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Fact-checking Cardinal Wuerl & Archbishop Lori.

Last Thursday, Cardinal Donald Wuerl of Washington, D.C., and Archbishop William Lori of Baltimore appeared on EWTN's The World Over to discuss the twelve lawsuits filed by Catholic organizations against the Obama administration over the contraception mandate. (I've embedded the video at the bottom of this post.) Throughout the interview, Wuerl and Lori sounded familiar notes -- this is about religious liberty, not contraception; the mandate constitutes an unprecedented government intrusion into the life of the church; the definition of "religious employer" must go. But they sounded some false notes too.

At the top of the interview, Raymond Arroyo asked Wuerl and Lori about the Obama administration's proposed accommodation, which would shift responsibility to contract and pay for contraception services from employers to insurers.

Wuerl: Oh it sounds great, if it were true. It sounds wonderful. We have this great accommodation, and you don't have to worry because you're not going to have to provide or pay for [contraception coverage] -- the insurance company will. We're self-insured. We are the insurance company. So nothing has changed. We've said that from the beginning. This was an accommodation that was only on paper. In reality, it changed nothing.

Two points: First, the bishops and their surrogates have been saying this for months -- the original form of the mandate is what's in the books, and that would force Catholic organizations to include contraception coverage in employee health plans. Of course, that's not inaccurate, but it's also not terribly responsive to an important development: the proposed rule that was entered into the federal register in March. (You know, the one Cardinal Dolan initially called a"step in the right direction.") That document explains the administration's intent to develop policies to allow religious employers -- those that cover their employees through an insurer and those that are self-insured -- to opt out of paying for contraception coverage in their health plans. (Another HHS document published the same day made it clear that, pace the Franciscan University of Steubenville, self-insured student health plans were exempt from the mandate.) When the administration published the proposed rule, it announced a ninety-day period for public comment. That doesn't end until June 19. So while Cardinal Wuerl is correct when he says the accommodation hasn't been finalized, he fails to mention that the window for public comment has not yet closed.

Second, Cardinal Wuerl said something surprising in that exchange: he said the accommodation "sounds wonderful." That isn't the way episcopal critics of the mandate usually respond when asked about the accommodation. The standard reply is: "This is a legal fiction. We'd still be facilitating contraception coverage in violation of church teaching." Instead, Wuerl seemed to praise it: "We have this great accommodation, and you don't have to worry because you're not going to have to provide or pay for [contraception coverage] -- the insurance company will." Does that mean that if the proposed accommodation is finalized along those lines, the bishops will stand down? Color me dubious. But that's not really the conversation the bishops want to have. They'd rather focus on the structure of the exemption, which frees some religious employers from covering contraception, but not others. Over to Archbishop Lori:

It's certainly at the heart of the suits.... The definition is that we should be a community that hires only its own, and serves only its own. And that if we venture out and serve the common good, then we're not religious enough, and therefore we're not exempt from this unjust HHS mandate.... And so therefore this ACLU definition that they are imposing upon us is like a straitjacket, and so we reject it.

No. The exemption does not define religious employers as those that hire and serve only co-religionists. Rather, in order to qualify for a full exemption, a religious employer must be nonprofit, it must primarily employ and serve co-religionists, and its purpose must be the inculcation of religious values.

Perhaps Archbishop Lori took his cue from Cardinal Dolan's appearance on CBS This Morning, where the cardinal offered the same distortion of the exemption, and the same metaphor to describe it. (Cardinal Wuerl offered a similarly erroneous description of the exemption on yesterday's broadcast of Fox News Sunday.) Whatever the case, now would be a good time for bishops who speak publicly about this issue to brush up on its details.

That goes for TV personalities too. Arroyo's description of the exemption was no better: "To be clear, according to this mandate, you can only get out of it, get out as a religious organization if you only hire co-religionists, Catholics, and only if you serve Catholics." That's clear all right. Clearly wrong. Of course, Arroyo asked Wuerl and Lori what they made of Bishop Stephen Blaire's interview with America, where he spoke about his fear that the bishops' religious-freedom campaign was being co-opted for partisan purposes, and shared some bishops' concern that there hadn't been wider consultation among the bishops on the USCCB's strategy. (Blaire quickly issued a clarification of those remarks, which, without altering their substance, re-emphasized his agreement with the goal of protecting religious freedom.) Cardinal Wuerl's response:

One of the reasons we went into court was to get it out of that whole political discourse, that area of political discourse that says this is why you're doing this, this is what you're doing that. We wanted to take it to court, where objectively, without any of that rhetoric, the court will look at it and say, "This is right, this is wrong. This is constitutional, this is not constitutional." I don't think it comes as a surprise or shock to anyone...there are camps in the media, and sometimes, sometimes they actually create the story.

