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?
Fr. Komonchak, the definition of “religious employer” is taken, word for word, from a California state law requiring contracepion to be covered by any health plan that covered prescription drugs. That law was passed in 1999. Catholic Charities of Sacramento brought a lawsuit against the state and lost before the California State Court in 2004. The U.S. Supreme court refused to hear an appeal of that decision.
Later, New York used that same definition in a law requiring contraception coverage and the U.S. Supreme Court refused to hear an appeal of the state court decision upholding the law.
You might like to read the 2004 California State Court decision. It discusses most of the arguments being brought up again now.
http://caselaw.lp.findlaw.com/data2/californiastatecases/s099822.pdf
And here is a link to the opinion of New York State’s highest court upholding the definition:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_07517.htm
Bishop Blaire is right in noting that the 13 dioceses and Notre Dame could lost the cases.
(1) The inculcation of religious values is the purpose of the organization.
———–
How broadly is that interpreted? Does that mean every professor must inculcate religious values with every lecture, every reading assignment? Which values? Those that are in vogue today or those that were popular when Notre Dame was founded?
How strictly is it enforced? Can a professor be fired if too many of her/his lectures and reading assignment are about math or history instead of devoted to the inculcation of religious values? Are prospective students and their parents made aware of the real purpose of the organization?
The university’s mission statement does not seem to bear out the notion that its purpose is inculcation, and the word “inculcate” does not appear.
http://www.nd.edu/about/mission-statement/
“What the University asks of all its scholars and students, however, is not a particular creedal affiliation, but a respect for the objectives of Notre Dame and a willingness to enter into the conversation that gives it life and character. Therefore, the University insists upon academic freedom that makes open discussion and inquiry possible.”
(How can academic freedom coexist with inculcation?)
The university’s employment page emphasizes “diversity”.
http://diversity.nd.edu/
“At Notre Dame, we believe that promoting diversity among students, faculty, and staff is an essential part of being a Catholic institution that is one of the preeminent universities in the world.”
(How can promoting diversity coexist with inculcation?)
(Definition of “inculcate” from American Heritage Dictionary: To impress something upon the mind of another by frequent instruction or repetition; instill; . . . indoctrinate. . . to trample, from calx, heel)
Fr K and the bishops seem to object that the government tries to define what constitutes a religious exemption. .There is already enough tax free religious rip offs.. here in Ca. we have fake religious groups popping up in every neighborhood in order to get tax free houses and property, charities etc. Say hello to Scientology. A right to define???… would that the government could get it down properly so that the ‘wise guys’ are not ripping everyone off. Crying religious freedom sounds like Scientology crapiola to me.
besides some Catholic Charities get up to 85% of it’s expenditures from government tax payer contracts.
Mr. Hayes and Mr. Pagano: Thanks for the references. If the logic of the two state decisions is upheld, Notre Dame will lose its case. The university’s lawyers surely knew of those decisions. Why do you suppose they ignore them?
Gerelyn: I’m not sure why you make your point. Is it to suggest that ND should seek an exemption on the ground that it does not inculcate?
Mr. Gleason: I haven’t anywhere objected to the government’s attempting “to define what constitutes a religious exemption.” (Why do you not mention Notre Dame, whose suit was the focus of my post?) Certainly, I do think that the definition of “religious employer” is far too narrowly drawn, but I should think that individuals, universities, and bishops have a right to say so. Isn’t such a conversation part of the democratic and judicial process?
Gerelyn:
I suspect that Fr. K.’s point was precisely that to define “inculcation of religious values” as the defining purpose of a religious institution is way too restrictive. The fact that courts and California and NY agreed with with such a super-narrow notion of religious institutions is not surprising but extremely worrying…
The U.S. Supreme court refused to hear an appeal of that decision. I’m not sure how much these case specific facts mattered in that choice but these circumstances are different
pg 38
From the California Case: Catholic Charities may,
however, avoid this conflict with its religious beliefs simply by not offering
coverage for prescription drugs. The WCEA applies only to employers who
choose to offer insurance coverage for prescription drugs; it does not require any
employer to offer such coverage.
Also, at the time, Federal law under ERISA offered another avenue to avoid the WCEA requirements.
Both those outs are gone, and there is a penalty for dropping insurance entirely.
Joseph and Carlo: I think ND fails to prove that its purpose is NOT inculcation.
Its mission statement and the information about diversity, along with 188 (and others) above, attempt to distance it from inculcation, but then it says:
“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.”
(How can opposition to contraception coexist with devotion to serving all mankind? How many children should each woman bear, in the opinion of those whose beliefs are the university’s beliefs?)
(By insisting on its “beliefs” about contraception and imposing restrictions on insurance for Catholics and non-Catholics who disagree with those beliefs, it IS inculcating. Therefore, it is entitled to the exemption.) (I guess. It’s like reading the Syllabus of Errors. Hard to keep all the negatives straight.)
The biggest mistake that the Obama administration made was to grant any religious exemption. There should not be any religious exemption. Why should theo-babble entitle religious organizations to an exemption?
Fr. Komonchak, Perhaps this is too basic and not what you were getting at with regard to Notre Dame’s lawyers ignoring the California case. If so, please ignore.
The Complaint is the pleading in which a plainitff describes the factual circumstances constituting the injury and a formal statment of the grounds for relief. The legal arguments distinguishing the California and New York cases and arguing in favor of following broader exemptions on the basis of other cases, will come later in the Notre Dame case. There is competing authority, and the US Supreme Court has not weighed in.
The ruling of the California Supreme Court is not binding upon Notre Dame or any of the other plaintiffs because that case dealt only with entities subject to the California state law at issue. Notre Dame is not subject to that law. The HHS Mandate is a regulation that applies across the country, and the Notre Dame case and the other eleven cases test that Mandate against a variety of factual circumstances. HHS will rely upon the California case and other legal authority in the District Court, then the Court of Appeals and likely in the US Supreme Court; Notre Dame will rely upon the arguments in the dissent in the California case as well as much other legal authority. Notre Dame is not ignoring the California case; it is hoping that it does not become the law of the land.
“Why should theo-babble entitle religious organizations to an exemption?”
Because of they pesky little thing called the First Amendment, which was drafted with the explicit and radical notion of limiting the rights of the government against individuals and communities.
If the logic of the two state decisions is upheld, Notre Dame will lose its case. The university’s lawyers surely knew of those decisions. Why do you suppose they ignore them?
Father Komonchak,
One reason is probably that the Religious Freedom Restoration Act, which might have given a chance for the lawsuits brought in California and New York to succeed, had been declared unconstitutional by the Supreme Court as applied to the states. However, it was not declared unconstitutional as applied to the federal government. So the hope is that if First Amendment arguments do not succeed with federal courts or ultimately the Supreme Court, the Religious Freedom Restoration Act will be found to be applicable.
Interestingly, it was a decision written by Justice Scalia in Employment Division vs Smith that weakened religious freedom to the point where congress felt the need to pass the Religious Freedom Restoration Act to restore what the Supreme Court had taken away. Scalia had, in his opinion, basically said that if a generally applicable law (in this case, it was a law criminalizing the use of peyote) infringed on the religious practice of some individuals (Native Americans who use peyote in religious ceremonies), the generally applicable did not discriminate against the religious practice unless the government had actually set out to target the religious practice in question. Otherwise, Scalia said, we would have “a system in which each conscience is a law unto itself.”
That is the general drift of it, although I am not a lawyer and no doubt my summary is crude.
I regret that my friend Father Komonchak seems relatively late to this discussion. Commonweal editorials and any number of other voices have lamented the faulty definition in the HHS mandates that distinguished those religious employers that might be reasonably exempt from those that are not exempt. These critics agreed that the bishops — indeed Catholics and Catholic institutions — have something of a case. And the critics would probably find the court decisions referred to above as unfortunate. Not all the commentators on this blog agree, of course. Either in tone or in specifics they argue that the bishops have no case whatsoever.
The problem is that the discussion has now moved several stages from this early worry about the exempt/non-exempt division and its implications for religious freedom. Without backing off that (in my view unhappy) definition, the administration has appeared to present ways to soften it and to “accommodate” the moral and religious-freedom concerns over requiring indirect support for something that church teaching prohibits. The administration had proposed various complicated and not necessarily very workable schemes to make that support, which many Catholic institutions have already managed to live with, all the more indirect.
The leading bishops will have none of it. They have given no indication of recognizing that their case may be considerably more complicated than it appears, that even many dedicated defenders of religious freedom question it. Instead the bishops have elevated their case to the status of a national campaign, now reinforced with this barrage of law suits and risking a lot politically, pastorally,and legally.
I have not read the Notre Dame lawsuit Complaint. I have read all 61 pages of the parallel Complaint by the same law firm filed on behalf of the Archdiocese of New York and others. I have read all 10,000 words or so of the May 15 response by the USCCB’s General Counsel to the HHS’s proposed modifications issued on March 21. Because I agree with the faults of the HHS mandates’ original (and now jiggered but not removed) distinction between exempt and non-exempt religious organizations, I find many good points in these documents as Joe Komonchak does in the Notre Dame Complaint. But I also find a great number of exaggerations, stretches, and most importantly a will to cut off every possible lane to compromise.
It is hard not to conclude that the bishops — or the ones who have shaped this initiative — want a fight, one that just happens to be in an election season.
Fr. Komonchak, to decide the notre Dame case, a majority of the Supreme Court Justices have to agree on the meaning of three deliberately imprecise terms in the Religious Freedom Restoration Act.
Courts tend to accept a religious group’s assertion that it would be burdened “substantially”, but individual Justices may decide differently on “compelling” and “least restrictive”. One possibility is that Notre Dame’s lawyers have counted noses on the Court and believe there is a reasonable chance that they can convince five specific Justices to see it their way.
Alternatively, it’s a way of keeping the issue in the public eye to put pressure on the President and he Congress to act as the bishops want.
A lawsuit is not an end to negotiations or a “cut off of every possible lane to compromise.”
A lawsuit is oftentimes just another piece of leverage in negotiations. The administration can settle these cases by redrafting the exemption to make it broader, something they have so far refused to even consider as a possible solution to this problem.
As for the likelihood of succcess in court with these lawsuits, James Englert is accurate in his analysis of the impact, or lack thereof, of the state supreme court cases from California and New York. Everyone here should take the time to read Justice Janice Rogers Brown’s dissent in the California case. She is now a judge on the Federal Circuit Court in DC, which might hear one of the cases, and she does a good job explaining the problems with the narrow definition of religious employer. there is also discussion of the legislative history of the California law that indicates that the definition was fashioned in such a way as to specifically target Catholics for exclusion from the exemption.
David Nickol, the 2004 California de ision was based on the strict scrutiny required by the RFRA
But, as a I said earlier, with a different set of judges you might get a different result.
Re: they might lose
Any time anyone files a lawsuit, they might lose. But if they do not file at all, they are certain to lose.
As has been pointed out, judicial precedent from other jurisdictions is not binding. But it does explain why the California dioceses did not join in filing suit — it would be rather futile there, so enough with the game of trying to divide the bishops.
Moreover, if the Administration raises those cases as precedent, it will be properly argued that they were wrongly decided. A denial of cert by the U.S. Supreme Court in those cases means exactly nothing, as they have ruled multiple times.
In any event, if they lose in Caesar’s courts, they still will not comply.
