                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 15-1368
MARIA STAPLETON, et al.,
                                                 Plaintiffs-Appellees,

                                 v.

ADVOCATE HEALTH CARE NETWORK,
AN ILLINOIS NON-PROFIT CORPORATION, et al.,
                                    Defendants-Appellants.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 1:14-cv-01873 — Edmond E. Chang, Judge.
                     ____________________

  ARGUED SEPTEMBER 18, 2015 — DECIDED MARCH 17, 2016
               ____________________

   Before BAUER, KANNE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. The Employee Retirement Income
Security Act (ERISA) protects employees from unexpected
losses in their retirement plans by setting forth specific safe-
guards for those employee plans. The Act, however, exempts
church plans from those requirements. This case explores the
question that has been brewing in the lower federal courts:
whether a plan established by a church-affiliated organiza-
2                                                  No. 15-1368

tion, such as a hospital, is also exempt from ERISA’s reach.
We conclude that it is not.
                                 I.
    In response to several highly publicized private pension
plan failures, Congress enacted ERISA in 1974, with the goal
of protecting employees’ retirement benefits and ensuring
that employees would receive the retirement benefits that
employers had promised them and upon which they had
counted. Before ERISA, employers who sponsored pension
plans were not required to ensure that they were funded ad-
equately, stand behind them if they failed, or provide insur-
ance to protect recipients’ benefits. As a result, some pension
plans failed, leaving employees without the pensions they
had spent their careers building. Congress recognized that
existing state and common law protections failed to suffi-
ciently protect employee retirement security and conse-
quently, enacted ERISA. 29 U.S.C. § 1001 et. seq. ERISA pro-
tects employees through a number of safeguards including
minimum funding and vesting requirements, insuring plan
benefits through the Pension Benefit Guarantee Corporation
and requiring certain reporting, disclosures, and fiduciary
responsibilities. See, e.g., 29 U.S.C. §§ 1083, 1053, 1021-1026,
1104-1112, 1307, 1308, 1322. Those protections increase the
cost of running a pension plan, on the one hand, but, on the
other hand, protect employees from losing savings meant for
their retirement years from either intentional mishandling of
funds or innocent mismanagement.
   Because of the broad protective goals of ERISA, Congress
carved out only narrow exemptions for employee-benefit
plans, including those for churches whose plans were ex-
cused from regulation in order to prevent excessive govern-
No. 15-1368                                                             3

ment entanglement with religion.1 Thus a church plan is ex-
empt from ERISA regulation. But the question presented in
this case is: does a plan established by a church-affiliated or-
ganization, like the defendant here, Advocate Health Care
Network, qualify as a church plan under ERISA? 2
    This same question is springing up across the country
and although the district courts have heretofore been divid-
ed with no rulings from the circuit courts, the Third Circuit,
just a short while ago, became the first circuit court to weigh
in on the debate, siding with the district court in this case
below that a church-affiliated organization such as Advocate
cannot establish an ERISA-exempt plan. Kaplan v. St. Peter’s
Healthcare Sys., 810 F.3d 175 (3d Cir. 2015). In addition to the
district court below and the Third Circuit, the court in Rollins
v. Dignity Health, 19 F. Supp. 3d 909, 917 (N.D. Cal. 2013), ap-
peal filed, No. 15-15351 (9th Cir. Feb. 26, 2016), has come to
the same conclusion. On the other hand, several district
courts have recently ruled that plans established by church-
affiliated agencies can indeed qualify for the ERISA church
plan exemption. See, e.g., Lann v. Trinity Health Corp., No.
8:14-cv-02237, 2015 WL 6468197, at *1 (D. Md. Feb. 24, 2015);
Medina v. Catholic Health Initiatives, No. 13-CV-01249, 2014
WL 4244012, at *2 (D. Colo. Aug 26, 2014) 3; Overall v. Ascen-


1 Congress used the term “church plan” in enacting ERISA, but the ex-
emption, of course, also applies to mosques, synagogues, temples, meet-
ing houses, and all other houses of worship.
2 We assume, for the time-being, that Advocate is indeed a church-
affiliated organization—a question we discuss below, but need not re-
solve in this litigation. See note 5, infra.
3The magistrate judge in Medina v. Catholic Health Initiatives, No. 13-cv-
01249, 2014 WL 3408690 (D. Colo. July 9, 2014) also agreed with the con-
4                                                           No. 15-1368

sion, 23 F. Supp. 3d 816, 829 (E.D. Mich. 2014). Today this
Circuit weighs in on the debate, siding with our colleagues
on the Third Circuit.
    The plaintiffs, Maria Stapleton, Judith Lukas, Sharon
Roberts, and Antoine Fox are former and current Advocate
employees with vested claims to benefits under the Advo-
cate retirement plan. They have brought their complaint as a
proposed class action on behalf of all participants or benefi-
ciaries of the Advocate plan. The plaintiffs allege that Advo-
cate has not maintained its pension plan according to the
standards set forth by ERISA, 29 U.S.C. § 1001 et. seq., and
thus has breached its fiduciary duty and harmed the plan’s
participants in the following way: by requiring an improper-
ly long period of five years of service to become fully vested
in accrued benefits; failing to file reports and notices related
to benefits and funding; funding the plan at insufficient lev-
els; neglecting to provide written procedures in connection
with the plan; placing the plan’s assets in a trust that does
not meet statutory requirements; and failing to clarify partic-
ipants’ rights to future benefits. The plaintiffs argue in the
alternative that if Advocate successfully evades liability un-
der the church plan exemption, that this provision of ERISA



