1 For the purposes of this paper, I make no distinction between the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), signed into law on March 23, 2010, and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010), which amended the PPACA when it was signed into law a week later on March 30, 2010.

2 Pub. L. No. 111-148, § 1501, 124 Stat. 119, 242 (2010).

3 Compare Thomas More Law Ctr. v. Obama, 651 F.3d 529, 544-47 (6th Cir. 2011) (holding the individual mandate constitutional under the Commerce Clause), with Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1311, 1320 (11th Cir. 2011) (holding that the individual mandate exceeds Congress's Commerce Clause powers and cannot be justified under the General Welfare Clause). Other challenges to the individual mandate's constitutionality have been dismissed without reaching the merits. See Liberty Univ., Inc. v. Geithner, No. 10-2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011) (dismissing the complaint upon finding that the individual mandate constitutes a “tax” within the meaning of the Anti-Injunction Act and therefore pre-enforcement action is barred); Virginia ex rel. Cuccinelli v. Sebelius, Nos. 11-1057, 11-1058, 2011 WL 3925617 (4th Cir. Sept. 8, 2011) (dismissing Virginia's challenge to the individual mandate for lack of Article III standing); N.J. Physicians, Inc. v. President of the U.S., 653 F.3d 234 (3rd Cir. 2011) (dismissing complaint for failing to establish an injury-in-fact).

4 U.S. CONST. amend. I (the Establishment Clause states that “Congress shall make no law respecting an establishment of religion …”); id. (the Free Exercise Clause states that “Congress shall make no law … prohibiting the free exercise [of religion] …”). The two clauses are collectively known as the “Religion Clauses” of the Constitution.

5 Pub. L. No. 111-148, § 1501(b), 124 Stat. 119, 244 (2010).

6 Id.

7 26 U.S.C.A. § 5000A(d)(2)(A) (West 2010).

8 26 U.S.C. § 1402(g)(1)(D), (E) (2006).

9 There are many different religious groups who oppose purchasing health insurance for religious reasons, many of which are not contemplated by the religious conscience exemption. See infra Part III.A., for a discussion of how the individual mandate incidentally burdens certain religious practices and infra Part II.A., for a description of the scope of the religious conscience exemption as currently written.

10 26 U.S.C.A. § 5000A(d)(2)(B) (West 2010).

11 For a more detailed description of health care sharing ministries, see infra Part IV.C.

12 26 U.S.C. § 501(c)(3) (2010).

13 26 U.S.C.A. § 5000A(d)(2)(B) (West 2010).

14 See Maura Reynolds, Health Bill Allows Some a Religious Exemption, CONG. Q. POL. (Aug. 3, 2009, 9:46 AM), http://www.msnbc.msn.com/id/32267628/. While some organizations are posing legitimate questions about interpreting the PPACA, a quick survey of web articles on the subject reveals many others offering “how to” guides for successfully circumventing the health insurance mandate by means of the religious conscience exemption. See, e.g., Drew Zahn, Does Your Faith Free You from Forced Obamacare?, WORLDNETDAILY (Apr. 6, 2010, 8:34 PM), http://www.wnd.com/?pageId=137221.

15 See Mead v. Holder, 766 F. Supp. 2d 16, 21 (D.D.C. 2011) (“[Plaintiffs] believe that God will provide for their physical, spiritual, and financial well-being, and that ‘[b]eing forced to buy health insurance conflicts with [their] religious faith’ … . [Additional plaintiffs] do not wish to purchase health insurance because it is contrary to their beliefs in a holistic approach to medicine.”), petition for en banc hearing denied, Seven-Sky v. Holder, No. 11-5047, 2011 WL 1113489 (D.C. Cir. Mar. 17, 2011).

16 See 26 U.S.C.A. § 5000A(d)(2)(A) (West 2010) (exempting individuals from the health insurance mandate who are members of “a recognized religious sect or division thereof which is described in [26 U.S.C. § 1402(g)(1), the Social Security Act]”).

