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The National Catholic Bioethics Center
Spousal Benefits for Employees in Same-Sex Relationships
© 2019 by The National Catholic Bioethics Center
Spousal Benefits for Employees
in Same-Sex Relationships:
A Moral and Legal Challenge
for Catholic Institutions
In June 2015, the U.S. Supreme Court in Obergefell v. Hodges declared that there is a constitutional right to same-sex “marriage.” The revolution wrought by the Court’s decision has raised numerous complicated and controversial questions for Catholic institutions, one of which concerns the extension of spousal benefits to employees in same-sex relationships. The question is this: In light of Obergefell, as well as the shifting legislative and cultural landscape concerning the legal rights of same-sex couples, is it morally permissible for a Catholic institution to extend spousal health care benefits to employees who have entered into a legally recognized same-sex union?1
Some Catholic institutions had already answered this question in the affirmative by proactively extending such benefits even before the Obergefell decision was rendered. Other institutions have extended benefits post-Obergefell, utilizing their particular state’s definition of spouse as the determining factor of who qualifies for benefits.2 Regardless of these responses, Catholic institutions that seek to be faithful to Church teaching find themselves in a difficult position. They recognize the need to provide just, equitable compensation and to comply with the law. However, they also recognize that the extension of “spousal” benefits to employees in such unions undermines the Church’s teachings on marriage and sexuality, incentivizes and rewards the entry into such unions, and acts as a source of scandal in the community.
The position of the National Catholic Bioethics Center (NCBC) is as follows:3
"The National Catholic Bioethics Center holds that it is never morally permissible to extend spousal benefits to an employee who has entered into a legally recognized same-sex union. The rationale for this position is that extending benefits on this basis necessarily amounts to formal cooperation with the application of gravely unjust laws that grant homosexual unions the same legal recognition and rights as heterosexual marriages. Extending benefits on this basis is not legitimate under any circumstance, including government coercion. Extending benefits on this basis also cannot be made legitimate by an institution invoking a statutory or regulatory definition of 'spouse,' or by offering disclaimer language explaining that although the institution extends such benefits on this basis, its understanding of marriage and sexuality is congruent with the teachings of the Catholic Church."
The NCBC hopes this statement will provide clarity on the question of whether it is permissible for Catholic institutions to extend spousal benefits to employees in legally recognized same-sex unions. The statement will also offer practical suggestions for how Catholic institutions can respond to this very difficult issue.
A. Relevant legal framework
Laws regarding the legal rights of those in same-sex unions have changed substantially in recent years. In Obergefell v. Hodges (2015), the US Supreme Court announced a constitutional right to same-sex “marriage.”4 Years after the decision, federal law technically still defines marriage as “only a legal union between one man and one woman as husband and wife,” and the word spouse refers “only to a person of the opposite sex who is a husband or a wife.”5 However, these definitions have been superseded by regulations passed in the wake of Obergefell. For example, shortly after the Obergefell decision, the Department of Labor required employers subject to the Family and Medical Leave Act to provide spousal benefits to persons in same-sex “marriages,” and the Department of Health and Human Services required insurance companies that offer plans covering married opposite-sex spouses to also cover married same-sex couples.6
The federal law that bars employment discrimination, Title VII, includes discrimination “on the basis of sex.” Most courts have held that this language does not bar discrimination on the basis of sexual orientation, but some courts and the federal Equal Employment Opportunity Commission have interpreted it as doing so.7 Additionally, a growing number of state and municipal laws bar discrimination on the basis of sexual orientation.8
B. Relevant principles from Catholic social teaching
To more fully understand the NCBC’s position on the extension of spousal benefits, it is important to review the Catholic Church’s teaching on three related points: the nature of marriage and the family, access to health care, and justice.
