When Government Defines "Religious" (Church): An Historical Example
 The current controversy swirls around the implementation of the Affordable Care Act by the Department of Health and Human Services (HHS). Most media reports have focused on whether certain religious organizations should be compelled by the government to cover contraceptive measures (and what that might include) in their employees' insurance program, or be exempt from this requirement. A more far-reaching question, however, and one that is too often overlooked, is what the regulation means by "religious." How that question is answered determines what church-related organizations deserve (or not) the protections against government interference provided by the religious clause of the First Amendment. Regulatory agencies may need to define what a "religious" organization is, but the task is full of pitfalls in a pluralistic society. They too must meet the lofty standard of the Constitution in addressing matters religious: Government "shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."
 The HHS definition reads:
The amended interim final regulations specified that, for purposes of this exemption, a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization....1
 ELCA congregations, synods, churchwide organization, seminaries and alike fit this definition of "religious employer" and are thus exempt from the requirements of these regulations.2 Most ELCA social service agencies, colleges, and universities, however, would not qualify under this definition as religious; that is, they would not be considered to be part of the church's mission. Most of these church-related institutions are unlikely to meet any of the regulation's first three criteria. According to the church's own understanding of its service and educational organizations, these criteria appear narrow and arbitrary. For example, the fact that these agencies and educational institutions serve all people and not primarily those "who share its religious tenets" does not make them "not religious." Rather, serving all is an affirmation of their religious identity, since the command and call to serve all grows out of Christ's love for us. For the HHS, however, it is precisely that identity that disqualifies them from being "religious." With this regulatory definition, is not the federal government intruding on the church's religious freedom to define and practice its ministry and mission?
 That was the very question that moved the Lutheran Council in the USA to call a consultation and in 1979 to adopt the statement "The Nature of the Church and Its Relationship with Government."3 Its "Introduction" voices its concern: "There are instances in which laws, rulings, and regulatory procedures on the part of government appear to infringe upon the churches and their agencies and institutions.... These developments have raised questions within the Lutheran churches about the right and competence of government to define the nature, mission, ministries, and structure of religious bodies."4
 The statement understands the relationship of church and state to be one of "institutional separation and functional interaction," an understanding that was incorporated into the ELCA's constitution.5 In its careful and extensive development of this understanding, the statement makes some affirmations that are especially important for the topic at hand.
 The statement affirms that the Constitution's protection of religious freedom includes institutions as well as individuals, actions as well as beliefs:
It also safeguards the rights of all persons and groups in society to the free exercise of their religious beliefs, worship, practices, and organizational arrangements within the laws of morality, human rights, and property. The government is to make no decisions regarding the validity or orthodoxy of any doctrine, recognizing that it is the province of religious groups to state their doctrines, determine their polities, train their leaders, conduct worship, and carry on their mission and ministries without undue interference from or entanglement with government.6
The statement is clear that the church determines its own mission and that this mission is more than what happens in houses of worship:
The distinctive mission of the churches includes the proclamation of God's Word in worship, in public preaching, in teaching, in administration of the sacraments, in evangelism, in educational ministries, in social service ministries, and in being advocates of justice for participants in the social order.7
While affirming government's distinctive calling for peace, justice, human rights and the general welfare, the statement also recognizes its limits:
Government exceeds its authority when it defines, determines or otherwise influences the churches' decisions concerning their nature, mission, and ministries, doctrines, worship and other responses to God, except when such decisions by the church would violate the laws of morality and property or infringe on human rights.8
 On the basis of its affirmations on "institutional separation and functional interaction," the statement deals with a number of public policy issues; prominent among them is the issue of "integrated auxiliaries." The Tax Reform Act of 1969 had stipulated that organizations exempt from taxation must file an annual informational Form 990, except for churches and their "integrated auxiliaries." The IRS then had to define the term, which had no legal meaning and no common definition among religious groups. In 1976 it issued proposed regulations "with a single and extremely narrow definition of religious mission," and after protests led to some modifications, the final regulations were issued in 1977.9 They stipulated that to qualify as an integrated auxiliary and to be exempt from the filing requirement, the organization's "principal activity" had to be "exclusively religious."10 "Explicitly excluded from the definition of 'integrated auxiliaries' are church-related hospitals, orphanages, homes for the elderly, colleges, universities and elementary schools, although elementary and secondary schools are exempt from filing."11
 The Lutheran Council was not necessarily opposed to the requirement that the church's social service agencies and educational institutions complete Form 990, but it resisted on principle the IRS's definition of "integrated auxiliaries." It is worth quoting at length the Lutheran Council's forceful argument against this definition:
The heart of the issue is that the regulation relative to 'integrated auxiliaries' seeks to impose on the churches a definition of "religious" and "church" which the churches cannot accept theologically, one which constitutes an unwarranted intrusion by the government into the affairs of the churches. The narrow definition introduces confusion within the churches and their agencies and institutions. Questions are raised in the agencies and their constituencies about whether these ministries are considered to be part of the churches' mission. It also leads the government to attempt other intrusions into the activities of the churches and church-related agencies and institutions....
