Supreme Court Unanimous in Its Defense of Advocate Health Care

COMMENTARY: The nation’s highest court ruled that religiously affiliated institutions are not subject to federal restrictions of pension law.

(photo: Register Files)

It may not have gotten major headlines, but the U.S. Supreme Court June 5 provided another welcome win for religious liberty.

In a unanimous decision (with the newest member, Justice Neil Gorsuch, not participating), the Supreme Court overruled a lower federal court decision that found that religiously affiliated institutions, such as hospitals, were subject to the restrictions of federal pension law because they were not explicitly established and maintained “by a church.”

The case, Advocate Health Care Network v. Stapleton, involves the Employee Retirement Income Security Act, known as ERISA. It is a turgidly written law that makes the eyes of even lawyers glaze over.

But one does not have to be steeped in ERISA intricacies to see the importance of the decision.

Whether ERISA applies to these hospitals rests on whether the pension plan is or is not a “church plan.” The problem is, as the Becket Fund for Religious Liberty points out, nowhere does the law define what a “church” is.

Available federal guidance as to what a “church” is often makes a distinction between “church” and “church agencies” that is ultimately untenable. The presumption should be that if people are joined together and acting out of sincere religious beliefs, then that is a church, whether those people are organized as a corporation, nonprofit or religious order.

The plaintiffs are employees of religiously affiliated hospitals, and they argued that their hospitals were not exempt from ERISA because they were not established by a church. This is crucially important.

If the hospitals that are defendants in this case are “essentially like every other corporation,” as Justice Sonia Sotomayor stated during oral arguments, and are not churches, then they are subject to penalties and other costs imposed by ERISA. If they are churches, then they might very well be exempt from the statute as a “church plan.”

In looking at the statutory language, the court determined that “church plans” exempt from ERISA’s requirements include those plans that were not established by a church, such as plans of religiously affiliated institutions..

But Sotomayor, although agreeing with the court, wrote a separate opinion to note that Congress perhaps should reconsider the statute. She wrote that “to the extent that Congress acted to exempt plans established by orders of Catholic sisters … it is not at all clear that Congress would take the same action today with respect to some of the largest health care providers in the country.”

In other words, Congress should rewrite this law to impact church plans — that is, the constitutional protection of free exercise might not apply in these circumstances.

But there is every reason to want the widest possible meaning of the word “church” and allow the broadest range of “church plans” to be exempt.

For example, defining “church” too narrowly may leave out non-Christian religions and even some Christian groups, such as the Quakers, that do not have a hierarchical clergy or dedicated sanctuaries. But all religious groups, even ones that do not have church buildings but nonetheless perform functions arising out of their sincere religious beliefs through chartable or other entities, should still be protected.

In addition, the definition of “church” should not be left in the hands of government bureaucrats. Inevitably, they will define the law so as to increase their own power and constrict religious exercise.

The Catholic Church has many “agencies,” including religious orders, hospitals, charities of all kinds and other institutions. All of them reflect the belief of the Church in performing good works and the theological virtue of charity, and all of them should receive the fullest protection of religious exercise.

Such an expansive definition would not only be appropriate, given the diversity of religious belief in America, it is also consistent with the long-standing judicial reluctance to define what “religion” is.

As the Supreme Court (in an opinion written by Justice William Douglas) affirmed in a 1944 case called United States v. Ballard, “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” This has been understood to mean that the court cannot get involved in the substance of one’s religious beliefs or the sincerity of those beliefs.

Thus, as the Becket Fund argued in its amicus brief to the Supreme Court, the definition of church should “apply to any nonprofit religious group that engages in sincere religious exercise, regardless of that group’s particular faith tradition … [and] regardless of whether the group is primarily engaged in service activities rather than worship or prayer.” Such a definition would include groups as varied as Quaker schools and hospitals run by Catholic religious orders (which, under current regulations, may be simply a “church agency” and so subject to ERISA).

All sincere religious activities, whether or not they occur within “the four walls of a church sanctuary,” would be protected.

This case, although not brought by the government, is of a piece with the HHS mandate cases and the Equal Employment Opportunity Commission (EEOC) action in the 2012 Supreme Court decision in Hosanna-Tabor Evangelical Church v. EEOC, where the Supreme Court unanimously rejected the government’s claim it could interfere in a religious school’s selection of teachers.

The state wants to corner religion into specified buildings it calls churches and then allow its own power to run free everywhere else. In each case, the government has wanted to put up some other value that would supersede the right to free exercise.


Gerald J. Russello is editor of The University Bookman.