1. Nature of marriage and the family
The Church’s teaching about the nature of marriage and the family is highly relevant to the issue of spousal benefits. Catholicism teaches that marriage is between one man and one woman and that it is ordered to both the good of the spouses and the procreation and education of children.9 It also maintains that the family—understood as the unit of one man, one woman, and their children—is the “first and vital cell of society.”10 The family “makes a unique and irreplaceable contribution” to the societal good because it is through the family that children are first taught moral values (the “laws” of behavior that govern one’s actions in the community) and learn the virtues of responsibility and solidarity.11 In fact, the Church claims that family life is an “initiation into life in society,”12 and that family and society exercise “complementary functions” in fostering the common good.13
Because of the family’s essential role in the life of society, the Church teaches that the state (understood as the government generally) has an obligation, based in justice, to “support and strengthen” it through appropriate legislation and other measures.14 The state accomplishes this duty by ensuring families what they need to flourish, including access to health care.15 It is important to note that Church teaching does not mandate how access to health care is to be accomplished, but allows that different societies can accomplish this end in a variety of ways. In the United States, access to health care is primarily accomplished through employer-sponsored health care programs whereby benefits are extended to spouses because of the essential, although unpaid, contribution they make to the future of society through the raising of children.16
2. Access to health care
The Catholic Church maintains that access to health care is a basic human right. Pope John XXIII first spoke to this reality in his 1963 encyclical Pacem in Terris (Peace on Earth) when he stated, “Man has the right to live. He has the right to bodily integrity and to the means necessary for the proper development of life, particularly food, clothing, shelter, [and] medical care.”17 Thirty years later, the United States Conference of Catholic Bishops expanded on this teaching in their Framework for Comprehensive Health Care Reform:
"Our approach to health care is shaped by a simple but fundamental principle: Every person has the right to adequate health care. This right flows from the sanctity of human life and the dignity that belongs to all human persons, who are made in the image of God. Health care is more than a commodity; it is a basic human right, an essential safeguard of human life and dignity. … Our constant teaching that each human life must be protected and human dignity promoted leads us to insist that all people have a right to health care.”18
In 2016, the Pontifical Council for Pastoral Assistance to Health Care workers reaffirmed this teaching in by stating, “Every human being has a primary right to what is necessary for the maintenance of his own health and therefore to adequate health care. … The fundamental right to the preservation of health pertains to the value of justice.”19 Overall, Catholic teaching is clear: access to health care is a right afforded to all people. This understanding is at the heart of every Church teaching concerning health care, and it must be taken seriously in any discussion about expanding (or not expanding) health care benefits.
In light of the Church’s teaching on the nature of marriage and the family, as well as access to health care, what about employees in legally recognized same-sex unions? As a matter of justice, should spousal benefits not also be extended to them and their partners? The Congregation for the Doctrine of the Faith (CDF) has tackled this question directly:
"The principles of respect and non-discrimination cannot be invoked to support legal recognition of homosexual unions. Differentiating between persons or refusing social recognition or benefits is unacceptable only when it is contrary to justice. The denial of the social and legal status of marriage to forms of cohabitation that are not and cannot be marital is not opposed to justice; on the contrary, justice requires it."20
What the CDF is saying is that one cannot make a justice argument for extending spousal benefits to employees in legally recognized same-sex unions because, put simply, a same-sex union is not a marriage. The state has a duty to protect and promote marriage because of the benefit(s) that it realizes from marriage. When the state recognizes a same-sex union, it fails “in its duty to promote and defend marriage as an institution essential to the common good.”21 Stated differently, by recognizing same-sex unions as marriages, and in some cases even mandating that benefits be extended to them, the state undermines the good of the family which, in turn, undermines its own good. The same is true of institutions, including Catholic institutions. By extending spousal benefits to employees based on the fact that they have entered into a legally recognized same-sex union, such institutions undermine the good of the family which, in turn, undermines the good of society as a whole. It is precisely for this reason that the CDF maintains that justice is not violated when one refuses to extend spousal benefits to unions that are not, in fact, marriages. Justice actually requires this refusal.
C. Relevant moral framework
An essential, although often misunderstood, moral principle at the heart of the benefits question is cooperation. The principle of cooperation helps one to evaluate whether, and to what extent, it is permissible to participate in a morally evil act. The first part of this principle concerns formal cooperation, which can be either explicit or implicit. Explicit formal cooperation occurs when one wills the immoral act of the principal agent or assents to this act through advice, encouragement, or counsel. An example of this would be a doctor who refers a patient to an abortion clinic to terminate an unwanted pregnancy. Implicit formal cooperation occurs when, for the sake of a good end, one wills the principal agent’s evil act as the means for achieving some other good, or when one establishes the structure (procedure, protocol, or contractual agreement) by which an immoral act will take place. An example of this would be a Catholic hospital that, for financial reasons, enters into partnership with another health care organization that performs sterilizations, and establishes the structure by which the sterilization procedures are performed. The hospital does not agree with sterilization, but in order to remain financially viable it allows such procedures to be performed in the facility. The Catholic Church teaches that formal cooperation with an intrinsically evil act, whether explicit or implicit, is never morally permissible.
The second part of the principle concerns material cooperation. Material cooperation occurs when one does not will the evil act of the principal agent (one may even be morally opposed to it) but participates in the act in some way. Material cooperation can be either immediate or mediate. Immediate material cooperation occurs when there is essentially no causal separation between the cooperator’s act and the principal agent’s immoral act or when the cooperator’s act is so intimately linked with the principal agent’s immoral act that the two acts are nearly indistinguishable. An example would be a nurse handing a physician a vacuum aspiration tube during an abortion procedure. Mediate material cooperation occurs when there is a degree of causal separation between the cooperator’s act and the principal agent’s immoral act. This degree of causal distance will vary along a scale from proximate (close) to remote (far). In proximate mediate material cooperation, the cooperator’s action is close to (or there is less causal distance from) the principle agent’s immoral action. An example would be an anesthesiologist who “puts a patient under” before a sterilization procedure occurs. In remote mediate material cooperation, the cooperator’s action is far from (or there is significant causal distance from) the principal agent’s immoral action. An example would be a janitor who cleans the laboratory where he knows that an in vitro fertilization procedure has taken place.
