Update to this story published here
414(e) of the IRS Code. Sounds like yawn-inducing accounting talk, right? But The Cardinal Newman Society’s going to be talking a lot about it, because the future of religious liberty in this country may depend on knowing what it does.
Hint: Notre Dame and the Catholic Health Association like 414(e), and sources indicate that the Obama administration may like it too. Which spells big trouble.
White House press secretary Jay Carney was asked recently about the controversial Health and Human Services (HHS) mandate requiring religious employers to provide insurance coverage for birth control despite religious objections.
As the regulation would require almost all health insurance plans to cover everything from abortifacients to sterilizations, it became the target of criticism by the bishops, Catholic colleges, and religious organizations (including The Cardinal Newman Society) who have all spoken out strongly and admirably against the mandate, calling for a more meaningful religious exemption. Religious organizations of other faiths, especially among Christian denominations, have also protested the HHS mandate that threatens their religious freedom.
So when Carney was asked about this issue, he said, “We want to strike the right balance between expanding coverage of preventive services and respecting religious beliefs.”
The right balance? But little has been written about what that balance could entail.
Looking at public letters to the Obama administration from the Catholic Health Association and Fr. John Jenkins of the University of Notre Dame, could prove instructive. Both pointed to a section of the IRS Code known as 414(e), which exempts church-related pension plans from the federal Employee Retirement Income Security Act (ERISA). They recommended 414(e) as an example of a more meaningful religious exemption that they said would be an improvement over the strict and narrow one pushed by the Obama administration.
The CHA said plainly, “We request that the definition be rewritten using the principles behind Section 414 (e) of the Internal Revenue code.” And why wouldn’t the Obama administration heed the advice of CHA, which gave Congress the Catholic support it needed to approve health care reform despite the bishops’ opposition over abortion? And Notre Dame — what better friend to President Obama than the university that honored him in 2009 despite a nationwide protest of 83 bishops and the more than 367,000 people who signed The Cardinal Newman Society’s petition against it?
Now, rumors are coming from Capitol Hill and other sources that HHS may create an exemption similar to the 414(e) exemption.
So what is 414(e)? And what are the consequences if the administration should adopt a 414(e) type exemption?
Know first that the USCCB’s General Counsel, in its letter to the Obama administration, argued against the 414 (e) exemption:
“…such an exemption would be inadequate, because it would fail to protect many stakeholders with a moral or religious objection to contraceptives or sterilization, including individuals, insurers, and even many religiously affiliated organizations.”
Not only would it be inadequate but in fact, the Cardinal Newman Society can say that the consequences of implementing a 414(e) like religious exemption would prove calamitous to religious liberty in this country.
“This is not something Catholics can accept,” Patrick Reilly, President of the Cardinal Newman Society said. “Not only does it abandon many of our Christian and Jewish brethren whose religious freedom must be protected, but it also does little to help independent Catholic institutions like the faithful, lay-controlled Catholic colleges that we promote.”
The scope of the 414(e) exemption was explained in a 2001 precedent-setting case before the U.S. Court of Appeals for the Fourth Circuit. An exempt “church plan” must be sponsored by an organization that is “controlled by or associated with a church or a convention or association of churches.” Although the language “associated with” seems to allow greater latitude than does the current HHS exemption, the court ruled that the organization must share “common religious bonds and convictions with [its] church or convention or association of churches.”
Again, the language is deceptively appealing. But in deciding whether an organization shares “common religious bonds and convictions” with a church, the court said that three factors bear primary consideration:
“1) whether the religious institution plays any official role in the governance of the organization;
2) whether the organization receives assistance from the religious institution; and
3) whether a denominational requirement exists for any employee or patient/customer of the organization.”
This is not a test that most Catholic organizations are likely to meet, either because they are unaffiliated with a religious order or unwilling to impose religious tests on employees and students or clients. Ironically, it would be very much an open question as to whether Notre Dame or the Catholic Health Association would fit those criteria. In fact, the University of Notre Dame spokesperson Dennis Brown confirmed yesterday that “we have not sought exemption under the Church Plan Provision,” so Notre Dame has experience with 414(e) to back up its proposal.
It would seem that many, if not most, Catholic colleges haven’t applied for the exemption in the past. We did a quick survey of several faithful Catholic colleges in our Newman Guide and found none that has claimed the 414(e) exemption, even Catholic University of America.
But what of other Christian organizations that are inter-denominational or non-denominational? They would seemingly be completely left out in the cold on this. The 414(e) exemption is grossly inadequate in that it exempts only religious organizations with denominationally affiliated organizations.