What part of that pertains to Bishop Blaire's comments? Is it the last sentence? The media didn't create this story. For months, the U.S. Conference of Catholic Bishops has been coordinating a well-organized campaign to overturn the contraception-coverage mandate. One of its members broke ranks to say something most people already knew, but few believed they'd hear from a bishop: Not all of us agree. Some think there should have been more consultation with the body of bishops about how to conduct the campaign.

Archbishop Lori insisted that "there is overwhelming unity among the bishops, and tremendous support among our people, for the action that was taken last week in filing those lawsuits, and in the overall effort to defend our First Amendment rights." The media, he claims, went "looking for what they perceive to be a little small crack in the wall, and then they want to drive a bulldozer through it." But in fact there is not unity among bishops when it comes to the lawsuits. Lawyers representing the entire California Catholic Conference wrote to the USCCB to caution against filing the suits. They called that strategy "imprudent" and "ill advised." And the USCCB didn't reply before issuing its press release announcing the legal complaints. What kind of unity is that?

Why didn't more dioceses join the suit? "These lawsuits represent the entire breadth and width of the United States," Cardinal Wuerl explained. Perhaps, but is it so strange to wonder why two of the three largest dioceses -- Los Angeles and Chicago -- didn't sign on? It's not as though the archbishop of Chicago has been timid in his criticism of the contraception mandate. And of course there's another body that really does represent the breadth and width of the Catholic Church in the United States: the U.S. Conference of Catholic Bishops. It opted out too. Why sue now?

Archbishop Lori: It's been clear from the beginning that we would seek every avenue of defending our First Amendment rights -- the Executive Branch, we've tried legislative remedies. And everyone understood that the clock is ticking.

Arroyo: This kicks in in August.

Lori: It's going to kick in in some of these institutions in August. So we didn't have much of a choice when it came to timing. Some would say, "Well perhaps you could wait to see how the suits against the overall health-care bill go, and maybe it will be disabled there." We can't wait.

Arroyo is right: According to the final regulations, in the month of August some religious organizations will have to cover contraception for employees. He just failed to note the year, which is 2013. And if the Obama administration makes good on its promised accommodation, those organizations -- including those that self-insure -- won't have to contract or pay for contraception coverage. So of course the complainants had a choice. They could have waited for the Supreme Court's decision. They could have waited until the comment period on the proposed accommodation concluded. But they chose to sue now.

In the middle of the interview, Arroyo played a clip of White House Press Secretary Jay Carney responding to a question about the lawsuits. Carney explained that the policy of the president meets "two important objectives": it ensures women have access to preventive services, including contraception, and it respects religious liberty. "Our door remains open to faith-community leaders," Carney said. Is that so? Arroyo asked. Lori's reply:

When I met with the president's chief of staff several months ago, what became clear was that there is no openness thus far to removing the constricting definition of what a religious body is, and no openness to taking the mandate itself off the table.... The president is pursuing his first goal, which is to make contraceptives and abortifacients universally available, but he is not pursuing the second goal [of protecting religious liberty].

Leaving aside the fact that in his previous diocese Lori allowed Catholic hospitals to dispense emergency contraception -- what he means by "abortifacients" -- to rape victims, there's no way the Obama administration is going to ditch the contraception mandate completely. Still, the president would do well to consider what the bishops are promising.

Cardinal Wuerl: To talk about the door being open--that's wonderful. But there has to be some productive results.... What never changes...is that definition.... The problem goes away if that definition is changed.

As administration officials work to finalize the accommodation this summer, they should ask themselves: Is this definition of religious employer worth the headache? What does it get them? How does it benefit their policy goals? Is it the only way to achieve those goals? If the answer to that last question is no, then perhaps the most prudent course is scrapping the narrow definition in favor of something with a bit more statutory precedent.