Generally speaking, immediate material cooperation with an immoral action is not morally permissible. Mediate material cooperation with an immoral act may be permissible, but only if there is a proportionate reason for it. Criteria for permissibility include (a) the degree of causal distance from the immoral act, (b) the dependence of the immoral act on the cooperating act, (c) the proportionate good to be achieved or evil to be avoided through the act, and (d) the reasonableness of other alternatives. Clarity on this moral principle is essential for understanding our claim that extending spousal benefits to a same-sex “spouse” can constitute formal cooperation with evil, as discussed below.
II. EXTENDING BENEFITS TO SAME-SEX “SPOUSES”
IS MORALLY UNACCEPTABLE
The NCBC maintains that it is morally unacceptable for Catholic employers to recognize an employee’s same-sex partner as a “spouse” for purposes of health care coverage. Reasons for this include the following:22
A. Extending benefits involves formal cooperation.
The CDF has stated that formal cooperation with laws that recognize same-sex “marriage” is always wrong:
"In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application."23
We believe the CDF’s teaching is clear: Catholic institutions must not formally cooperate in the enactment or application of unjust laws, yet formal cooperation in the application of Obergefell (and other federal and state ordinances) is exactly what occurs when spousal benefits are extended on the basis of an employee’s entry into a legally recognized same-sex union. Formal cooperation occurs in two primary ways.
1. It recognizes same-sex “marriage.”
When an employer extends spousal benefits to an employee in a same-sex union, it is in effect treating the same-sex union as the moral and practical equivalent of a marriage. Generally speaking, employers do not offer health benefits to any adult living with an employee, but only to that employee’s spouse. Therefore, when an employee in a legally recognized same-sex relationship applies for spousal benefits, a Catholic employer must decide whether it recognizes the employee’s relationship as a marriage.
By providing benefits under these circumstances, the Catholic employer declares through its actions that it agrees that the employee’s legally recognized same-sex union is in fact a marriage, the equivalent of a heterosexual marriage. Such a declaration constitutes at least implicit formal cooperation with the application of Obergefell, and it directly contradicts Church teaching as expressed by the CDF: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family.”
2. It affirms and incentivizes immoral sexual acts.
When two people marry, they make a public commitment to each other that entails, among other things, sexual intimacy. Catholic teaching on this topic is clear: within a true marriage (one man and one woman), conjugal activity is “noble and honorable,” “a source of joy and pleasure.”25 But the same act between an unmarried man and woman is “gravely contrary to the dignity of persons and human sexuality.”26 Furthermore, all “homosexual acts” are “intrinsically disordered.”
A Catholic employer’s extension of spousal benefits to an employee because he or she has entered into a legally recognized same-sex union directly encourages and incentivizes the making of, and persistence in, a public commitment within which immoral sexual acts occur. This extension constitutes at minimum an implicit affirmation of the goodness of those sexual acts. As such, it constitutes formal cooperation with the immoral act.
B. Extending benefits causes scandal.
A Catholic employer must also be concerned with whether its spousal benefits policy causes scandal. The Catechism of the Catholic Church defines scandal as “an attitude or behavior which leads another to do evil,” and it warns that “anyone who . . . leads others to do wrong becomes guilty of scandal and responsible for the evil that he has directly or indirectly encouraged.”27 It is important to note that scandal may also be caused by an act that involves permissible cooperation with evil when such an act would be difficult to explain to inexpert audiences. Overall, foreknowledge of probable and incorrigible scandal renders one’s cooperation illicit.
In this case, extending spousal benefits to employees based on their entry into a legally recognized same-sex union constitutes theological scandal for the reasons stated above. A Catholic institution that agrees to offer such benefits encourages and incentivizes people to enter into, and persist in, public commitments within which immoral sexual acts occur. The institution also communicates to its employees that it accepts in effect the government’s conclusion that same-sex “marriages” (and thus “spouses”) exist and that these “marriages” ought to be treated on the same terms as true marriages.
Scandal is further extended when the institution’s benefits policy becomes public. Extending such benefits sows confusion. It can mislead people about the meaning of marriage and the truth of sexual morality, possibly even causing people to believe the Church has changed its teachings on these matters. It may also bolster the efforts of those who publicly pressure the Church to recognize such unions. The CDF warns of scandal when it states, “Those who would move from tolerance to the legitimization of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil.”28 Extending spousal benefits to employees on the basis of their entering into legally recognized same-sex unions goes beyond toleration of Obergefell: it is clear approval of its legitimization.
