United States: Religious Institutions Update: January 2014

Lex Est Sanctio Sancta

Nathan Adams IV is a Partner in the Tallahassee office


On the heels of controversy surrounding the Internal Revenue Service's treatment of conservative groups applying for tax-exempt status, the Treasury Department is accepting comments on proposed regulations that will materially affect many 501(c)(4) and, potentially, 501(c)(5) and 501(c)(6) organizations, especially around election time. The proposed regulations would replace the Treasury Department's "facts and circumstances" test for analyzing what constitutes impermissible "political campaign intervention" by a 501(c)(4) with a concrete "candidate-related political activity" test for activities that will be considered forbidden, including:

  • voter registration drives and "get-out-the-vote" drives
  • preparation or distribution of voter guides that refer to candidates or, in general elections, political parties
  • holding an event within 30 days of a primary election or 60 days of a general election at which a candidate appears
  • communications within 30 days of a primary election or 60 days of a general election which identify a candidate or political party

Comments on the proposed rules are due by February 27, 2014. Equally or more importantly, comments are also due then on: (1) how to measure an organization's "social welfare" activity relative to its total activities to qualify as a 501(c)(4) tax-exempt organization; (2) when material posted by a third party on a 501(c)(4) organization's interactive website (e.g., a blog) should be attributed to the 501(c)(4); and (3) whether its proposed limits on "candidate related political activity" for 501(c)(4) organization should apply to 501(c)(5) and 501(c)(6) organizations.

These questions signal more debate about what counts as "social welfare," deployment of interactive sites and a broadening of the impact of political activity regulation to encompass more filers. If the proposed rules or questions for comment are of concern to you, there is still an opportunity to influence their final form. Holland & Knight can assist.

Religious Hospital Cannot Establish an ERISA-Exempt Church Plan

In Rollins v. Dignity Health, Case No. C13-1450 TEH, 2013 WL 6512682 (N.D. Cal. Dec. 12, 2013), the court ruled that, because the defendant is not a church or an association of churches, the defendant does not have the statutory authority to establish its own church plan and is not exempt from the Employee Retirement Income Security Act (ERISA). The plaintiff contended that: (1) the defendant's pension benefits plan, under which the plaintiff would be eligible for benefits when she reaches retirement age, violated ERISA; (2) the plan is not an exempt "church plan"; and (3) if the plan is exempt, the exemption violates the Establishment Clause. In contrast, the defendant argued that its plan qualifies as a church plan because it is a tax-exempt entity associated with the Roman Catholic Church and its plan is maintained by a subcommittee associated with the Roman Catholic Church. Contrary to the defendant's private letter ruling and other cases, the court denied the defendant's motion to dismiss the plaintiff's complaint. It ruled that a church plan must be established and maintained for its employees by a church or an association of churches.

The court rejected the defendant's "effort to expand the scope of the church plan exemption to any organization maintained by a church-associated organization...."

Cohabitation Provision in Utah's Bigamy Statute Is Struck

In Brown v. Buhman, No. 2:11-CV-0652-CW, 2013 WL 6568756 (D. Utah Dec. 13, 2013), the court struck on several constitutional grounds the cohabitation prong of Utah's bigamy statute, Utah Code Ann. § 76-7-101 (2013), which provides that "[a] person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." The plaintiffs are members of a religious group that believes polygamy is a core religious practice. The court found that Utah government officials are aware of thousands of polygamist families in the state and knew that the plaintiffs were a plural or polygamist family, but their appearance on "The Sister Wives" triggered an investigation. Although the plaintiffs moved to Nevada, the defendants stated there was no guarantee that the plaintiffs would not be prosecuted under Utah's bigamy statute.