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Thank you, Grant. Some of had raised those questions from the beginning about why more dioceses and the USCCB itself did not pursue a suit also and the weak answer from one of the bishops, I believe, "Well they all don't have to do it." Perhaps, but if the body that is representative of the bishops itself does not, what does that say? And I still wish someone would explain those other entities whihc likewise filed -- and why there were not more. They seemed to be such a hodge-podge -- other the Notre Dame which obviously has its own history as well the infamous Bishop Jenky to deal with. Bp. Lori's continued selective moral theology on "abortifacients" which are part of the rape protocols is troubling not only because it is dishonest and distorting, but I think he and the bishops beileve it! Likewise, they have not given up the essential point about their so called "remote material cooperation" if they-- even as self-insured -- are required to pay for contraceptives. I have seen no one address the fact that some 13% + of precriptions for contraceptives are for not contraceptive purposes and are even prescribed for women beyond menopause. I wish some one would address how women are suposed to have that covered in their plans-- or do they need a physician in the bishops truncated moral theology to write an excuse that they be used for those purposes?Finally, the whole question of how these multiple suits may be adjudicated is interesting to we non-legals. One opinion I heard was that they would be bundled into one suit and presented to a judge who will rule on them. I don't understand that, but I guess that's possible. But then the opinion may not be rendered for well over a year. Of course, if ACA is overturned in whole or part, that seems to get more confusing! And the bishops are puitting these eggs in the "court" basket in contrast to administrative -- a gamble for sure! And we're still fudging around the question of what is the true"religious liberty" in this issue.As a supporter of teh ACA and gnerally an Obama supporter, I sure wish the Administration never raised it this year. But it doesn't seem like it just be dropped now like the farm safety proposals were today.To paraphrase a notable "This is another fine mess you've got us into ." Said globally...

As you may know, Grant, the New York Times ran an editorial this morning titled "The Politics of Religion," in which the authors characterized the lawsuits filed by Catholic groups as "a dramatic stunt."

Cardinal Wuerl and Archbishop Lori probably look at the lawsuits as risk-free gambles, because they probably think they have nothing to lose if the lawsuits are tossed out by judges.But the lawsuits are dramatic. As a result, the lawsuits might help the bishops stir up conservative Catholics for rallies for freedom of religion during the fortnight before July 4, 2012.

At my Jesuit HS 64 years ago, the worst name a Jesuit scholastic could call you was a quibbler. Bishop Lori in that interview is a quibbler.

The New York Times editorial ignores the issue of self-insured groups. "And there was no violation of religious exercise to begin with. After religious groups protested, the administration put the burden on insurance companies to provide free contraceptive coverage to women who work for religiously affiliated employers like hospitals or universities with no employer involvement."I think a lot depends on the administration coming up with a solution to that problem. The ideas mentioned in the Request for Comments didn't sound very plausible.

Grant, Did you see the Catholic Taco Bell owner get thrown off the troika when the lawsuits were filed? Did I miss something? He was an example the bishops were using a few weeks ago, but this to-and-fro over the definition of a religious employer seems to leave him completely out of it.Why it's important, of course, is that if employers are free to pick and choose which rights to health care their employees can exercise, then there is no need for the states to have the administration in court over the mandate. Employer-choice equals no mandate equals no universal coverage. That seemed to be a sticking point for the bishops earlier, and not it seems to have been quietly dropped.

That last-sentence "not" was supposed to be "now." Sorry.

Thanks, Grant...what I expected when you referenced Arroyo earlier. The usual meme - borrow media tactics from Fox News, confuse facts, and try to act like superPAC per catholic leadership. Would love to know the "real" reason why the USCCB did not join this "stunt"?Heard the most "political" sermon in the past 10 years on Pentecost Sunday - here liturgically and via the scripture of the day the theme of unity amidst diversity is echoed over and over and over again.But, we rather heard about how the church, tho imperfect, in the US has 67 million voters - that is more votes than elected Obama last election. Do you realize the power of our church? He also continually repeated that these lawsuites were not about bc, etc. but religious freedom (he didn't use liberty).Your analysis of Lori/Wuerl echoes what Farrell printed in his diocesan paper this week - wonder if that is the "secret" sub-committee on religious liberty of the USCCB talking points? We repeatedly here how Dolan has a PhD in American Church History from CUA - yet, his comments and influence reveal little substance; little analysis; poor or indifferent understanding of the tensions in the First Amendment, the founders' intentions, and the Federalist Papers, reveals little of the tensions 100 years ago with Rome vs. US bishops on "Americanism" - it is, as if, our bishops know, remember, and reflect on nothing in our own US church history and thus, their narrative suffers, diminshes our development and achievements, and ignores some of the episcipal wisdom from our history. Why?