What a detailed and insightful discussion by all. I’ve always driven back to John McGreevy’s works and re-reading Martha Nussbaum’s fine “Liberty of Conscience.”
… and just pondering if and how this is playing out for the elecxtion.. and whose mis-stpes will “cost” Catholic votes in swing states…
… and who would’ve guessed that contraception wouldf be in the news like this…
“Still, I am learning… ” as a friend always ends her emails quoting Michelangelo…
As is mentioned, the layers of this are a prism for so many energies and refractions. I wonder if respective hierarchies and universities are pondering these.
I still cannot unerstand the odd mix of plaintiffs and will love to know the rationale for those who joined and those who didn’t within dioceses. The entities ar so differnt also… fascinating.
Dr. Steinfels, you conclude that “It is hard not to conclude that the bishops — or the ones who have shaped this initiative — want a fight, one that just happens to be in an election season.” While I broadly agree with your take on the situation, it seems salient to point out that the Obama Administration also appears to want a fight.
Indeed, it appears to me that the lead bishops’ extreme reaction is more understandable in light of the way the Administration has proceeded with them. For instance, Archbishop Dolan apparently took some reassurance from meetings with President Obama prior to the initial release of the mandate and felt betrayed. (While it is possible that he misrepresented those meetings and his true feelings for political effect, I am presuming his sincerity.)
So we might ask why the Obama Administration’s original mandate had no semblance of a compromise. Is it not reasonable to conclude that that was designed to provoke a public fight with the bishops over contraception? The accommodation that they have since made could have been included in the initial release of the regulation, as it was a well known option at the time.
It seems to me that the bishops have resorted to hardball negotiation tactics like lawsuits precisely because they have concluded that the Administration is not negotiating in good faith. While I lament this outcome and believe they are forsaking their roles as Christian leaders in perpetuating a campaign to demonize Obama, I am sympathetic to their resentment about the way the Administration handled this.
I cannot understand why you, on the contrary, seem to perceive only good-hearted mistakes on the part of the Obama Administration while ascribing hidden partisan motives to the response of the leading bishops on this.
“It is hard not to conclude that the bishops — or the ones who have shaped this initiative — want a fight, one that just happens to be in an election season.”
The bishops vigorously opposed Obama in the 2008 election. Their support for McCain was blatant and undisguised and all agreed that the Obama victory was a tremendous blow for the American bishops. Their shameful campaign is an attempt at payback and redemption for the 2008 election. Make no mistake their intent is to unseat Obama. The 2012 attempt is the most shameful attempt and how some intelligent Catholics do not see this is a mystery.
Bill, it is very difficult for me to understand how you could read this document, directly affirmed by all but 3 U.S. bishops in 2007, and claim that “their support for McCain was blatant.” http://www.usccb.org/issues-and-action/faithful-citizenship/forming-consciences-for-faithful-citizenship-document.cfm
I concur with the gneneral opinion expressed by Bill Mazella and also question Cdl. Dolan’s interpretation of whatever was said at that meeting. His distortions of history and fact in this current debate do not lend me to trust his memory about whatever was said or implied — or more likely, interpreted — by him. I won’t say that he didn’t feel betrayed or caught off guard, but I don’t see sharp listening skills on his part for all his brilliance and affability.
I wish we knew more about the internal workings of both the Obama administration and the USCCB in regard to this.
I don’t think that the administration wanted a fight, but I do worry about something more serious that I discussed in a talk I recently gave at Seattle University. The HHS categorization of exempt and non-exempt religious organizations reflects an ongoing conflict over the moral legitimization of abortion (and now, in addition but separately, same-sex marriage, but that’s a whole different subject).
Pro-choice advocates, who deeply and sincerely believe that abortion qualifies as an essential “preventive reproductive service” as much as does contraception, if not even more so, would like to remove the moral “edge” that limits on federal funding of abortion signal. “Stigma,” they would call it. They know that federal funding of abortion is not politically realistic for now. But the categorization that would limit religious exemptions reflects their hopes and commitments, even if looking far to the future. The bishops are not wrong to think about this. But meanwhile they end up fighting on the quicksand of contraception.
In some ways, I actually would have preferred the lawsuits to all the “Fortnight for Freedom” hoopla. In 2001, when John DiIulio was introduced as head of the Bush office for faith-based and community programs he admited that there were gray areas of church-state separation involved. “Sue me,” he begged the critics, not aggressively, but as an invitation to resolve some of these matters in the courts.
I do recognize that lawsuits, as MikeO points out, are also bargaining chips. Unfortunately, the bishops have a mix of responsibilities here. So I worry about the pastoral consequences of what Tim Huegerich calls “hardball negotiations.”
Which bring me to the question of the administration’s negotiating. I am not happy with the latest proposal from HHS (March 21), but the administration has now put two modified versions on the table. Have the bishops? Cardinal Dolan talks of their efforts at “negotiation,” and the Complaints refer to HHS’s unwillingness to compromise. But if the bishops have floated a single proposal for a compromise, please let me know what it is. What they’ve done instead, it seems to me, is to escalate.
I encourage all to view the clip from Martin Bashir on the admittedly partisan msnbc. Cardinal Dolan, to me, comes off as an extortionist who threatens sacrifice of the poor and hungry unless this is seen his way. And I do think that the point about the $2.9 billion given to Catholic Charities — 62% of budget this account claims — is also significant and it is more than Bush administration (though I don’t know by what percentage.) Someone challenges about the Cardinal doing this charity “on their own.” Are we coming to that in this game of chicken?
I have never read a description of the Dolan-Obama meeting that involved anything but a very general affirmation by Obama of the administration’s commitment to protecting conscience. Since protecting conscience covers a very wide number of possibilities, from physicians’ not having to participate in abortion to federal funding of elective abortions, it seems to me highly likely that Obama did not contemplate anything having to do with funding contraception, something that by now, whether the bishops like it or not, is widely established in U.S. policy. I’ve never read or heard an account of this meeting in which contraception was specifically mentioned. My interpretation is that there was an honest misunderstanding.
It’s too bad if that misunderstanding led Cardinal Dolan to defend the president against episcopal critics on the verge of the HHS brouhaha, but until someone gives me more reliable information I can’t conclude that Obama was deceiving him.
In any event, if they lose in Caesar’s courts, they still will not comply.
Bender,
Elsewhere someone spoke of “massive civil disobedience.” The question in my mind is what form it could possibly take. Under the “accommodation,” it is the insurance company that is required to take action. It seems to me the only form civil disobedience could take, without the cooperation of insurance companies, is the dropping of insurance coupled with refusal to pay the “fine.”
And what about the Catholic organizations who have already complied with state mandates? How are they going to refuse to comply with a federal regulation that doesn’t significantly alter what they are already doing?
I am betting against any significant civil disobedience. (And of course, there are any number of ways, even setting aside these lawsuits, that the mandate may never be opposed.)
All this legalese about what should constitute an “exemption” or a “religious employer” makes my eyes cross over. I guess it is that “gimlet eye of a canon lawyer” at play again?
If an institution receives public money from the local, state or federal governments that supports ANY of its operations – and employment at those institutions doesn’t require “ascent or personal belief” in the religious tenets of that religious group, then American taxpayers have a right to expect that institution to conform to the LAW just like any other public institution which must deal with the public with no discrimination.
American taxpayers ESPECIALLY want these publicly funded institutions to observe the 14th Amendment demands for “equal protection under the law” for ALL citizens – even those who happen to have a vagina. [Apparently a difficult concept to grasp for Catholic hierarchs?!?]
If ND University or Catholic Charities or similar institutions feel that their religious “principles” or “freedom” would be violated by allowing insurance companies to provide contraceptive health services at NO COST to the consumer/employee of those institution, THEN ND, Catholic Charities, or St. Eligius Hospital, whatever, should forfeit any access to public monies.
Of course, that will never happen. Most of these Catholic institutions couldn’t stay in business if they weren’t taking public money in some form or other.
The question then becomes: Do Catholic institutions want to remain active in the public square? Or, do they want to retreat behind cloister walls to make their all-male feudal oligarchy more comfortable with their reactionary, anti-intellectual and misogynistic ideology?
Komanckak wants us taxpayers not to question the motives of “the bishops for their insistence that religious liberty is at stake,” also sparring ND president John Jenkins, when it is patently obvious to anyone who can read that Catholic religious liberty is not at stake.
It is our job as taxpayers, and Catholics [I might add!] to question the political motives of bishops especially after decades of all the betrayal and corruption of their high offices.
IMHO, bishops are little more than politicians in the world’s oldest feudal oligarchy. Maybe this is just a quaint democratic and American notion, but like for all politicians, Catholic hierarchs need to be scrutinized constantly given how they have screwed things up so badly.
I can’t fathom why Jenkins has allowed ND to become embroiled in this ill-conceived legal gambit to bite the federal government’s hand that feeds even mighty ND.
How was ND threatened by the hierarchs politically? Was this some kind of pay-off for some church-internal political favor from the bishops?
Maybe Jenkins feels that if he goes along with the hierarchs on this one he will gain greater freedom for ND from meddling hierarchs in the future?
Peter Steinfels (11:11am) “It is hard not to conclude that the bishops — or the ones who have shaped this initiative — want a fight, ….”
Today’s uproar hasn’t come out of a vacuum. Cdl. Dolan foretold in his 9/20/11 letter to President Obama “a national conflict between Church and State of enormous proportions” if the Administration did not do as he wanted on his cause of that day.
http://usccb.org/news/2011/11-179.cfm
This March, Dolan called for his followers to rise in a “freedom of religion battle” with his archdiocesan blog update repeatedly referring to the “fight”, which he claims is unwanted but inescapable. Additional examples exist.
http://blog.archny.org/?p=2291
The messages from Cdl. Dolan and his like-minded collaborators on behalf of the USCCB repeatedly have left no doubt — they are determined to fight. It is as if they foresee or hope that a bold, clearcut triumph over the State can help restore the strengths the Church hierarchy has lost in recent years in varying degrees — bishops’ credibility, effective moral authority, numerous followers of the appointed leaders, participants in Sacraments, diocesan incomes, financial assets, and some of their leverage in the public square. Their need to prove themselves to Catholics, as well as to themselves and others, may be as important as the particular cause at hand.
If an institution receives public money from the local, state or federal governments that supports ANY of its operations
Unfortunately, that is not what the first amendment says. And with Federal, State and Local government spending constituting about 40% of GDP, I doubt there are very many institutions that do not receive government money for some product or service they provide.
Thanks, Fr. Komonchak, for noticing that the Notre Dame lawsuit is thorough and well thought out.
The bishops are not trying to have laws passed outlawing contraception. Nor are the bishops even trying to pass laws preventing insurers from covering contraception. What the bishops are trying to preserve is the autonomy of Catholic institutions. The aggressor here is Obama, not the bishops.
There is no reason to think that the Administration that claims there is a “war against women” is going to respect the autonomy of Catholic institutions, and every reason to think that Obama will show even less respect for the autonomy of Catholic insititutions if he is reelected: if Obama is willing to pick a fight with the bishops over how Catholic institutions govern themselves in a tough reelection year, what will he do if he is reelected? Has any other recent president picked a fight with the bishops while seeking reelection, much less a fight over how Catholic institutions govern themselves?