The district court first examined the Utah Supreme Court's interpretation of the bigamy statute, which was that it "criminalizes not only privately 'marrying' someone after having legally married, but also merely cohabitating with a second adult partner after having married a first partner." The district court ruled the second part of the holding inconsistent with federal constitutional claims. In light of the long common law history outlawing polygamy, the district court declined to find that there is a fundamental right: (1) to enter into a second purportedly legal matrimonial union when already legally married; or (2) to enter into a personal relationship that resembles a marriage in its intimacy but claims no legal sanction. Also, in light of Tenth Circuit authority, the court declined to find a fundamental "broadly-defined 'right to sexual activity'" or "to engage in private sexual conduct." Therefore, and because the U.S. Supreme Court previously ruled that federal legislation prohibiting polygamy did not violate Mormons' right to the free exercise of religion, the court ruled that strict scrutiny does not apply to the statute's prohibition of actual polygamy or bigamy.

The court warned, however, that it could "be pressed" to find the Utah bigamy statute "not a neutral law of general applicability," had the plaintiffs proven that the law targeted their religious practice. In addition, the court found that the U.S. Supreme Court had not reached the constitutionality of the cohabitation prong of the Utah bigamy statute. Therefore, the district court considered itself free to rule that the cohabitation prong: (1) was not operationally neutral but primarily enforced against those involved in religious cohabitation; (2) was not generally applicable; (3) invokes hybrid constitutional rights; and (4) is not narrowly tailored to advance a compelling interest. In addition, it ruled that the law was not even rationally related to a legitimate public objective to protect marriage in light of the incongruity between prosecuting religious cohabitation but not nonreligious cohabitation or adulterous cohabitation. In fact, the court observed that the statute penalized people for making a firm marriage-like commitment. The court also expressed skepticism that individuals of ordinary intelligence could know what the law prohibited, and found the prong void-for-vagueness due to arbitrary or discriminatory enforcement.

In a nutshell, the court allowed the statute to remain in force as prohibiting bigamy in the literal sense (i.e., the fraudulent or impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage), but not as prohibits cohabitation.

District Courts Reach Opposite Rulings on ACA Religious Organization Accommodation

a. Plaintiffs Do Not State a Claim under RFRA

In Priests for Life v. United States Department of Health and Human Services, No. 13-1261 (EGS), 2013 WL 6672400 (D.D.C. Dec. 19, 2013), the court dismissed the plaintiffs' lawsuit under the Religious Freedom Restoration Act (RFRA) and the First and Fifth Amendments, founded on their claim that the religious employer exception to the contraceptive coverage mandate contained in the Patient Protection and Affordable Care Act (ACA) unconstitutionally requires them to fill out a self-certification form that initiates and facilitates coverage without direct expense to them of contraceptive products, services and counseling by their health insurer.

The court ruled that the plaintiffs' RFRA claim founders on a requirement that they show that the governmental action forces them to modify their behavior in violation of their beliefs, whereas the accommodation ensures that provision of contraceptive services is by a third party. It was not convinced by the plaintiffs' argument that they had to play an active role in the provision of the services by signing the self-certification form, which they conceded they had no religious objection to in and of itself. The court observed: "[T]he only action required of Priests for Life under the accommodations is consistent with its beliefs. It is only the independent actions of third parties which result in the availability of contraceptive services."

The court also rejected the plaintiffs' free exercise claim that the mandate and accommodation is not neutral in comparison to the total exemption for houses of worship, on the grounds that they are not treated less favorably than other employers. It disagreed with their argument that the mandate is not generally applicable, on the grounds that the regulations do not impose burdens selectively. Likewise, the court rejected the plaintiffs' free speech and expressive association claims, because the regulations underpinning the accommodation regulate conduct without limiting the plaintiffs' speech and in a manner consistent with it; also, because the accommodation does not force the plaintiffs to accept members it does not desire or make group membership less desirable. As a religious accommodation, the court also ruled there was no Establishment Clause violation and, because the mandate is rationally related to legitimate government purposes, no equal protection violation.

