HHS ‘religious employer’ definition changed? (updated)

It would be hard to find a city in American that contains more historic Catholic ministries than Baltimore. Thus, there are quite a few people here in Charm City who are involved in the legal warfare over the Health and Human Services mandate requiring most religious institutions to offer their employees, and students, health-insurance plans covering sterilizations and all FDA-approved contraceptives, including “morning-after pills.”

In particular, the historic Baltimore suburb of Catonsville includes a group linked to a highly symbolic ministry caught up in this church-state fight. There is a good chance that, eventually, the U.S. Supreme Court could hear a case that literally would be called The Little Sisters of the Poor vs. Kathleen Sebelius.

The Baltimore Sun team has to cover this group, of course. Today’s tiny Christmas Eve Eve edition includes an A1 report that is surprisingly good — except on one of the most crucial facts linked to this case.

The key, of course, is the unique three-level approach to religious liberty that is being used by this White House. The Sun team knows that the Little Sisters of the Poor are caught in the middle, between the for-profit companies that are fighting the mandate (think Hobby Lobby) and the churches and strictly denominational organizations that have been granted conscience-clause exemptions.

To its credit, the story includes — in addition to logical pro-White House sources — this strong passage, with a logical voice of authority, on the viewpoint argued by the Sisters:

Although dozens of for-profit and nonprofit employers have filed lawsuits over the requirement, the Becket Fund says the Little Sisters’ lawsuit was the first of its kind because it could potentially affect hundreds of nonprofit Catholic ministries. Baltimore Archbishop William E. Lori said the Little Sisters’ service is “unmistakably a work of religion” and said the issue is one of religious liberty that could affect all religious people, not just Catholics.

“The government is drawing lines where the church does not draw them,” said Lori, chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty. “We see serving the poor, educating the young, healing the sick, as a natural outgrowth from what we believe and how we worship. And so we believe that all of these ministries should be exempt.” …

Planned Parenthood characterizes the law’s religious exemption as expansive and says it will allow 350,000 churches, religious schools and houses of worship to get out of the requirement. At issue in this Little Sisters of the Poor case is whether groups that don’t fall under that exemption should be counted as “religious employers.”

Like I said, this is a pretty good report and it did appear on A1. So what is the problem?

Simply stated, the story never quotes the key language in the HHS mandate (regulations.gov link here) that defines who is and who is not a “religious employer” and, thus, worthy of full religious liberty protection on matters of doctrine.

The amended interim final regulations specified that, for purposes of this exemption, a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. Section 6033(a)(3)(A)(i) and (iii) of the Code refers to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order. In the HRSA Guidelines, HRSA exercised its discretion under the amended interim final regulations such that group health plans established and maintained by these religious employers (and any group health insurance coverage provided in connection with such plans) are not required to cover contraceptive services.

This government website also notes (I added the bold print):

These regulations finalize, without change, interim final regulations authorizing the exemption of group health plans and group health insurance coverage sponsored by certain religious employers from having to cover certain preventive health services under provisions of the Patient Protection and Affordable Care Act.

Now, the White House latter offered what it believed was a crucial compromise on the mandate, one that said health-insurance companies would have to provide contraceptives, sterilizations and “morning-after pills” for free when non-profit religious ministries object to this coverage. This has not satisfied these ministries, who believe (a) that they will still be participating in actions that violate their doctrines and (b) that health-insurance companies will simply hide (surprise, surprise) these costs in higher health-care fees to the ministries.

However, to my knowledge, the White House has not changed the most controversial piece of this puzzle — the three-tier approach to religious liberty outlined in the mandate language quoted above.

That is why it was rather disturbing to see this Sun piece claim the following, while quoting an omnipresent Catholic progressive, Father Thomas J. Reese:

In weighing these issues, the federal government is caught between two values, Reese said — the rights of women to have access to contraception and the rights of religious employers to act upon their conscience. …

“This is what life in America’s about,” he said. “How do you live in a pluralistic society where people have different values and different goals?”

Reese said he thought the initial definition of a religious employer — which has since been broadened — was too narrow. Still, he said, the government must find a balance in granting exemptions. “Once you allow a person to say, ‘My religious conscience says I don’t have to obey this law,’ if that become an absolute principle, then you’ve got chaos,” Reese said.

Wait! The DEFINITION of a religious employer has significantly changed from the three-level system posted at the regulations.gov source? It has changed in a way that says the Little Sisters of the Poor are performing religious work when working with non-Catholics who are poor and elderly, as opposed to limiting their work to needy Catholics? Since when? That would be a huge, huge national news story that would clearly change the legal landscape in this fight.

UPDATED MATERIAL: Just received input from a key figure in these debates. I was wrong, kind of, but not on the key fact that affects this story. First of all, the “religious employer” language was tweaked (.pdf) — this could be what Reese was referencing — but not in a way that affects the Little Sisters of the Poor or many other groups. Obviously, the regulations.gov posting — for some reason — was not changed.

The key is that the category of exempt religious employers has not really been broadened, other than to stress that CHURCHES can do ministry to anyone, irregardless of their faith identity. So the key three-tier element of the battle remains, that churches have religious freedom on these matters and for-profit companies clearly do not. The middle ground — the religious non-profits defined by history, structure and doctrine — do not if they reach outside their denominational circles. Churches are good. The status of ministries that are open to the public remain in question and, of course, at the heart of the story the Sun was trying to report.