clusion we reach, but her recommendation was rejected by the district
court judge in Medina v. Catholic Health Initiatives, No. 13-cv-01249, 2014
WL 4244012 (D. Colo. Aug. 26, 2014). We side with the decision of the
magistrate judge who carefully dissected the plain language of the stat-
ute and concluded, as we do, that “in order to qualify as a church plan
under ERISA, a benefit plan must be established by a church or a con-
vention or association of churches” rather than the perfunctory decision
of the district court judge who dismissed the plain language as a mere
“term of art” without further analysis.
No. 15-1368                                                  5

is void as an unconstitutional violation of the First Amend-
ment’s prohibition on state establishment of religion.
    Advocate operates twelve hospitals and more than 250
other inpatient and outpatient healthcare locations across
northern and central Illinois, employing 33,000 people and
generating $4.6 billion in annual revenue. Advocate main-
tains a non-contributory, defined-benefit pension plan that
covers substantially all of its employees. Advocate’s prede-
cessor established the plan and Advocate maintains it now.
Advocate is responsible for funding the plan and has the
power to continue, amend, or terminate the plan. Advocate
does not fund, insure, or administer the funds in compliance
with all of the terms of ERISA as it believes that it is exempt
from complying with those provisions. It goes without say-
ing that Advocate is not a church. Nor was its predecessor. It
formed in 1995 as a 501(c)(3) non-profit corporation from a
merger between two health systems—Lutheran General
HealthSystem and Evangelical Health Systems. Today, Ad-
vocate is affiliated with both the Metropolitan Chicago Syn-
od of the Evangelical Lutheran Church in America and the
Illinois Conference of the United Church of Christ, but it is
not owned or financially supported by either church. It is,
however, a party to contractual relationships with them, in
which they “affirm their ministry in health care and the cov-
enantal relationship they share with one another.” There is
no requirement that Advocate employees or patients belong
to any particular religious denomination, or uphold any par-
ticular religious beliefs.
    Before the district court, the plaintiffs sought a declara-
tion that the Advocate plan is a benefits plan subject to the
regulations of ERISA, or in the alternative, a declaration that
6                                                              No. 15-1368

a church plan exemption is unconstitutional. They also
sought an injunction requiring Advocate to reform the plan
to comply with ERISA’s requirements and an award of civil
penalties, and damages. Advocate moved to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(6)
and 12(b)(1), arguing that its plan falls within the church
plan exemption4.The district court denied the defendants’
motion, holding that the plan “is not entitled to ERISA’s
church plan exemption as a matter of law” because the statu-
tory definition required a church plan to be established by a
church. D. Ct. Order at 20 (R. 64, p.20).
                                        II.
    Advocate claims that, because the plan is a church plan
and thus exempt from ERISA, the plaintiffs have failed to
state a claim upon which relief can be granted and the com-
plaint must be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6). In order to survive this challenge, the
complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. v.
Twombly, 550 U.S. 544, 570 (2007)). The court must accept as
true the complaint’s factual allegations and draw reasonable
inference in the plaintiffs’ favor. Ashcroft v. Al-Kidd, 131 S. Ct.
2074, 2079 (2011). We review a decision denying a motion to

4 Although Advocate premised its motion to dismiss on both a failure to
state a claim under Rule 12(b)(6) and a lack of subject matter jurisdiction
under 12(b)(1), the district court made short order of the claim under
12(b)(1) noting that “[t]o ask whether a federal law like ERISA reaches a
certain actor or conduct in the first place is itself a merits question , not a
jurisdictional one. D. Ct. Order at 5 (R. 64, p.5) (citing Morrison v. Nat’l
Australia Bank Ltd., 561 U.S. 247, 254 (2010)).
No. 15-1368                                                    7

dismiss de novo. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463
(7th Cir. 2010).
    Although ERISA does indeed broadly protect the inter-
ests of participants in employee benefit plans, Congress spe-
cifically exempted certain types of plans from the scope of
ERISA, including those set up by federal, state, local or tribal
governments, 29 U.S.C. §§ 1002(32), 1003(b)(1), and any
“church plan,” 29 U.S.C. § 1003(b)(2), the latter of which is at
issue here.
                                 A.
    The sole question in this case is whether Advocate’s plan
is a church plan as defined by ERISA. To answer this ques-
tion we turn, as we do in all cases of statutory construction,
to the language of the statute—in this case, to the definitions
of an ERISA church plan contained in subsection (33)(A) and
subsection (33)(C)(i) of the statute. 29 U.S.C. §§ 1002(33)(A),
(33)(C)(i). See, e.g. In re B.R. Brookfield Commons No. 1 LLC,
735 F.3d 596, 598 (7th Cir. 2013) (directing courts to turn first
to the statutory language). Where Congress’s intent is clear
from that language, we must give it effect. Rush Univ. Med.
Ctr. v. Burwell, 763 F.3d 754, 759 (7th Cir. 2014).
    Subsection (33)(A) of ERISA defines a church plan as a
“plan established and maintained” by a church. 29 U.S.C.
§ 1002(33)(A). In short, two separate elements must both be
met for the exemption to apply: (1) a church must first create
or establish the plan and then (2) maintain the plan.
    If the statute stopped there, Advocate would clearly lose,
as the plan was not established by a church. It is uncontro-
verted that Advocate (or, more precisely, its predecessors)
established the plan and that it is not (and the predecessors
8                                                    No. 15-1368

