From Stanley Carlson-Thies, “Which Religious Organizations Count as Religious? The Religious Employer Exemption of the Health Insurance Law’s Contraceptives Mandate,” now available as part of the Federalist Society’s Engage magazine, vol. 13, issue 2 (available only online):

“It is worth stressing that concern about the ‘religious employer’ definition is not limited to religious organizations and religious communities that object to the contraceptive services as such. The definition circumscribes the organizations that are regarded by the Administration to be authentically religious such that they have a valid claim to religious freedom protections. Its narrowness thus not only has the consequence that some significant number of religious organizations that object to providing the mandated contraceptive services are not exempted from the requirement (although the Administration has promised a different ‘accommodation’ to some of them) but also that a specific-cramped, church-oriented-conception of a fully religious organization is revealed as operative in the federal government. . . .

“The [March, 2012, Advance Notice of Proposed Rulemaking (ANPRM)] proposed yet another definition of religious organizations that have religious freedom or conscience claims that might be honored with respect to mandatory coverage of contraceptives. Most important and most striking is the creation by the government of a second major category of religious organizations, in order to deal with additional religious freedom issues raised by the contraceptives mandate. The ANPRM commits the Administration to an ‘accommodation’ for ‘non-exempt, non-profit religious organizations with religious objections to contraceptive coverage.’ These accommodated organizations are termed ‘religious organizations’ to distinguish them from ‘religious employers’-religious entities that are exempt from the mandate. . . .

“The definitions of religious organizations that the federal government is deploying in the context of the mandate, which requires health plans to cover a wide range of contraceptive services, have great religious-freedom significance not only because they will determine which religious freedom and conscience claims will be honored, and to what degree, but because they embody a governmental conception of what is authentic religion.”