17 U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion … .”).

18 Id. (“Congress shall make no law … prohibiting the free exercise [of religion] … .”).

19 Pub. L. No. 111-148, § 1501(b), 124 Stat. 119, 244 (2010).

20 26 U.S.C.A. § 5000A(f) (West 2010) (listing government sponsored programs, employersponsored plans, plans in the individual market, certain grandfathered health plans, and other plans approved by the Secretary of Health and Human Services as qualifying as “minimum essential coverage”).

21 Id. § 5000A(b). I use the phrase “tax penalty” intentionally, as the question of whether the individual mandate establishes a tax or a penalty lies outside the scope of this Note. To the extent that the question is relevant, it is discussed infra in Part III.B.

22 Id. § 5000A(d).

23 Id. § 5000A(e) (exempting individuals when their required health insurance payment would exceed eight percent of the their household's annual taxable income).

24 See 124 Stat. at 242 (codified as amended at 26 U.S.C.A. § 5000A(d)(2)(A) (West 2010)).

25 26 U.S.C. § 1402(g)(1) (2006).

26 Id.

27 26 U.S.C.A. § 5000A(d)(2)(A) (West 2010).

28 The battle took place from 1955, when self-employed farmers were added to Social Security, until the Social Security Act of 1965 went into effect, establishing Medicare, Medicaid, and the religious exemption to those programs. See Peter J. Ferrara, Social Security and Taxes, in THE AMISH AND THE STATE 130, 137 (Donald B. Kraybill ed., Johns Hopkins Univ. Press 2d ed. 2003).

29 455 U.S. 252, 260 n.11 (1982). The majority opinion states specifically that the Court did not intend to decide whether the Free Exercise Clause compelled the existing religious conscience exemption. However, the opinion suggests no reason why the Free Exercise Clause would require an exemption for self-employed Amish taxpayers but not small business owners. The suggestion by the Court that the self-employed may present a more readily identifiable category than Amish business owners seems disingenuous.

30 Id. at 261.

31 Id. at 257.

32 Id. (“We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.”).

33 Id. at 258.

34 Id. at 259.

35 Id. at 259-60 (internal citations omitted).

36 Id. at 260 (“If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.”).

37 Id.

38 Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb-1(b) (West 2010).

39 Lee, 455 U.S. at 262 (Stevens, J., concurring).

40 Exemption Act of 1988, Pub. L. No. 100-647, § 8007, 102 Stat. 3781, 3781-83 (codified as amended at 26 U.S.C.A. § 3127 (West 2011)).

41 483 U.S. 327 (1987).

42 See Lemon v. Kurtzman, 403 U.S. 602 (1971) (establishing the now familiar three-part test to determine if the Establishment Clause has been violated by looking to the purpose of the challenged law, the law's actual effect, and potential government entanglement with religion resulting from the law).

43 Amos, 483 U.S. at 339-40.

44 Id. at 335.

45 Id. at 337.

46 Id. at 339.

47 There is an exception to this general rule for when a statute has obviously been enacted to target a specific religious group, which is impermissible. See Children's Healthcare is a Legal Duty, Inc. v. Vladeck, 938 F. Supp. 1466, 1479-80 (D. Minn. 1996) (“[I]n determining whether the exemption is a permissible accommodation or an impermissible establishment, its sect-specific nature tips the scales toward a finding of establishment under Supreme Court jurisprudence.”); see also Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540 (1993) (finding that city ordinances against animal slaughter were specifically designed to suppress Santeria religious animal sacrifice and therefore failed the Free Exercise Clause neutrality requirement).

48 United States v. Lee, 455 U.S. 252, 260-61 (1982). 49 Children's Healthcare is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1088 (8th Cir. 2000) (citing 42 U.S.C. § 1395c (2006)).

50 What is Medicare?, SOCIAL SECURITY, http://ssa.gov/pubs/10043.html#part2 (last visited Apr. 15, 2011).

51 Overview Medicaid Program, CENTERS FOR MEDICARE & MEDICAID SERVICES, http://www.cms.gov/MedicaidGenInfo/ (last visited Apr. 15, 2011).

52 See 42 U.S.C. § 1396b(a) (2006).

53 Children's Healthcare is a Legal Duty, Inc. v. Vladeck, 938 F. Supp. 1466, 1470 (D. Minn. 1996) (citing 42 U.S.C. § 1396 (2006)).

