That’s the title of a very good post by my friend and Center for Law and Religion Forum former guest Kevin Walsh.  Kevin was involved in formulating comments on behalf of the Little Sisters of the Poor with respect to the Notice of Proposed Rulemaking as to the HHS Mandate.  Here are the succinct comments, which you should read in full, and here is a selection (footnotes omitted), which illustrates part of the difficulty faced by the Little Sisters, and perhaps by other self-insured eligible employers:

The fact that we have separately incorporated the homes in which we carry out our ministry to the elderly poor does not deprive our order’s religious exercise of its religious nature. Saint Jeanne Jugan, our foundress and the first Little Sister of the Poor, began her ministry by bringing an elderly and infirm woman into her own apartment and caring for her there. Since 1839, we have continued this tradition with our homes, which now operate in one of the most highly regulated segments of care providers. We have always done our best to comply with all government regulations that apply to our homes and with the highest standards of nonprofit financial stewardship. The Form 990 is an important tool for financial accountability in our religious charitable work, but it makes no sense to use the requirement to file it as a disqualifier for the religious employer exemption.

The Little Sisters of the Poor should receive a religious exemption based on what we believe and what we do rather than the corporate forms through which we carry out our ministry. The Notice of Proposed Rulemaking observes that a church should not lose its exemption simply because it “maintains a soup kitchen that provides free meals to low-income individuals.” We agree. The same should hold true for our religious order. We should not be deprived of an exemption because we maintain homes to provide shelter and loving care to the elderly poor . . . .

Our homes provide coverage for their employees through the Christian Brothers Employee Benefits Trust. The Trust is a self-funded church plan that provides health and welfare benefits to employees of Catholic employers nationwide. As a church plan, the Trust provides benefits consistent with Catholic teachings and doctrines. The Trustees of the Christian Brothers Employee Benefits Trust have contracted with Christian Brothers Services as a third-party administrator to administer and manage the Trust. Christian Brothers Services is a nonprofit Catholic ministry that operates in accordance with Catholic teachings and doctrines.

Although our homes qualify as “eligible organizations,” the proposed accommodation in the Notice of Proposed Rulemaking does not address the situation that they face under the HHS Mandate. The Notice identifies three alternative ways in which the third-party administrator of a self-insured plan might be made responsible for arranging the objectionable coverage. Each of these alternatives presupposes that the third-party administrator itself has no religious objection to arranging that coverage. But Christian Brothers Services, as another Catholic organization, shares our commitment to Catholic teaching and also objects to the HHS Mandate. Accordingly, the proposed accommodation does not offer us a path to compliance.

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