In Michigan Catholic Conference v. Sebelius, No. 1:13-CV-1247, 2013 WL 6838707 (W.D. Mich. Dec. 27, 2013), the court likewise ruled that the plaintiffs failed to demonstrate that they are likely to succeed on the merits of their RFRA and First Amendment challenge to the contraceptive coverage mandate. Plaintiff Michigan Catholic Conference qualifies for the religious employer exemption, whereas plaintiff Catholic Charities qualifies for the religious accommodation, but objects to completing the self-certification form and facilitating objectionable services. The court ruled that the claimed burden on the plaintiffs' religious exercise is not substantial by analogy to a law that requires potential jurors to state whether they are able to impose the death penalty. It indicated that posing the question is not any more a substantial burden than requiring Catholic Charities to attest to its religious beliefs before accepting the exemption. "It is true that, once it steps aside, another person may step in and provide coverage of contraceptive services for Catholic Charities' employees," who may then decide to utilize the services, but the court considered any such actions too attenuated to burden Catholic Charities' religious exercise. The court added that the mandate "requires Catholic Charities to do what it has always done — sponsor a plan for its employees, contract with a TPA, and notify the TPA that it objects to providing contraceptive coverage"; thus, the accommodation does not modify defendant's behavior.

The court ruled that, rather than require their participation in a scheme to provide contraceptives, the accommodation does the opposite. For like reasons, it rejected the plaintiffs' free exercise, Establishment Clause and free speech claims, observing that the mandate does not target the defendants' religious practices or treat a particular denomination better than another, and the defendants remain free to speak out against use of contraceptives.

In Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, No. 13-cv-2611-WJM-BNB, 2013 WL 6839900 (D. Colo. Dec. 27, 2013), the court denied in part the plaintiffs' motion for preliminary injunction under RFRA, the First Amendment and several other claims, on the grounds that the mandate does not substantially burden their religious exercise. The plaintiffs are controlled by and associated with an international Congregation of Catholic Sisters, which serves needy elderly people. The plaintiffs provide medical coverage to their employees under a church plan exempt from ERISA. As a result, the defendants took the position that they also lack the regulatory authority to require the third-party administrator (TPA) for the plan to administer or pay for contraceptive care. The Final Rules could be construed otherwise, but in light of the government's limiting interpretation, the court ruled "the Final Rules do not require Little Sisters or the Trust to designate, authorize, or create a provider-insured relationship with any third party that will provide their employees with access to contraception, sterilization, or abortifacients." Furthermore, "[b]ecause a church plan and its third party administrator are not subject to ERISA, if these individuals complete the Form on behalf of their respective organizations, they know that they are not 'authoriz[ing] another organization to deliver contraceptives, sterilization, and abortifacients to the Little Sisters' employees and other beneficiaries.'" The court also denied the defendants' motion to dismiss for lack of standing. However, on New Year's eve, Supreme Court Justice Sonia Sotomayor temporarily enjoined the defendants from enforcing the mandate against the plaintiffs pending the receipt of additional documents. http://www.becketfund.org/wp-content/uploads/2014/01/13A691-Little-Sisters-v-Sebelius-Order.pdf

In Catholic Diocese of Nashville v. Sebellius, No. 3:13-01303, 2013 WL 6834375 (M.D. Tenn. Dec. 26, 2013), the court denied the plaintiffs' motion for preliminary injunction under RFRA, the First Amendment and other claims, also on the grounds that the diocese plaintiffs are entirely exempt from contraceptive coverage and the burden of self-certification is too attenuated and speculative to be substantial. "Plaintiffs bear no costs for the services and nothing is provided unless a third party employee independently requests the services from yet another third party — the insurer." The court also found the mandate: (1) neutral and generally applicable, and consistent with the Free Exercise Clause, notwithstanding exemptions inasmuch as they do not disfavor religion; (2) consistent with the Free Speech Clause as regulating conduct, not speech; (3) consistent with the Establishment Clause by not disfavoring one denomination as compared to another; and (4) not interfering with internal church governance by splitting the Catholic Church, because the rules do not regulate hiring, firing or management of employees.

b. Plaintiffs State a Claim under RFRA

In Roman Catholic Archdiocese of N.Y. v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013), the court found that the mandate substantially burdens the religious exercise of a parochial high school, a nonprofit organization that provides faith-based health care to the poor, and a nonprofit organization that oversees hospitals, nursing homes and a hospice. The plaintiffs: (1) object to completing the self-certification form to qualify for the religious accommodation and to providing the form to their third-party administrator (TPA); and (2) state that the mandate would require them to identify and contract with one or more TPAs that would provide contraceptive coverage. The government responded that the burden of the mandate is too de minimis and attenuated.

