Obama’s New Contraception Plan: OU Labels It Kosher


Friday, the Union of Orthodox Jewish Congregations of America — the nation’s largest Orthodox Jewish umbrella organization — welcomed President Obama’s announcement that he is revising the regulation announced on January 20 by the Dept. of Health and Human Services regarding employers’ health insurance plans and religiously affiliated institutions.

The Orthodox Union criticized the previous regulation as being harmful to religious liberty and disturbingly defining religious entities that serve or employ people of other faith as undeserving of religious liberty protection.

Under the revised rule, no nonprofit, religious institutional employer that objects to providing contraceptives and sterilization services will have to pay for or provide coverage for it.   The plan rightly recognizes that the government must not force religious communities to pay for or provide services forbidden by their faith.  Also, no objecting religious employer will be required to make referrals for services to which they object.  This will remove any burden upon the religious liberty of these employers.  At the same time, employees of objecting religious hospitals, universities, and social service agencies will have access to these important benefits directly from insurers.

Nathan Diament, the Orthodox Union’s executive director for public policy, issued the following statement:

The Orthodox Union welcomes President Obama’s announcement today revising the recent regulation regarding religious institutions and health services for women.

According to the White House description of the revised rule, the new regulation will resolve the religious liberty concerns and respects the interests of Americans who would like to have these health benefits.

We commend the President and his advisers for responding to the deep concerns regarding America’s first freedom of religious liberty expressed by our organization and so many others.   We thank the White House officials with whom we discussed this critical issue – as recently as yesterday – for their attention and action.  The President’s stated commitment is a positive first step forward, the details of implementation are crucial and we look forward to working with the Administration to see that through.

Six Catholics and Three Jews Uphold an Evangelical Lutheran Church

— by Jeffrey I. Pasek, Chair of the Board of Directors of the Jewish Social Policy Action Network (JSPAN)

Yesterday, all nine Justices on the Supreme Court agreed that a Lutheran Church did not have to answer claims of employment discrimination brought by a former teacher in its school. Applying the “ministerial exemption,” the Court ruled that the teacher could not maintain her claim that she had been fired in violation of the Americans with Disabilities Act.

JSPAN’s Church-State Policy Center has been following this issue closely for some time because the ministerial exemption raises important issues about the ability of government to regulate religious organizations and the extent to which employment actions can be shielded from ordinary judicial review when the defendant raises a religious cloak as a shield.

More after the jump.
The case decided by the Supreme Court involved a “called” teacher who acquired a formal minister of religion commission. Her job duties were similar to lay teachers and included teaching secular and religious subjects, leading her class in daily prayer and devotional exercises and leading a chapel service for students a couple times a year. On these facts, the Court had no difficulty deciding that the plaintiff was a minister within the meaning of the ministerial exemption.

According to Chief Justice Roberts’ opinion, the employment discrimination laws do not authorize “government interference with an internal church decision that affects the faith and mission of the church itself.” The purpose of the exemption is to protect religious organizations as institutions, not to safeguard their decisions only when they prove they made those decisions for a religious reason.

The Court’s interpretation of the ADA was grounded in the First Amendment, but the ruling expressed no view on whether the ministerial exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.

JSPAN had been invited to join an amicus brief to the Supreme Court in this case. For policy reasons, JSPAN declined. We rejected the approach that a religious institution must go through a trial to answer the question of motive for its personnel actions. In addition to raising entanglement issues, that would render the ministerial exemption of no value in many instances. The ministerial exemption, as a policy matter, should shield (often poor) religious organizations from the costs of expensive employment-discrimination litigation without forcing a religious organization to establish a doctrinal basis for its action or to show a legitimate non- religious motive for an employment action.

JSPAN will continue to monitor cases involving application of the ministerial exemption in other contexts as courts grapple with the scope to be accorded it. The issue is of significant importance considering the number of social service programs funded by the government that are operated by private religious groups.