C. Extending benefits has harmful practical effects.
While not rising to the same level of moral gravity as the previous examples, the NCBC maintains that providing spousal benefits for employees who have entered into a legally recognized same-sex union is also problematic for the following reasons:
1. It harms children.
Extending spousal benefits to same-sex couples is also immoral because it harms children. In the Catholic tradition, marriage and sexuality exist for two distinct yet inseparable goods: the well-being of the spouses and the procreation and raising of children.29 Human reason demonstrates, and the social sciences attest, that the proper context for raising a child is within a fully committed, lifelong marital relationship between the child’s biological mother and biological father. A same-sex union by its nature cannot offer children what a heterosexual marriage can. Those who are in same-sex unions are not capable of engendering children, nor are they capable of providing the gender-differentiated parenting that children need for their proper development. By extending spousal benefits to employees on the basis of their entry into legally recognized same-sex unions, Catholic institutions encourage and incentivize the creation of a “family” structure that intentionally deprives children of either a mother (in the case of two men) or a father (in the case of two women).
2. It encourages and incentivizes immoral reproductive technologies.
Because those who are in homosexual unions cannot engender children, same-sex couples who desire “their own” child must have recourse to egg donation, sperm donation, in vitro fertilization, and—particularly in the case of two men—use of a surrogate. By extending spousal benefits to employees on the basis of their entry into legally recognized same-sex unions, Catholic institutions encourage and incentivize reproductive technologies that have been deemed intrinsically immoral by the Church.
D. Extending benefits has harmful implications for religious witness.
1. It undermines religious liberty.
Challenges to religious liberty abound in our country today. Catholic and other Christian institutions and individuals are under increasing pressure from government and private groups to conform their actions to emerging norms about sexual behavior and sexual identity or suffer severe consequences. For example, as a result of Obergefell, cake makers, florists, photographers, county clerks, and others are being forced to participate in same-sex “weddings,” even when doing so violates their religious beliefs and closely held convictions of conscience.30
Activists and government officials who seek to defeat religious liberty claims often argue that religious convictions are not as immovable as adherents sometimes claim, and that legal pressure can help push religious groups to adjust and conform their beliefs and actions to the new legal standard. For example, in 2016 the chairman of the U.S. Commission on Civil Rights placed the terms religious liberty and religious freedom in scare quotes and claimed that these are merely “code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance.”31 Along the same lines, Hillary Clinton has declared that “religious beliefs . . . have to be changed” where they conflict with so-called abortion rights.32
When some Catholics, and public Catholic institutions in particular,33 compromise the faith in response to legal and societal pressures—for example, by agreeing to extend spousal benefits to same-sex couples—they make it harder for other Catholics to convince courts that their convictions are sincere and immovable. In the end, this makes it harder for all Catholics to argue for religious liberty protections.
2. It undermines Catholic identity.
When a Catholic institution acts contrary to teachings of its tradition, it undermines its identity as Catholic. The process of “de-Catholization” has been going on for years as many institutions have committed themselves to being culturally relevant rather than conveying the teachings of Jesus Christ as taught by his Church. Extending spousal benefits to employees on the basis of their entry into legally recognized same-sex unions is just one more example of how Catholic institutions undermine their own identities, and why many are no longer recognizable as Catholic.
3. It undermines institutional credibility.
Part and parcel with the loss of identity is the loss of credibility. Catholic institutions that capitulate to the culture in one area lose credibility when they seek to speak out in others. How can a Catholic institution publicly disavow Church teaching about marriage and sexuality, yet think anyone will take it seriously when it cites Church teaching in other areas, such as politics, economics, or even health care? It can’t. Extending spousal benefits to employees on the basis of their entry into legally recognized same-sex unions not only erodes an institution’s identity as Catholic; it also undermines the institution’s credibility when it speaks about other issues.
III. OPTIONS FOR CATHOLIC EMPLOYERS
In a situation in which it is illegal for a Catholic employer to deny “spousal” benefits to a same-sex partner and yet illicit to extend such benefits—that is, when extending such benefits constitutes formal cooperation with the application of an unjust law—what is the employer to do? The following options have been suggested, each with its own strengths and weaknesses.
A. Do not employ people who are in legally recognized same-sex unions.
Some suggest that the way to avoid providing immoral benefits is simply to avoid employing people in legally recognized same-sex unions. This approach would be difficult to defend legally. It would be difficult to explain why a Catholic employer could knowingly employ someone in a homosexual relationship but not employ that same person once the homosexual relationship was treated as a marriage by civil authorities. It is unclear what legal argument would support a Catholic employer making such a distinction.
Some Catholic institutions might, however, be able to adopt hiring criteria that would exclude all persons in a sexual relationship outside of heterosexual marriage, regardless of whether their relationship had legal status. Many religious organizations have adopted standards of belief and conduct that they expect most or all employees to follow, and these standards often prohibit sexual activity outside of marriage.
