Partly Accultured Religious Activity: A Case for Accommodating Religious Nonprofits

Thomas C. Berg*

Many of today’s most vexing problems concerning the accommodation of religious conscience involve religious groups and activities that straddle the perceived boundary of the public versus private. For example, in disputes over same-sex marriage and religious liberty, it is generally agreed that churches and clergy should be able to refuse to host or perform marriages, because these entities fall within the private sphere.¹ But religious entities that reach out to provide services to the broader public provoke much more controversy. Think, for example, of Catholic Charities adoption agencies that decline to place children with same-sex couples.² Or think of the intense controversy over religious nonprofit institutions—social service and educational institutions, primarily—that are seeking a full exemption from the mandate to cover contraception in employees’ health insurance.³

To many critics, it is plainly improper to make any accommodation for religious freedom in such cases. They say that when a religious organization hires people outside of the narrow confines of its faith, or becomes a significant social-service provider, it should not be allowed to continue to act on norms that the government has determined are unjust. Once an organization reaches out to others, it must follow whatever rules the state sets, no matter what burden these rules place on religion. That tendency lay behind the original, very narrow exemption from the contraceptive mandate—an exemption that gave no relief to anyone except churches and denominations.⁴ And opponents of exemptions from the mandate argue that exemptions are forbidden—in the words of Fred Gedicks and Rebecca Van Tassell—whenever a religious nonprofit “hire[s] from the general pool of applicants, rather than exclusively from a specific religious group,” because such a group employs “nonadherents or adherents who understand the requirements of the affiliated religion differently.”⁵ Similarly, Caroline Corbin argued, in the early stages of debate over the mandate, that any exemption for religious nonprofit employers would improperly “foist[] the Catholic Bishops’ religious views onto employees, whether or not they are Catholic.”⁶ On the other side, of course, critics of the mandate believe that exemptions for nonprofits are essential to preserve religious freedom.

This Article explores the idea that such problems involve cases of “partly acculturated” religious activity. This kind of activity falls somewhere between two poles. One pole is “unacculturated” religion: the activity of the small sect or minority faith whose doctrines are strange to the American majority or whose adherents are mostly ethnic minorities or immigrants. Think of Muslims, Sikhs, Amish, or Jehovah’s Witnesses. The other pole is “acculturated” religion, usually engaged in by a larger faith, and defined primarily by the harmony between its doctrines or practices and mainstream secular norms. Acculturated groups tend to think that current secular morality helps realize the true meaning of their faith, and they tend to be deeply involved in the world. Think of mainline Protestant denominations and non-Orthodox Jewish bodies.

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© 2016 Thomas C. Berg. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law (Minnesota). I delivered earlier versions of this paper at the Annual Law and Religion Roundtable, Georgetown University Law Center, June 25, 2015; the Notre Dame Law Review Symposium on “Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae,” November 6, 2015; and the Yale Law and Divinity Schools’ Conference on “Law, Religion, and Politics: Challenges to Traditional Borders in Global and Comparative Perspective,” November 7, 2015. Thanks to the participants and audience members at those events for helpful and challenging comments and questions.

1 See Robin Fretwell Wilson & Anthony Michael Kreis, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process, 15 Geo. J. Gender & L. 485, 511 (2014) (noting that “[c]onsistent with the demands of the First Amendment, every state provides religious liberty protections to the clergy,” but also criticizing this protection alone as “hollow” and inadequate).

2 See, e.g., Patricia Wen, Calif. Charity Ends Full Adoptions, Bos. Globe (Aug. 3, 2006), http://www.boston.com/news/local/articles/2006/08/03/calif_charity_ends_ full_adoptions/; Patricia Wen, Catholic Charities Stuns State, Ends Adoptions, Bos. Globe (Mar. 11, 2006), http://www.boston.com/news/local/articles/2006/03/11/catholic_chari ties_stuns_state_ends_adoptions.

3 See, e.g., HHS Mandate Information Central, Becket Fund for Religious Liberty (Nov. 2, 2015), http://www.becketfund.org/hhsinformationcentral (tabulating 56 lawsuits brought against the contraceptive mandate by 140 “religious ministry” plaintiffs, including 37 universities and 40 religious charities); Zubik v. Burwell, SCOTUSBlog (Jan. 29, 2016), http://www.scotusblog.com/case-files/cases/zubik-v-burwell/ (noting grant of certiorari in consolidated cases involving challenges by, among others, the Little Sisters of the Poor Home for the Aged and several religious universities).

4 See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012) (to be codified at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590 & 45 C.F.R. pt. 147) (providing that to be exempt from the mandate, a religious organization must, among other things, “primarily” serve its own adherents and also must primarily “inculcat[e] . . . religious values”). As I note later, the government eventually added an “accommodation” for religious nonprofits that are not legally part of a congregation or denomination. For discussion of the effect of the accommodation, see infra notes 44–46 and accompanying text.

5 Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343, 381 (2014). Gedicks and Van Tassell focused on exemptions of for-profit businesses, but their language and logic also applied to “material” burdens on non-adherent employees of religious nonprofits.

6 Caroline Maia Corbin, The Contraception Mandate, 107 Nw. U. L. Rev. 1469, 1482 (2013).