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Wednesday, April 7, 2010

Is There a Religious Exemption to ObamaCare (Like Social Security)?

Lloyd Hitoshi Mayer (Notre Dame):

Unless I missed it, there does not appear to be an exemption for churches or other religious organizations from the requirement that large employers provide an opportunity to enroll in the minimum required health insurance. This requirement is found in new I.R.C. § 4980H, enacted by § 1513 of the Patient Protection and Affordable Care Act (H.R. 3590) and amended by § 10105 of that law and  § 1003 of the Reconciliation Bill (H.R. 4872). For these purposes, a large employer is generally one with 50 or more full-time employees, which would certainly include some of the larger churches. The requirement starts in 2014 and is backed by a tax penalty. This contrasts with the ability of churches to claim exemption from having to pay the employer share of social security taxes under I.R.C. § 3121(w). Such a church’s employees are still liable for the social security taxes, however, now paid by them as self-employment tax, unless they fall under either the religious sect exemption or minister exemption from such taxes.

Ellen P. Aprill (Loyola-L.A.):

The health bill also lacks a provision parallel to § 1402(e), which specifically permits ministers and Christian Science practitioners to claim exemption from self-employment tax.  It does include a provision that permits individuals to claim religious exemptions and which cross-references to current § 1402(g).

Section 1402(g) applies only to an individual “who is a member of a recognized religious sect or division thereof” which has established tenets or teachings opposing the provision of public or private insurance. Writing about an earlier version of the health care bill, Professor Marci Hamilton has suggested that an exemption limited to “recognized religion or division thereof” rather than to all religious believers is unconstitutional.” Section 1402(g), however, grants exemptions only if such sects or divisions make provision for their dependent members which the Commissioner of Social Security deems reasonable in view of their general level of living.  Droz v. Commissioner, 48 F.3d 1120 (9th Cir. 1995), upheld the provision against an Establishment Clause challenge.  The Court of Appeals explained that this is “not a promotion of some religion over others,” but “a religious exemption narrowly drawn to maintain a fiscally sound Social Security system and to ensure that all persons are provided for, either by the Social Security system or by their church.” See also Jaggard v. Commissioner, 582 1189 (8th Cir. 1978) (reaching the same conclusion).

Update: More from Lloyd:

To follow up on this issue, the MSNBC.com reporter noted that the Christian Scientists have publicly stated that there is no “religious opt-out” for Christian Scientists. Since the religious exemption is based on § 1401(g)(1), I am curious if anyone knows whether Christian Scientists have ever taken advantage of that provision, as opposed to the § 1401(e) ministers exemption from Social Security (that is not available in the health care reform law). As Ellen Aprill stated earlier, the only cases under § 1401(g)(1) seem to involve certain Amish and Mennonite sects.

Brian Galle (Florida State; moving to Boston College):

I am not familiar with the practices of Christian Scientists, but it looks as though their web site is correct that the general membership of the church will not be exempt from the obligation to purchase insurance under new § 5000A. Section 5000A cross-references § 1402(g) of the Social Security Act, which exempts those who are "conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old age, or retirement or makes payments toward the cost of, or provides services for, medical care." I gather that the Church leadership does not believe its practices meet this standard. The confusion is that Form 4029, the form one files to apply for exemption under § 1402, specifically mentions "Christian Science practitioners" as potentially eligible for exemption from payroll taxes under the separate exemption for ministers. But "practitioners" here appears to mean those practice faith healing in exchange for compensation. And, since ministers are not exempt from the obligation to buy insurance under § 5000A, I gather than no Christian Scientist, practitioner or otherwise, is exempt from § 5000A.

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Comments

I think there is nothing wrong that the church should not be exempted by paying the tax. Many of the church people, priests, pastors, nuns, especially those who own a religious school generates much income. This would only be fair to others.

Posted by: medieval dress | Apr 7, 2010 6:06:49 AM

So the government favors the Amish? Isn't it unconstitutional to favor a given religion over others? If they are excusing them from equal treatment under the law then they are violating the establishment clause.

Ok, I'm Amish - prove that I'm not...

Posted by: Mike M | Apr 7, 2010 11:44:49 AM

If churches get taxed, will ObamaCare cover faithhealers?

Posted by: Woody | Apr 7, 2010 12:05:56 PM