Thorin,
A few years ago, Connecticut tried to strip the Bishops of power and place it in the hands of elected bodies at each parish. It was an even more blatant attempt to interfere with the internal governance of the Catholic Church
“It seems to me that the bishops have resorted to hardball negotiation tactics like lawsuits precisely because they have concluded that the Administration is not negotiating in good faith. While I lament this outcome and believe they are forsaking their roles as Christian leaders in perpetuating a campaign to demonize Obama, I am sympathetic to their resentment about the way the Administration handled this.”
This is affirmed by Doug Kmiec’s NCR piece: that while he thinks the President has “gotten it”, others in the Administration (primarily Sebelius it would seem by implication) have not followed through and have not been as understanding. Kmiec is, of course, a prominent Obama supporter as well as a former administration official. His comment is telling…and a lot more commonsensical that some of the wild conspiracy theories some here are spinning about the “hierarchs” (whatever that is) “politically threatening” Fr. Jenkins at Notre Dame. Again, if many here object to the Bishops’ rhetoric, I don’t see how their cause is furthered by some of what is said here.
And as one of those vaunted American taxpayers being extolled, I have more misgivings about my tax dollars being spent to defend a misguided regulation.
In checking the website of USCCB on the “Fortnight…” I see that only a few dioceses are listing events thus far. The Washington event of a movie and music -with Benediction to end it all (!) -from 4-6 PM on June 24 is the most intersting. Boy, that’s a strange mix of history and liturgyl It is intersting to see how “freedom” is celebrated and what music is chosen… and ending with Benediction?! In a flag colored Cope?
Perhaps the liturgical melange is as much the message here and it is fascinating to see the build up through the feasts of Thomas More, John Fischer, Peter and Paul and with the apex on Independence Day! That’s one strange mix of secular and sacred calendars and a unique American-istic swing!
I think those days will be fascinating if any scholars are included to really talk about the tortured history of American religious liberty — which may include the Spanish Catholic religious persecutions of others in Florida and the brief history of the Inquisition in New Mexico…
The cross and flag… where we have seen that before…
Bruce,
Thanks for the reminder. Unfortunately, I fear we will see more such actions in the future. It is a political fact that a large and growing part of the Democratic coalition consists of people who are not religious, and many of them view Christianity with hostility and disdain.
There’s a post at ThinkProgress that gives some helpfil legal/historical background on the lawsuit – What You Need To Know About The Law Behind The Catholic Church’s Anti-Birth Control Lawsuit
“That’s one strange mix of secular and sacred calendars and a unique American-istic swing!”
Dave Pasinski, I think it means Catholics may be turning into Mormons!
Leaving aside facile characterizations about the “coalition: that views Chrisitanity with hostility and disdain, i though Peter’s poist was nunanced , balanced and dealing with the”problem” as someone put it on another thread.
Bishop Loverde of Arlington writes to priests about thhe “Fortnight…” and is worth a read…Besides instructing the clergy about very specific times for events and to preach on the Sundays during the forthnight on religious fresom, there one phrase referencing “…talks on religious freedom. Dignitatis Humanae, and the Church’s teaching on sexuality before or after the Holy Hour(s).” Ok…..
(That should be an interesting discourse….)
I know that’s a bit of juvenile humor, but I had to lighten this up….
Dr. Steinfels, you said, “I have never read a description of the Dolan-Obama meeting that involved anything but a very general affirmation by Obama of the administration’s commitment to protecting conscience.”
I was referring to the November 2011 meeting, of which David Gibson reported: “Dolan said Obama was ‘very sensitive’ to the bishops’ concerns over gay marriage and insurance mandates to provide artificial birth-control coverage as part of the new health-care reform law.” http://www.sltrib.com/sltrib/lifestyle/52932329-80/bishops-religious-dolan-obama.html.csp
(This was followed by the January 2012 announcement that the mandate would not change, except for a year long grace period.)
Yet, I see now that that could have been Dolan’s (mis)interpretation of what Obama was saying. It is true that in Dolan’s own words more recently, he merely says that “[Obama] had personally assured me that…he considered the protection of conscience a sacred duty.” If Pres. Obama had given a more specific assurance, I would expect Archbishop Dolan would say so.
I hope that Jim Jenkins’s remarks are based on a common misunderstanding, namely that this HHS mandate stems from a relationship established by the funding of a specific program (as was the case with the government’s non-renewal of a contract on human trafficking with the USCCB Migration and Refugee Services. No, the HHS mandates simply apply to all employers except for those exempt (like congregations), regardless of any taxpayer funds.
But if the suggestion is that reception of any government money at all removes all claim by a religious organization to religious freedom, that is really scary. Why not apply it to freedom of speech as well. In fact, that’s what many discontented state officials are wont to say about academic freedom at taxpayer-supported universities.
Actually, the Obama administration just issued a set of guidelines regarding faith-based groups that get government funds for specific purposes. These guidelines, now up for public comment, rule out proselytizing but are quite respectful of not impinging on distinct religious identity. I wish the various precincts of the administration were in better communication with one another.
I also can’t agree that the administration picked this fight. The evidence is that it marched into it because of ideological blinders. And the statement above about the supposed action of “Connecticut” is untrue. This was a very bad, even kookey piece of legislation that was deep-sixed as soon as attention was paid to it. If it got anywhere at all in a legislative committee I believe it was because of the widespread anger toward the church in Connecticut left over from the sex abuse scandal. That anger has been simmering elsewhere. It may hamstring church efforts in Massachusetts to oppose an assisted suicide proposal on the ballot this fall.
The bishops’ aggressive campaign about religious freedom, unfortunately linked to contraception, is very likely to feed that kind of resentment. Is that kind of cost being taken into account?
David Pasinski:
“In checking the website of USCCB on the “Fortnight…” I see that only a few dioceses are listing events thus far.”
Just wait until the USCCB June meeting!
The bishops, who protested the commencement honor given to Obama at Notre Dame’s 2009 commencement, started out with a few and then escalated. My sense is that there was pressure from other bishops (and of course, groups like Cardinal Newman Society). One bishop even wrote in a letter to Fr. Jenkins that he he was “standing with my Brother bishops.”
Our small, inner city parish Justice and Peace Committee just celebrated a “Vigil of Solidarity” with women religious — 125 in attendance and a great spirit of appreciation and no words of confrontation although we did have petitions at the door that folks could sign if they wished. We are considering some talk on the issue of “religious liberty” that will allow some real discussion and scholarly insight to take some intiative on this.
BTW, MSW of NCR reports on today’s EPPC religious freedom rally in DC. Michael Sean liked Bill Galston best — don’t we all? Galston seems to have been the token “balance” on the day’s roster, so that helped him look even better than usual. But he is always good ballast. MSW writes:
http://ncronline.org/blogs/distinctly-catholic/report-rel-freedom-event-0
Dr. Steinfels, you also request, “But if the bishops have floated a single proposal for a compromise, please let me know what it is.”
In the USCCB’s comment on the HHS rule dated May 15, 2012, they point to “The operative language of the bi-partisan Respect for Rights of Conscience Act, H.R. 1179, S. 1467 [as] an example of such an exemption” as they would recommend (fn #18). I count 10 Democratic cosponsors of the bill in the house. The USCCB responds to criticism that the exemption is overbroad here: http://www.usccb.org/issues-and-action/religious-liberty/conscience-protection/upload/Backgrounder-Is-the-Respect-for-Rights-of-Conscience-Act-Overbroad.pdf
I found the USCCB’s backgrounder convincing on its face. For instance, “It authorizes the U.S. Department of Health and Human Services to ensure that any plan claiming a conscience exemption from a particular item or service must still be “actuarially equivalent” to that plan with the objectionable item or service included. If a plan excludes one service on moral or religious grounds, it must make up for that by adding or enhancing another service so the plan remains just as valuable for purchasers. This prevents the conscience exemption from becoming a pretext for anyone to refuse to cover some items on financial grounds.”
Is there a response to this defense by someone like Prof. Timothy Jost that I am not aware of?
Otherwise, what other proposal for compromise do you expect? A lot of this discussion is just dancing around the issue – do you believe that all insurance must include free coverage of contraception, even forms that are abortifacient (in a small percentage of cases, and only by preventing implantation), regardless of the provider’s conscience? If so, then you support the current HHS mandate. If not, you support the Blunt bill. Looking for some “compromise” in between may be grasping at straws.
By the way, what was the Obama Administration’s response to the Respect for Rights of Conscience Act coming up in the Senate? Agonized hand-twisting over how they respect rights of conscience but that this bill just has too many loopholes? No, a campaign statement that puts “morally objectionable” in scare quotes and links it to efforts to ban birth control all together. http://www.barackobama.com/news/entry/who-makes-a-womans-health-decisions
The church should require every catholic institution that hires people to work there -as a condition for hiring- that the person join a lay religious order.This would simply be a formaility to get the Church off the hook-as a religious order is protected by religious freedom from having to pay or provide coverage for what violates the teachings of the Church. The Church should have or could have forseen that labor problems would sooner or later arise as they hired lay non religious people to work in their institutions. Having every one who works in a catholic hospital or school sign on to being part of a religious order would resolve the church’s dilemna-I think.
Now that you mention it, “Labor” has been rather silent on all of this, hasn’t it?
The lay orders that I am familiar with require a long orientation period where one discerns a calling to the particular order. They tend to be a bit selective, in my experience.
Tim Huegerich, please don’t feel obliged to “Dr.” me. I appreciate the courtesy, but Drs. are a dime a dozen on dotCommonweal.
The point about “actuarial equivalency” is an interesting response to one potential abuse of the Blunt Bill. But the fact that the Blunt Bill had ten Democratic cosponsors in the House doesn’t make it a compromise. In fact, it went way beyond even a simple withdrawal of the HHS exemption/non-exemption distinction regarding religious organizations. It proposed to extend that exemption to any and all employers (e.g., the famous Taco Bell that the USCCB’s General Counsel told USA Today he might operate after leaving his current job).
The Jones Day law firm’s Complaint that appears to be the template for many of the lawsuits goes out of its way to rule out any compromise as simply logically impossible, as I guess you do as well.
My notion of a compromise is actually giving up something that I want to be the case in return for another party doing the same. Despite all the Rube Goldberg looks of the administration’s “accommodations,” that’s what they appear to be attempting. Since I believe the bishops are on a dangerous course, I’d like to see some counterproposals saying “ok, we’ll live with this, if you’ll do that.” In other words, improve on those “accommodations” while giving the administration something in return. If I didn’t think that the bishops were pursuing a pastorally and constitutionally risky game of chicken, I might think differently.
What I see, however, is simply “The circle can’t be squared.” Well, maybe it cannot. Maybe we have to live with an octagon or whatever a a sixteen- or thirty-two-sided figure would be. That’s what it means to accomplish some good and fend off grave evil in a democracy where different people have different deeply held values and views.
Thanks to Tim Huegerich for linking to the USCCB response regarding their preferred exemption. Why haven’t Grant or Peter or anyone else here at commonweal addressed this document before? All we have heard for the past week is how unreasonable the Bishops have been and how they have not offered any proposals in the negotiations with the administration and are now jumping the gun with litigation. Can anyone of the contributors who support the administration offer a valid reason for not accepting the Bishops’ proposal that is not addressed in the USCCB document? Is there any estimate of the number of employees who work at employers who will be subject to each version of the exemption? How many women (and men who want to be sterilized) is the administration fighting for in this “war” in favor of the narrow definition of religious employer?