54 See, e.g., Min De Parle, 212 F.3d at 1089 (describing the religious accommodations written into Medicare and Medicaid for ‘religious nonmedical health care institutions’).

55 42 U.S.C.A. § 18091(a)(2)(G) (West 2010).

56 Id. § 18091(a)(2)(C), (E), (F).

57 See infra Part IV.B. for the analogous argument that the exemption is not required under RFRA.

58 42 U.S.C.A. § 18091(a)(2)(D) (West 2010).

59 26 U.S.C.A. § 5000A(d) (West 2010).

60 42 U.S.C.A. § 18091(a)(2) (West 2010).

61 See, e.g., United States v. Lee, 455 U.S. 252 (1982) (the Amish); Children's Healthcare is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) (Christian Scientists); Henson v. Comm’r, 66 T.C. 835 (1976) (devotees of Sai Baba); Palmer v. Comm’r, 52 T.C. 310 (1969) (Seventh-day Adventists); Miller v. Chater, 908 F. Supp. 479 (N.D. Ohio 1995) (Amish Mennonites); Wray, Mary-Patricia E., Free Exercise and Compulsory Insurance: The Future of Mandatory Financial Responsibility and Religious Observance, 12 LOY. J. PUB. INT. L. 239, 246-47 (2010)Google Scholar (Muslims).

62 See Lee, 455 U.S. at 257 (accepting the argument that payment into and receipt of benefits from the Social Security program “threaten the integrity of the Amish religious belief or observance”).

63 See Mead v. Holder, 766 F. Supp. 2d 16, 42 (D.C. Cir. 2011) (finding that “the conflict alleged between § 1501's requirements and Plaintiffs’ Christian faith does not rise to the level of a substantial burden,” due to the health care sharing ministry exemption written into the Act); Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611, 639 (W.D. Va. 2010) (“[T]he [religious conscience] exception relieves a government-imposed burden on religious exercise. It ameliorates the burden that the Act would otherwise impose on those who have a conscientious objection to the receipt of medical benefits.”).

64 See, e.g., Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 886-87 (1990) (“[I]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith.”).

65 But note that once the free exercise inquiry is undertaken, a court may still consider, without looking into the centrality of the belief, whether the burden on a complainant's religion is substantial. See, e.g., Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (questioning but leaving undetermined whether application of the IRC would pose a substantial burden on the free exercise of Scientology).

66 But see, e.g., Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 146 (1987) (holding that refusal to award unemployment compensation benefits to a Seventh-day Adventist violated the Free Exercise Clause).

67 See Michael W. McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1, 3.

68 See Lemon v. Kurtzman, 403 U.S. 602 (1971).

69 See, e.g., Van Orden v. Perry, 545 U.S. 677, 685-86 (2005) (suggesting that the fate of the Lemon test is uncertain); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1017 (9th Cir. 2010) (recognizing and applying three alternative tests, including Lemon).

70 See Reynolds v. United States, 98 U.S. 145, 164 (1878).

71 The Endorsement test was first introduced in 1984, see Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring) (introducing the doctrine of non-endorsement), and has since been adopted frequently in Establishment Clause cases. See, e.g., Allegheny v. ACLU, 492 U.S. 573 (1989) (adopting Justice O’Connonr's Endorsement test). More recently, the Coercion test has been adopted as yet another alternative to Lemon. See Lee v. Weisman, 505 U.S. 577, 587 (1992) (“[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise … .”) (emphasis added).

72 Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990).

73 See Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (1993).

74 Id. § 2000bb(b)(1). See also Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).

75 42 U.S.C. § 2000bb-1(b).

76 City of Boerne v. Flores, 521 U.S. 507, 534-35 (1997).

77 U.S. CONST. art. I, § 8, cl. 1.

78 The distinction between a tax and a penalty was most famously drawn in the “Child Labor Tax Case.” Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (finding that the Child Labor Tax Law of 1919 was designed to regulate child labor and not to collect revenue and was therefore not an appropriate exercise of Congress's taxing power). While the Bailey approach is rarely used and some cases suggest that it has been abandoned, Bailey has never been expressly overruled. See Bob Jones Univ. v. Simon, 416 U.S. 725, 741 n.12 (1974). More recently, the Supreme Court has suggested that the Bailey approach is still alive and well. See Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 779 (1994) (citing Bailey, 259 U.S. at 38 (“[T]here comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty … .”)).

