finalize, without change, interim final regulations from Aug. 3, 2011 that require religiously affiliated organizations, either self insured or with group insurance coverage to offer contraceptive coverage. Per a statement on 2-10-12 the White House tried to quiet the firestorm brought on by the 1-20-12 statement by Sebelius by stating that Catholic Universities and hospitals and other religiously affilated organizations may be able to obtain an out from the mandate as long the charities insurer provides contraceptive coverage to the covered employees and beneficiaries. The economics of this game plan have not been worked out, and some have pointed out there is a limited pot of health care dollars, and one way or another employees of universities and hospitals, along with the insitutions themselves, may be subsidizing the cost of the coverage.
The preamble makes the following points:
- Appropriate to take into account “religious beliefs of certain religious employers” and “religious exemption is consistent with the policies in some States.”
• Several mentions that some commentators “urged that the exemption… be rescinded in its entirety due to the importance of extending these benefits to as many women as possible.” Some also urged that Govt “monitor [health] plans to ensure that the exemption is not claimed more broadly than permitted.”
• Multiple mentions that contraceptives constitute “a basic health care need and would significantly reduce long-term health care costs.”
• Women “have unique health care needs and burdens. Such needs include contraceptive services.” Status quo “places women in the workforce at a disadvantage compared to their male co-workers. …[C]ontraception improves the social and economic status of women.”
• Acknowledges that some advocated widening exemption and objected to paying for such coverage or being obliged to provide when contrary to their religious beliefs.
• An exemption beyond the narrow one in the original rule (i.e., one that religious IHEs advocated) “would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits.”
• In addition, such an exemption “would subject their employees to the religious views of the employer…thereby inhibiting the use of contraceptive services.”
• Conclusory assertion that this is a neutral law of general application, no substantial burden on free exercise, does serve compelling governmental interests, and is least restrictive means.
- Guidance is being issued contemporaneous with these final regulations” to provide a 1-year safe harbor during which the Federal Government will work with religiously affiliated employers to “develop alternative ways of providing contraceptive coverage without cost sharing.” This would require “issuers to offer insurance without contraceptive coverage to such an employer and simultaneously to offer contraceptive coverage directly to the employer’s plan participants who desire it, with no cost sharing.”
The rule linked above does not contain specifics on what will be required to qualify for an exemption, or if in fact an exemption must still be sought.
Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621 (August 3, 2011) Interim Final Rule with Request for Comments.
For an excellent summary of why the contraceptive mandate (and very narrow exemption for *religious employers*) violates both the Religion and Free Speech Clauses of the Constitution, see the USCCB article on the mandate, as well as comments submitted to HHS by USCCB, which are linked from the bottom of the article.
Final Rule, Regulation for the Enforcement of the Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, Feb. 23, 2011, effective March 25, 2011.This rule rescinds in part and revises the Dec. 19, 2008 final rule on this topic. The rule clarifies at 45 CFR § 88.2 the process for handing complaints by health care providers that they have been discriminated against on the basis of their religion under these rules. OCR will received the complaints.
These rules, known collectively as the "Church Amendments" are codified at 42 USC § 300a-7. There are five separate conscience provisions contained in the US Code, set forth in sections a-e. The Public Health Service Act at 42 USC § 238n prohibits the federal government and state and local governments receiving federal financial assistance from discriminating against a health care entity that exercises its religious principles and refuses to undergo training in or make arrangements for abortions. The related Weldon Amendment has been repeatedly readopted in appropriations bills. This amendment (apparently not codified) provides as follows:
"[n]one of the funds made available in this Act [making appropriations for the Departments of Labor, Health and Human Services, and Education] may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.’’
In addition, the Patient Protection and Affordable Care Act contains new health care provider conscience protections within health insurance exchanges. See Section 1303(b)(4) of the Act. See also Executive Order 13535, Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act.
updated 1-6-15 mlo