were not) a church. Advocate, however, argues that a later
part of the statute, subsection (33)(C), enlarges the definition
of a church plan. That section states as follows:
          (C) For purposes of this paragraph—
           (i) A plan established and maintained for its
       employees (or their beneficiaries) by a church or by
       a convention or association of churches includes a
       plan maintained by an organization, whether
       a civil law corporation or otherwise, the prin-
       cipal purpose or function of which is the ad-
       ministration or funding of a plan or program
       for the provision of retirement benefits or wel-
       fare benefits, or both, for the employees of a
       church or a convention or association of
       churches, if such organization is controlled by
       or associated with a church or a convention or
       association of churches.
29 U.S.C. § 1002(C)(i) (all emphases supplied).
   For purposes of clarity in this opinion we can divide this
paragraph of (33)(C)(i) into the following three parts, which
we address out of order to help isolate the issue in this case.
    • The (33)(A) definition of a church plan. The first
part, which we have italicized above, is essentially identical
to the definition of a “church plan” in subsection (33)(A). In
other words, subsection (33)(C)(i) repeats (33)(A), reminding
us that a “church plan” means a plan established and main-
tained by a church. Thus the italicized portion of subsection
(33)(C)(i) can be simplified by saying “a church plan … .”
   • The church-affiliated organization language. The fi-
nal and underlined portion of the subsection simply defines
No. 15-1368                                                   9

which types of organizations are church-affiliated organiza-
tions and thus qualified to run and maintain an ERISA plan.
This portion of the subsection is not at issue and we will
simply refer to these organizations as “church-affiliated or-
ganizations.”
   • The controverted language. The language we have
placed in bold above—“includes a plan maintained by an
organization”—forms the heart of the dispute.
   If we use the linguistic simplifications we describe in the
bullet points above, leaving intact the controverted lan-
guage, the whole subsection reads as follows: “A church
plan includes a plan maintained by a church-affiliated or-
ganization.”
    Advocate interprets this language as expanding the defi-
nition of church plan so that if an otherwise qualifying or-
ganization simply maintains the plan, it has fully satisfied all
of subsection (33)(A), even if the plan was not also established
by a church.
    The district court disagreed, finding instead that subsec-
tion (33)(C)(i)’s use of the word “includes” means that it
“identifies a subset of plans that qualify for the church plan
exemption as defined by subsection 33(A)—specifically,
plans need not be maintained by a church, and instead may
be maintained by a church-affiliated corporation.” D. Ct.
Order at 9 (R. 64, p.9) (emphasis in original). The district
court then went on to note that (33)(C)(i) says nothing about
a plan established by an affiliated organization. Id.
   At the risk of over-simplifying, we offer the following
summary of the statute and the parties’ positions.
10                                               No. 15-1368

      The statute simplified: A church plan includes
      a plan maintained by a church affiliated organ-
      ization.
      Advocate’s position on what this means: A
      plan established and maintained by a church
      includes a plan established by a church-
      affiliated organization (and maintained by ei-
      ther a church or a church affiliated organiza-
      tion).
      The plaintiffs’ position: A plan established and
      maintained by a church also includes a plan es-
      tablished by a church but maintained by a
      church-affiliated organization.
   The district court, siding with the plaintiffs, concluded
that the plain language of subsections (33)(A) and (33)(C)(i)
together defines church plans as follows:
      •    A church plan established by a church
      and maintained by a church is a church plan.
      •      A church plan established by a church
      and maintained by a church-affiliated organi-
      zation is a church plan.
      •       A church plan established by a church-
      affiliated organization and maintained by a
      church-affiliated organization is not a church
      plan.
    In other words there are “two requirements—
establishment and maintenance—and only the latter is ex-
panded by the use of “includes” in subsection (33)(C)(i).
Kaplan, 810 F.3d at 181. Because the plan here was both es-
No. 15-1368                                                            11

tablished and maintained by a church-affiliated organiza-
tion, it is not a church plan.
    Advocate’s position—that a plan qualifies as a church
plan merely by being maintained by a church-affiliated or-
ganization—has a fatal flaw. If a plan could qualify solely on
the basis of being maintained by a church-affiliated organi-
zation, the “established by a church” requirement of subsec-
tion (33)(A) would become meaningless. And we know that
this is not so, for subsection (33)(A) is a separate, independ-
ent requirement of the statute. Advocate’s reading, therefore,
violates a cardinal rule of statutory interpretation that every
word and clause must be given meaning. “It is ‘a cardinal
principle of statutory construction’ that ‘a statute ought, up-
on the whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void, or
insignificant.’” Doe v. Chao, 540 U.S. 614, 630-31 (2004); see
also Kaplan, 810 F.3d at 181 (“If [the hospital] were right, the
church establishment requirement in § (33)(A) would be su-
perfluous … a result we attempt to avoid when construing a
statute). Thus the plain language of (33)(C) merely adds an
alternative meaning to one of subsection (33)(A)’s two ele-
ments—“maintain” element—but does not change the fact
that a plan must still be established by a church. Kaplan,
810 F.3d at 180. (The term “includes” merely provides an al-
ternative to the maintenance requirement but does not elim-
inate the establishment requirement.);5 Rollins, 19 F. Supp. 3d