Various legal protections are available to Catholic employers that have belief and conduct requirements for their employees. Most significant is the “ministerial exception,” which the Supreme Court affirmed in its Hosanna-Tabor decision of 2012. This doctrine holds that the First Amendment bars the government from hearing “claims concerning the employment relationship between a religious institution and its ministers.”34 The ministerial exception reaches not only ministers, but a broader category of ministerial employees, including “those who serve in positions of leadership” and “those who are entrusted with teaching and conveying the tenets of the faith to the next generation.”
Outside of ministerial employees, Catholic employers are generally subject to federal, state, and municipal employment discrimination laws. Most such laws, including the federal Title VII law, recognize the right of religious organizations to use religious criteria in selecting their employees. The scope of these exemptions is often debated, and some courts have held that a religious organization’s right to select employees on the basis of religion does not include the right to discriminate on the basis of other criteria, such as sex. Catholic employers should take advantage of such exemptions when possible.
B. Deny spousal benefits to anyone in a legally recognized same-sex union.
Another approach might be for a Catholic employer to continue offering spousal benefits but be clear that these benefits do not extend to same-sex partners, regardless of the relationship’s legal status. This approach also carries significant legal risk. It violates HHS regulations for health insurance issuers, as noted above, and it may also violate applicable state insurance regulations. This approach also carries legal risk under federal, state, and local employment discrimination laws, which generally apply to the terms of employment, including benefits. In addition, some courts have interpreted Title VII, the federal employment discrimination law, as prohibiting discrimination on the basis of sexual orientation. Many state and local employment discrimination laws also explicitly bar discrimination on the basis of sexual orientation.
C. Eliminate direct health care benefits.
A Catholic employer might decide to eliminate health care benefits altogether and adopt an alternative compensation structure that would allow employees to purchase health coverage on their own.35 This approach would “solve” the problem of extending benefits to same-sex “spouses,” but there are several problems with it as well. First, federal law requires that organizations with fifty or more employees must offer health insurance, or pay a penalty to the IRS (employer shared responsibility payment).36 Second, many Catholic employers believe they have a moral duty to provide health benefits to their employees. Under this approach they would no longer do so. Third, employees generally expect that their benefit package will include health coverage. Catholic employers that do not offer health benefits may thus find themselves at a competitive disadvantage compared with other employers. Fourth, there would be a financial cost to this approach. Federal law does not count the money that employers pay toward an employee’s health benefits as taxable income. But if those same dollars are passed on to an employee to purchase his or her own health insurance, those funds are taxed as income. Fifth, while a Catholic employer can use various means to offer employees a plan that complies with Catholic moral teaching, plans that are available to individuals through state exchanges will almost certainly violate Catholic teaching by covering contraception (including abortifacients such as mifepristone and ulipristal), sterilization, assisted reproductive technologies (including IVF), and even surgical abortion. Thus, eliminating health benefits practically forces employees to purchase insurance that violates Catholic teaching and subsidizes immoral health care services.
D. Eliminate spousal benefits.
Another possibility might be to offer insurance for employees, and perhaps also for employees’ children, but eliminate spousal benefits entirely. This is the approach that Catholic Charities of the Archdiocese of Washington chose after a change in District of Columbia law.37 Unfortunately, this approach, like eliminating employer health coverage altogether, may place Catholic employers at a disadvantage when competing for quality employees.
More significantly, eliminating all spousal benefits would place a substantial burden on employees whose spouses are the primary caregivers for their children. The Catholic Church teaches that parents have the “original and primary” duty to educate their children, a duty that “is irreplaceable and inalienable, and therefore incapable of being entirely delegated to others or usurped by others.”38 Any benefits policy that would make it more expensive for an employee’s spouse to secure health coverage, and that might result in that spouse having to forgo time with their children in order to pay for the coverage, works against this principle of Catholic social teaching.
E. The Plus 1 Solution
Some Catholic employers may be considering or may have chosen to adopt what has been called the “Plus 1 Solution” as a basis for extending benefits to an employee’s household. The idea behind the Plus 1 Solution was first articulated in 1997 by then Archbishop William Levada of San Francisco.39 Under this arrangement, an employer no longer offers spousal benefits. Instead, the employer extends benefits to a second adult (the “Plus 1 beneficiary”) who is part of the employee’s household. As explained below, the Plus 1 Solution is legally permissible, it can be morally permissible, and it may offer a realistic option for Catholic institutions, particularly those that already employ people who have entered into legally recognized same-sex unions.
