Just 13 dioceses joined the lawsuit against the Obama administration. Why?
There are 195 Catholic dioceses and eparchies in the United States. Why didn’t more sign on? Where’s Chicago? Boston? Atlanta? Why haven’t any California dioceses joined the suits? Kevin Clarke of America has an interview with Bishop Stephen Blaire of Stockton, California — chairman of the USCCB Committee on Domestic Justice and Human Development — who offers an intriguing view:
Bishop Blaire acknowledged that “there is a concern among some bishops that there ought to have been more of a wider consultation” regarding overall strategy on the religious liberty question. “And I say that with some hesitation,” he added, “because the California bishops very strongly support whatever action has to be taken to promote religious liberty.
“The question is what is our focus as bishops and that we have opportunity to clarify our focus and that we are all in agreement on focus.” He said some bishops appear to be speaking exclusively on the mandate itself “that it is imposed … as a violation of [individual] conscience.”
He said there are other bishops who see the crucial question as the religious liberty of the church itself and its freedom “to exercise her mission through her institutions.” He added, “I think that it’s important at meeting that there be a broader discussion of these issues [at the June U.S. bishops meeting in Atlanta]” so that U.S. bishops can clarify their message “and not allow it to be co-opted.”
[...]
Bishop Blaire believes discussions with the Obama administration toward a resolution of the dispute could be fruitful even as alternative remedies are explored. He worried that some groups “very far to the right” are trying to use the conflict as “an anti-Obama campaign.”
Read the rest right here.
Tags: contraception, HHS, USCCB
The feast of Saint Rita of Cascia, patron of impossible causes.
A reason to hope.
Grant, do you agree that this interview explodes the theory that the USCCB is the one coordinating the legal challenges?
If not the USCCB, then who? The law firm is the visible thread that connects the separate actions.
Also: if I may say so, the semi-annual meeting of bishops seems a charming vestige of 19th century church governance. Why wait until June to deliberate as a body? I write as someone who spends virtually (word choice intentional) his entire day in meetings with people around the globe – and on a lot of days, I never leave my home. The technology to do this is so ubiquitous that the bishops ought to be able to hit the opening gavel for an official USCCB session with 48 hours’ notice. Someone in their chanceries should be able to show them how to click on a Webex link and turn up the volume on their computer so they can hear.
No, Jim, I do not, because the USCCB spokeswoman told me that when it comes to the lawsuits the conference is “serving in a coordinating and facilitating role.” What you’re missing here is the fact that a bishop is complaining about the way the Ad Hoc Committee on Religious Liberty is handling this campaign.
Given the proclivities of the Ninth Circuit, just how preferable would it be to bring a suit there? Not very.
In the cases of coordinated court action, there is a determination as to what the best fora are. Suits filed by each and every diocese in each and every jurisdiction would be a duplication of efforts and wholly unnecessary. As it is, the suits have been brought in a multiple of jurisdictions throughout the country. Those dioceses that have not filed suit themselves will likely file amicus briefs in support in those cases.
“[Bishop Blaire] worried about possible legislative and judicial repercussions because of it in California. He explained that California diocese had already gone unsuccessfully down the judicial path in challenging government mandates on contraception and insurance coverage.”
So, there have already been lawsuits filed in California.
That being so — just exactly what is the point in asking why the California dioceses and others did not join in this litigation?
And Bishop Stephen Blaire is also the elected USCCB chair of the bishops’ committee on Domestic Policy. This whole matter really belonged in his committee. But for some reason Cardinal Dolan decided to set up an hoc committee on religious liberty under the since newly-installed Archbishop Lori of Baltimore. (No coincidence there. And to think he is JOHN CARROLL’S fifteenth successor. As well as the successor to Francis Patrick Kenrick, Martin John Spalding, and James Gibbons.)
Bender – I assume Bishop Blaire was referring to the Catholic Charities contraception challenges. Were those federal court challenges? I thought that was state law.
John Page, Don’t forget Cardinal Lawrence Sheehan. A great one.
Here’s an issue on the timing noted by George Weigel
Even those entities to which the administration extends this “safe harbor,” however, remain vulnerable to private action to enforce the mandate (affording Ms. Sandra Fluke her second 15 minutes of fame?). Thus it would seem important that one part of the litigation strategy be the pursuit of a preliminary injunction that would prevent the mandate from going into effect this August.
Also, not everybody needs to file a lawsuit to benefit from one. And too many filers makes the logistics and decision making ponderous.
Tom Blackburn:
For sure!
(For “an hoc committee” above, READ “an ad hoc committee”)
Would local governments’ position vis-a-vis Obamacare and the HHS mandate be any kind of factor in some dioceses decisions to join the suit?