Well of course they tend to be more selective. This would be in effect a formaility designed specifically to allow these institutions to not have to be part of anything to do with abortion or contraception coverage.It would be an order tailor made to get the church off the hook and could have in its charter that its members agree to work in such a way that conforms to the goodness of jesus Christ and that does not undermine the teachings of the catholic church.That would entail not demanding to have contraception or abortion coverage be part of the health care policy of that instituion.The wording would be worked into the document every person hired would have to sign on to as a condition for working in a catholic institution.They would be technically-legally a religious order though people of any and no faith could join.Anyone not willing to join would not apply for a job at a catholic instituition.
I am betting against any significant civil disobedience.
Oh, I am certain, and have already warned, that there are plenty of universities and hospitals and health systems that have, with their secular boards, sought to steal these institutions from the Church that established them and fostered them, and they will quite likely set themselves against the Church and embrace the contraceptive mandate, as they have done in other matters.
We see such attempts at division and ripping the Church apart in many arenas, even in magazine-hosted blogs.
CT legislature:
http://hotair.com/archives/2009/03/09/connecticut-moving-to-regulate-the-catholic-church/
The Lawlor-and-McDonald-controlled Judiciary Committee has introduced Raised Bill 1098, a bill aimed specifically at the Catholic Church, which would remove the authority of the bishop and pastor over individual parishes and put a board of laymen in their place.
The scheduled public hearing was cancelled after tremendous outcry from the Catholic Bishops of Connecticut, clergy, the lay faithful, members of other religious communities and public officials. The bill was eventually taken off the list of bills for consideration by the Judiciary Committee.
@ Peter Steinfels: I DID NOT base my remarks on any assumptions about “HHS mandates stemming from a relationship established by the funding of a specific program.”
I am asserting that public institutions, who also have a religious affiliation, which serve the public at-large, must observe the “equal protection” clause of the 14th Amendment just as does any other public service institution.
I am asserting that if a religiously affiliated institution takes public taxpayer money, it CANNOT discriminate based on its own peculiar religious beliefs or ideology in either the services it provides the public, or benefits and salary paid to its employees.
If a religiously affiliated institution is in the public square, it must uphold the common public understanding of all our constitution protections. Something that I don’t expect autocrats like Catholic hierarchs to understand, yet America’s history is a continuing struggle to balance and affirm all our constitutional protections, not just the First Amendment.
I am asserting that the Obama administration has satisfied the original objections of Catholic hierarchs and undercut the hierarchs in their political gambit to affect the outcome of the upcoming presidential election. Apparently, American hierarchs, for some reason, are afraid to win.
I am also asserting that the so-called “religious liberties” campaign of US bishops is a politically engineered ruse and a thinly disguised attempt to sabotage the reelection of President Obama.
I agree that the Obama administration didn’t pick this fight. It would be politically crazy to do so. It makes no sense to do so in the midst of a reelection campaign.
While I agree that the Obama administration must appeal to its ideological friends, the only folks with “ideological blinders” on are the hopelessly desperate Catholic hierarchs trying to reassert their lost prominence and influence in the public commons, most especially with their own people, all the while continuing a decades long attack on the rights of women and their self-agency.
If some want to cut the bishops some slack in this situation, knock yourself out. Given the hierarchs record over the last several decades, I’ll remain a skeptic about their intentions and political motivations until proven otherwise.
You know, back on Feb. 9th, Dolan said on CBS This Morning: “Simply give a much more dramatically wide latitude to that religious exemption (that protection of conscience and religious freedom) and you’re not gonna hear from us anymore.” I was struck that after the first “accommodation” came out the next day taking a different approach, he showed no more willingness to compromise. But it was there for a moment, and I have also seen indications that there have been other negotiations behind closed doors at times. So I’m not sure it’s a fair that they have not been willing to compromise.
The fact is that Obama has drawn the line in the sand – he wants women to have access to free contraception of all forms unless they are directly employed by parishes. (And the accommodation just provides employers a formal way of expressing their disapproval of being forced to pay for it.)
The only question now for the bishops seems to be how much of a fuss to make about it. And I would fault them for blowing things way out of proportion, e.g. Dolan’s “one shudders to think what lies ahead.” In conflating conscience protections for contraception coverage with conscience protections for post-implantation abortion, they may be weakening the latter. They should be explaining the principles Galston laid out instead. We could be learning about cooperation with evil and the difficult considerations around conscientious objection instead of just being whipped up into a frenzy with clearly spurious threats to shut down Catholic institutions. And we could be emphasizing issues in proportion to their gravity instead of emboldening the likes of Phil Lawler.
Bruce, for the benefit of those who don’t click on your link, that article is from 2009.
As you point out, some members of the CT legislature introduced a bill which never got as far as being presented at a public hearing.
must observe the “equal protection” clause of the 14th Amendment
Jim Jenkins,
The constitution only places restrictions on the government. Laws promulgated by the government under the constitution restrict other entities. Your argument is factually in error.
“I am certain, and have already warned, that there are plenty of universities and hospitals and health systems that … will quite likely set themselves against the Church and embrace the contraceptive mandate”
I suspect the same thing. Better that they not be put to the test.
“clearly spurious threats to shut down Catholic institutions.”
If a bishop exerts direct control over an institution that doesn’t qualify for the mandate exemption, then he may choose to shut it down, or to put it on a path to shutdown by defying the mandate and incurring fines that will render it financially insolvent.
In most cases, as with universities and hospitals, the bishop may exercise some degree of influence, but does not directly control its decision-making. In those instances, as Bender noted, it’s reasonable to expect that some – probably many – of the institutions will elect to accommodate themselves to the HHS mandate. The bishop’s recourse at that point, I believe, would be to declare that the institution is no longer to be considered a Catholic institution, and to withdraw whatever services and support (e.g. chaplain services) the diocese provides to Catholic institutions. We’ve seen this already in Phoenix with Catholic Healthcare West. For institutions like Jesuit-founded colleges and universities, the founding religious orders may have their own opinions on this matter that may differ with that of the bishop, and perhaps we would be subjected to the dismaying site of a public difference of opinion.
It seems to me a marked evil that the federal government would sow this type of discord in the church, particularly over something as non-essential to genuine health care as subsidized contraception.
My recollection of a video interview with Cardinal Dolan some time ago is that he said that President Obama took he first ten or fifteen minutes of hir meeting to review things that the administration has done to support church programs before moving on to a discussion of Cardinal Dolan’s concerns. I am reasonably sure that he quoted the President as saying “I’m sure that you’ll be pleased with our next proposal” I don’t recall him reporting the President saying anything more definite than that.
What the administration did was to postpone the effective date of the mandate for a year for religious universities, hospitals, charities, etc.
President Obama has said that they did that to allow time to solve the problem. Cardinal Dolan has said his understanding is that it was only to give the bishops time to accept that they were going to have to carry out the mandate as it stood.
Cardinal Dolan may have misunderstood “I’m sure you’ll be pleased with our next proposal” as “we are going to do what you have proposed” but I am sure an experienced negotiator would not have understood it that way.
It seems to me that that was the moment at which constructive negotiations ended. Given the rhetoric since then, it’s hard to see how they might be restarted.
As I understand the USCCB response to the current request for comments, their proposal is
Which I would summarize as either do away with the mandate or exempt everyone with a religious or moral objection to it.
“I’m sure you’ll be pleased with our next proposal”
FWIW, In any negotiation that I have been involved in, that basically means you’ll get almost everything you want. What actually happened was the original rule was fixed with no changes. Then 2 weeks later, the rube goldberg accommodation and enforcement hiatus were proposed. Personally, I would not trust the other side until I actually saw something in writing.
I have the impression that most people here think Dolan misunderstood, but its also highly possible he was mislead.
Jim Pauwel, what has been the effect of the state contraception mandates on Catholic institutions? How many have been closed or secularized? My sense is that there have been no effects, that they follow the mandates with varying degrees of public disavowal. It’s similar to how we continue funding preventive wars and nuclear weapons with our taxes while marching against them. The war tax resistors are admirable but few, and would they do so if it required shutting down a hospital or halfway house? Also, notice what happened when the Madison WI Bishop tried to shut down a diocesan charity, the Catholic Multicultural Center.
It makes sense to keep in mind that while the bishops are screaming for religious freedom for themselves they are continually denying freedom to those in the church. In particular their censure of the nuns has nothing to do with the gospel but everything to do with the magisterium maintaining power. I must give credit to the bishops for constantly controlling the framing of the issues which is the first step in prevailing on points. Sleepy progressives bend over backwards in talking more about contraception and abortion while neglecting the central issues of the gospel like aiding the downtrodden, women and children. As Gary Wills notes: “Now the Vatican says that nuns are too interested in the social Gospel ( which is the Gospel), when they should be more interested in Gospel teachings about abortion and contraception (which do not exist).”
The indisputable criminal cover-up by the bishops remains in the background while too many suddenly have found a mountain of good intentions in a group which has continued to build edifices while harassing victims of abuse, condemning nuns and Girl Scouts. And how much ink do we give here about the unconscionable persecution of SNAP which has fought for victims?
Is the social gospel so boring that we have to continue to talk about abortion and contraception 24/7? Should the bishops be allowed to continually frame the issues?
“What has been the effect of the state contraception mandates on Catholic institutions? How many have been closed or secularized? My sense is that there have been no effects, that they follow the mandates with varying degrees of public disavowal.”
My belief is that because of the way the HHS mandate situation has developed, the possibility of a Catholic institution complying with the mandate and essentially receiving a free pass from church authorities and self-appointed watchdogs will be slim. I further believe that institutions’ compliance with state mandates will receive much more scrutiny than they have in the past. I believe that any institution that seeks to comply with the mandate will be forced, at the very least, to explain why they are doing so. Almost certainly, they will be subject to adverse publicity and public criticism.
Note that I am not saying that it is impossible to comply with the mandate. Commonweal’s editorial staff has put forth credible arguments about remote cooperation with evil; and the proposed accommodation, if it ever comes to pass, may make cooperation even more remote and will, as a practical matter, give organizations’ leadership cover to comply with the mandate. But there are counterarguments to be made on all these points that also are credible, and we should expect that they will be made.
If church authorities and self-appointed watchdogs hold these organizations’ leaders to the fire, I expect that in a number of cases, the leaders will elect to dial down their organizations’ Catholic identity and redefine the organizations’ social-service mission in a less overtly Catholic way. That would be tragic for the church, but it is the path of least resistance for the boards. I won’t say it is the cowards’ way out, but it is a not very heroic solution.
“Because of they pesky little thing called the First Amendment, which was drafted with the explicit and radical notion of limiting the rights of the government against individuals and communities.”
And it also prohibits any governmental actions that are, in effect, an establishment of a religious preference over a secular one. If the field is to be level, then level it must be.
” Also, notice what happened when the Madison WI Bishop tried to shut down a diocesan charity, the Catholic Multicultural Center.”
I haven’t heard about this incident before. I just spent a few minutes on Google, and glean that Bishop Morlino announced its closure in 2009; a parish pastor stepped up and took responsibility for it; and it reopened a couple of months later. Is there more to it than that? What is the applicability to the topic we’re discussing here?
“The lay orders that I am familiar with require a long orientation period where one discerns a calling to the particular order. They tend to be a bit selective, in my experience.”
Them who makes the rules can most certainly grant a politically expeditious exemption to them there rules.
