The Obama administration is accepting comments from the public until April 8th on the Notice of Proposed Rule-Making for the birth control benefit or contraceptive coverage rule. The proposed rule amends the exemption for houses of worship and their affiliates and adds an accommodation for other non-exempt non-profits opposed to birth control.

The accommodation requires that insurance companies offer separate contraceptive coverage directly to the employees of objecting organizations at no additional cost. To take advantage of the accommodation, an organization need only self-certify to its health insurer or plan administrator that it is a non-profit opposed to some of the required contraceptive services and that it “hold[s] itself out as a religious organization.”

It is not enough for an institution seeking special treatment to simply assert that it holds itself out as religious. I expect the Obama administration is loathe to define what it means to be a religious organization or police whether an institution is in fact holding itself out as such, and rightly so.  Nevertheless, the institution should have to make a statement describing how it holds itself out as religious and what that religiousness entails. This statement should be made easily available to the public and organizations should have give to notice of it to those with whom it seeks to contract, such as employees, students, patients, and funders.

This is necessary due to a pattern of religiously-affiliated institutions characterizing themselves one way when recruiting or seeking public funding and another when demanding to be exempt from laws that govern secular institutions. The trend in First Amendment Establishment Clause jurisprudence has permitted increasing public funding for religious organizations. This means we need whatever protections the free market can provide individuals from the imposition of religion by institutions active in the public sphere. We can only avoid involvement with institutions that will discriminate on the basis of religious control if we know which institutions those are.

To understand some particularly flagrant examples of religiously-affiliated institutions trying to have it both ways, we turn to a bit of state constitutional law. Over 37 state constitutions contain explicit prohibitions on the use of public money for religious institutions or instruction. New York is among them and its Constitution prohibits public funding of any educational institution “wholly or in part under the control or direction of any religious denomination.”

In the mid-60s many private universities throughout the country were in dire financial straits. New York sought to rescue its private universities with taxpayer funding through a program known as “Bundy aid.” However, giving public funds to religiously-controlled universities was clearly unconstitutional. So religious universities, particularly Catholic ones, underwent re-organizations to separate themselves from the control of their founding religious orders and other church authorities and endeavored to become more suitable places for people of any or no faith to work and study. By becoming non-sectarian, while maintaining only a religious affilation, they qualified for public funding.  The motivation behind secularization was not exclusively financial, but part of a larger attempt by Catholic universities to strengthen their academic and intellectual legitimacy.

By accepting funds each year, a New York college makes a representation to the state that it is an independent institution free from religious control. Despite this, a number of universities receiving Bundy aid, have asserted that they are church-controlled in order to be free from various generally applicable laws.

In 2010, adjunct professors at Manhattan College sought to unionize. To block them, Manhattan College claimed it was not subject to the jurisdiction of the National Labor Review Board because it is “church-operated.” Among the evidence on which the NLRB board relied in rejecting the claim Manhattan College holds itself out as a religious institution was the fact that Manhattan College deliberately eliminated church control to get Bundy aid and continues to claims to be non-sectarian by accepting it.

In 2009, St. John’s University argued it was exempt from the Americans with Disabilities Act because it is “controlled by a religious organization.” Prior to that, St. John’s successfully argued it was eligible for an exemption from New York’s Human Rights Law for the same reason. In agreeing that St. John’s is controlled by a religious organization, the Court did not take notice of the fact that St. John’s represents to the state that it is not controlled, even in part, by a religious organization in order to get taxpayer funding each year.

Multiple universities that receive Bundy aid have health policies that are controlled by the U.S. Conference of Catholic Bishops through the USCCB’s Ethical and Religious Directives for Catholic Health Care Services.  The Directives are 43 pages long and as detailed as a statute. These schools tend to be less than forthcoming as to how the Directives are implemented in school policy, and some fail to give notice that the Directives control at all.

For a further example of conflicting self-characterizations, we now turn to the permissibility of funding under the federal Constitution. In 2000, the University of Notre Dame received a $500,000 federal grant that funded a program that included training teachers to work in parochial schools. Taxpayers sued the federal government, alleging the grant violated the First Amendment’s prohibition of government establishment of religion. Notre Dame intervened in the case as a defendant to defend its interest in the funds. Inherent to Notre Dame’s argument that the funding did not violate the First Amendment, is the fact that Notre Dame engages in many secular activities. In fact, just by applying for the grant, for which the “[u]se of funds for religion” was explicitly prohibited, Notre Dame represented to the government that despite its religious affiliation, not everything it does is an exercise of religion.