Paul R. Corts, President of the Council for Christian Colleges & Universities, released this statement to The Cardinal Newman Society:
The Council for Christian Colleges & Universities opposes a religious exemption to the Health & Human Services contraceptive mandate that would rely on conformity with IRS Code Section 414(e) for “church plans” under ERISA. Such an exemption would not include many of the Christian colleges and universities in our membership. While some of our institutions are affiliated with larger church organizational or denominational structures, many are independent religious organizations. They are religious not because they are associated with a church or denomination but rather because of their legitimate religious beliefs and practices that are openly held out to the public as such – the critical legal characteristics of a religious entity – and yet, would not be recognized as such under an exemption requiring conformity with the requirements of IRS Code Section 414(e).
Catholic organizations would be doing a terrible disservice to Christian organizations around the country by being content with a “we got ours” mentality here. And let’s face it, who knows how long even Catholic institutions would be safe from judges’ rulings on what the exemption entails and which organization is “Catholic enough” to warrant the exemption?
How many Catholic colleges want to try to convince a court that they’re controlled by the Church? Allowing the government to take on this role is a dangerous precedent in the first place.
And it’s not beyond the Obama administration to sit in judgment on the Catholicity of Catholic colleges. In Orwellian fashion in 2011, both Manhattan College in New York and St. Xavier University in Illinois have been victims of the Obama administration’s National Labor Relations Board, which declared that they lack substantial religious character. In May, a NLRB regional director ruled that St. Xavier “is not a church-operated institution” and therefore subject to federal labor law. This followed a similar NLRB ruling in January that Manhattan is not sufficiently religious.
Now, labor law is obviously very different from the health care law, but it shows a willingness by the administration to label Catholic colleges not sufficiently religious to warrant exemptions.
If Catholic organizations accept a 414(e) type exemption it will be nothing short of open season on religious liberty in this country, by putting the government in charge of deciding which organizations can have religious liberty and which don’t.
As Christians we should advocate strongly for religious liberty for all. Not just for us. And not just for now. For all. Forever.
Adam Wilson
CNS Staff
Matthew Archbold
Charlotte Hays
9 Comments
There is at least one intelligent solution: One diocesesan bishop in the US is giving the money for medical insurance to his employees and they can get their own insurance…..that implies that the state has insurance choices.
I wish other dioceses would advertise what they are doing so as to get around this interesting situation.
Pataricia in St. Louis, MO
On the last comment, my name is spelled Patricia.
Perhaps we need to have an onslaught of education not only regarding our Catholic faith but also of basic inalienable rights. When the public has no concept of what rights are and what they are not, they have no ability to judge whether or not a law is just. There is no “right” to contraceptive devices, while each human being should have the right to follow his or her conscience, if the related behaviors do not inhibit the rights of another person. While many Catholics tend to not like libertarian principles, it may be that only by asserting principles that can be legitimately argued for those of faith or no faith will we be able to get traction on respect for conscience.
Patricia’s comment, I assume, pertains to Bishop Lynch of St. Petersburg. His comment is that he perform an act of civil disobedience by providing the members of the staff with funds to find their own health insurance (LifeSiteNews 12/1/2011).
While that may get the diocese off the hook for providing health insurance which pays for contraception, sterilization, etc., it places the employee in a position whereby he/she may have to purchase insurance through one of the government exchanges. That exchange is required to provide contraception, sterilization (and in most cases) abortion services. I do not believe that is a viable alternative and is clearly not an act of civil disobedience. The civil disobedience will occur if he and every other diocesan bishop in the United States maintains the self-insurance plans that they have and make the government take them to court. That will buy enough time to either get the Supreme Court to overturn this provision of ObamaCare or allow a new administration into the executive branch of the government to overturn this immoral regulation.
The only solution to this “interesting situation” is to vote Obama out of office next November and to have both a pro-life Senate and House. Otherwise, ObamaCare will be upon this country for good. How any Catholic can vote for the party of abortion (i.e., Democrat) is a mystery to me.
Given that the Obama admin first did away with the conscience clause, we know that their intent is definitely not religious liberty. ND and CHA would be well served to follow the lead of the Bishops and ensure that our rights are not taken away in the name of liberty.
Maybe you can talk to Father John and explain your concerns. I Think he would appreciate that.
Looks like Father Jenkins has the answer to every tough question. “Ignore Catholic Church Teachings”…….easy! What a Great Priest you have there at “NOT SO” Notre Dame. Don’t forget…. Jesus is one of those babies they would certainly get rid of. Poor… Fatherless… just kill him. The fight-against-life continues and priest like Jenkins are leading the way.
“As Christians we should advocate strongly for religious liberty for all. Not just for us. And not just for now. For all. Forever”
I would like the Roman Catholic Church to define “religious liberty”. I do not think the Church defines “religious liberty” the way the U.S. Constitution is reported to define it.
If I care about the salvation of every person on earth, I do not want them to have “religious liberty” in this pagam City of the world.
If the “Obama Care” law is not rescinded completely, it is the end, the end PERIOD, of all institutions such as hospitals and adoption agencies and universities calling themselves “Catholic.”
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