Think the Orneryariate and mandatory celibacy for priests. A simple snap of the appropriate level of ecclesiastical fingers and unchangeable requirements just vanish into the Anglican incense.
FWIW, In any negotiation that I have been involved in, that basically means you’ll get almost everything you want.
I guess our experiences have been different. Having spent much of my life negotiating agreements in this country and overseas, I would take that as just an expression of general good will unless I had dealt with that person before and knew from experience that he/she was committing to something specific by it.
@Jim Pauwels
You speak as if only church authorities and self-appointed watchdogs on the right influence events. I offered the Madison example as a case in which Catholics rose up to protect a service to the poor. That a parish pastor took it over was basically a face-saving measure for the bishop. The real story is that he intended to shut it down for good to focus Catholic giving elsewhere, and it reopened in a matter of months because the uproar wouldn’t die down. Any bishop that shuts down a functioning institution as a protest against the mandate will face strong opposition from the lay faithful – whether it’s alumni, staff, patrons, or other members of the diocese that identify with it.
I admit the scenarios of paying fines or downplaying Catholic identity seem somewhat more plausible. (Maybe many of you have already seen this OSV survey of Catholic colleges’ coverage: http://www.projectsycamore.com/media/images/bulletins/111020/OSVins.pdf ) And I also hadn’t taken into account how much all this fuss may make it more difficult for Catholic institutions to comply. Perhaps I have been too blithe about this, though I doubt it.
Interesting post by Fr. Clooney over at America.
establishment of a religious preference over a secular one
Jimmy Mac,
It does not require one-size-fits-all. In the case of the HHS mandate, both can be easily be accommodated with a well designed religious exemption. There is no constitutional requirement for health care nor are ‘contraceptive services’ religious in any way which obviates any ‘establishment issue’. However, forcing someone to purchase them against their religious belief is a freedom of religion issue. Thats the level playing field.
@ Bill Mazzella
You say, “In particular their censure of the nuns has nothing to do with the gospel…” With due respect to the LCWR (what little leadership experience I have had has been hugely difficult), I had trouble finding a link between the Gospel and their 2012 keynote speaker (http://www.barbaramarxhubbard.com/site/bio) or their systems thinking handbook (https://lcwr.org/resources/systems-thinking-handbook). Maybe that is an unfair criticism, but you can’t have it both ways.
I am also having trouble understanding the sense in your and Gary Wills’ division of issues as relating to the Gospel or not. Aha, you say, Jesus didn’t say anything about abortion or contraception. But then I also don’t recall his sayings about universal health insurance or food stamps. There’s much to criticize in the priorities of our bishops (and it is so fun and easy to criticize), but let’s not oversimplify these things.
bishops are screaming for religious freedom for themselves they are continually denying freedom to those in the church
Bill,
They are not denying anyone their freedom. There are numerous religions and the bishops are not requiring anyone to stay in the church. As teachers and shepherds, they need to definitively tell the faithful when they are acting contrary to Church teaching. Anything else and the bishops would be derelict in their responsibility.
Two paragraphs from the Catechism
The exercise of freedom does not imply a right to say or do everything.
Ignorance of Christ and his Gospel, bad example given by others, enslavement to one’s passions, assertion of a mistaken notion of autonomy of conscience, rejection of the Church’s authority and her teaching, lack of conversion and of charity: these can be at the source of errors of judgment in moral conduct.
Finally, IMHO many people want to prioritize ‘central issues of the gospel like aiding the downtrodden, women and children’ and avoid issues like contraception, abortion, gay marriage etc because the latter are more likely the ones we lay people face every day in our lives. They are the much more likely to be very close to us and difficult. And the latter subject us to ridicule while the former generally elicit praise.
‘Tis true, the bishops have been loathe to employ traditional Catholic moral reasoning in this case, specifically the concept of remote material cooperation. Or perhaps they really do think that preventing employees from accessing birth control while in Church-affiliated employment, even though they would contribute not a single consecrated cent to that provision, is more urgent than providing healthcare for millions who don’t have it now. Cooperation arguments reveal priorities. Peter asks: “The bishops’ aggressive campaign about religious freedom, unfortunately linked to contraception, is very likely to feed that kind of resentment. Is that kind of cost being taken into account?”
Nope. There’s the reverse scandal.
Reading these comments, particularly the direct engagement with and responses by Peter Steinfels has been the most edifying discussion about this whole issue. I think that the original post makes a good point about watching how we judge the motives of others–and I think MSW makes that same point. Notre Dame can not control every way that the bishops have gone about engaging with the administration and with the public, but what they can control is their response. This belongs in the courts and that is what Notre Dame is responsibly doing and in a very thought out way. We have to judge their decision on its merits. To the question of the bishops reaction throughout this, my post on Islam is I think relevant here. The bishops have a great chance to clarify their intentions by addressing a glaring omission from their statement and from their public campaign, namely there failure to address the egregious threat to religious liberty posed by the “anti-Shariah” laws. I know that for me it is hard to take their statement as seriously as they want me to take it when they fail to even mention this most obvious attack on religious liberty. And when I see the Bishop of Detroit standing by and participating in a rally with a speech by one of the most vitriolic critics of Muslims it poses a significant credibility problem.
Joe (and others), Do you think there are any standards for determining what counts as a “religious organization?” What are they? Could you come up with any supposedly objective standards that do not exclude some self-defined “religious organization?” If we are going to have such a thing as “religious exemption” from government laws and regulations, do we not have to have some such definition? If a “religious organization” does not exist for the inculcation of religious values, serving and employing co-religionists, in what sense is it still “religious?”
Since you ask, here are some itemized objections:
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.
Is ND saying that someone who is not religious cannot recognize what is and what is not a religious tenet and that a non-religious person could not determine whether the purpose of an organization is aimed at forming believers in accord with those tenets? If this is true, then a secular Government would never be able to identify a “religious organization,” and the whole notion of “religious exemption” is bankrupt.
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.
“Inquiry” sounds pretty invasive, but does ND really think that some government agency is going to start following people around to see if they are engaged in the appropriate practice and assent to the proper beliefs? Isn’t it more likely that a “religious organization” will just have to say that something like 80% of its employees and patrons are co-religionists. If the objection is that requiring such statistics is still too invasive, then what is going to be the standard? If John Jenkins is the only Catholic left at ND, is it still a religious institution? If there are no Catholics left at ND, is it still religious?
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].”
Why? Again, wouldn’t it assume that if 80% of employees self-identify as Catholic, that there is some core creed that they hold in common that the word “Catholic” picks out. Why is there all of the sudden all of this skepticism about determining “religiosity?” Even ND itself doesn’t engage in this kind of inquiry to make sure that the 50% of the faculty who make up the “Catholic quota” share the faith, and I doubt that the administration feels particularly insecure about reporting its Catholic numbers.
183. Regardless of outcome, this inquiry is unconstitutional, and Notre Dame strongly objects to such an intrusive governmental investigation into its religious mission.
How “intrusive” is this? What “investigation?” Is it unconstitutional to attempt to determine what counts as a “religious organization” for the purposes of government exemption? If so, then the concept of “religion” is unconstitutional, because every sensible use of a concept must allow the community of language users to pick out both what is and what is not contained in it. So, if an inquiry into what is and is not “religious,” is unconstitutional, then we should get rid of the concept.
184. The religious employer exemption is based on an improper Government determination that “inculcation” is the only legitimate religious purpose.
What are the other purposes of religion? What makes those purposes “religious?” Is “education” or “healthcare” a “religious” purpose? What makes them “religious?” How is teaching Chemistry “religiously” different from teaching Chemistry “secularly?” How is diagnosing cancer “religiously” different from diagnosing cancer “secularly?”
185. The Government should not base an exemption on an assessment of the “purity” or legitimacy of an institution’s religious purpose.
Where does the exemption claim to be assessing 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.
Again, what are these “religious purposes,” and what makes them “religious?” Second, I can see that “religious autonomy” would include the ability to “self-govern,” but does it include the ability to “self-define?” The understanding of autonomy as “self-definition” seems like the kind of radical, enlightenment individualism that the Church has often criticized. So, it’s ironic that the Church is now claiming shelter under it. Autonomy refers to how one governs oneself, not what one is. Exemption definitions are aimed at determining the latter, and if this is impossible, then, again, the very notions of “religious freedom,” “religious exemption,” and “religious persecution” being used here are nonsense. Lastly, in choosing “religious purposes” broader than “inculcation,” how broad can we go before the purposes are no longer religious? Can I just choose any purpose, and give it a “religious” rationale, thus baptizing it as a “religious purpose?” As someone suggested toward the beginning of this mess, can running a Taco Bell be a “religious purpose?” Can you give me a definition of “religious purposes” that would not exclude someone’s deeply held, self-defined, “religious” mission?
Eric,
Early in the debate about the narrow definition of “religious employer” opponents used the handy rhetorical devise of saying “not even Jesus Christ’s ministry would qualify.” Reading through your argument made me think of that again. How is feeding the multitude (not coreligionists) with loaves and fishes religiously different than operating a secular food pantry? How about healing the blind, sick & lame? Teaching people how to fish? Making wine? What makes Christ’s suffering and death on the cross “religiously different” than that of the two thiefs?
MikeD, I take it that part of the point of the incarnation is that the answer to all of those questions is “nothing,” and that’s what makes Christianity decidedly NOT a “religion” in the way that other cultic practices of the time were. Thus, the fact that Christ did not rigorously outline the boundaries of some distinctive “Christian identity” is what makes his ministry so unique. The difference is that there was to be no difference – “neither Jew nor Greek.” Dare we add, neither religious nor secular?
Thank you, Eric, for bringing the discussion back to the Notre Dame suit (the title of this thread). I had begun to think that people wanted to speak only about the bishops.
In some of the cases cited in one or another of the suits, the phrase “bona fide religion” or something like it appears. This, however, may only postpone your question, even if I suppose it might exclude people who get mail-order ordinations in order to turn their summer homes into churches or temples.
I would imagine that Christians would not accept a definition of religion that would compartmentalize it, that is, restrict it to what one does on one’s knees or in a church on Sundays with one’s fellow-Christians. One’s relationship with God is supposed to suffuse all one does, and Christ explicitly linked inseparably love of God and love of neighbor, and he in effect said that one’s neighbor is the next needy person one meets. This religion, at least, can’t be confined to teaching nor be directed simply to fellow-Christians.
You write: “The understanding of autonomy as “self-definition” seems like the kind of radical, enlightenment individualism that the Church has often criticized. So, it’s ironic that the Church is now claiming shelter under it. Autonomy refers to how one governs oneself, not what one is. Exemption definitions are aimed at determining the latter….”
I don’t quite understand this. “How one governs oneself” surely is part of “what one is”. Or perhaps you could tell me how one could define oneself without indicating whether or not and how one governs oneself. Adults make themselves what they are by their decisions. And would this not also be true of groups: groups are what they do.
Also, it did not take the Enlightenment for it to be recognized that the supreme dignity of human beings consists of their capacity for self-determination. Aquinas found it in both the Bible and Aristotle.
The Catholic Church has resisted the liberalism (as it was called) that would restrict it to the sanctuary and sacristy, and did so, particularly in Europe, against a very aggressive secularism. Sixty-plus years ago, J.C. Murray saw initial signs that a similar ideology was gaining a foothold in the U.S., and such Protestant leaders as Reinhold and H. Richard Niebuhr, John Coleman Bennett, Harry Emerson Fosdick, and Douglas Horton agreed with him that the Supreme Court’s McCollum decision was a major step in that direction.
