The definition, unprecedented in federal law in its narrowness, fails to give equal respect to the activities of service, mercy, and justice that lie at the core of religious practice for many faiths. President Obama has spoken eloquently of the “millions of Americans who share [this] view of their faith, who feel they have an obligation to help others. . . . [W]hile these groups are often made up of folks who’ve come together around a common faith, they’re usually working to help people of all faiths or of no faith at all.” But remarkably, under the HHS “religious employer” definition, these very acts of service to non-adherents that the President commended are the basis for denying an organization exemption as a “religious employer.”
In its March 2012 advance notice (the ANPRM), HHS proposed to retain this deeply objectionable definition while extending a more limited accommodation to a broader category of “religious organizations.” But even assuming that a limited accommodation could be developed that protected organizations’ claims of conscience, it would still be wrong and dangerous to insert the narrow definition into federal law. The adoption of this language in the Code of Federal Regulations, even as part of a two-tiered set of accommodations, would legitimate it in future situations. The March ANPRM also stated that “whatever definition of religious organization is adopted will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose.” This assurance is inadequate, as the history of this debate teaches. [Some case analysis here...] Just as the mandate with minimal exemption was bootstrapped from narrower state laws to a far broader federal mandate, it likely will be bootstrapped later to other federal statutes. HHS, having legitimized the minimal exemption by introducing it into federal law, will have no way of stopping others from using it as a precedent.