Notre Dame’s suit
I have been struck by how often and how quickly criticisms of the bishops for their insistence that religious liberty is at stake in the matter of the government’s contraception-mandate have attributed other motives to their actions and statements, and Fr. Jenkins at Notre Dame has not been spared similar accusations. So I read Notre Dame’s suit and would like to bring forth two sections of it.
First, as quoted in Notre Dame’s suit, the regulatory “religious employer” exemption contains this definition of terms:
For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. Id. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)).
Second, here in full is the heart of Notre Dame’s claim that religious liberty is being compromised by the government’s regulation:
C. The US. Government Mandate’s Religious Employer Exemption Excessively Entangles the Government In Religion, Interferes With Religious Institutions’ Religious Doctrine, and Discriminates Against and Among Religions.
179. The U.S. Government Mandate’s religious employer exemption further excessively entangles the Government in defining the religious tenets of each organization and its employees and beneficiaries.
180. In order to determine whether Notre Dame—or any other religious organization— qualified for the exemption, the Government would have to decide Notre Dame’s “religious tenets” and determine whether “the purpose” of the organization is to “inculcate” people into those tenets.
181. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that Notre Dame ultimately employs and educates.
182. The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are “share[d].”
183. Regardless of outcome, this inquiry is unconstitutional, and Notre Dame strongly objects to such an intrusive governmental investigation into its religious mission.
184. The religious employer exemption is based on an improper Government determination that “inculcation” is the only legitimate religious purpose.
185. The Government should not base an exemption on an assessment of the “purity” or legitimacy of an institution’s religious purpose.
186. By limiting that legitimate purpose to inculcation, at the expense of other sincerely held religious purposes, the U.S. Government Mandate interferes with religious autonomy. Notre Dame has the right to determine its own religious purpose, including religious purposes broader than inculcation, without Government interference and without losing its religious liberties.
187. Likewise, the exemption seeks to improperly limit the definition of legitimate religious organizations to those who primarily employ and serve “persons who share the religious tenets of the organization.” 45 C.F.R. § 147.130(a)(iv)(B)(2)-(3). This is inconsistent with the definition of religion under the Constitution and RFRA.
188. Defining religion based on employing and serving primarily people who share the organization’s religious tenets directly contradicts Notre Dame’s sincerely held religious beliefs regarding its religious mission to serve all people, regardless of whether or not they share the same faith.
189. The U.S. Government Mandate and its extremely narrow religious employer exemption discriminate against Catholic religious institutions.
190. Most obviously, as an educational organization under Section 170(b)(1)(A)(ii) of the Internal Revenue Code, Notre Dame appears to be ineligible for the exemption.
191. The U.S. Government Mandate targets Notre Dame precisely because of its religious opposition to abortifacients, sterilization and contraception.
192. The religious employer exemption targets Notre Dame precisely because of its commitment to educate, serve, and employ people of all faiths.
193. Notre Dame cannot be forced to give up its beliefs on abortifacients, sterilization or contraception, nor its devotion to serving all mankind, without violating its religious beliefs and compromising its religious purpose.
194. The U.S. Government Mandate and its extremely narrow religious employer exemption discriminate among religions. The U.S. Government Mandate favors religions that do not oppose abortifacients by putting the Government imprimatur on those beliefs as correct.
195. Similarly, the religious employer exemption favors religions that do not believe in serving all humanity, by exempting them from its requirements.
196. As a result of such discrimination, the U.S. Government Mandate is subject to the strictest scrutiny, under the Constitution, as well as RFRA.
I have four questions: 1) Where did the government get its definition of a “religious employer”? 2) Does Notre Dame’s assessment of the threat to religious freedom differ from that of the bishops except for the obvious differences its university-status would naturally entail? 3) Notre Dame’s suit is very detailed and anything but perfunctory. Is there any reason for thinking that it was decided upon and articulated for any reason or purpose other than those stated in it? 4) Where would critics find cause to disagree with the arguments put forth in the section of the suit quoted above?