79 Compare Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1314 (11th Cir. 2011) (noting the “clarion uniformity” with which all courts—prior to the 4th Circuit's decision in Geithner—had held that the individual mandate creates a penalty, not a tax), and Thomas More Law Ctr. v. Obama, 651 F.3d 529, 550-52 (6th Cir. 2011) (Sutton, J., concurring for a majority of the court) (listing five reasons why the individual mandate is a regulatory penalty, not a tax), and Mead v. Holder, 766 F. Supp. 2d 16, 41 (D.C. Cir. 2011) (“Congress did not intend § 1501 to operate as a tax, and therefore Defendants cannot rely on the General Welfare Clause as authority for its enactment.”), with Liberty Univ., Inc. v. Geithner, No. 10-2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011) (finding that the exaction imposed by the individual mandate is properly understood as a tax and therefore a pre-enforcement action is barred by the Anti-Injunction Act).

80 U.S. CONST. art. I, § 8, cl. 3.

81 See Michele L. Dauber, New Deal Lawyers, in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES, 399, 402 (David S. Tanenhaus ed., 2009).

82 See United States v. Lee, 455 U.S 252, 252 (1982) (“The imposition of social security taxes is not unconstitutional as applied to such persons … who object on religious grounds to receipt of public insurance benefits); Lull v. Comm’r, 602 F.2d 1166 (4th Cir. 1979) (holding that a Christianbased objection to war was insufficient grounds for an exemption to generally applicable income tax); Authenrieth v. Cullen, 418 F.2d 586, 588 (9th Cir. 1969), cert. denied, 397 U.S. 1036 (1970) (“[N]othing in the Constitution prohibits the Congress from levying a tax upon all persons, regardless of religion, for support of the general government.”).

83 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb(b)(1) (1993).

84 See Leathers v. Medlock, 499 U.S. 439, 451 (1991) (“Inherent in the power to tax is the power to discriminate in taxation.”); Regan v. Taxation with Representation of Wash., 461 U.S. 540, 547 (1983) (“Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes.”); see also Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 785 (E.D. Va. 2010) (noting the Virginia Attorney General's argument “that the power of Congress to exact a penalty is more constrained than its taxing authority under the General Welfare Clause”).

85 See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 544-47 (6th Cir. 2011).

86 United States v. Lopez, 514 U.S. 549, 559 (1995).

87 Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882, 894 (E.D. Mich. Oct. 7, 2010), aff’d, 651 F.3d 529 (6th Cir. 2011).

88 Id.

89 Thomas More Law Ctr., 651 F.3d at 544.

90 Id.

91 See Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1286-87 (N.D. Fla. Jan. 31, 2011) (“It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.”). But see Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1286-87, 1314 (11th Cir. 2011) (noting that the court is “not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case,” and instead invalidating the individual mandate as an unprecedented attempt by Congress to “mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives”).

92 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(b) (1993).

93 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

94 Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335-36 (1987).

95 Kiryas Joel Sch. Dist. v. Grumet, 512 U.S. 687, 706, 726 (1994) (recognizing that the Establishment Clause is violated when a statute differentiates among bona fide faiths or when it grants affirmative benefits on the basis of religion).

96 See supra Part II.A.

97 See, e.g., Droz v. Comm’r, 48 F.3d 1120, 1124 (9th Cir. 1995); Hatcher v. Comm’r, 688 F.2d 82, 83-84 (10th Cir. 1979); Jaggard v. Comm’r, 582 F.2d 1189, 1190 (8th Cir. 1978), cert. denied, 440 U.S. 913 (1979).

98 Droz, 48 F.3d at 1124.

99 Hatcher, 688 F.2d at 84.

100 See Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611, 639-41 (W.D. Va. 2010), vacated, No. 10–2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011).

