Friday, October 11, 2013
A church plan exemption as part of a deal to end the government shutdown
NBC News reports that a "big development" in yesterday's Obama-House GOP meeting was that President Obama "opened the door to giving Republicans a concession to reopen the government--with the understanding that the concession would be something the GOP would have ALREADY GOTTEN during normal budget talks (maybe like repeal of the medical device tax)." (emphasis in original)
Another proposal for the negotiators to consider is giving a concession that accomplishes through legislation what would otherwise be accomplished through litigation.
The particular proposal I have in mind would be to expand the religious employer exemption from the contraceptives mandate to employers who participate in church plans. The legal rationales for such a proposal have already been laid out in comments filed by the Church Alliance this past April in response to the Notice of Proposed Rulemaking. To those comments, I would add the observation that the strength of the legal claims in Little Sisters of the Poor v. Sebelius provides another reason to consider such an exemption. If church plans and plan members are going to prevail anyway, but only after some (deserved) embarrassment to the Administration, it would be better to get something for it now instead.
A church plan exemption would not put an end to all of the litigation, by any means, and it is less (in my view) than RFRA already requires. But it would be a visible "get" for GOP negotiators and a costless "give" for the Administration (at least insofar as the interest groups who would be upset by the "give" recognize that the likelihood of the Administration actually prevailing in the Little Sisters case is rather low).
https://mirrorofjustice.blogs.com/mirrorofjustice/2013/10/a-church-plan-exemption-as-part-of-a-deal-to-end-the-government-shutdown.html
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Hi Professor Walsh,
I've been sporadically commenting on this issue regarding the HHS mandate here on MOJ and I agree that the exemption should be extended to groups/non profits that are religiously affiliated with either an order or directly to the Church itself.
Where I've been disagreeing with many of the other posters here is when for profit companies are involved such as Hobby Lobby. I'd never heard of Hobby Lobby before this (I don't even think we have any stores here in Michigan) but I looked at its website and it says that it is a private corporation. Which, from my experience, means that there's a small number of directors who are limited in their liability to the profits/loss of the business.
It would seem to me that this is the flaw in the for profit argument concerning the HHS mandate. I don't doubt that Mr. Green is a good, sincere man. But it seems to me that if his business is going to take a corporate status for tax purposes, he can't then turn around and claim to be individually aggrieved by the mandate. It's either one or the other.
I guess I'd just like to hear more opinion this. I apologize if I'm moving away from the topic involving religious organizations but this seem as good a place to ask this question.
Thanks, Professor Walsh!