5The Third Circuit, in Kaplan, questioned whether the similarly situated
hospital in that case, St. Peter’s Hospital, could even maintain an exempt
plan. The court questioned, without needing to decide, whether the hos-
pital could meet the requirement that a church-affiliated organization
have the principal purpose of administering or funding the plan, and
whether the hospital was indeed “controlled” by a church. These same
12                                                           No. 15-1368

at 914 (“if all that is required for a plan to qualify as a church
plan is that it meet subsection C's requirement that it be
maintained by a church-associated organization, then there
would be no purpose for subsection A, which defines a
church plan as one established and maintained by a
church.”).
    The Third Circuit provided an illuminating hypothetical
to demonstrate why this must be so. In its hypothetical, the
Third Circuit supposed that Congress passed a law that any
person who is disabled and a veteran was entitled to free in-
surance. The court then imagined that in the ensuing years,
questions arose as to whether people who served in the Na-
tional Guard are veterans for purposes of the statute. To
clarify the provision, Congress passed an amendment saying
that “for purposes of the provision, a person who is disabled
and a veteran includes a person in the National Guard.”
Kaplan, 810 F.3d at 181. All parties conceded that a person
who served in the National Guard but who was not disabled
could not qualify for free insurance in this hypothetical be-
cause only the second of the two original conditions was sat-
isfied. Id. For the same reason, it must be true that both con-
ditions of the original definition of a church plan must be
satisfied here.
   We simply cannot gloss over the fact that Congress in-
cluded the word “established” in subsection (33)(A) but ex-
cluded it in subsection (33)(C)(i). In the latter subsection,
“Congress could have said that a plan ‘established and

questions arise in the litigation before us, but, like the Third Circuit, we
find that they need not be resolved, as we have concluded that the Ad-
vocate plan is not exempt from ERISA in the first instance. Kaplan, 810
F.3d at 183 n.8.
No. 15-1368                                                   13

maintained’ by a church includes a plan ‘established and
maintained’ by a church agency,” but despite an earlier pro-
posal to do just that (which we will discuss in more detail
below), “the final legislation did not say that.” Kaplan,
810 F.3d at 182; See also Rollins, 19 F. Supp. 3d at 915 (“To as-
sert that any church-associated organization can establish its
own church plan fails to appreciate the distinction drawn by
Congress through its purposeful word choice,” that is, in-
cluding the word “establish” in subsection (33)(A), but ex-
cluding it in subsection (33)(C)(i)). Congress used the word
“establish and maintain” in subsection (33)(A) as something
only a church may do. It used the word “maintain” in sub-
section (33)(C)(i) to refer to the requirements for church-
affiliated organizations. The plain language difference be-
tween subsections (33)(A) and (C)(i) must be assumed to re-
flect deliberate choices made by Congress. See Russello v.
U.S., 464 U.S. 16, 23 (1983) (“Where Congress includes par-
ticular language in one section of a statute but omits it in an-
other section of the same Act, it is generally presumed that
Congress acts intentionally and purposefully in the dispar-
ate inclusion or exclusion.”)
    One of Advocate’s main arguments is that the word “in-
cludes” expands rather than contracts the boundaries of
what can be encompassed within the definition of a church
plan. On this we do not disagree. Subsection (33)(C) expand-
ed the definition of church plans from the narrower scope of
those that were both established and maintained by a church
to those that were established by a church but maintained by
a church-affiliated organization. But, again, giving proper
due to subsection (33)(A) and its relationship with (33)(C)(i),
it becomes clear that the word “includes” expands upon
who may maintain a plan, but not who may establish one.
14                                                No. 15-1368

Kaplan, 810 F.3d at 180; Rollins, 19 F. Supp. 3d at 915 (“only
the category of ‘who may maintain a church plan’ is being
expanded upon in subsection C(i), not the category of ‘who
may establish a plan.’”).
   A plain meaning reading also rules out Advocate’s inter-
pretation of subsection (33)(C)(ii) as supporting its theory
that a church-affiliated organization can establish a church
plan. That provision, states:
       (ii) The term employee of a church or a con-
       vention or association of churches includes—
                                ***
       (II) an employee of an organization, whether a
       civil law corporation or otherwise, which is ex-
       empt from tax under section 501 of Title 26 and
       which is controlled by or associated with a
       church or a convention or association of
       churches;
29 U.S.C. § 1002 (33)(C)(ii).
    In short, it states that employees of a qualifying church-
affiliated organization may be considered employees of a
church for purposes of the exemption. The redefinition was
necessary because both ERISA and the Internal Revenue
Code require a plan to be sponsored by an employer for the
benefit of its employees. 29 U.S.C. § 1002(2); 26 U.S.C.
§ 401(a). If a plan established by a church also covered em-
ployees of a church-associated organization, it would lose its
status as a “plan” for the purposes of ERISA and tax-
qualification requirements, unless those employees were
deemed employees of that church and that church was
No. 15-1368                                                  15

deemed their employer. Subsection (33)(C)(ii) resolved this
problem.
    Just as with subsection (33)(C)(i), this subsection does
nothing to render inoperative subsection (33)(A)’s gate-
keeping requirement that the plan first be established by a
church. The fact that an established church plan may include
employees of a church-affiliated organization does not mean
that the church-affiliated organization may establish the plan
in the first place. See e.g., Kaplan v. Saint Peter's Healthcare
Sys., No. Civ. A. 13-2941, 2014 WL 1284854, at *5 (D.N.J. Mar.
31, 2014), aff'd, 810 F.3d 175 (3d Cir. 2015) (“Once a church
plan is established [by a church], subsection C(ii) delineates
what individuals may participate in the church plan as em-
ployees of the church.”); Rollins, 19 F. Supp. 3d at 915 (“Sec-
tion C(ii) merely explains which employees a church plan
may cover—once a valid church plan is established. It does
nothing more.”)
    Other than the Third Circuit, which has concluded as we
have, that a plan established by a religiously-affiliated hospi-
tal is not exempt from ERISA, no other circuit has directly
addressed this question. Until this recent spate of litigation,
most courts evaluating church plans were looking primarily
at whether factually, the institutions were sufficiently affili-
ated with a church, and in doing so, merely glossed over the
statutory language and assumed that the exemption applied
to plans established by church-affiliated agencies. See, e.g.,
Hall v. USAble Life, 774 F. Supp. 2d 953, 958-59 (E.D. Ark.
2011); Thorkelson v. Publ'g House of the Evangelical Lutheran
Church in Am., 764 F. Supp. 2d 1119, 1128-29 (D. Minn. 2011);
Rinehart v. Life Ins. Co. of N. Am., No. C08-5486 RBL, 2009 WL
995715, at *4 (W.D. Wash. Apr. 14, 2009); Catholic Charities of
16                                                   No. 15-1368

