In this corner is the Department of Health and Human Services (HHS). And in the other corner is the public interest law group, the Alliance Defense Fund (ADF), representing Catholic and Protestant-affiliated colleges, Catholic colleges and universities, the Cardinal Newman Society, the Society of Catholic Social Scientists, the chairman of the U.S. Catholic bishops’ Committee for Catholic Education, and more than 40 Catholic, Protestant and orthodox Jewish leaders. At issue is a new hastily issued rule from HHS that severely narrows the federal government’s definition of a “religious” employer and allows HHS exclusive authority to define which organizations qualify for a religious exemption from federal requirements that would otherwise apply. The first application of the rule involves Obamacare’s requirement that health insurance providers include birth-control coverage without charging a co-pay to buyers. Since HHS accepts the FDA-approved, abortion-inducing morning-after pill as a birth-control measure, the religious groups want to be exempted from the requirement when offering employee health insurance coverage.
Many of them won’t get that exemption because under the new rule only those groups that are churches or subsidiaries of churches will even be considered. As the Capital Research Center’s Patrick Reilly notes in a recent study, “that excludes any religious entity that is not a church or legally owned by a church body. Many of America’s most important faith-based charities, schools, hospitals, membership institutions and other groups are legally independent despite a clearly religious mission.” It also excludes religiously inspired social service agencies that aren’t church-owned and that provide aid other than, or in addition to, spiritual counseling.
A coalition of groups have challenged the HHS rule in federal court. Kevin Theriot and Matthew S. Bowman of ADF argue in their suit that “no federal rule has defined being ‘religious’ as narrowly and discriminatorily as the [HHS] mandate appears to do, and no regulation has ever so directly proposed to violate plain statutory and constitutional religious freedoms.” Similarly, the challenging groups said in a recent letter to Joshua DuBois, director of the White House Office of Faith-Based and Neighborhood Partnerships, that the rule is “narrower than any religious exemption ever previously adopted in Federal law,” and for that reason could set a “dangerous federal precedent.”
If a federal court doesn’t knock down the HHS rule, the government will be empowered to define what groups receive official certification as “religious.” The federal government has long funded hundreds of church-linked philanthropic, charitable and social service groups, and now they will either have to sever their religious connections or forego hundreds of millions of tax dollars without which they can’t operate.
This is exactly the dilemma predicted a decade ago by critics of President George W. Bush’s “compassionate conservatism,” with its emphasis on expanding the federal role in funding religiously inspired social service groups. Federal dollars always come with strings. And sooner or later, there will always be a President Obama and HHS Secretary Kathleen Sebelius around who are only too happy to start pulling those strings.