For JCM’s reaction to McCollum see http://www.firstthings.com/article/2008/02/003-a-common-enemy-a-common-cause-16, where he makes the point that it not the Supreme Court’s role to determine “what is best for religion.”
For the statement of the Protestant leaders, see http://www.firstthings.com/article/2008/02/004-statement-on-church-and-state-48
These things are not directly pertinent to the issue at stake in the Notre Dame suit, but they point to a trajectory.
In the California case, the Court said tht the requirement that the employer serve primarily persons who share it’s religios tenets was “problematic” but that isn’t change the result because Catholic Charities didn’t meet any of the other criteria, eiher.
Isn’t = didn’t
Understand that the original post was on ND’s suit and the questions they raise. At the same time, some have raised the perception and danger when ND or others come together in one coordinated action (whether you agree or not, it appears that they all share the same direction, foundation, etc.). As you just stated, Fr. K, it points to a trajectory”.
Grant and others – you may want to post and look at what the 13 dioceses and their bishops are saying in this week’s diocesan papers (IMO, catholic rags).
From Dallas and the overeager Bishop Farrell (who Rocco Palmo thinks walks on water). From the Texas Catholic, front page at the top:
“The HHS mandate does offer some exemptions but uses very narrow criteria in determining which entities qualify as religious organizations, requiring that they must primarily provide services to persons who share their religious tenets. (Catholic hospitals, schools, agencies that offer service to the poor currently provide services regardless of a person’s religious affiliation).
“…..our lawsuit argues that government should not decide how a religious organization is defined”
“The implications of the HHS mandate in its existing form are far reaching. Religious organizations would be forced to re-configure. Catholic entities would be forced to hire only Catholics and offer services primarily only to Catholics.”
(Note – on the same page on which Farrell’s statement ends – there is a half page advertisement for the new movie, “For Greater Glory”.)
One truly wonders how Farrell and his chancellor, Mary Edlund, arrived at this interpretation of events. You would expect that some type of vetting was done by legal experts in this area before this column went to press? This statement is factually in error; creates scandal; misinformation; and can be seen as an indirect threat. Keep in mind, this is a diocese of over 1.5 mil catholics, in a very Republican state. Where is the gospel message here, is this countercultural in any way? Appears to just re-echo what we read every day in terms of secular politics and the far right Republican screed in Texas.
It also repeats the very approach of Cardinal George – he, who made pastors read a letter the week-end after HHS released its revision and asked for comment until August. Instead, George had written a letter weeks earlier and, instead of withdrawing this now outdated letter, he forced pastors to read it – a letter filled with misinformation, outdated information, and threats.
Is this what we will have to put up with during the “Fortnight of Freedom”?
You might also want to post John Allen’s article today on the Ontario catholic school issue. Some of the questions and tensions in that issue echo and mirror the tensions in the US HHS mandate issue: http://ncronline.org/blogs/all-things-catholic/battle-canadian-schools-mirrors-broader-catholic-realities
Money quote:
“That contrast reflects a broader Catholic reality of our times. Personnel who staff all manner of church-affiliated institutions these days — charities, hospitals, schools, advocacy centers and so on — often have a different theological and political outlook than their ecclesial overseers. We’re passing through a moment in which church leaders are becoming increasingly vigilant about such gaps in the name of defending Catholic identity (witness the recent overhauls of Caritas Internationalis and the Leadership Conference of Women Religious, to cite two examples).
Hence the $64,000 question: As pressures around identity and authority intensify, what share of these institutions, or their personnel, will decide to cut their ties to the institutional church — especially, of course, if they can bank on alternative means of support from the state?”
I think Bill D.’s post was quite germane to this discssion.
Further, I think Fr. Clooney in America broadened the perspective.
Mickens in the Tablet today writes from Rome that the effort on religious liberty is directed from there by a”distinctive catholic camp” (e.g. Cardinal Burke, Abp. Stafford.)
It’s one thing to look at Fr. Jenkins” qwords, another at the context in which they are put forward both on ND and in the general catholic community.
Issues revolving about power and honesty have produced the credibility gap.
I’m not sure that i agree with all Bill M. offers, but I don’t see this as doing much for the proclamation of the Gospel.
Joe, Thanks for the response. As usual, I think we agree on quite a lot.
As my response to MikeD suggests, I agree that most Christians would (should?) not accept a description of their faith that restricts it to a certain set of practices or beliefs, but it seems to me that “religion” is by definition a concept that does just that and that this secular legal concept should be distinguished from one’s “relationship with God.” An assessment of the latter would certainly lead to the kind of impossible inquisition that the ND suit seems to fear, but for the purposes of claiming exemption from government mandates or rights to government protections, one must figure out a way to define the relevant practices informed by that relationship that should be exempt or privileged.
In this way, defining “religion” is like defining “marriage.” As many gays and lesbians will tell you, one’s relationship with a partner cannot be reduced to whatever legal definition of marriage is currently recognized as making one eligible for the civil rights and obligations that go with it. Yet, because the law is a blunt instrument, we have to define marriage, if it is going to be a meaningful category for things like tax filing, etc. This is always a negotiated definition, of course, but it is not possible to come up with a definition that is not going to exclude someone, e.g. polygamists, siblings, single people who may nevertheless feel “married” to their employer, etc. Similarly, “religion” is a negotiated legal concept, whereas one’s “relationship with God” is more inscrutable.
On autonomy: This is admittedly tricky. Of course, it is the case that “how one governs oneself” is part of “what one is,” but the question is whether “what one is” can be exhaustively determined by “how one governs oneself.” To use your example, adults certainly do make their “selves” what they are by their decisions, but they do not make themselves “adults” by their decisions. A ten-year-old cannot simply “decide” to be an adult, and then claim that their autonomy is being infringed upon by a constitution that bars them from voting. Similarly, a “religious organization” constitutes its “identity” by the decisions that it makes, but it doesn’t make itself “religious” by fiat. An ostensibly secular university could not simply “decide” to be religious for tax purposes, and then claim discrimination because the current understanding of “religious” does not include also being secular.
My comment about “radical Enlightenment” was referring to the caricatured notion that modern self-determination means the aspiration to “decide” to be whatever one wants to be. I don’t think this is the idea of autonomy we find in Aquinas, the Bible, or Aristotle. I think its more like: because we are certain kinds of beings, we are able to make certain kinds of decisions, but we cannot simply decide to be different kinds of beings (just as we did not decide to be the kinds of beings that we are). It seems to me that this is exactly the idea of autonomy that “religious exemption” involves: Because “x” is a “religious organization,” it is able to make certain kinds of decisions free from government interference, but it cannot simply decide to be a “religious organization.”
My point is that questions of definition must be distinguished, if not completely separated, from questions of decision. Words have definitions irrespective of what any single individual or group decides they should be. These definitions are negotiated, of course, but they are not left to the sole self-determination of any individual or group. So, the fact that Notre Dame doesn’t like the definition of “religion” being proposed does not entail that their right to self-determination is being infringed upon. None of us has a right to define concepts the way that we would like them to be defined. This is why I am interested in hearing other proposed definitions of “religion” that might actually move the negotiation of the concept forward. It will not do to claim a blanket right to self-definition, unless one is really willing to let anyone claim that anything they decide is “religious” should be exempted and protected as such.
Eric: What do you think “religion” means, e.g., in the First Amendment? Is it simply a matter of a negotiated agreement? And who gets to take part in the negotiation? And is the concept subject to change? And could it change so much that what it covers changes, too, as, for example, when it is no longer considered to include activities outside the sanctuary? And how much authority does government have to determine what the concept will mean and what it will cover? And do bodies that consider themselves–and have traditionally been considered–to be religious have any role in determining what the concept is and what it governs?
Being a ten-year-old is a physical fact, and there is a physical criterion for determining when one is an adult. But from the latter moment on, what one is is determined, in every respect except the physical age, is determined by what one chooses to be.
Joe: Yes, I think that what “religion” means in the First Amendment is a matter of negotiated agreement, which, of course, is not “simple.” I think everyone takes part in the negotiation in one way or another, and yes, sometimes by availing themselves of the courts. It could and has changed over time, e.g. polygamy is not protected as a “religious practice.” The government has as much authority as we give it in a representative democracy that is grounded on a constitution. Of course, self-identified “religious” bodies have a role to play in defining “religion,” and certainly the Bishops and ND have a right to express their opinion and to be heard (but not necessarily heeded). Lastly, I just want to point out that for the charge of “Catholic discrimination” (189, above) to go through, one would have to show that the very generic definition of “religious organization” being proposed explicitly or implicitly singles out Catholic institutions, and it seems to me that it doesn’t single anyone out. Presumably, Lutheran, Mormon, Muslim, Jewish, and any other self-identified “religious” body would be similarly affected by the mandate, if they opposed any of the minimum healthcare provisions (again, think of our Jehovah’s Witnesses).
To the second point, what about nationality? I’m sure there are a lot of illegal immigrants currently in the U.S. who would like to be able to simply “decide” that they are American citizens. Or, to go back to another example, gay couples who would like to “decide” that they are married.
Agree.
The ten-year-old is visible, real, provable.
Religion, which means re-tie, from the proto roots for bind again, is a remnant of deep history when bands of ancestors needed creation myths to strengthen their bonds to one another. It didn’t take long for certain specialists to convince the others that they were able to repair the ligatures. Soon they were wearing special masks, special headdresses, shaking special rattles, dancing, chanting, etc., etc.
That people today — taxpayers — must contribute to the support of those who claim to have the power to re-bind humans to invisible beings is . . . weird, imho. Unconstitutional. (But I’m not holding my breath waiting for a candidate to promise to end tax exemption for all religious organizations and practitioners.)
Eric –
About defining “religion” and “religious” –
Obviously “religion” is ambiguous. Our question is: is there some similarity — or *sets* of similarities — among the various meanings of that aterm that allows us to identify *all* the things that are described by that term? In other words, are all “religions” similar in some way or combination of ways? Is there some distinctive sense or set of senses that forms the definitions of “religion” — something that allows us to call all of them by the same term?
Wittgenstein’s notion of a family resemblance term might be useful here. A family resemblance term is one which, unlike a word with one definition, has many definitions, and the definitions *over-lap*. But, unhappily, with a family resemblance term there is *no one part of all its meanings* that is *common to all* the meanings. In the case of “religion” the note common to all its meanings used to be some sense of the word “God”. That is, all uses of the word “religion” somehow made reference to God. But “religion” these days does not necessarily include God in any sense. (See that “Church of Craft” discussed in another thread.) These days, for some people “religion” just describes ultimate preferred value(s).
So it seems to me that “religion” has become a family resemblance term, and any attempt by the courts to seek some one democratic sense that includes *all* the definitions that are in use is doomed to failure.
But all is not lost. It is quite possible for the Supreme Court to *stipulate* a meaning which it will use when talking about the First Amendment. The problem is: *which* definition *ought* the Court to stipulate? Thomas Jefferson’s? James Madison’s? John Rawls? Thomas Aquinas’? Back to the problem of original intent. Sigh.
Ann, I agree that religion is a “family resemblance” term. But even “family resemblance” suggests that there are some things that don’t resemble or some features that aren’t relevant. So, “family resemblance” will get us a necessary fluidity or negotiation of meaning, but it won’t get us all the way to self-definition. Some people are still going to be outside of the family.
