Religious Organizations Need a Legal Definition

The HHS Mandate, Hosanna-Tabor, 

and the Question of Religious Organizations

by Brian Murray

The Supreme Court's decision in Hosanna-Tabor v. EEOC shows that we need a workable legal framework for self-proclaimed religious organizations to claim protection under the Free Exercise Clause.

The application of the HHS contraception mandate to religious employers has reignited the debate about the definition of religion, a debate that courts generally have been reluctant to resolve. This time around, multiple circuit courts have addressed the issue as it applies to for-profit organizations such as Hobby Lobby. Some courts have decided that corporate forms can exercise religion under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause. Yet the Third Circuit recently ruled, somewhat oddly, that constitutional free exercise rights do not extend to business forms.

The courts are struggling to determine which entities are entitled to protection under the Free Exercise Clause. The Obama administration has routinely taken the position that the term "religious" implies inward, private belief. Consequently, organizations that operate in the public sphere of the marketplace would be, by definition, less religious than those that confine themselves to private activities. This definition of religion weakens, if not ultimately destroys, a claim for exemption from the regulation.

Viewing religion in this way understandably ruffles the feathers of religious believers, who consider evangelization, service, and "living the Gospel" (or its non-Christian parallel) essential to religious experience. For believers, "religious" often connotes just the opposite of the administration's emphasis on private belief: it includes proclaiming the good news publicly, whether that happens through working for Catholic Charities or by engaging in business on Etsy.

Scholarly attention has not been lacking on this topic. Many scholars have acknowledged that the Supreme Court's decision in Hosanna-Tabor v. EEOC, which upheld the principle that the Free Exercise Clause provides a ministerial exception (or organizational autonomy "right") for religious organizations from anti-discrimination statutes, represents the current Court's general sympathy for religious claimants. Others speculate that the Court will view the HHS mandate skeptically (for other reasons) should it decide to hear lawsuits against it.

Few legal scholars, however, have used the Hosanna-Tabor decision in their defense of employer exemptions from the mandate. This must be remedied: drawing on the Court's broad understanding of who can exercise religion and have ministers in Hosanna-Tabor, legal scholars should argue for a wide-ranging interpretation of the Free Exercise Clause that would exempt both religious and corporate organizations from the mandate.

Judicial Difficulty Defining Religion

Historically speaking, the Supreme Court has been reluctant to define religion. Its precedents are rife with ambiguity: theism no longer appears essential, and philosophical traditions that resemble religious belief are sufficient for protection under the Free Exercise Clause. The most famous cases--involving exemption from the draft statute--allow belief systems inspired by social science disciplines to qualify as religious. Conversely, the Court seemed to distinguish religion as special in the heyday of strict scrutiny in cases such as Thomas v. Review Board. Nevertheless, reliance on the "ultimate concern" line of cases, which equated "religious" with basically any belief held as strongly as the traditional or orthodox belief in theism, would seem to blur the line between religious and secular organizations, thereby making the task of courts even more difficult.

The circuit courts have not been any better. The Third Circuit and the Ninth Circuit, respectively, have created balancing tests consisting of decision-making by way of analogy. These tests were created in an attempt to explicate the meaning of §702 of Title VII. Each test identifies multiple factors considered relevant to the question of defining whether an organization should be considered religious. These factors include non-profit status, self-identification as religious, activity that is consistent with a stated mission, and external activities that are normally associated with religious expression. While providing litigants some guidelines for their day in court, these approaches place significant discretion in the hands of courts that have confessed general incompetence in this matter. In short, the circuits are split, and the issue is not going away.

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