1. The Plus 1 Solution is legally permissible.
The Plus 1 solution is legally permissible. Insurance laws and employment nondiscrimination laws do not require employers to affirm with words or conduct that a legally recognized same-sex union is the equivalent of marriage. Rather, the laws can only require that employers treat a “same-sex spouse” on equal terms with an “opposite-sex spouse.” The Plus 1 Solution sidesteps this legal requirement by simply not providing “spousal benefits.” In addition, the criteria for participating as a Plus 1 beneficiary do not in themselves discriminate on the basis of sexual orientation. As such, the Plus 1 Solution does not violate applicable nondiscrimination laws, including laws that regulate health insurers, health plans, and employers generally.
2. The Plus 1 Solution can be morally permissible
The Plus 1 Solution can be morally permissible if at least two essential criteria are met: first, the institution must not deny the Church’s teachings on marriage and sexuality; and second, it must not acknowledge or recognize same-sex “marriage” as the basis for Plus 1 coverage. There is nothing unethical in principle about extending benefits on a basis other than marriage, which is what the Plus 1 Solution does. Similarly, since it is not unethical for a Catholic employer to allow an employee to designate someone other than a spouse as a life insurance beneficiary, an alternative designee for a health insurance beneficiary could be valid as well.
The Plus 1 Solution accomplishes three goals. First, it enables Catholic institutions to avoid violations of current law. Second, it can expand the number of people who have access to quality, affordable health care. Third, it does not involve any denial of the Church’s teachings on marriage and sexuality. Health care benefits are extended on the basis of meeting the criteria of the Plus 1 Solution, not on the basis of legally recognized marital status.
Some may question how the Plus 1 Solution differs from what we argued earlier, that extending spousal benefits on the basis of an employee’s legally recognized same-sex union constitutes formal cooperation with the application of an unjust law. The issues are very different. The Plus 1 Solution does not depend on any notion of “spouse.” In essence, the Plus 1 approach eliminates the category of “spousal benefits” and replaces it with a new category, “domiciled adult benefits.” The beneficiary may or may not be a person with whom the employee is in a relationship (heterosexual or homosexual). In addition, even if the person to whom the benefits are being extended happens to be the employee’s same-sex partner, the benefits are not being extended on the basis of any legally recognized union; instead, they are being extended on the basis of the Plus 1 criteria. These are very important differences. The NCBC previously addressed the moral legitimacy of such benefits programs in a 2015 statement on spousal benefits:
"Benefits morally can be given to the employee and any dependents the employer so chooses to cover, as well as another co-domiciled adult (if the employer so chooses), to avoid being forced to recognize same-sex 'marriages' through the vehicle of spousal benefits. At most, this would constitute morally tolerable remote mediate material cooperation in evil, justified by the benefits of health insurance needed by employees and their families. The requisite objection to same-sex 'marriage,' required in any tolerable cooperation in evil, is demonstrated by the very nature of this provision for providing benefits."40
To be clear, a Catholic institution may be permitted to offer benefits to an employee and his or her Plus 1 beneficiary, even if the beneficiary happens to be a same-sex partner. Nonetheless, in doing so the institution (a) must not deny the Church’s teachings on marriage and sexuality and (b) must not acknowledge or recognize same-sex “marriage” as a basis for Plus 1 status.
3. Significant prudential concerns related to the Plus 1 Solution
While the NCBC holds that the Plus 1 Solution could be a morally permissible option for Catholic institutions, we recognize a number of prudential concerns with it as well. These challenges include, but are not limited to, the following:
1. The Plus 1 Solution could result in increased nonmarital cohabitation among both heterosexual and homosexual partners. It also has the potential to serve as a source of scandal if outside observers were to learn that a health plan offered by a Catholic institution was providing benefits to those living publicly in such objectively disordered situations. It could also potentially encompass a number of other situations involving scandal and moral turpitude. For example, a Catholic institution might unwittingly provide health insurance for a Plus 1 designee who was involved in problematic, but clearly legal, activities (such as a publicly known abortionist), thereby indirectly facilitating such problematic activities.
2. Transitioning to the Plus 1 Solution may entail significant logistical and cost challenges, as it would probably have to be applied to every kind of benefit (medical, dental, life, disability, etc.).
3. Adopting the Plus 1 Solution could mean that Catholic institutions stop recognizing actual marriages as marriages, thus reducing heterosexual spouses to “legally domiciled adults” and, in some cases, cutting off real spouses from access to benefits. The negative ramifications of this result should not be underestimated.
4. We noted above that extending spousal benefits to same-sex partners would damage a Catholic employer’s Catholic identity. The Plus 1 Solution may have a similar effect, though to a lesser degree. By adopting the Plus 1 Solution, the Catholic employer’s benefits decisions would appear to take a neutral stance on one of the most important public issues of our day. As it essentially “cuts out” the marriage question altogether, the Plus 1 Solution lends itself to avoiding the issue of taking a clear public stand on the nature and purpose of marriage and sexuality. This might be a lost opportunity to educate and evangelize both employees and the general public on the Church’s teachings on these matters.
