The Freedom From Religion Foundation has filed a court brief asking that a religious exemption for retirement plans be deemed unconstitutional.

The Employment Retirement Income Security Act (ERISA) regulates retirement plans, but exempts those managed by churches from requirements such as paying insurance premiums, meeting minimum funding standards, and disclosing funding levels to plan participants. Cases have been brought around the country against large companies like Catholic hospitals that claim the exemption, with FFRF filing amicus briefs in several instances, already resulting in rulings in its favor. The 3rd U.S. Circuit Court of Appeals last December and the 7th U.S. Circuit Court of Appeals in March ruled that particular retirement plans were not exempt from ERISA requirements. FFRF has submitted a similar amicus brief in a pending case before the 9th Circuit as well.

But the state/church watchdog group wants the courts to go much further.

"Rather than attempt to draw a black line in a black sea, this court can take a clearer path, one that follows a line between black and white," FFRF Staff Attorney Andrew Seidel writes in the brief, submitted on June 29 in Medina v. Catholic Health Initiatives before the 10th U.S. Circuit Court of Appeals. "To do so, the court must take a step back and look at the entire picture: The church plan exemption is unconstitutional."

The brief lists the various ways the exemption violates the Establishment Clause of the First Amendment and asserts that imposing the same requirements on religious plans as for all others would in no way be an excessive entanglement of government and religion. The effects of this exemption are not just theoretical, the brief argues, since in the absence of adequate regulation, church plans are deficient in many ways. The vast majority of such plans are underfunded, with 90 percent of them in critical status, FFRF contends, citing a news account in the National Catholic Reporter. Plus, churches take advantage of their exemption from disclosure requirements, revealing barely anything to their plan participants.

"Churches are enjoying several privileges over their secular counterparts when it comes to these pension plans," says FFRF Co-President Annie Laurie Gaylor. "Courts need to take a close, hard look at the heart of the matter: how this exemption contravenes the First Amendment."

The Freedom From Religion Foundation is a nontheistic organization with nearly 24,000 members nationwide. FFRF extends its appreciation to Staff Attorneys Andrew Seidel and Patrick Elliott, former intern Jarvis Idowu and current intern Davin Skalinder for their work on this brief.