Maine, Inc. v. City of Portland, 304 F. Supp. 2d 77, 85 (D. Me.
2004). And indeed, this is how the Fourth Circuit—the only
other circuit to even tangentially address the question—
proceeded. It stated that “a plan established by a corporation
associated with a church can still qualify as a church plan.”
Lown v. Cont’l Cas. Co., 238 F.3d 543, 547 (4th Cir. 2001) but
did so based solely on the language of subsection (33)(C)(i)
without any explanation for the discrepancy with subsection
(33)(C)(A) requiring that the plan be established by a church.
Id. Such an omission violates the primary rule of statutory
construction that a court must give effect to the language of
the statute as a whole. “Whether in dealing with the macro-
cosm of the entire statute or with the microcosm of the par-
ticular subsection before us, we must view the text as a
whole and give effect to all of the statutory language.” U.S.
v. Johnson, 152 F.3d 618, 623-24 (7th Cir. 1998). See also King v.
Burwell, 135 S. Ct. 2480, 2489 (2015) (“Our duty, after all, is
‘to construe statutes, not isolated provisions.’”). In any
event, the Fourth Circuit’s statement was mere dicta, for that
court ultimately decided that the exemption did not apply
because the hospital was not associated with or controlled
by a church. Id. at 548. And in this case, we do not face the
factual question of whether or not the hospital was suffi-
ciently associated with the church to qualify for the exemp-
tion. It is undisputed that the hospital is a church-affiliated
organization and not a church. The only question, therefore,
is whether it can establish a church-plan in the first instance.
    Likewise, the district courts that have concluded that the
exemption can apply to plans established by church-
affiliated organizations (rather than by churches) fail to
make sense of the interplay between subsections (33)(A) and
(33)(C)(i). See, e.g., Medina, 2014 WL 4244012, at *2. (dismiss-
No. 15-1368                                                     17

ing the distinction between “established and maintained” as
a “term of art”); Overall, 23 F. Supp. 3d at 829 (interpreting
the word “includes” in subsection (33)(C)(i) in a manner that
eviscerates the substance of subsection (33)(A)).
    Loyalty to the plain language principle is particularly
important in this case. Advocate wishes to push the meaning
of the exemption to include more organizations, and many
more at that—organizations not contemplated by the prima-
ry definition in subsection (33)(A). ERISA, however, was
written to protect workers who have invested their retire-
ment savings into employer-run financial plans. And be-
cause it “is a ’remedial’ statute [it] should be ‘liberally con-
strued in favor of protecting the participants in employee
benefit plans.’” Kaplan, 810 F.3d at 182 (citing IUE AFL–CIO
Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127
(3d Cir. 1986)); see also John Hancock Mut. Life Ins. Co. v. Harris
Trust & Sav. Bank, 510 U.S. 86, 97 (1993) (while discussing an
ERISA exemption, noting that courts are “inclined, generally
to tight reading[s] of exemptions from comprehensive
schemes of this kind.”).
    Employees of religiously-affiliated hospitals are not im-
mune from the perils of unregulated pension plans. The ami-
ci briefs in support of the defendant-appellants are replete
with examples of hospitals that, after receiving a letter ruling
from the IRS finding that the hospital’s pension plan quali-
fied as a church plan, converted their plans into ones not
governed by the protections of ERISA. Then, when those
hospitals encountered financial trouble, their employees
were left with severely underfunded and uninsured pension
plans. And, like the plan here, because no church had estab-
lished those hospitals plans, there was no church to accept
18                                                  No. 15-1368

responsibility for the fate of the participants’ retirement ben-
efits. See Amicus Curiae Brief of the Pension Rights Center in
Support of Plaintiff-Appellee and Affirmance, p. 11; Brief of
Amici Curiae Americans United for Separation of Church and
State, American Civil Liberties Union, and ACLU of Illinois
in Support of Appellees and Affirmance, pp. 9-10. See also
Brief Amici Curiae of AARP and the National Employment
Lawyers Association (NELA) in Support of Appellees Urg-
ing Affirmance, pp. 12-20 (cataloguing the many ways that
church plans create serious financial risks for employees).
    One need not impute a nefarious motive to the adminis-
trators of these plans in order to recognize the import of the
ERISA protections. Even those plan administrators with the
best of intentions may lack financial acumen or simply have
bad investment luck. ERISA, however, would protect plan
participants from these unintentional harms too.
                                 B.
   Our conclusion that the text is not ambiguous makes re-
sort to statutory history unnecessary. Mohamad v. Palestinian
Auth., 132 S. Ct. 1702, 1709 (2012). Nevertheless, to the extent
that legislative history is relevant to statutory interpretation,
as the district court stated, the legislative history supports
the correctness of the straightforward, rather than expansive
reading of subsections (33)(A) and (33)(C) of Section 1002 of
ERISA. D. Ct. Order at 15 (R. 64, p.15). The limited scope of
the church-plan exemption can be gleaned from the plain
language of the text, but the legislative history may be con-
sidered “to the extent [it] sheds a reliable light on the enact-
ing Legislature’s understanding of otherwise ambiguous
terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
No. 15-1368                                                    19

