Now that the dust is settling upon the Supreme Court’s recent ruling that the individual mandate is constitutional, it is time to consider what effect the characterization of the penalty as a tax upon those who refuse to comply with the individual mandate may have on the religious liberty claims of religious organizations seeking exemption from services contrary to their faith. If the penalty payable by individuals is a tax, there is at least as much reason to view the “assessable payment” imposed upon large employers who do not provide services mandated by the Secretary of Health and Human Services to be a tax. Under the Patient Protection and Affordable Care Act, employers share responsibility with individuals to secure health insurance, and the Internal Revenue Service collects assessments upon employers, just as it collects “penalties” by individuals. Unfortunately for religious organizations, the tax characterization weakens their legal position and appears to arm Secretary Sebelius with a potent arrow in her quiver. The Secretary of Health and Human Services can safely claim that religious organizations are seeking an exemption from a tax, and when it comes to taxation, the Supreme Court is exceptionally reluctant to grant religious exemptions. Yet in spite of this gift to the Obama administration, there are reasons to remain sanguine that the Supreme Court will find the administration’s refusal to grant a meaningful accommodation to religious organizations to be unlawful.

First, the bad news for religious organizations: the Supreme Court has traditionally been hostile to tax exemption claims on religious grounds, even when these taxes substantially burden religion. Amish employers and employees discovered this the hard way as their religiously grounded opposition to a national social security system was not sufficient to exempt them from paying social security taxes. The Supreme Court accepted in United States v. Lee (1982) that “both payment and receipt of social security benefits is forbidden by the Amish faith.” Yet the Court ruled the First Amendment afforded Amish employers and employees no remedy. In decreeing that the need of the federal government to pay for entitlement programs takes priority over religious sensibilities, the Court affirmed unanimously that “[b]ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.”

Yet defenders of religious liberty should take heart, for there is also good news. There are several reasonable grounds upon which the Court’s line of reasoning in the “religious liberty versus tax” cases can be distinguished. Among these is that the assessment upon those who do not secure health insurance is no ordinary tax. Unlike the Social Security tax, which is imposed uniformly upon all, the “Obamacare tax” is imposed in a highly selective fashion. Only those who refuse to purchase health insurance, with coverage for all the religiously objectionable services mandated by the Department of Health and Human Services, will find themselves paying this tax. The selective nature of the tax raises the question of whether it is truly neutral and generally applicable in its purpose or effects. While it is generally uncharitable to speculate on questions of intention, the effects of this tax are neither generally applicable nor neutral. Those who will end up paying the tax will be those who refuse to purchase the insurance for reasons of religion and conscience, as well as those who believe they will save money overall by simply forking over money to the Internal Revenue Service. Obamacare purports to accommodate those who might forgo insurance for economic reasons as the law contains several measures to make it as attractive as possible to purchase insurance. But the Obama administration offers grudging, minimal accommodation to religious citizens who object to being forced to pay for practices that violate tenets of their faith.

Moreover, most religious organizations do not have a religious objection to a tax that supports health services. Many have a tradition of deference to secular authority, especially in the realm of taxation, firmly committed to “Render unto Caesar.” Religious hospitals, universities, and other charitable organizations object to being forced to pay for a narrow set of services that they do not regard as legitimately part of “health” care, or else pay a “tax” that is essentially a fine. The modest nature of the exemption sought in no way threatens the overall integrity of a law that is intended to increase access to medical services. There is no conflict between the federal government and religious organizations over the end of increasing access to healthcare. The major disagreement is over the means, and even then, only as these relate to a very small subset of “health” services.

Start your day with Public Discourse

Sign up and get our daily essays sent straight to your inbox.

Given the modest exemption sought, one might reasonably ask why there is such reluctance—indeed, intransigence—on the part of the Obama administration to negotiate in good faith with religious organizations to find a workable compromise. No one doubts that it is within the power of the administration to do this even while they uphold the overall integrity of the Patient Protection and Affordable Care Act. Here it must be noted that the reluctance to accommodate religious organizations is not being manifested by Congress. Instead, the Religious Freedom Restoration Act (1993), which is as much congressional law as the Patient Protection and Affordable Care Act, requires that the executive branch of the federal government accommodate religious minorities when a law substantially burdens their religious practice, unless the government’s interests are compelling and the least restrictive means have been imposed to further that compelling interest. Religious organizations do not believe that the provision of contraception, sterilization, and abortion-inducing drugs is a compelling interest because they do not believe that contraceptive and abortion services are part of fostering “health.”

However the Supreme Court may regard this claim, it cannot ignore that the means used by the Obama administration—refusing an exemption to religious charitable services when it has granted this exemption to churches—is not the least restrictive means. Even assuming for the sake of argument that the provision of contraception and abortion services is truly necessary to advance “health,” it is still not necessary that religious charitable organizations must pay for them for this interest to be advanced. It is sufficient that those who want these services be given access to affordable contraception or abortion services, and there are myriad ways in which the federal government can (and does) make these services affordable and accessible to those who want them, without requiring religious charitable services to pay for them.

It is also arguable that the Obama administration is acting in a rogue fashion, paying little deference to the will of Congress. Congress has the power to tax; the Obama administration does not. Congress has empowered the Secretary of Health and Human Services to define “essential health benefits,” taking into account guidelines stipulated by Congress. For all practical purposes, it is a power given to President Obama since he can dismiss Secretary Sebelius or any other member of his cabinet at will if his bidding is not done. Secretary Sebelius has exercised this power to mandate controversial “preventive services.” Yet the power to define essential benefits does not inherently include the power to tax, or to determine upon whom a “penalty” or “assessable payment” will fall. There is little indication that Congress intended to delegate this power to Secretary Sebelius, and the delegation of taxing authority to this office would be most irregular. As compared to the Internal Revenue Service, which is closely monitored by and answerable to Congress, the Secretary of Health and Human Services is not nearly so accountable. Serving at the pleasure of the president, the secretary primarily does the president’s bidding. Absent a clear indication by Congress that it intends to tax non-compliant religious minorities, taxes resulting from a failure to provide essential benefits may be illegal, since the Secretary’s delegated powers do not necessarily include the ability to designate who will pay taxes.

James Madison, in his Memorial and Remonstrance against Religious Assessments (1785), articulated his belief that governmental support for religious institutions is unjust. He argued: “As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions.” We no longer need to worry seriously about state-sponsored churches; now we ought to worry about the weakening of religious organizations by overly zealous political power that places “peculiar burdens” upon peoples of religious faith. The tenets of faith are not forced upon anyone; they are accepted as matters of conscience or not at all. The same cannot be said of the federal government’s penalties and assessable payments. Contraception and abortion are established constitutional rights, accessible to all, in spite of citizens’ objections to these. To have religious citizens pay directly for services contrary to their faith or else be penalized through selective taxation is the mirror image of levying taxes upon nonbelievers in support of churches. Both are violations of the establishment clause, for they involve the state treading into matters of faith by coercing compliance. Taxing some sects to subsidize directly the beliefs and practices of other sects, including the beliefs and practices of secular humanists, is exactly what the establishment clause was intended to prevent. As we keep faith with God, there are good reasons for Americans to have faith that our political system will prevent selective taxation, and that it will not burden our charitable religious organizations in matters of faith and conscience to benefit others.