Our churches would probably not object to the disclosure of most of the information required by Form 990 by those agencies and institutions of the church whose ministries appear to have counterparts in the public sphere, if such requirement of disclosure were not predicated upon a denial that those ministries are an integral part of the church's mission. But the churches object on principle to having any of their ministries, including their agencies and institutions, be treated as 'not religious.' Those agencies and institutions perform ministries which are essential to the churches' mission and must not be put in a different category from the strictly sacerdotal functions of the churches.12
 The Lutheran Council made two recommendations to its participating churches: "to seek statutory change which will recognize the religious character of the churches' ministries through their agencies and institutions" and to urge selected agencies to initiate a court test of the IRS's definition of "integrated auxiliaries."13 Lutheran agencies did challenge the regulation, and their efforts figure prominently in Edward Gaffney's informative history of "The Rise and Fall" of the IRS regulations of integrated auxiliaries.14 The court challenges were a factor in the IRS's decision in 1986 to change its definition of "integrated auxiliaries" from "exclusively religious" to the more objective criterion of "internally supported."15
 The Lutheran Council's public witness was clear, informed, bold and effective. Given that both the IRS's original definition of "integrated auxiliaries" and HHS's definition of "religious employer" treat the church's service and educational organizations as "not religious," that is, as not part of the church's mission, do we not have in the Lutheran Council's public witness a model for the ELCA's public witness today on government regulations? In the present context, the voice of the ELCA has been silent in the public square.
 I do not know the reasons for this silence. I am not surprised, though, that a church body whose health plan pays both for contraceptives and also for a range of procedures including those for miscarriage and abortion up to the 20th week of pregnancy16 has not stood with church bodies that for theological and moral reasons refuse to pay for contraception. I would hope, however, that our church, recognizing the larger issue at stake, would be vigilant and vocal when questions arise about federal regulatory agencies defining religious organizations in ways that limit religious freedom. "The Nature of the Church and Its Relationship with Government" is part of the ELCA's (pre-merger) historical memory. We should not forget or forsake its challenge to government overreach and its advocacy for the freedom of the church to define its mission and ministry.
John Stumme was the Director of the Department for Studies in the Church in Society unit of the ELCA. He is now retired.
2. It is not clear to me if the church's pre-schools, elementary and secondary schools would be included or not. Although "religious," used three times, is not actually defined, it would appear to have a narrow meaning related to cult and doctrine. "Values" is a popular term but vague and not without presuppositions. I wonder why the pejorative word "inculcation" ("persistent or forcible teaching," according to one definition) is used instead of, say, "transmission." When it says, "its purpose," does it mean "a purpose," "principal purpose" or "only purpose"? If the latter, it is similar to the IRS's language of "exclusively religious" (see in text, below)?
3. Adopted by the Lutheran Council on May 16, 1979. The American Lutheran Church adopted it as a social statement in 1979. This social statement is the clearest and most detailed official document from the ELCA's predecessor church bodies on what ELCA may mean by "institutional separation and function interaction" (see endnote #6). It continued to be a policy base for the ELCA. The ELCA does not have a social statement on church and state relationships.
4. Ibid., 1. Later in the document, the Lutheran Council expresses concern about "Regulatory Processes: Lutheran churches, together with other churches and voluntary organizations, perceive a trend toward greater governmental intervention and regulation leading to erosion of civil and religious liberties" P. 5.
5. Constitution of the Evangelical Lutheran Church in America (ELCA), 4.03.n. See my "A Lutheran Tradition on Church and State" for an analysis and interpretation of this phrase. John R. Stumme and Robert W. Tuttle, Church & State, Lutheran Perspectives (Minneapolis: Fortress Press, 2003, 51–73.
6. "The Nature of the Church," 2.
8. Ibid., 3.
9. Ibid., 5–6.
10. DEPARTMENT OF THE TREASURY, Internal Revenue Service, 26 CFR Part 1, [TD 8640] RIN 1545–AI52,Exempt Organizations Not Required To File Annual Returns: Integrated Auxiliaries Of Churches, http://www.irs.gov/pub/irs-regs/td8640.txt (Accessed February 24, 2012) See also, Edward McGlynn Gaffney Jr., Governmental Definition of Religion: The Rise and Fall of the IRS Regulations on an "Integrated Auxiliary of a Church", 25 Val. U. L. Rev. 203 (1991). Available at: http://scholar.valpo.edu/vulr/vol25/iss2/3 (Accessed February 24, 2012)
11. "The Nature of the Church," 6.
14. Gaffney, note 9. "[I]t seems clear the Lutheran Council was far less concerned with the actual filing of an informational return by related agencies of the church than with the heavy-handed insistence of the government that social service is not part of the mission of the church." 244.
15. Ibid. The IRS's current definition of "Integrated Auxiliary of a Church" can be found at http://www.irs.gov/charities/churches/article/0,,id=155750,00.html (Accessed February 24, 2012)
16. The health plan does not cover the use of drugs that terminate pregnancies.
© March 2012
Journal of Lutheran Ethics
Volume 12, Issue 2