There has been a great deal of discussion about the threats to the First Amendment religious liberty rights of organizations and individuals, and to liberty generally, posed by the Obama Administration’s mandate  that private health insurers include contraception and abortion-inducing drugs in private insurance plans (“Contraception-Abortion Mandate”). And there is pending litigation and legislation to undo this mandate. Here, in essays on three consecutive days essays, I describe three broad ways forward.

The Day Before Yesterday: replacing Obamacare’s government mandates with competitively priced, individually-owned, health insurance.

Yesterday: encouraging religious institutions to rededicate themselves to their mission.

Today: expanding the number of employees of churches and members of religious, including ecumenical religious, orders.

Today: Expanding the Number of Employees of Churches and Members of Religious, including Ecumenical Religious, Orders

In January, the Obama Administration retained its August, 2011, ultra-narrow exception for church employees, and allowed religious institutions one year to arrange their affairs to comply with the Contraception-Abortion Mandate. I suggest that plans be made for the eventuality that neither legislation nor litigation succeeds in quashing the Contraception-Abortion Mandate before the end of the one-year period. I suggest that this year can be a year of God’s grace in which we evaluate enlarging greatly the number of people who will come within the ultra-narrow exception in two ways – one with respect to religious employers and the other with respect to religious, including ecumenical religious, orders.

I am not talking about expanding the definition of the exemptions, but about hugely expanding the number of people who meet the definition. 

Let me lay the groundwork for the first way -- concerning religious employers -- with the following observations:

• A number of CEOs have served for one-dollar-per-year salaries, among them Mark Zuckerberg of Google (a recent announcement), the late Steve Jobs of Apple, Mayor Michael Bloomberg, and Lee Iacocca of Chrysler. In addition to their one-dollar-per-year salaries, they also receive benefits such as health benefits.

• Some part-time employees, notably Starbucks’ “partners,” receive health benefits.
• Many people hold two or more jobs – they mix and match full-time jobs and part-time jobs.

Thus, a person can obtain a full wage or salary as a full-time employee for one employer while serving as a part-time employee for a second employer. The part-time employee could obtain compensation of one-dollar-per-year plus health benefits.

 If a Catholic parish or an Evangelical congregation or a Muslim mosque were to each hire 500 part-time employees who would serve for salaries of one-dollar-per-year plus health benefits for them and their families, all such part-time employees would come within:

(1) the protection of the January 11, 2012, Supreme Court ruling of Hosana-Tabor Evangelical Lutheran Church and School v. EEOC; and
(2) the precise wording of the exemption given in the Contraception-Abortion Mandate in the August 3, 2011,( Federal Register) 

a religious employer is one that:

(1) has the inculcation of religious values as its purpose;

(2) primarily employs persons who  share its religious tenets; 

(3) primarily serves persons who  share its religious tenets; and  (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the  [Internal Revenue] Code.  Section 6033(a)(3)(A)(i) and  (iii) refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.

The second way concerns religious orders referenced at the end of the above quote. The Obama Administration refuses to recognize deeply held moral objections as sufficient grounds for exemption from the Contraception-Abortion Mandate (although the law recognizes this as sufficient for the purposes of military conscription). I suggest that bishops and the heads of religious orders would issue formal papers to individuals who morally object to the Contraception-Abortion Mandate, recognizing them as “religious.” The by-laws of various organizations could be revised to accommodate large numbers of people, married and single. Such organizations may include what are called “Third Orders” (of St. Frances, of St. Dominic, of Our Lady of Mount Carmel). Catholics could also establish new religious organizations to meet this current, urgent need; (current, urgent needs are the usual catalyst for the founding of religious orders). One could be named after Saint Gianna Beretta Molla (1922-1962, canonized 1994), a mother and physician.

 In a similar way, multiple ecumenical religious orders could be established. One precedent is the Protestant-Catholic monastic Taizè community. (You may have read of the stabbing death in 2005 of its founder, Brother Roger.) Another precedent is the ecumenical Community of Sant'Egidio. There is no legal requirement that all members of an ecumenical religious order share all of the same religious (or moral) tenets all at the same time. For example, we are all familiar with dissidents within any type of religious organization. Furthermore, all Christians share fundamental Christian beliefs and could belong to a religious order like Taizè. By the same token, all Christians and Jews, and all Christians, Jews and Muslims share certain religious (and moral) beliefs, and could belong to a religious order.

 Naturally, we would have to evaluate how payments for health insurance would be paid by the church employers and by the religious orders. Could employers who are currently making financial contributions to health insurance premiums for their employees direct their payments to the carriers providing insurance to plans covering these employees serving as part-time church employees or as members of religious, including ecumenical religious, orders?

 We would also have to evaluate whether there are insurance companies who would be willing to provide coverage or, in the case of self-funded plans, administration, for church and religious order plans who experience exponential growth in the number of enrollees – especially if faced with intimidation by the Obama Administration or the public.
 To conclude these three consecutive daily essays:

Rahm Emanuel infamously instructed Democrats to let no crisis go to waste. The three ways forward I have outlined do not reflect that callous, utilitarian, response to the threat to liberty posed by the President’s Contraception-Abortion Mandate. Rather, we can pray that the three ways forward, moving us out of the crisis he has created, will give “this Nation, under God,. . .a new birth of freedom,” as Lincoln would have instructed us.

Spero columnist James M. Thunder is a Washington DC-based attorney.

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