101 Id. at 639 (internal citations omitted).

102 Geithner, 2011 WL 3962915, at *51 (Davis, J., dissenting) (internal citations omitted).

103 Geithner, 753 F. Supp. 2d at 633.

104 See Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (finding statute's lack of consideration for potentially significant financial burdens on the nonreligious rendered the statute unconstitutional).

105 Geithner, 2011 WL 3962915, at *51 (Davis, J., dissenting) (internal citations omitted).

106 See, e.g., Droz v. Comm’r, 48 F.3d 1120, 1125 n.5 (9th Cir. 1995) (“Therefore it is not necessary for us to decide the constitutionality of any other restrictions contained in § 1405(g)— particularly the [provision limiting the exemption] … to sects that have been in existence at all times since December [31], 1950.”).

107 26 U.S.C.A. § 5000A(d)(2)(B) (West 2010).

108 Lemon v. Kurtzman, 403 U.S. 602, 613 (1971). The Supreme Court has suggested that sometimes the entanglement inquiry should be folded into the primary effects prong of the Lemon test and carry no independent force. See Zelman v. Simmons-Harris, 536 U.S. 639, 668-69 (2002). However, many district courts continue to treat this prong as a separate inquiry.

109 26 U.S.C.A. § 5000A(d)(2)(A) (West 2010); 26 U.S.C. § 1402(g)(1) (2006).

110 Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987).

111 See, e.g., Benning v. Georgia, 391 F.3d 1299, 1313 (11th Cir. 2004); Sutton v. Rasheed, 323 F.3d 236, 250-51 (3d Cir. 2003).

112 Lemon, 403 U.S. at 619.

113 Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611, 640 (W.D. Va. 2010), vacated, No. 10– 2347, 2011 WL 3962915 (4th Cir. Sept. 8, 2011).

114 Id.

115 See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (holding that section 3 of the Religious Land Use and Institutionalized Persons Act “fits within the corridor between the Religion Clauses”).

116 See, e.g., Geithner, 753 F. Supp. 2d 611 (rejecting a Free Exercise and Establishment Clause challenge to the PPACA); Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882, 886 (E.D. Mich. 2010) (noting plaintiff's Free Exercise challenge to the Act).

117 Geithner, 753 F. Supp. 2d at 642 (citing Cutter, 544 U.S. at 719).

118 See supra Part III.C.

119 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(b) (1993).

120 Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 535 (1993).

121 Id. at 521.

122 Geithner, 753 F. Supp. 2d at 642.

123 See Locke v. Davey, 540 U.S. 712, 720 (2004).

124 Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 878-79 (1990) (holding that criminal drug laws extend to the religious use of peyote).

125 Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 327 (1987) (“It is a permissible legislative purpose (as here) to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”).

126 The plaintiffs in Geithner raised an additional free exercise concern that their mandatory payments might be used in part to fund abortion services, which would run counter to their religious principles. This argument, also dismissed by the Virginia court, lies beyond the scope of this Note. See Geithner, 753 F. Supp. 2d at 641-43.

127 42 U.S.C. § 18091(a)(2)(G) (2010).

128 26 U.S.C.A. § 5000A(f) (West 2010). Assessing the relevance of the final alternative, a grandfathered health plan, lies outside the scope of this Note.

129 The religious conscience exemption does not take individuals out of the market for healthcare services, however. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 543 (6th Cir. 2011) (“Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring.”).

130 This is true, of course, only to the extent that health care sharing ministries compete with qualifying health insurance providers for membership. See infra Part IV.C., where I argue that they can compete for membership, and likely will, after the individual mandate goes into effect in 2014. 131 42 U.S.C. § 18091(a)(2)(E) (2010).

132 In Part IV.C., infra, I explain how a health care sharing ministry generally operates and argue that Congress needs to enact additional regulations to ensure that these ministries are meeting the needs of their members.

133 26 U.S.C. § 1402(g)(1)(D) (2006).

134 See Michelle Andrews, Some Church Groups Form Sharing Ministries to Cover Members’ Medical Costs, KAISER HEALTH NEWS, Apr. 25, 2011, http://www.kaiserhealthnews.org/Features/Insuring-Your-Health/Michelle-Andrews-on-Health-Care- Religious-Cooperatives.aspx (“If there's a shortfall one month … every household seeking help gets a prorated portion of its needs covered, and the ministry asks members for voluntary contributions to make up the difference. If the shortfall continues, members vote on raising the share amount.”).

