University of Michigan Law School
Civil Rights Litigation Clearinghouse
Title "What Is a Church: Implied Consent and the Contraception Mandate"
Date 2013
Author Michael A. Helfand
Author Institution Pepperdine University School of Law
Author Role Faculty
External Link https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234069
Abstract This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules related to accomplishing these uniquely religious objectives. Building on this implied consent framework, this Article argues that the First Amendment should protect institutions from the requirements of the contraception mandate so long as these institutions were both organized around a core religious mission and where that religious mission was open and obvious to employees. In such circumstances, courts should presume that employees recognized the unique religious objectives of their employer and thereby implicitly authorized their employer to make rules related to achieving these religious goals.
Source J. Contemp. Legal Issues
Citation 21 J. Contemp. Legal Issues, 401-426


This Resource Relates To
case Roman Catholic Archdiocese of Atlanta v. Sebelius (FA-GA-0001)

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