In court papers, Notre Dame detailed how it segregated and tracked the use of the taxpayer funds to ensure they were not used for religious purposes. Among those expenses Notre Dame categorized as “secular” were “director’s and associate director’s salaries and benefits.” Those benefits presumably include medical benefits. Compare that to Notre Dame’s lawsuit challenging the contraceptive coverage mandate, in which Notre Dame claims offering particular health plans is an exercise of its religious belief.  (See page 38 here.) Health plans are “secular” when the University seeks taxpayer money, but an “exercise of religion” when it doesn’t want to adhere to generally applicable law.

In defending its federal funding, Notre Dame cited a number of cases for the proposition that government aid to universities does not necessarily violate the Establishment Clause. In so holding, courts rely on the fact that universities are not intrinsically sectarian places where government funds will be used for indoctrination, distinguishing them from religious primary schools. For example, in Tilton v. Richardson, the Supreme Court explained, “[t]here are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools.” Those differences in secularity and the feasibility of separating religious from non-religious activities, makes direct funding of religiously-affiliated universities constitutional while funding religious primary schools generally is not. Despite its prior reliance on these cases, Notre Dame is now claiming to be a “person” under the Religious Freedom Restoration Act whose every policy or action is apparently an exercise of religion.

If these universities are making conflicting statement about whether or not they are religiously controlled to courts and government agencies, imagine the incomplete information they are giving prospective students and employees. Institutions that believe they are entitled to exemptions to the law or to use religion as a post hoc defense to discrimination claims should have to say so up front.  No institution should be able to claim the contraceptive coverage accommodation or any other without making a statement of their religious affiliation that is available to the public.

Fuller disclosure of religious control is especially necessary in the case of religiously-affiliated hospitals. Any hospital that is providing its employees with a substandard healthcare plan because it adheres to Directives promulgated by the bishops rather than generally accepted health care standards, likely has similarly problematic patient care. That would make it somewhere I do not want to be treated. It would also make it a place many health care professionals wouldn’t want to work and risk having to compromise their own ethical and medical judgments due to the control of a religious authority. However, many hospitals are not making it clear what their religious affiliation means and, where religious hospitals merge with secular ones or change their names, it may be unclear they have a religious affiliation at all.

A friend of mine is doctor who has worked at two different Catholic hospitals, neither of which provided him with a copy of the bishops’ Directives prior to his employment. He first learned how his current hospital’s Catholic control affects patient care in the middle of helping a family navigate end of life care for his comatose patient. When the family decided it was time to let the patient go, they wished to donate his organs. Only then, did their doctor learn the patient would have to be transferred to another hospital to do so. The family did not want to endure transferring the patient, so they had to let him die at the Catholic hospital without the potentially life-saving donation they believed he would have wanted.

At another Catholic hospital, that family might not have been able to withdraw care at all. There is disagreement among hospital ethicists about whether foregoing intravenous food and water is permissible according to decrees by Pope John Paul II and the bishops. Confusion among doctors about the rules at Catholic hospitals is apparently common. I asked my friend how his hospital’s Catholic affiliation affected obstetric care and he had no idea.

Nonstandard medical practices should not be a surprise. A publicly available statement of what an institution’s religious affiliation means won’t help you if you are miscarrying and the ambulance takes you to the nearest hospital, but it would provide vital information to those in a position to choose where to seek treatment or work.

In the context of the contraceptive coverage regulation, organizations claiming the accommodation should also have to identify who has determined that the religion bars providing contraceptive coverage and why. The situation at Boston College is the latest example of why this is necessary.  Responding to administrators’ threats of discipline for students distributing condoms and health information in their dorm rooms, students and alumni have sounded a familiar refrain:

“we chose to go to a Catholic university, not the Catholic Church. We were never warned that students who advocate for basic health-care access would be silenced and undermined at every turn. In every tour and orientation, student guides proclaim that BC is a welcoming campus for people from diverse backgrounds and perspectives.”

At Boston College (as at Notre Dame, Fordham, Georgetown and likely many other universities facing escalating pressure from off campus) vague references to the mission are being used to justify policies students didn’t expect with little explanation as to how permitting access to sexual health services and information violates Catholic teaching, nor discussion of the extent to which university policy is controlled by Catholic doctrine.

Organizations controlled by and affiliated with religious authorities increasingly demand public funding with few conditions. Courts are reluctant to inquire into how religious an organization is or engage in line drawing as to whether an activity is or is not religious exercise. The harder it becomes to restrict taxpayer money for religious use, the more we must rely on avoiding institutions, to the extent that is possible, that will deprive us of legal protections for religious reasons. Given that institutions sometimes find it in their interests to keep things vague in order to say different things to different audiences, the law should require, at the very least, that an institution seeking either public funding or any religious accommodation make an explicit and comprehensive statement about its own religiousness and accept whatever consequences result.