When is a religious group not religious enough for the government? When it conflicts with the government’s agenda.

After the launch of Obamacare, the Department of Health and Human Services (HHS) had to determine which employers would get a religious exemptions to the their contraceptive mandate. Instead of relying on factors such as an employer’s religious character, they chose instead to rely on tax law.

This was a rather peculiar decision since, as Carrie Severino notes, “Throughout the long history of taxation in the United States, the mittees of Congress have generally tried to avoid entangling the Internal Revenue Service in First Amendment religious considerations.” Peculiar, but not accidental. Through the Freedom of Information Act Severino obtained internal government emails that revealed the Obama administration debated how to exclude certain religious organizations from the mandate:

Administration health policy officials were downright obsessed with figuring out which Catholic institutions would fit within the section 6033-based exemption. As early as October 2011, the White House was curiously interested in the student insurance coverage at Catholic universities. In July 2012, emails show officials trying to make sure that the contraceptive mandate would treat the U.S. Conference of Catholic Bishops – the spiritual leaders of Roman Catholic entities in the United States – differently from the colleges, charities, and other groups that they lead. The documents were originally discovered during congressional inquiries into the sharing of tax information between the IRS and the White House.

In an amicus brief filed on behalf of the Little Sisters of the Poor, Severino argues that the IRS code used “has exactly zero relevance to religious freedom interests.” Adds Severino,

These documents are fatal to the Administration’s claim that structuring the contraceptive mandate this way was an effort to respect the religious groups’ religious objections. In fact, it was an arbitrary choice that failed to take into account the virtually identical religious freedom interests shared by groups granted and denied an exemption from the mandate.