If a diocese had other campaigns going- like an effort to get public funds for Catholic schools, or if it were dealing with sensitive court cases (like high profile abuse cases), would those be any kind of a factor in whether to sign on?
After reading this and the other thread, I get a very good sense that not many of the contributors or commentators are practicing lawyers or have much experience dealing with litigation. There are lots and lots of circumstances and issues that attorneys consider when selecting which plaintiffs to have as named parties in a lawsuit and which forum to select in which to bring a complaint. Based on past practices by some dioceses regarding health plans and contraception coverage (Madison is one that has been brought up here in the past) and the makeup of the judges in the various district/circuit courts, there are likely very legitimate reasons to not include all of the dioceses.
Jim Pauwels: FWIIW, I’ve seen a famous Catholic theologian claim in print that the Holy Spirit is present when Catholic bishops meet together in a meeting. I kid you not.
But I’ve never seen a Catholic theologian claim that the Holy Spirit is present when Catholic bishops interact via telephone or email.
I guess that the Holy Spirit is kind of particular about being present with the Catholic bishops only in live gatherings with one another.
The whole thing should never have gone to the courts. Once the DHHS received so many thousands of negative comments to the Preliminary notice of the rule the agency should have sent it back to committee for more work. That’s normally what happens when something stirs that much controversy. Maybe the second time through the ultralibs in DHHS wouldn’t have been able to stack the committee with so many people sympathetic to their interpretation of the law. The rule being implemented is not reflective of what Congress had intended by the legislation and what President Obama had promised. The courts should have the flexibility to keep the law but throw out the implementation.
How much is all this going to cost?
This was just received:
http://www.uscatholic.org/blog/2012/05/government-strangling-churchs-ministries-hhs-mandate-cardinal-dolan-thinks-so
Is the government “strangling” the church’s ministries with the HHS mandate? Cardinal Dolan thinks so
Tuesday, May 22, 2012
By Bryan Cones
ShareThis
Watching Archbishop Dolan on the CBS This morning, I was a little surprised with how inflammatory his rhetoric was about the HHS mandate. In between his jocular exchanges with “Charlie and Paula” about the green room bagels were pretty strong accusations that the “straitjacketing, handcuffing” exemption for religious institutions is “strangling” (at least four times) and “choking” (at least twice) the church’s ministry.
Dolan was eager to make clear that the bishops were worried about religious liberty around issues of immigration, human trafficking, and soup kitchens–suggesting that these good works are somehow endangered by this controversy, and forgetting that the current administration has actually awarded more funding to Catholic-affiliated organizations for these works than its predecessor. (Sounds rather more like the administration is trying to drown us–in money.)
Dolan goes on to misrepresent even the original exemption the administration carved out–that an exempt organization can employ and serve “only” Catholics, which it never said–and then goes on to suggest that it is “almost like we’re being punished because we serve a lot of people”–as if Catholics are the only people doing just that. Poor us.
All of this is a great communications strategy–and you don’t say “strangling” over and over unless someone has coached you to say it–but I still fear that this is a problematic approach for the hierarchy in an election year. There are many possible avenues of response, several of which do not require appearances on morning talk shows.
I’m not the only one who doesn’t seem fully on board with this particular tack into the winds of presidential politics: Bishop Stephen Blaire of Stockton, California is expressing reserviations on behalf of some of his state’s bishops, and I wonder if there aren’t others who fear the hijacking of the religious liberty question by those who wish to defeat the president in November. (h/t to Kevin Clarke at America)
…………………………………………………………………………….
But I just can’t believe the stupidity of all of this. It is just so phony. This simply is NOT an issue of religious liberty.
This is the bishops trying to create a theocracy within a democracy. When your hospitals and schools receive money from a state or fed. government no matter how much or how little they become a more than just a Church institution. At that point the government has a duty to protect the employees of that institution the same way it treats and protects all other employees. That is what Obama has done with his legislative compromise.
But some bishops just want more; they want to dictate the coverage that the institutions employees will get. They do not nor should they have that authority. They are not the employer. If anybody’s religious liberty is being violated it is those who work in the institution who do not subscribe to the Catholic churches position. If anyone should have the right to opt out it is the individual employee. If course you do not see the bishops advocating that. They want to control everyone. Hypocrites all.
Is there a coordination going on with the new religious movie For Greater Glory, with the bishops push against “secularization” and “religious freedom?” This movie is about Catholics who fought the Mexican Government which was anti-clerical for “religious liberty.” Tell me what was so great about this war and how is Mexico today? Who knows with this Crusade mentality we might be fighting in the streets. The bishops seem to be in a bellicose frame of mind…….The movie is due out June 2 which apparently coincides with the bishop’s June push to tell everyone how persecuted they are in the US. Wow.