135 See President Barack Obama, Remarks by the President on the Affordable Care Act and the New Patients’ Bill of Rights (June 22, 2010), http://www.whitehouse.gov/the-press-office/remarkspresident- affordable-care-act-and-new-patients-bill-rights (describing the plight of Americans who are “picking and choosing which tests and treatments to pursue” and emphasizing the importance of spending healthcare dollars on things that make people healthier).

136 See infra Part IV.C.

137 By “off-the-books health care sharing ministries” I simply mean that these groups share healthcare costs in a similar manner to a health care sharing ministry but do so without being subject to all of the regulations applicable to a 501(c)(3) organization.

138 Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.C. Cir. 2011), petition for en banc hearing denied, Seven-Sky v. Holder, No. 11-5047, 2011 WL 1113489 (D.C.C. Mar. 17, 2011) (holding that the individual mandate “does not place a substantial burden on the exercise of Plaintiffs’ Christian faith” and that it is the least restrictive means of serving a compelling governmental interest); see also Liberty Univ., Inc. v. Geithner, No. 10-2347, 2011 WL 3962915, at *50-51 (4th Cir. Sept. 8, 2011) (Davis, J., dissenting).

139 Mead, 766 F. Supp. 2d at 43 (citing Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1462 (D.C. Cir. 1989) (noting the compelling interest in protecting individual health and social welfare)).

140 42 U.S.C. § 18091(a)(2)(A) (2010).

141 Mead, 766 F. Supp. 2d at 43 (citing 26 U.S.C. § 5000A(d), (e) (2010)).

142 See, e.g., Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1076 (2008).

143 Of course the government must still have a compelling interest in order to satisfy the Free Exercise Clause. See supra Part III.D.

144 26 U.S.C.A. § 5000A(d)(2)(B)(IV) (West 2010).

145 See supra Part IV.A.

146 The removal of the religious conscience exemption from the PPACA would remove any doubt that the Act conforms to even the most Jeffersonian interpretation of the Establishment Clause. Without the religious exemption, the Free Exercise Clause analysis would change in the same way as the analysis under the RFRA. See supra Part IV.B. for my argument that the PPACA would remain constitutional under the RFRA even without the religious conscience exemption.

147 3 LEE R. RUSS & THOMAS SEGALLA, COUCH ON INSURANCE § 39:48 (West 2011); see also Indus. Indem. Co., v. Golden State Co., 117 Cal. App. 2d 519, 522-23 (1953) (describing the essence of a reciprocal insurance exchange).

148 3 RUSS & SEGALLA, supra note 147; see also Indus. Indem. Co., 117 Cal. App. 2d at 522-23.

149 See True v. Robles, 571 F.3d 412, 419, 420 (5th Cir. 2009).

150 See, e.g., Reciprocals, 215 ILL. COMP. STAT. ANN. 5/77 (West 2010); Reciprocal Insurers, FLA. STAT. ANN. §§ 629.01-.520 (West 2010).

151 The individual members, on the other hand, are separately and severally liable to each other member of the exchange. 3 RUSS & SEGALLA, supra note 147.

152 See Andrews, supra note 134.

153 See id. (“Each member [of Samaritan Ministries] pays a monthly fee that varies with family size: Single members generally pay $135, couples $270, single-parent families $200 and two-parent families $320. Members pay the first $300 for any medical expense they incur; when they have bills— or ‘needs,’ as they call them—above that amount, they send them to the ministry's Peoria, Ill., offices. The ministry keeps track of the needs, informing other members where to send their monthly check, and letting those who have made requests know what checks to expect.”).

154 See Christian Care Ministry, Disclosures, MYCHRISTIANCARE.ORG, http://mychristiancare.org/disclosures.aspx (last visited Sept. 16, 2011).