546, 568 (2005). In this case, the legislative history sheds reli-
able and helpful light.
    As we have explained, the initial version of the language
in ERISA subsection (33)(A), enacted in 1974, exempted
plans created and maintained by churches so as to avoid any
potential entanglement issues between the government and
the churches. S. Rep. No. 93-383 (1973), reprinted in 1974
U.S.C.C.A.N. 4889, 4965 (exempting church plans to avoid
“examinations of books and records” that “might be regard-
ed as an unjustified invasion of the confidential relation-
ship … with regard to churches and their religious activi-
ties.”) The 1974 legislation permitted pre-existing plans es-
tablished and maintained by churches to cover employees of
church-affiliated agencies, but only temporarily. That provi-
sion was set to expire at the end of 1982. 29 U.S.C. §§
1002(33)(A), (33)(C) (1974). See PL 93-406, § 3, 88 Stat. 829
(Sept. 2, 1974). The religious community had two distinct
concerns about the 1974 definitions: (1) The sunset provision
would preclude church plans from including employees of
church-affiliated agencies after 1982 and therefore create a
situation in which a church would be required to have one
exempt plan for church employees and a separate non-
exempt plan for the church-affiliated employer (the affiliated
entity problem); and (2) the requirement that all church
plans be “maintained” by a church concerned certain
churches that used distinct financial services organizations,
which were separate from but controlled by the denomina-
tion, to maintain and administer their pension plans (the
pension board problem). To address these concerns, Senator
Herman Talmadge and Representative Barber Conable co-
sponsored amendments to the church plan definition, which
were enacted as part of the Multiemployer Pension Plan
20                                                 No. 15-1368

Amendments Act of 1980, Pub. L. No. 96-364, 94 Stat. 1208
(Sept. 26, 1980). This 1980 amendment remains current law.
    To address the pension board problem—that is, what
types of entities could maintain a church plan—the legisla-
tors proposed and Congress adopted language that amend-
ed the meaning of “a plan established and main-
tained … by a church” to “include [] a plan maintained by an
organization … the principal purpose or function of which is
the administration or funding of a plan or program for the
provision of retirement benefits or welfare benefits, or
both … if such organization is controlled or associated with
a church.” Id. at § 407 (emphasis supplied). Thus a church-
established plan could be maintained by either a church or a
church affiliated “principal purpose” entity, such as a pen-
sion board.
    The original proposed version of subsection (C)(i) ex-
panded the church plan exemption to “include” plans “estab-
lished and maintained” by “principal purpose” entities. 124
Cong. Rec. 12,107 (May 2, 1978) (statement of Rep. Conable).
This would have allowed a pension board (or possibly other
affiliated organizations) to establish a church plan on its
own. The final version, however, omitted the words, “estab-
lished and,” before the word “maintained” when discussing
the church-affiliated entities, thus purposefully leaving with-
in the exemption only those plans established by a church.
This critical difference between the final text and earlier
drafts of the 1980 amendment supports the theory that the
narrow language was intentional. “Where Congress includes
limiting language in an earlier version of a bill but deletes it
prior to enactment, it may be presumed that the limitation
was not intended.” Russello v. U.S., 464 U.S. 16, 23-24 (1983).
No. 15-1368                                                  21

In other words, the additional language added in subsection
(33)(C)(i) resolved the logistical problem that many churches
faced when they wanted to establish church plans but were
not necessarily interested in or qualified to administer those
plans themselves and therefore wished to engage a third
party to administer or maintain the plan. Viewed in this con-
text, Congress’s purposeful choice to limit the wording of
subsection (33)(C)(i) to plans maintained by eligible organi-
zations makes logical sense and its omission of those estab-
lished by such entities appears deliberate.
    The legislative comments support the notion that the leg-
islature had no intention of altering the original definition of
a church plan as one established and maintained by a
church. When introducing the legislation, Senator Talmadge
stated that the amendment would “retain the definition of
church plan as a plan established and maintained for its em-
ployees by a church” but would clarify that “a plan or pro-
gram funded or administered through a pension board …
will be considered a church plan.” 124 Cong. Rec. S.3172,
16,523 (1973) (Sen. Talmadge). And various committee re-
ports emphasized that the language was added merely to
clarify that a church plan could be maintained by a pension
board. See Rollins, 19 F. Supp. 2d at 917 (collecting committee
comments demonstrating that it was the intention of Con-
gress to maintain the original definition of a church plan and
simply clarify that pension boards could maintain those
church-established plans). In sum, the history explains that
the purpose behind subsection (33)(C) was to permit church-
es to delegate the administration of their retirement plans,
not to broaden the scope of who could establish those plans.
See id. at 916.
22                                                No. 15-1368

    To address the affiliated agency problem, the legislators
proposed language that amended the definition of “employ-
ee” to “include[] … an employee of an organization …
which is controlled by or associated with a church.”
29 U.S.C. § 1002 (33)(C)(ii)(II). The result was that a church
plan—which is still defined as a “plan established and main-
tained … for its employees by a church,” (§ 1002 (33)(A)),
could now include employees of church-associated organi-
zations indefinitely. This addressed concerns that churches
would have to create two separate plans—one for churches
themselves and another for church-affiliated agencies—and
addressed concerns about treating religious clergy and lay
employees differently, or the difficulties that might ensue
when clergy move from job duties in a church to those in an
affiliated agency and back again. Thus subsection
(33)(C)(ii)(II) allowed churches to include both their church
employees and their affiliated-organization employees in the
same ERISA-exempt plan, but otherwise “retained the basic
definition of church plan as a plan established and main-
tained for its employees by a church.” 124 Cong. Rec. 12107
(May 2, 1978) (Rep. Conable). As Senator Talmadge ex-
plained, “[u]nder the provisions of our proposals, … a
church plan shall be able to continue to cover the employees
of church-associated organizations. There will be no need to
separate the employees of church agencies from the church
plan.” 125 Cong. Rec. 10,052 (May 7, 1979) (Sen. Talmadge).
    Advocate and the amici supporting it draw our attention
to the commentary leading up to the amendments in which
legislators and representatives of many religious institutions
explained how church-affiliated organizations performed
roles important to the functions of the church. For example,
Senator Talmadge stated, “Church agencies are essential to
No. 15-1368                                                   23