Those in attendance, at the VIP premiere were: Cardinal Sean P. O’Malley, from the Archdiocese of Boston, Very Rev. Kevin O’Leary, rector of the Cathedral of the Holy Cross in Boston, Bishop Octavio Cisneros, auxiliary from the Diocese of Brooklyn, Very Rev. Andrew Small, OMI, the national director of the Pontifical Mission Societies, the Sisters for Life, Supreme Knight Carl Anderson, Congressman Chris Smith (R-NJ), and Mr. Carlos Sada, the Consul General of Mexico.
“FWIIW, I’ve seen a famous Catholic theologian claim in print that the Holy Spirit is present when Catholic bishops meet together in a meeting. ”
Thomas – I’m sure she’s there – but that doesn’t mean that she approves of everything they come up with :-)
But I just can’t believe the stupidity of all of this. It is just so phony. This simply is NOT an issue of religious liberty.
John Borst,
Catholic adoption agencies have been shut in several states for refusing to place children with gay couples. Nothing phony about that. And it doesn’t have anything to do with money; they could not get a state issued license even if the funding was 110% private sources. Now this HHS mandate might result in the secularization of others. Sure seems like a religious liberty issue to me. The ‘government money’ argument is an obfuscation and distraction.
“What you’re missing here is the fact that a bishop is complaining about the way the Ad Hoc Committee on Religious Liberty is handling this campaign.”
Grant, thanks for this comment. I went back and re-read the Keven Clarke interview using your interpretive key. You may be right that it is the Ad Hoc Committee on Religious Liberty that is coordinating the legal action (I think a number of us commented when membership was announced that it consisted mostly of lawyers). But Blaire’s comments are so guarded and elliptical that it’s difficult or impossible to tell what or whom he’s referring to – at least, I found it so. Clarke has him referring to “some national groups” that would like to transform this into a contraception battle, or “some groups ‘very to the right’” that would like to turn the campaign into an anti-Obama political strategy. I take it that these references are not to groups or blocs of bishops.
I did think this statement is interesting: “‘The question is what is our focus as bishops and that we have opportunity to clarify our focus and that we are all in agreement on focus.’ He said some bishops appear to be speaking exclusively on the mandate itself ‘that it is imposed … as a violation of [individual] conscience.’ He said there are other bishops who see the crucial question as the religious liberty of the church itself and its freedom ‘to exercise her mission through her institutions.’”
What could Bishop Blaine mean that the “crucial question” is the church’s freedom “to exercise her mission through her institutions”? The HHS mandate, in and of itself, wouldn’t prevent church institutions from pursuing their mission. We already know that a number of institutions continue to pursue their missions while complying with state mandates that are similar to the HHS mandate. But if the church concludes that complying with the HHS mandate is irreconcilable with Catholic identity, then the church would seriously look at the end-game options that Cardinal George has identified: selling the institutions, or disassociating them from the church, or closing them, or paying government fines that would render them financially insolvent.
Jim, the fines are still cheaper than paying for insurance. They would not render insolvent any employer that wasn’t already on the road to ruin. [Edited for sense. Thanks, autocorrect.]
I guess this Gallup Poll result is why the bishops feel it’s important to frame the issue as religious freedom rather than birth control:
“Most Americans — including Catholics — believe birth control is morally acceptable, according to a new survey Tuesday.
While 89 percent of all respondents to a Gallup poll said they found contraception morally acceptable, 82 percent of Catholic respondents agreed; 8 percent of Americans and 15 percent of American Catholics said birth control is morally wrong.
Republicans and Democrats were pretty unified on the issue: 87 percent of GOP respondents approved of contraception, versus 90 percent of Democrats.
Read more: http://www.politico.com/news/stories/0512/76623.html
If over 80% of us Catholics do not object to birth control, does that undermine any argument that the mandate violates the religious freedom of the Church? I know internally we’re hierarchical, and a few get to decide for the many, but externally, in a democracy, wouldn’t the fact that a super-majority of Catholics have no objection to contraception undermine any conscience claims to the contrary? I’m having trouble articulating this, but why wouldn’t the government in a democracy view the Catholic institutional position as being that of the majority of Church members?
Jim, the fines are still cheaper than paying for insurance. They would not render insolvent any employer that wasn’t already on the road to ruin
Grant,
IMHO your statement mis-states the underlying economics. While you are correct that the fines are less than health insurance, you are only considering one side of the ledger. The other is the compensation package received by the employees. Eliminating health insurance makes the compensation package worth much less to an employee. Fully passing through the employers ‘savings’ to the employee still makes the package worth less because the compensation is now taxable to the employee. A quick example. With health insurance worth $10k per year and fine of $2k, the apparent ‘savings’ is 8k. When the employer pays this to the employee (40% tax rate including Social Security) it only puts 4.8k in the employees pocket. The employee’s compensation is 5.2k lower than previously. To make the employee neutral, the employer would have to raise the pre-tax compensation by 8.7k. Total increased cost to the employer is 8.7k plus the 2k fine or 10.7k. Enough make many viable institutions non-competitive, I think.