5. If the cost of providing health insurance to a wide class of alternative designees significantly exceeds the historical and expected cost of providing health insurance to spouses, the Plus 1 Solution may not be financially viable. In order to address potential financial challenges, employers may want to implement cost containment measures. The NCBC maintains that such measures may be justified if (a) they do not establish the same-sex relationship as a de facto basis for Plus 1 eligibility, and (b) they apply to all potential beneficiaries in a consistent and morally just way. To accomplish this, an employer can establish inclusionary and/or exclusionary criteria for Plus 1 eligibility. Examples of acceptable criteria include:
1. The Plus 1 beneficiary must be a dependent of the employee, which can be defined as a person who receives +50% financial support from the employee or who is financially interdependent with the employee (co-signed mortgage, shared bank accounts or investments, etc.)
2. The Plus 1 beneficiary must have the same principle place of abode as the employee (for a minimum of months/year). Note: a waiting period for Plus 1 coverage is optional.
1. Individuals who have access to health insurance from another employer may be excluded from Plus 1 coverage.
2. Individuals eligible for Medicare may be excluded from Plus 1 coverage.
What would not be permissible are exclusionary criteria that target certain familial relationships for exclusion while not excluding an employee’s same-sex “spouse.”
For example, an employer cannot stipulate that an employee’s parents, adult children, or adult siblings are ineligible for Plus 1 coverage, since this would undermine the moral coherence of the Plus 1 Solution; the rationale being that non-exclusion of same-sex “spouses” creates a de facto preference for the purportedly familial but immoral same-sex relationship over the excluded, authentic familial relationships. The NCBC believes that Catholic employers have a moral duty to structure the Plus 1 Solution without positing exclusions based on particular familial relationships to the employee. That is to say, there needs to be a principled, just, non-family-relationship-based rationale for any exclusionary (or inclusionary) criterion that is part of the plan. The examples cited above meet this standard.
As Archbishop Levada has explained, approaches like the Plus 1 Solution, when properly configured, can shift attention away from recognizing same-sex unions—which is the primary goal of many who support the extension of benefits for same-sex partners—and refocus it on expanding health care coverage.41 In addition, the Plus 1 Solution protects Catholic institutions from having to create internal policies that recognize same-sex unions (or other domestic partnerships) as a category equivalent to marriage. We believe that the Plus 1 Solution, when structured in light of the considerations offered herein, can offer a permissible option for Catholic institutions.
1 We recognize that health care coverage is only one aspect of employee benefits packages; however, for the purposes of this essay we focus only on the health care component.
2 We note that some institutions that have extended benefits for this reason have done so because of governmental coercion. The ethicists of the NCBC addressed this issue in “Cooperating with Non-Catholic Partners,” in Catholic Health Care Ethics: A Manual for Practitioners, 2nd ed. (Philadelphia: National Catholic Bioethics Center, 2009), 268–269
3 The NCBC thanks the Catholic Benefits Association for its invaluable aid in drafting this statement.
4 135 S. Ct. 2584, 2594 (2015).
5 1 U.S.C. § 7.
6 See Definition of Spouse under the Family and Medical Leave Act, 80 Fed. Reg. 9989 (Feb. 25, 2015). See also Centers for Medicare and Medicaid Services, Frequently Asked Question on Coverage of Same-Sex Spouses, March 14, 2014, https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/frequentlyasked-questions-on-coverage-of-same-sex-spouses.pdf.
7 See, for example, Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (“Congress chose not to include sexual orientation harassment in Title VII”); and Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. Mar. 10, 2017) (“Discharge for homosexuality is not prohibited by Title VII”). See also Equal Employment Opportunity Commission, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers,” accessed June 6, 2018, https://www.eeoc.gov/eeoc/newsroom/wysk/ enforcement_protections_lgbt_workers.cfm.
8 See Human Rights Campaign, State Maps of Laws and Policies, accessed June 6, 2018, https://www.hrc.org/state-maps/employment; LGBT Map, Local Non-Discrimination Ordinances, accessed June 6, 2018, http://www.lgbtmap.org/equality-maps/non_discrimination_ordinances.
9 Catechism of the Catholic Church, n. 1601.
10 Compendium of the Social Doctrine of the Church, n. 211 The Catechism states that the family is “original cell of social life,” n. 2207.
11 Compendium, n. 213.
12 Catechism, n. 2207.
13 John Paul II, Familiaris consortio (1981), n. 45.2.
14 Catechism, nn. 2209–2210. It is important to note that in Catholic teaching, the state exists for the good of the family, not the other way around. See also Compendium, n. 214.
15 Catechism, n. 2211. See also Familiaris consortio, n. 45.3; USCCB, Ethical and Religious Directives, Part 1:
“The Social Responsibility of Catholic Health Care Services.”