the church’s mission. They care for the sick and needy and
disseminate religious instruction. They are, in fact, part of
churches.” 125 Cong. Rec. 10,052 (May 7, 1979) (Sen.
Talmadge). This language surely conveys why some legisla-
tors thought it important to continue to allow employees of
church-affiliated organizations to be included in the same
plans as the church, but it does nothing to support a theory
that such organizations should be allowed to establish their
own church plans. See Kaplan, 810 F.3d at 184 (clarifying that
Senator Talmadge’s language regarding the importance of
church-affiliated organizations was focused on correcting
the sunset provision for affiliated-agencies and was not
meant to allow those agencies to establish church plans).
    In sum, although the legislative record clearly supports
an intent to continue to allow employees of church-affiliated
organizations to be included in church plans, no part of that
record suggests an intent to allow a church-affiliated corpo-
ration to claim the exemption for a plan unless the church
itself has established the plan, as required by the original
definition of a church plan in subsection (33)(A) of ERISA.
    The final piece of Advocate’s statutory argument focuses
on a treasury regulation. Advocate argues that the addition
of the amended ERISA statutory language rendered the fol-
lowing treasury regulation redundant: “a plan which other-
wise meets the provisions of this section shall not lose its sta-
tus as a church plan because of the fact that it is adminis-
tered by a separately incorporated fiduciary such as a pen-
sion board or a bank.” 26 C.F.R. § 1.414(e)-1. It is true that
the statute is duplicative, but although courts have long rec-
ognized that a statute should not be construed to render oth-
er statutory words or phrases redundant, it has never been
24                                                 No. 15-1368

the rule that a regulation cannot be redundant with a statute.
See, e.g., Linares Huarcaya v. Mukasey, 550 F.3d 224, 229-30 (2d
Cir. 2008) (“it is unclear whether the statutory principle not
to render a term redundant even applies to deference to an
agency regulation.”)
    In sum, Advocate’s arguments regarding the legislative
history and purpose of the ERISA amendments focus on the
fact that many church-affiliated organizations carry on the
work of the church (to care for the sick and needy, for exam-
ple) and are thus integral to the mission and purpose of the
church. Neither the plaintiffs nor the court below, nor this
court quarrel with this view. Because of this shared mission,
Advocate argues, church-affiliated-organization employees
ought to be allowed to participate in the church’s retirement
plan. And indeed they are. The ERISA exemption does not
hinder a church’s ability to include its affiliated-organization
employees in its plan in any regard. Church-affiliated-
organization employees may participate in the same retire-
ment plans as church employees with no further distinc-
tions. Moreover, churches may have outside organizations
maintain their plans. The only requirement is that a church
must establish the plan in the first place.
                                C.
    Advocate also asks this court to give deference to the IRS
interpretation of a church plan. After Congress passed the
ERISA amendments, the IRS began distributing letter rulings
in which it issued ERISA exemptions to plans established by
church-affiliated organizations. See R.74-2, pp. 8-31 (collect-
ing IRS private ruling letters). The IRS issued both of Advo-
cate’s predecessor hospitals a private letter ruling (on March
7, 1991 to Evangelical Association Employees’ Pension Plan
No. 15-1368                                                   25

(R.35-11) and on November 3, 1998, to the Lutheran General
Plan (R.35-12). Advocate merged these two plans into the
existing plan on December 31, 1998. It is tempting indeed to
turn to the interpretation made by the agency charged with
administering these tax exemptions to settle this dispute, but
we can do so only when the opinions of that agency are ex-
pressed after a “formal adjudication or notice and comment
rulemaking.” Christensen v. Harris Cnty., 529 U.S. 576, 587
(2000). A court does not owe the same deference to an agen-
cy opinion expressed in a letter that it would to an agency
interpretation that emerges through formal processes. Id. In-
deed, even the 1982 IRS General Counsel Memorandum that
Advocate cites states, “This document is not to be relied up-
on or otherwise cited as precedent by taxpayers.” 1983 WL
197946, at *6 (Nov. 2, 1982). “[I]nterpretations contained in
formats such as opinion letters are ‘entitled to respect,’ …
but only to the extent that those interpretations have the
‘power to persuade.’” Christensen, 529 U.S. at 587 (citing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). In this case,
the IRS position came in a general counsel memorandum
and through individual letter rulings and not through for-
mal adjudication and rulemaking. See Christensen, 529 U.S. at
587. Moreover, the general counsel memorandum also con-
flicts with the plain language of the statute and wholly fails
to consider the relationship between definitions of a church
plan in subsections (33)(A) and (33)(C)(ii).
    The fact that the IRS private letter rulings have been
“long standing” and abundant does not alter our conclusion.
Congressional acquiescence to an agency’s statutory con-
struction may be inferred only where there is “overwhelm-
ing evidence that Congress considered and failed to act upon
the precise issue before the court.” Rapanos v. U.S., 547 U.S.
26                                                  No. 15-1368