Bruce,
Even given your example, with a highly compensated employee in the 40% federal bracket including FICA, and all of your assumptions about making the employee whole, you are talking about of 35 cents per hour in compensation. Seems a small price for keeping a clean conscience.
“[Bishop Blaire] worried about possible legislative and judicial repercussions because of it in California. He explained that California diocese had already gone unsuccessfully down the judicial path in challenging government mandates on contraception and insurance coverage.”
So, there have already been lawsuits filed in California.
Bender, I believe Bishop Blaire was referring back about ten years. In 2004, the California Supreme Court ruled that it was not unconstitutional for a state law to require employers to provide contraception coverage and limit exemptions by the same “four-pronged” test used in the HHS mandate. The U.S. Supreme Court refused to hear an appeal of that decision.
That suit was bought by Catholic Charities of Sacramento, which made most of the same arguments proposed now. You can read the Court’s decision at:
http://caselaw.lp.findlaw.com/data2/californiastatecases/s099822.pdf
Grant, your most recent reply to me seems much clearer than it did last night :-)
How much are the proposed fines?
Regarding the “four-pronged test”, the Court did point out that the requirement that the organization serve primarily persons of it’s own faith was “problematic”
“How much are the fines?
$2,000 per employee for employers with 50 or more employees. Nothing for smaller companies. There is a disagreement over whether it is a penalty or a tax to support subsidies the government will end up paying to provide insurance coverage for lower-income people who don’t get it from their employer.
Just so I’m clear: the $2,000 fine is for dropping health insurance entirely, correct? It is not a fine that would be levied against an employer who continued to provide health insurance but, in defiance of the HHS mandate, did not subsidize contraceptive coverage? (Perhaps in a self-insured scenario?) What would an employee’s remedy be in that scenario? A court order?
I run a small (relatively) business and we will seriously consider dropping health insurance and paying the fine if the insurance pools seem a viable option for employees. We can’t afford to continue to meet the escalating costs that we have seen over the past several years.
The cheapest way out for an employer is to not provide any health insurance at all and pay the $2,000 annual charge. Providing insurance that doesn’t include all the required benefits incurs a very hgh penalty. I haven’t looked it up right now but a figure of $100/day per employee sticks in my mind.
Self-insured plans fall under ERISA, so an employee or a union could complain to the Department of Labor, which would investigate and pursue the employer.
In order to avoid the $2,000 penalty, the employer has to report on its income tax forms that it is providing the required insurance. I haven’t seen language for that report but i assume it would unearth that you were omitting some of he required coverage – unless you perjured yourself.
The $100/day figure comes from this Congressional Research Service report which says “it seems possible” that it could apply” – so it isn’t guaranteed.
http://energycommerce.house.gov/media/file/pdfs/022412crsreport.pdf
jbruns,
I think you made a math error. There are about 2000 working hours in a year, so $10,700 in costs works out to $5.35 per hour. And a 40% tax bracket is not that unusual. Social Security is 7.65%, State income taxes vary but 6% is common at incomes of 30-40k, and Federal Income Taxes are 25% at those levels. Also, I did not include the 7.65% of Social Security paid by the employer.
John Hayes – thanks for those answers.
@Bruce: you wrote: Now this HHS mandate might result in the secularization of others.
What do you mean by “others” -adoption agencies, hospitals, schools…some or all. At what point do equality rights trump the religious right of a community to discriminate against a group of citizens.
The Church has NO right under a so called religious liberty clause to discriminate against gays adopting children. The State does have a law which prevents the Mormon’s belief in having more than one wife. It also trumps the Jehovah Witness ban on transfusions. So how is the gay adoption issue any different?
I like Irene’s thinking. This whole issue a late out the gate, back door attempt to implement the discredited Humanae Vitae policy. The Bishops should be ashamed of themselves.
As you can probably tell I have simply lost all respect for them and they just keep making it worse and worse on both sides of our mutual border.
The Church has NO right under a so called religious liberty clause to discriminate against gays adopting children.
John Borst
Under your view, the first amendment of the constitution is of no force and effect. Even then, the adopted children have a God-given natural right to a female mother and a male father which neither the state nor the gay ‘parents’ have a right to abrogate. There is a God-given right to health care and no right (according to the Catholic Church definition of marriage) to multiple wives. Anti-discrimination is not the highest good in the world.
I expect that what you think is only a secondary concern of the Bishops. I honestly believe they are trying to discern and follow the will of God which in todays gospel Christ described as
‘I gave them your word, and the world hated them,
because they do not belong to the world
any more than I belong to the world’