17 John XXIII, Pacem in terris (1963), n. 11, emphasis added, http://w2.vatican.va/content/johnxxiii/en/encyclicals/documents/hf_jxxiii_enc_11041963_pacem.html.
18 U.S. Conference of Catholic Bishops (USCCB), A Framework for Comprehensive Health Care Reform June 18, 1993, p. 1, original emphasis,http://www.usccb.org/issues-and-action/human-life-and-dignity/healthcare/upload/health-care-comprehensive-care.pdf. The US bishops make a similar point in Part 1 of the Ethical and Religious Directives for Catholic Health Care Services, 5th ed. (2009), http://www.usccb.org/issues-andaction/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Servicesfifth-edition-2009.pdf.
19 Pontifical Council for Pastoral Assistance to Health Care Workers, New Charter for Health Care Workers (Philadelphia: National Catholic Bioethics Center, 2017), nn. 85, 141, original emphasis.
20 Congregation for the Doctrine of the Faith (CDF), Considerations regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons (2003), n. 8.2, emphasis added, http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20030731_homose xual-unions_en.html. The USCCB affirmed this teaching in their 2009 letter, Marriage: Love and Life in the Divine Plan, 23, http://www.usccb.org/issues-and-action/marriage-and-family/marriage/love-andlife/upload/pastoral-letter-marriage-love-and-life-in-the-divine-plan.pdf.
21 CDF, Considerations, n. 6.2.
22 These reasons are adapted from Gerald Bradley, John Finnis, and Daniel Philpott, “The Implications of Extending Marriage Benefits to Same-Sex Couples,” Public Discourse, Feb. 22, 2015, http://www.thepublicdiscourse.com/2015/02/14522/.
23 CDF, Considerations n. 5.3, emphasis added.
24 Considerations, n. 4.1. See also Compendium, no. 228. The CDF’s teaching has been reaffirmed in recent years by the Third Extraordinary General Assembly of the Synod of Bishops, in Relatio Synodi, The Pastoral Challenges of the Family in the Context of Evangelization (2014) n. 55, http://www.vatican.va/roman_curia/synod/documents/rc_synod_doc_20141018_relatio-synodifamilia_en.html)and by Pope Francis in Amoris laetitia (2016), n. 251, http://w2.vatican.va/content/dam/francesco/pdf/apost_exhortations/documents/papafrancesco_esortazione-ap_20160319_amoris-laetitia_en.pdf.
25. Catechism, n. 2362
26 Ibid., n. 2353.
27 Ibid., n. 2357
28 Ibid., nn. 2284, 2287.
29 Considerations, n. 5.2, emphasis added
30 Catechism, n. 2201.
31 For a summary of religious liberty concerns, see Eric Kniffin, Protecting Your Right to Serve: How Religious Ministries Can Meet New Challenges without Changing Their Witness, Heritage Foundation, Nov. 9, 2015, https://www.heritage.org/civil-society/report/protecting-your-right-serve-how-religious-ministries-can-meetnew-challenges.
32 U.S. Comm’n on Civil Rights, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil
Liberties, at 29, available at https://securisync.intermedia.net/us2/s/file?public_share=0Nv7dtHYDIwpoLI4da77wl.
33 See NCBC, “Cooperating with Non-Catholic Partners,” 269, available at https://pdfs.semanticscholar.org/e51b/8eea4a6c0244dfe871238f06a7971736769b.pdf(explaining the scandal caused when Catholic health institutions partner with non-Catholic health institutions whose practices do not conform to Catholic moral teaching).
34 See NCBC, “Cooperating with Non-Catholic Partners,” 269, available at https://pdfs.semanticscholar.org/e51b/8eea4a6c0244dfe871238f06a7971736769b.pdf(explaining the scandal caused when Catholic health institutions partner with non-Catholic health institutions whose practices do not conform to Catholic moral teaching).
35 Hosanna-Tabor v. EEOC, 132 S. Ct. 694, 705 (2012).
36 Id. at 712. This approach comes with a cost for large employers. Under the Affordable Care Act, an employer with more than fifty employees that fails to offer a qualifying group health plan must pay a fine. See 26 U.S.C. § 4980H(a)(1), (c)(1). In 2017, that fine was $2,320 a year for each full-time employee minus the first thirty.
38 William Wan, “Same-Sex Marriage Leads Catholic Charities to Adjust Benefits,” Washington Post, March 2, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/01/AR2010030103345.html.
39 William Wan, “Same-Sex Marriage Leads Catholic Charities to Adjust Benefits,” Washington Post, March 2, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/01/AR2010030103345.html.
40 Archbishop Levada, “The San Francisco Solution.”
41 NCBC, “Spousal Benefits Pursuant to SCOTUS,” 2015.
42 Archbishop Levada, “The San Francisco Solution.”