The court found no de minimis exception under RFRA and no practical way to evaluate the significance of a burden without impermissibly examining religious doctrine. Furthermore, it found that the plaintiffs' religious objection was not only to the use of the contraceptives, but also to the requirement to actively participate in a scheme to provide such services; also, that it was not the court's role to say that the plaintiffs are wrong about their religious beliefs. Consequently, the court ruled that the non-diocesan plaintiffs demonstrated a substantial burden under RFRA, but not the Archdiocese of New York or the Diocese of Rockville Centre, because they are exempt from the mandate. Moreover, the court ruled that the government failed to demonstrate that it has a compelling governmental interest to apply the mandate without exemption to the non-diocesan plaintiffs or that it could achieve those objectives in a less restrictive fashion. In fact, the court ruled that the government's late revelation (which the court found "difficult to fathom") that the mandate does not require plaintiffs' TPAs to provide contraceptive coverage because they have "church plans" exempt from ERISA "fatally undermines any claim that imposing the mandate on these plaintiffs serves a compelling governmental interest," inasmuch as filling out the self-certification form would ultimately serve no purpose. The court granted the non-diocesan plaintiffs an injunction against enforcement of the mandate, but not the diocesan plaintiffs under RFRA or the First Amendment.

In East Texas Baptist Univ. v. Sebelius, No. H-12-3009, 2013 WL 6838893 (S.D. Tex. Dec. 27, 2013), the court granted the plaintiffs' motion for summary judgment on their RFRA claim, denied the government's cross-motion for summary judgment on the same claim and enjoined the government from applying the regulations that require plaintiffs, their health plans, TPAs or issuers to provide or execute the self-certification forms that enable or require the TPA or issuer to provide health insurance coverage for the plaintiffs' employees for FDA-approved emergency contraceptive devices, products or services. The plaintiffs are two universities associated with the Baptist Church and a third associated with the Presbyterian Church. Both churches believe that the accommodation requires them to take an action that facilitates their employees' free access to abortion-causing drugs, making them complicit in taking innocent life.

The court rejected the government's argument that one of the universities lacks standing because it is self-insured through a church plan. The court found no de minimis exception to RFRA. It ruled there is a substantial burden within the meaning of RFRA if the plaintiffs are compelled or pressured by threat of punitive fines to: (1) themselves take or forbear from an action; and (2) it is their own action or forbearance that they find religiously offensive. The court ruled that the final regulations require both. "[T]here is a causal link between the acts the plaintiffs must do under the accommodation and the provision of contraceptive devices and products to employees on a no-cost sharing basis." Accordingly, the court concluded that the plaintiffs are likely to succeed in showing a substantial burden under RFRA. Moreover, it ruled that the government failed to show that the mandate and accommodation are the least restrictive means of advancing a compelling government interest, because the government failed to show how denying the plaintiffs an exemption would undermine its interest in protecting women's health, and because there are several less restrictive means of serving the government's interests.

Nonliturgical Chaplains Denied Injunction against Navy's Promotion Process

The court In re Navy Chaplaincy v. United States Navy, No. 13-5071, 2013 WL 6819348, ruled that current and former non-liturgical Protestant chaplains were unlikely to establish a likelihood of success on the merits of their Equal Protection and Establishment Clause claims as required to warrant the grant of a preliminary injunction against a facially neutral selection process for promotions of chaplains. Although the plaintiffs showed a 10 percent difference between promotion rates of candidates of the same denomination as the Chief of Chaplains and candidates of nonliturgical denominations, the court found that the plaintiffs did not properly control for nonconfounding variables, so as to establish a likelihood of success in proving defendant's intent to discriminate.


Pope Francis is Time Magazine's "Person of the Year."

The U.S. District Court for the Southern District of California ordered removal of the controversial 59-year-old cross atop La Jolla, California's Mount Soledad within 90 days unless there is a further appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.