Also, I think there are other was to stipulate a meaning than trying to get back to “original intent.”
Eric –
True, we cannot decide, legally or metaphysically, what we are except within a narrow range of self-agency such as deciding which sox to wear or religion to join.
But, yes, we can legally decide which definition of “religion” or “person”, whatever, we will use. It is also legal for others to ignore our uses. What we ignore at our peril is a Court-defined use of a word.
You obviously do not subscribe to the original intent school of constitutional interpretation. What is your basis for saying that the courts may/ought to “negotiate” definitions? Why should one negotiated sense be legal and another not?
“Some people are still going to be outside of the family.”
Eric –
Paraticularly well put, and unavoidable. The Court, at least, really must decide.
Ann Olivier, the issue is more than just the definition of “religion”
The statement is “Congress [now any level of government] shall make no law…prohibiting the free exercise [of religion]
Beyond knowing what “religion” means, you also have to know what “the free exercise of religion” means.
If your religion requires human sacrifice, honor killing of your daughter if she becomes pregnant outside of marriage, or owning slaves , you’ll find that the “free exercise of religion” doesn’t include doing those things.
Once your “free exercise of religion” begins to infringe on the rights of others a balance has to be struck between those competing rights.
The test for judging federal government actions is higher than for state actions, but in neither case is the right to “free exercise of religion” absolute.
That balance may be struck at a different point depending on the religious actor. The proper balance for a diocese may be different from a business owned by an individual Catholic.
In 1956, I began a 51 year career as a philosopher by teaching biology, chemistry and philosophy in a smallish community college, e.g., teaching/inculcating 2nd and 3rd year students facing a qualifying exam as dietitians the rudiments of organic chemistry. “Inculcate” is more apt than “teach” to describe my relationship to my students in elementary organic chemistry, who nevertheless acquired relatively creative skills in creative reasoning because of the complex, but quite realistic, problems that can be posed about organic syntheses.
Teaching philosophy, and particularly moral philosophy, is another matter altogether. As a relatively well informed historian and philosopher of the biomedical sciences, I let my students know how the perspectives of Lavoisier and Darwin differ from those of Aristotle and St. Thomas, and how the resulting transformation of the concept of nature can be construed as undercutting Church teaching about contraception.
In 1968, as a youthful academic libertarian, I wrote, in “Academic Freedom and the Catholic University” (Notre Dame), that academic freedom did pose a delicate issue for such Universities as Notre Dame because of a core ambiguity concerning the subject of the verb phrase “… is free to.” As an individual philosophy prof, tenured at a Catholic University, I was free to teach my students about the weaknesses of the Church’s arguments concerning contraception. As President of a Catholic University, Fr. Hesburgh was free to exclude contraception from the health care plan partially subsidized by the University.
A decade later, in “Abortion, New Directions for Policy Studies (Notre Dame), my colleagues and I tried to advance discussion of this same paradox. We encountered monolithic and utterly non-philosophical opposition from both sides.
Congratulations to Commonweal for providing a venue for a much more civilized and truly philosophical discussion.
Since the name of Fr. Hesburgh has been invoked by some in this discussion, primarily as support for the proposition that Notre Dame is betraying his spirit, I thought his comment as reported by Rick Garnett might be of interest:
Fr. Ted Hesburgh, who just turned 95 (!!), put well and pithily what’s going on in the HHS lawsuits: “I would only say that I think the university is doing what it should do. The government just overreached and overstretched and has to be brought up short,” he says.
http://mirrorofjustice.blogs.com/mirrorofjustice/
I guess we can add him to the group of “problematic” Catholics who are propping up these partisan attacks by the “hierarchs.”
While this comment is not particularly relevant to the complex issues at stake in this thread, I have to ask whether Fr. Komonchak, in his 5/25 11:09 am comment, really means what he sees to. He says that from the moment a person reaches adulthood what he or she is “is determined, in every respect except the physical age, by what one chooses to be.” Perhaps I’m misreading his comment, but this strikes me as a practically Sartrean ( The “Being and Nothingness” Sartre) exaggeration of the character of human autonomy. I’d argue that we can’t make any sense of ourselves or achieve any objectives we may have apart from our interactions with other human beings.
@ Bruce (5/24/12; 7:37 pm):
In my original post (5/24/12; 1:53 pm) on this blog stream I said: “All this legalese … makes my eyes cross over. I guess it is that “gimlet eye of a canon lawyer” at play again?”
Your comment(s) only reinforced my case of convergent strabismus.
While I will plead guilty to being imprecise and inexact “legally” is a badge I wear with pride, I would contend that your statement [i.e., "Your[my] statement is factually in error.”] ignores the principle that reality is indeed a social construct, and [facts] are sometimes inexactly situated depending on the perspective of the observer.
I suppose a simpler way if putting that is that government is forbidden to make a law whose only purpose is to prohibit the the free exercise of religion.
But if government makes a law for another reason, even though it has the unwilled effect of prohibiting the free exercise of religion, it will be legal if it passes the balancing of interests test.
The reasoning is somewhat like the healthcare directive that says that, even though you cannot intentionally abort a fetus:
” — forcing someone to purchase them against their religious belief is a freedom of religion issue.”
No one is being forced to purchase them, just to make them available to anyone who wants them.
The idea of bishops as teachers is more laughable (in the main) by the moment. Have they taken any tests for accreditation as teachers? Have they had to defend their ideas in an open venue where challenge is expected and appreciated? Can they truly claim a level of intelligence and experience that earns them the right to have their decrees and ideas treated with respect? Did any of the “students” have any say over whether or not they choose to learn from these particular teachers?
Fantasy is a long way from reality, particularly in this day and age with a increasingly larger group of bishops who are self-appointed speakers for “the church.”
Bernard: “is determined, in every respect except the physical age, by what one chooses to be.” I don’t know that this is Sartrean. It certainly isn’t solipsistic, and I’d agree entirely with your statement that “we can’t make any sense of ourselves or achieve any objectives we may have apart from our interactions with other human beings.” But even while interacting with other human beings, we are choosing to interact with other human beings and to make sense of ourselves and to achieve our objectives with other human beings. Surely we don’t have to choose between our inescapable responsibility for the selves we become and our interaction with other people?
Not to mention that there are some interactions with other people that positively inhibit taking responsibility for one’s own self.
Joe, to return, as you urge, to the ND lawsuit, I agree, and have said, that both the bishops and now Father Jenkins have some legitimate religious freedom concerns, whether or not these have now been swept up into something larger and very troubling.
By now I have had time to quickly glance over the ND Complaint and I see that it very closely follows the template that the same law firm has used for other Catholic lawsuits. And one of its weaker points is the one that this thread has now taken up, although in a fascinating and enlightening philosophical manner rather the more down-to-earth style that is my own weakness.
On the one hand, these Complaints insist that Catholic universities, hospitals, and charities are certainly religious organizations and should qualify for the same exemption as parishes or Sunday schools. On the other hand, these Complaints sweepingly dismiss all possible means of determining what is or what is not a religious organization as both highly resistant to any determination (we’ve no idea the religion of our employees or clients) and totally beyond the reach of the government under the First Amendment (intrusive and entangling inquiries would be required).
The conclusion is that the government has no business in defining what is or is not a religious organization beyond acknowledging the claims of the organization to be religious. Is there anyone on this thread who believes that, whatever the valuable philosophical insights into the many real problems about defining religion, such a position is tenable?
Does anyone claiming to be a religious organization get tax exempt status from the IRS? See the decades-long battle over Scientology. Of course, this is negotiated, and mainly in the courts, and all sorts of things go into the mix, including tradition, analogies, even personnel (leadership, for example, if not percentages of employees).
Don’t forget that I’m someone who objected to the original non-exemption of these Catholic organizations. But the pretense that this is beyond the government’s reach is one example of the refusal to give any ground that could be the basis for compromise. Maybe it isn’t so unreasonable, in our now wildly religious pluralist society, to think not just in terms of the exempt/non-exempt dichotomy but in various degrees of exemption depending on the different natures of religious organizations.
Is this move by the lawsuits an example, as others have suggested, of just throwing everything but the kitchen sink, and maybe the kitchen sink too, into the Complaint for purposes of bargaining? Could be. Indeed, probably.
For those of us not engaged in litigation but looking for some clarity about religious freedom, religious exemptions, and their limits, we ought to puncture this rather than be impressed by it.
Let me endorse Peter Steinfels’ 7:10 pm comment. And let me add this “thought experiment” that makes no pretense of being historically accurate or serving as a norm for constitutional interpretation. Suppose a constitutional assembly has the task of producing a document that allows for people having very different religious convictions or no such convictions at all to live together in a harmonious, durable society. To achieve this objective they decide to grant each religious group ( or non-religious group) the freedom to hold whatever beliefs they wish and to endeavor to convert others to their beliefs, with the proviso that their activities do not amount to disadvantaging people holding different religious views. What the constitutional assembly has to offer to each group to grant this proviso is the opportunity to live at peace in this pluralistic society.
What the constitutional assembly has to reserve to the officials that are charged with enforcing this document with its proviso is its own capacity to be the final arbiter of whether some religious group’s claim that doing x is crucial to its own practice of its faith and that it is not thereby infringing on any other group of people.
In our system, the courts, ultimately the Supreme Court, is charged with enforcing this document and its proviso. It is not surprising that a religious group would be able to show that having more than is consistent with this proviso is part of what it holds as part of its religious doctrine. It does not follow, so far as I can see, that the Courts ought to grant the group’s claim. It need not deny that the claim is part of the religious group’s faith, but it takes the constitutional proviso to have priority precisely because the proviso is crucial to the cohesion of the society as a whole.
Working all this out in the specifics of the historical development of a society is always a work in progress, but I don’t see how the state officials could reasonably be expected to cede having the decisive word in each conflict of this sort.
Prudence obviously would require the state to impose as little as necessary to enforce the proviso. But prudence would not allow them to make exceptions to the proviso itself.
Fr. Komonchak, I take it that when I exercise my freedom, my “self-determination” I unavoidably draw on supports that predecessors and contemporaried provide for me. Otherwise, my bare decision to do x, whatever x may be, will hve no efficacy. So i can’t claim that I am wholly responsible for whatever I do, whether good or bad. The notion of other people as giving us good or bad example bears witness to the truisms like “we stand on the shoulders of others,” “thank god for my good parents,” “would that I had the benefit of a Catholic school education,” etc.
“The conclusion is that the government has no business in defining what is or is not a religious organization beyond acknowledging the claims of the organization to be religious. ”
Peter S. –
I would guess that those who hold this position are relying on Hossana, where the Court ruled that only a religious group could decide who are authentic ministers of that group. One might make a case from HOsanna that the competence to judge who its ministers is dependent on determining what its tenets are, and this implies that a the group is also competent to say whether or not those tenets meet *its own* definition of ‘religious”.
But it seems to me there can be a conflict between the group’s meaning of ‘”religious” and the Court’s definition, and, bviously, in a legal dispute the Constitutional definition (i.e., the meaning of the Justices) must trump the group’s definition.
Now if we only knew what the Court’s definition is.
The conclusion is that the government has no business in defining what is or is not a religious organization beyond acknowledging the claims of the organization to be religious. Is there anyone on this thread who believes that, whatever the valuable philosophical insights into the many real problems about defining religion, such a position is tenable?
