Bench Memos

Amicus Brief Filed in Support of Little Sisters of the Poor

Yesterday I filed an amicus brief in support of the Little Sisters of the Poor and other religious organizations challenging the Obama Administration’s contraceptive mandate. The brief argues that the Administration arbitrarily chose an irrelevant tax return filing classification to gerrymander which religious groups were exempt from the contraceptive mandate.

The brief was written on behalf of the Dominican Sisters of Mary, Mother of the Eucharist, Sisters of Life, and the Judicial Education Project by my outstanding colleagues Eileen O’Connor, a former Assistant Attorney General for the Tax Division of the Department of Justice, and her colleague Robert S. Logan, both at Pillsbury Winthrop Shaw Pittman LLP.

Here is the summary of our argument:

Amici write to highlight the arbitrary nature of the decision by the Department of Health and Human Services (HHS) to base the availability of religious exemptions to the HHS contraceptive mandate  (“mandate” or “contraceptive mandate”) not on factors that go to an employer’s religious character, but on its  federal tax filing requirements. The HHS mandate relies on categories set forth in Internal Revenue Code § 6033 to distinguish between religious organizations. But the  history and application of section 6033 show that the classification was solely intended to facilitate administration of the tax laws, not to draw a line between religious institutions whose free exercise was fully protected and those who received less consideration. In short, the availability of an exemption  to the mandate should turn on an organization’s claim to religious exercise rights, not its tax filing obligations.

By selecting section 6033, HHS created a discriminatory gerrymander that wanders far from its regulatory justification while utterly failing to respect the profound and immutable religious objections of the Petitioners and the religious amici. HHS’s decision to gerrymander the exemption in this way was intentional; it knew that in significant cases, virtually identical religious groups would be treated differently based on nothing more than their classification under tax law.

If HHS had been serious about creating an exemption that took religious objections seriously, it could have modeled its exemption after one from employment law. Title VII of the Civil Rights Act of 1964 provides a tried-and-true mechanism for protecting both employee and employer civil rights, and includes a religious exemption much more suitable than that of section 6033. The Title VII exemption, unlike the gerrymandered one concocted by HHS, captures religious orders like amici and Petitioners. That definition has served as the model for other religious exemptions in employment statutes and regulations, and better reflects the likelihood that a religious organization may hire employees who share the tenets of its faith. It is a simple and more effective alternative to the flawed and ineffectual exemption HHS devised for the invasive contraceptive mandate.

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