This isn’t an accident. The preliminary rule, which will remain unchanged in the final version, created a very narrowly tailored religious exemption (page 46,623 of the Federal Register). To qualify for exemption as a “religious employer,” an organization must meet four criteria:
1. The “inculcation of religious values” is “its purpose.”
2. It “primarily employs persons who share its religious tenets.”
3. “It primarily serves persons who share its religious tenets.”
4. It is a non-profit organization under sections of the code that “refer to churches, their integrated auxiliaries, and conventions or associations, as well as to the exclusively religious activities of any religious order.”
Lest there be any doubt of the limited nature of the exemption, the proposed rule states, “Specifically, the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.”
Thus, the group health insurance covering nuns in a Catholic religious order would probably not have to cover contraception. But insurance provided by the same order’s elementary school probably would. Ditto a hospital established by the nuns.
Even more telling: Despite much screaming from opponents, the Department of Health and Human Services has refused to broaden the religious exemption in the final rule — forcing religiously founded organizations to violate their parent church’s teachings, a frontal assault on the freedom of faiths to operate institutional outreach organizations consistent with their beliefs. If this rule stands, it won’t end there. If Catholic organizations can be compelled by federal diktat to violate their religious tenets, so can other religious organizations in different contexts.
Some have argued that a recent 9–0 Supreme Court ruling allowing a Lutheran church to fire a minister who in a secular organization would have been protected by the Americans with Disabilities Act provides shelter against the free-birth-control rule. I think not. That case was not about “freedom of religion,” as I have defined it here, but “freedom of worship” — the Court ruled that churches are free to decide on the criteria for appointing and releasing their own ministers and individual leaders without interference. But the free-birth-control rule isn’t about the “ministerial exception.” Rather, it imposes a legal duty on faith organizations to comply with the values of the state whenever they engage in public action or charitable enterprise among the general society.
In fact, HHS Secretary Kathleen Sebelius declared that the Obama administration intends not only to force churches to do what the state directs, but even to speak as the state directs. From Sebelius’s official statement about the promulgation of the new rule:
We intend to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.
Thus, the Obama administration is attacking even freedom of worship by forcing exempt organizations to tell their employees where and how they can violate church teaching.
The birth-control rule is the latest and most egregious example of government forcing religious organizations to conform their operations to reigning secular moral values. In this sense, faith organizations are being compelled to participate in a metaphorical Caesar worship. As in the Roman Empire, the government will allow religious organizations general freedom of worship, but, increasingly, not freedom of religion. Pliny would approve.
— Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant for the Patient Rights Council and the Center for Bioethics and Culture.