The Contraception Mandate and the Forgotten Constitutional Question

Litigation over the Contraception Mandate — which requires all employer insurance plans to include coverage for contraceptives — is quickly becoming one of the largest religious liberty challenges in American history. The most powerful claim raised by some of the litigants is that their status as “religious institutions” exempt them from compliance with the Mandate. But what is a religious institution, and who gets to become one — and why? Should the University of Notre Dame be treated the same as the Archdiocese of the District of Columbia? Should lobbying group Priests for Life be lumped together with Hobby Lobby, a for-profit corporation? Neither commentators nor courts have proposed a framework for assessing which of these types of groups — religious universities, religious interest groups, or religiously-based for-profit corporations — should be labeled as a religious institution, free to ignore the Mandate with no governmental recourse, and which groups should not be categorized as such. This Article carefully disaggregates the nature of the challengers to the Contraception Mandate and the distinct causes of action pleaded by those challengers. It then develops a unique framework for identifying constitutional religious institutions and, critically, applies it to the various classes of litigants challenging the Contraception Mandate. The framework captures the subset of institutions which, if empowered with rights beyond those granted in the generally applicable Religion Clauses, will most often and effectively use those rights to benefit society as a whole. The goal of this Article, therefore, is to offer a workable and constitutionally based framework in our search for a constitutional religious institution, and provide an application of that framework to the institutional claimants in the Contraception Mandate litigation