155 Id.; see, e.g., IOWA CODE ANN. § 505.22 (2010) (“A religious organization which, through its publication to subscribers, solicits funds for the payment of medical expenses of other subscribers, shall not be considered to be engaging in the business of insurance for purposes of this chapter or any other provision of this title, and shall not be subject to the jurisdiction of the commissioner of insurance … .”); KAN. STAT. ANN. § 40-202 (2010) (“Nothing contained in this [insurance] code shall apply to … (j) a voluntary noncontractual mutual aid arrangement whereby the needs of participants are announced and accommodated through subscriptions to a monthly publication.”); KY. REV. STAT. ANN. § 304.1-120 (7) (2011); VA. Code Ann. § 38.2-6300, 38.2-6301 (2011).

156 26 U.S.C. § 501(c)(3) (2010).

157 26 U.S.C.A. § 5000A(d)(2)(B)(V) (West 2010) (requiring that the annual audit be “performed by an independent certified public accounting firm in accordance with generally accepted accounting principles and which is made available to the public upon request”).

158 26 U.S.C.A. § 5000A(d)(2)(B) (West 2010).

159 See, e.g., Membership Requirements, SAMARITAN MINISTRIES INT’L, http://www.samaritanministries.org/guidelines/ (last visited Apr. 15, 2011); Christian Care Ministry, Inc., Medi-Share Christian Healthcare Sharing Qualifications, MYCHRISTIANCARE.ORG, http://mychristiancare.org/eligibility.aspx (last visited Apr. 15, 2011).

160 See, e.g., Christian Healthcare Ministries, Inc., Christian Healthcare Ministries: Do I Qualify?, http://www.chministries.org/qualify.aspx (last visited Apr. 15, 2011) (listing requirements as: “be Christians living by biblical principles,” “abstain from the use of tobacco and the illegal use of drugs,” “follow biblical teachings on the use of alcohol,” and “attend group worship regularly if health permits”).

161 See Barry A. Kosmin & Ariela Keysar, American Religious Identification Survey [ARIS 2008], Summary Report, Trinity College 3 Table 1 (Mar. 2009), available at http://commons.trincoll.edu/aris/files/2011/08/ARIS_Report_2008.pdf.

162 Andrews, supra note 134.

163 See Lemon v. Kurtzman, 403 U.S. 602, 627 (1971) (finding that the prospect of continuous monitoring of a religious school by the state would create excessive entanglement between government and religion).

164 Andrews, supra note 134.

165 See Membership Requirements, supra note 159; Christian Care Ministry, Inc., supra note 159; Christian Healthcare Ministries, Inc., supra note 160.

166 Samaritan Ministries Int’l, Ministry Guidelines, CHRISTIAN HEALTHCARE NEWSLETTER, Aug. 2011, at 21, available at http://www.samaritanministries.org/guidelines/SMI-Guidelines-201108.pdf.

167 26 U.S.C.A. § 5000A(d)(2)(B)(V) (West 2010).

168 Samaritan Ministries Int’l, Schedule O: Supplemental Information to Form 990, 2 (2009), http://www.guidestar.org/FinDocuments//2009/371/295/2009-371295601-069589fa-9.pdf.

169 See Christian Healthcare Ministries, Inc., Form 990: Return of Organization Exempt from Income Tax (2010), http://www.guidestar.org/FinDocuments//2010/341/964/2010-341964742- 0731d537-9.pdf.

170 Telephone Interview with Jerry Lawrence, Controller, Christian Care Ministry, Inc. (Oct. 24, 2011).

171 Financial Statements from Christian Care Ministry, Inc. (June 30, 2011) (on file with author).

172 Id.

173 26 U.S.C.A. § 5000A(d)(2)(B)(ii) (West 2010). For requirements I-V, see supra text accompanying note 13.

174 See Samaritan Ministries Int’l, supra note 166, at 21.

175 26 U.S.C.A. § 5000A(d)(2)(B)(ii)(IV) (West 2010).

176 26 U.S.C. § 1402(g)(1) (2006).

177 For instance, any government entity would be able to secure the organization's annual audit under 26 U.S.C.A. § 5000A(d)(2)(B)(ii)(V) (West 2010), thereby creating greater transparency.

178 Id. § 5000A(e)(1).