715, 750 (2006) (internal citation omitted). “Congressional
silence lacks persuasive significance … particularly where
administrative regulations are inconsistent with the control-
ling statute.” Brown v. Gardner, 513 U.S. 115, 121 (1994) (in-
ternal citations omitted). There is no evidence that Congress
was aware of the agency’s interpretation and acquiesced. We
conclude, therefore, as did the district court, that the IRS let-
ter rulings are not persuasive and we owe them no defer-
ence.
                                D.
     Each party also makes a claim under the First Amend-
ment. Advocate alleges that by finding that only a church
can establish a plan, the district court has construed the stat-
ute in a way that allows the government to define what a
church is and how it should structure its mission. The plain-
tiffs (buttressed by Amicus Curiae Freedom From Religion
Foundation) assert that any exemption at all for church plans
violates the Constitution by favoring religious adherents
over non-adherents. See Bd. of Educ. v. Grumet, 512 U.S. 687,
696 (1994). We need not address the plaintiffs’ Constitutional
argument, as our interpretation of the statute provides the
plaintiffs with all of the relief they request.
    The problem with Advocate’s constitutional claim—that
the government’s interpretation allows the government to
define what is and is not a church—is that it equally dooms
Advocate’s own interpretation of the statute. In order for a
church-affiliated organization to take advantage of the ex-
emption, the government must still determine whether the
entity with which that organization is claiming affiliation is
indeed a church. And in determining whether that allegedly
affiliated organization is indeed sufficiently associated with
No. 15-1368                                                     27

the church, the courts invariably dig deeply through the
workings of the church and its relationships with the affiliat-
ed agency. See, e.g., Lown, 238 F.3d at 548; Chronister v. Baptist
Health, 442 F.3d 648, 653 (8th Cir. 2006); Thorkelson, 764
F. Supp. 2d at 1127; Catholic Charities of Maine, 304 F. Supp.
2d at 85; Goetz v. Greater Georgia Life Ins. Co., 554 F. Supp. 2d
831 (E.D. Tenn. 2008).
    In any event, Congress has made these distinctions on
numerous occasions before, distinguishing between church-
es and other religious organizations without constitutional
concern. See Walz v. Tax Comm'n of City of New York, 397 U.S.
664, 672-73 (1970) (upholding the constitutionality of a prop-
erty tax exemption for churches); U.S. v. Jeffries, 854 F.2d 254,
258 (7th Cir. 1988) (applying criteria to distinguish a church
from other forms of religious enterprise); Found. of Human
Understanding v. U.S., 614 F.3d 1383, 1389 (Fed. Cir. 2010)
(noting, the “generally accepted principle” that Congress
may distinguish between churches and other religious or-
ganizations). Indeed the U.S. Code is filled with provisions
that distinguish between churches and other religious enti-
ties. See, e.g., 26 U.S.C. § 7611 (restricting IRS inquiries into a
church or “convention or association of churches,” but not
into other religious entities); 26 U.S.C. § 170(b)(1)(A)(i) (al-
lowing deductions for charitable contributions to churches);
26 U.S.C. § 514(b)(3)(E) (applying special rules for debt-
financed properties when those properties belong to a
church). In short, “religious employers … have long enjoyed
advantages (notably tax advantages) over other entities …
without these advantages being thought to violate the estab-
lishment clause. Univ. of Notre Dame v. Sebelius, 743 F.3d 547,
560 (7th Cir. 2014) cert. granted, judgment vacated on other
28                                                 No. 15-1368

grounds sub nom. Univ. of Notre Dame v. Burwell, 135 S. Ct.
1528 (2015).
    Advocate argues that our interpretation results in church
plan status being based on a church’s structure and govern-
ance and that it discriminates against denominations. It is
true that one religious denomination cannot be preferred
over another. Larson v. Valente, 456 U.S. 228, 244 (1982). But
“[t]he establishment clause does not require the government
to equalize the burdens (or the benefits) that laws of general
applicability impose on religious institutions. Sebelius,
743 F.3d at 560. And so, for example, “[a] law exempting
churches or other religious property from property taxes
will benefit religious denominations that own a great deal of
property, to the disadvantage of denominations with modest
property holdings (such as storefront churches). This une-
qual effect does not condemn the law.” Id. In fact, it is not so
much the structure of the church as the structure of the
church-affiliated organization that matters here. Any church
that establishes a plan can claim shelter within the ERISA
exemption no matter what religion, structure or denomina-
tion. That plan can be maintained by the church itself or
maintained by a pension board or other outside organiza-
tion. A church can also establish a church plan for any of its
affiliated organizations no matter what the religion or de-
nomination, and that plan can be maintained by the church
itself or maintained by a pension board or other outside or-
ganization. The church plan definition is available to all
churches of all religious denominations and structures.
   Because we have concluded that Advocate’s benefit plan
does not meet the definition of an ERISA church-plan ex-
No. 15-1368                                          29

emption, we need not resolve any of Advocate’s remaining
issues. The opinion of the district court is AFFIRMED.
30                                                    No. 15-1368

    KANNE, Circuit Judge, concurring. Because I am persuad-
ed that our interpretation of this statute does not compel
church-affiliated organizations to operate in a way that vio-
lates their religious beliefs, I join the majority opinion in full.
At bottom, this statute requires a church-affiliated organiza-
tion to use a particular corporate form for its retirement
plans in order to receive the benefit of being exempt from
ERISA. I have doubts there is a constitutional or statutory
right to a retirement plan using a particular corporate struc-
ture. See Kaplan v. Saint Peter’s Healthcare Sys., 810 F.3d 175,
186 (3d Cir. 2015).
    I am aware, however, of religious concerns that have
arisen from other statutes compelling entities to provide ser-
vices that violate their religious beliefs. See Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Univ. of Notre Dame
v. Burwell, 786 F.3d 606, 626 (7th Cir. 2015) (Flaum, J., dis-
senting). I write separately to emphasize that this is not one
of those cases. For that reason, I am comfortable joining in
the majority’s well-reasoned opinion.