I guess Cardinal Dolan would say yes.
http://www.youtube.com/watch?v=eahML0Ho894&feature=youtube_gdata_player
“Maybe it isn’t so unreasonable, in our now wildly religious pluralist society, to think not just in terms of the exempt/non-exempt dichotomy but in various degrees of exemption depending on the different natures of religious organizations.”
Peter S. –
It seems to me that the question of the degrees of exemption is related to if not essential to the question of whether or not such entities as religious schools and religious hospitals, etc. are intrinsic, constitutive parts of the legal entities which the Court calls “religious groups”. In other words, is a religion actually constituted by these entities which are in some way sub-parts of the more complex whole.
The bishops are claiming, rightly I think, that those sub-parts are intrinsic to what the RCC is because of the teaching about being our brother’s keeper and the commandment to love others. But this, of course, includes in the definition of “RCC” not only the teachings and rituals but the commandments and actions inspired by those teachings and commandments. The RC religion is not just believing certain things, it is also doing certain sorts of things.
True, those doings come and go, but they are always of a certain kind — eleemosynary. (Love that legal term:-) So they are at least generically constant in the life of the Church. This view of what “the Church” is, is essentially the view that the Church is a *process* with at least some parts that some and go, but with some parts that remain. (I’ve read that Karl Rahner saw it that way, but you’ll have to ask a Rahner expert where he says it.)
“On the one hand, these Complaints insist that Catholic universities, hospitals, and charities are certainly religious organizations and should qualify for the same exemption as parishes or Sunday schools. On the other hand, these Complaints sweepingly dismiss all possible means of determining what is or what is not a religious organization as both highly resistant to any determination (we’ve no idea the religion of our employees or clients) and totally beyond the reach of the government under the First Amendment (intrusive and entangling inquiries would be required).”
Thank you for explaining this. I found it very helpful.
However, I am reminded of the appeal of the Respect for Rights of Conscience Act, which uses the following language: “contrary to the religious beliefs or moral convictions of the sponsor, issuer, or other entity offering the plan.” Yes, there will be interpretation required here, just as there is for conscientious objection to military service. But unless abortifacient contraception is determined to be of more importance than military defense, those with moral convictions against it should not be required participate in it. If that means a Taco Bell doesn’t provide free contraception, I really don’t see the problem with that. What is so outrageous about this position?
(This is all aside from whether the bishops should be willing to compromise and should not be proclaiming the apocalypse..)
Peter wrote:
“I also can’t agree that the administration picked this fight. The evidence is that it marched into it because of ideological blinders.”
I apologize for the lateness of this reply. I believe I’ve used the term “picked this fight” from time to time in comments to dotCom, and perhaps you’re right that the administration didn’t do this with the deliberate intent of starting a fracas. But the salient point is that by including contraception in the list of essential medical care, and then crafting the religious exemption as narrowly as it did, the administration initiated the controversy. I’m skeptical that it was unaware that it would be controversial. At the very least, the HHS lawyers that seem to have copied the narrow definition of a religious entity from state legislation and pasted it into the federal regulations must have been aware that the definition had provoked at least two widely publicized legal fights, one in California and one in New York.
There are at least three levels of actions that the Obama Administration could do to make this controversy go away. So far, it has shown zero interest in two of them, and has not signaled so far that it will pursue the other.
The first, and best, recourse would be simply to rescind the mandate. I believe the mechanism for making this happen would be for the federal government to un-classify contraception as an essential health care item (as indeed it isn’t). This is the church’s best-case outcome. To my knowledge, thus far the Obama Administration does not seem to have seriously considered rescindment. Given the unpopularity of the Affordable Care Act and the inevitability of its being one of the two or three most important campaign issues this year, perhaps it’s not politically feasible for the administration to signal that there are any weaknesses in the content or implementation of the act. And yet the administration has demonstrated flexibility in granting waivers to numerous individual employers, and has shown itself capable of strategic retreats, as when it announced it was dropping the CLASS Act provision. Seemingly it irks the bishops that Catholic institutions aren’t entitled to the same consideration.
The second possibility would be to retain the contraception mandate but define the exemption in such a way that Catholic institutions are exempt. If life and the federal government worked better than they do, this would be the outcome. It would be a win-win scenario. if there really is a chance of a negotiated settlement, perhaps this would be the end-game.
The third possibility is to craft an accommodation that addresses the church’s concerns, most or all of which seem to be legitimate. We shall have to wait and see whether this happens.
Peter, there is a legal doctrine that requires parties to raise all possible claims against a statute lest they be waived. That is why you will often see multiple arguments (some of which are conflicting or contradictory) in a complaint or brief. To limit the argument to the one that is most likely to win or most reasonable to one audience (the public or commonweal readers or the administration) might be fatal to the lawsuit if it is not persuasive to the judge(s) that ultimately decide the case. Accoringly, a complaint should not be treated as a press release or academic paper or any other type of document other than what it is.
Ann, apologies for the late response. I am traveling and have less reliable access to the internet than usual. Regarding “original intent,” it seems to me that the courts are always in the business of making negotiated interpretations of definitions as well as applications, and it doesn’t seem any more plausible to me to give some kind of privileged insight into these matters to the Framers, who were basing their language on an 18th century context and not a 21st century one. I’m not a historian, but I imagine that religion in American looked very different in the 1780′s than it does in the 2010′s. So, I’m afraid all we are left with is the usual practice of rational conversation, deliberation, argumentation, democratic procedure, etc.
Of course, I endorse Peter’s comments, which said what I have tried to in a mercifully and virtuously down-to-earth way!
Joe, again on the issue of autonomy, I agree with Bernard. I heard Sartre in your initial formulation as well. I would add that it is because we are the kind of beings we are (humans) that we are able to act within a certain sphere of freedom, which includes embodying this free being through social interactions and the communal practice of rationality. Incidentally, this last part is why all of our concepts (including “religion”) are shared and negotiated. I think it is solipsistic to suggest that a group or individual could take matters into their or his/her own head(s), so to speak, and claim a right to self-definition over against the communal, democratic practice of law-making and constitutional interpretation. It is because we become who we are in society, in consultation with others, that our conceptual self-determinations are always negotiated.
Eric –
Thank you for your reply. As usual, you describe a messy problem (this time the problem of communication by law) about as clearly as the mess can be described. But, no fault of yours, it remains a mess.
If we can communicate at all about the meaning of a law it’s because we share some common meaning of the words we use to do so. and, ISTM that *all* of our words (including the ones we use now) are rooted in the past, like it or not, and regardless of the changes in meaning or not. You yourself note that we can’t just spring new meanings into the mix and expect that to work.
Usually the current meanings of a word can be traced back to original meanings. This is especially true of the important words, like “law” and “constitution”. Usually the original meaning or some important part of it remains. It seems to me that lawyers are generally extremely careful with their meanings of legal terms. They had better be or the judges will point out their erroneous uses and slap them down. It sometimes amazes me how they retain legal definitions through generations. It’s why lay people can’t read legal documents and be sure they understand them. Yes, there is some change in legal meanings, but, unless the lawyers correct me, I’ll continue to see legal usages as more stable than common ones. Whether or not those words are still *useful* is a different question.
There’s another reason to hold fast to their meanings, a practical one. If we substitute someone else’s meanings we are faced with the problem of the new — i.e., the problem that the ramifications of the new meanings have not been explored, and we are often left with unintended consequences. If we need new terms (I mean the physical parts of words) we can always invent them, the way the scientists and some philosophers do.
Not to mention the problem of treason. Huh? you say. Yes, I say, treason. (ok, so I’m using the word in a technical way.) Consider that in England adultery by the queen is a treasonable act. Why? Because if she thereby conceives a child, it — not the king’s — will de facto inherit the realm, and the people will be deprived of their rightful sovereign. In the same way, I say, when later Supreme Court justices change the meanings of words of the Constitution, they have introduced bastard meanings, meanings that the Founders did not risk their lives for or even die for, and which later generations confirmed by their acceptance of *the original meanings*.
Sure, there are problems with the Constitution. But it provides means for revisions, including new words with different meanings. Allowing changes in it to originate from a few untried, unelected, sometimes antic justices just isn’t the wisest way to change it. Yeah, i’m a strict constructionist, theoretically at least.
Bernard and Eric:
I devoted a chapter of my Foundations of Ecclesiology to the under-appreciated degree to which we depend on others for the way we think (language), the things we hold (beliefs), and the things we choose (freedom). The chapter is entitled “The Social Mediation of the Self”! So I’m not inclined to deny what you both stress, and I certainly didn’t think that I was denying it when I spoke of our responsibility for our own self-constitution. The same Bernard Lonergan who said that 90% of what a genius holds he believes on the basis of other people’s testimony spoke often of “the ex-istential moment” as occurring when one realizes that it is up to oneself to decide for oneself what to make of oneself. There are some communal and social milieux that encourage that degree of autonomy, and others that do all they can to prevent that moment from occurring.
On judgment day, God will ask each of us: “What have you done with your freedom?
Peter:
I think we agree that the government has a right to determine which entities are considered to fall under the protection of the First Amendment, and we may all want it to exclude the people who want to claim their hunting lodges as churches deserving of tax exemption. But I find the criteria used far too narrow in their definition of “religion,” and I believe you do, too.
J.C. Murray considered the Everson and the McCollum cases revolutionary in the Supreme Court’s interpretation of the First Amendment. (It can be found at: http://www.firstthings.com/article/2008/02/003-a-common-enemy-a-common-cause-16 ) He thought McCollum “a legal victory for secularism,” and he believed it would have further “secularizing effects,” above all this one:
Earlier in the talk he had said:
Thanks to many for comments on this thread. Jim Pauwels, with your help, we might be able to get together and negotiate a solution. Joe, I don’t want to disagree with you or J.C. Murray, but two qualifications about our tendency to focus on “secularism” as the problem. First, cooperation between government and “faith-based” organizations is far from diminished; it may have even been expanded. What has diminished in the “Judeo-Christian” or Protestant-Catholic-Jewish cultural consensus, and therefore the difficulty of finding a neutral space that is not necessarily secularist in the sense of an “ism.” Second, behind the present controversy is a moral conflict essentially over two issues: abortion and same-sex unions. Contraception is a kind of surrogate battleground. The people who have a moral position at odds with Catholic teaching on these matters are not necessarily secularist. Many are religious. This question of the secular, of secularism, and of the relationship between government and moral views needs a better treatment than our reflexive criticism of “secularism” often allows.
Ann, I agree that it’s a mess trying to get at legal definitions, let alone the definitions enshrined in the Constitution. As long as we can agree that such definitions have changed, e.g. “person,” and may need to change to make room for new social realities that, often, demand the expansion of (individual?) rights, then I think we’re good.
Joe, thanks for the reference to your work. It sounds like we’re on the same page. I would just say that the “last judgment” kind of autonomy that you want to leave room for is usually not the kind of autonomy that the law can accommodate. That kind of autonomy usually belongs to prophets, saints, and revolutionaries, which, incidentally, does seem to be the rhetorical mantle that some of the anti-mandate folks want to adopt. I’m all for revolution, if it is called for. In this case, though, I think our would-be prophets might be on a (holy?) fool’s errand.
Peter, I agree that a reflexive fear of the secular is at work in a lot of this, and, I would add that, like it or not, secular arbitration is probably all we have unless we want to descend back into religious wars, as Mollie’s post on the anti-Sharia movement suggests.