While we're fact checking, it bears observing that the bishops' claims are false in an even more fundamental way than you note. Notwithstanding the bishops' arm waving about religious liberty, the health care law does not force employers to act contrary to their consciences. Contrary to bishops' assertions and the widespread belief of those who trustingly accept their claims, the law does no such thing.Many initially worked themselves into a lather with the false idea that the law forces employers to provide their employees with health care plans offering services the employers consider immoral. The fact is that employers have the option of not providing any such plans and instead simply paying assessments to the government (which, by the way, would generally amount to far less than the cost of health plans). Unless one supposes that the employers religion forbids payments of money to the government (all of us should enjoy such a religion), then the laws requirement to pay assessments does not compel those employers to act contrary to their beliefs. Problem solved. Solved--unless an employer really aims not just to avoid a moral bind, but rather to control his employees' health plan choices so they conform to the employer's religious beliefs rather than the law, and avoid paying the assessments that otherwise would be owed. For that, an employer would need an exemption from the law.Indeed, some have continued clamoring for such an exemption, complaining that by paying assessments to the government they would indirectly be paying for the very things they opposed. They seemingly missed that that is not a moral dilemma justifying an exemption to avoid being forced to act contrary to ones beliefs, but rather is a gripe common to many taxpayerswho dont much like paying taxes and who object to this or that action the government may take with the benefit of their tax dollars. Should each of us be exempted from paying our taxes so we arent thereby forced to pay for making war, providing health care, teaching evolution, or whatever else each of us may consider wrong or even immoral? If each of us could opt out of this or that law or tax with the excuse that our religion requires or allows it, the government and the rule of law could hardly operate.In any event, those complaining made enough of a stink that the government relented and announced that religious employers would be free to provide health plans with provisions to their liking (yay!) and not be required to pay the assessments otherwise required (yay!). Problem solvedagain, even more.Nonetheless, some continue to complain, fretting that somehow the services they dislike will get paid for and somehow they will be complicit in that. They argue that if insurers (or, by the same logic, anyone, e.g., employees) pay for such services, those costs will somehow, someday be passed on to the employers in the form of demands for higher insurance premiums or higher wages. They evidently believe that when they spend a dollar and it thus becomes the property of others, they nonetheless should have some say in how others later spend that dollar. One can only wonder how it would work if all of us could tag our dollars this way and control their subsequent use.The bishops are coming across more and more as just another special interest group with a big lobbying operation and a big budgetone, moreover, that is not above stretching the truth. The bishops want the government to privilege their business enterprises by allowing them to offer their employees health care plans conforming to the bishops religious beliefs rather than the law. Theyre so keen on this that they have resorted to a media blitz centered on the false claimsometimes uttered in priestly tones by bishops themselvesthat the law forces employers to act contrary to their consciences. Bunk!

Bill deHaas: Yes, Cardinal Dolan holds a Ph.D. from CUA.But consider the title of his doctoral dissertation: TO TEACH, TO GOVERN, AND [TO] SANCTIFY: THE LIFE OF EDWIN VINCENT O'HARA (1985). As you may know, to teach, to govern, and to sanctify is a standard formula of the Roman Catholic Church's understanding of its roles. Yes, to be sure, Archbishop O'Hara of Kansas City, Missouri, was an American bishop. But it sounds as though Dolan centered his attention in studying O'Hara's life on standard ways of thinking about the church.

Great Scott! Archbishop O'Hara seems to have generated two posthumous biographies. My copy of EDWARD VINCENT O'HARA: AMERICAN PRELATE by J. G. Shaw is copyright 1957 and was published by Farrar Straus. When did the cardinal write his?

To teach,govern and sanctify is the role that the hieravchy over time used to describe its functions.Not much about service etc.But IMO the Bishops do a lousy job ofteaching -how well most folow the contraceptio nrule for exa,plegoverning -e.g hand.ling of sex abuse (e.g Philly, KC, etc. etc.sanctifying -the staggerin gnumber of ex catholics IMO is testimony on how well they ddidn't incorporate the faithful for the sake of"definitive" Catholicsm.I also think the Cardinal Abp(with his pal Donague) has done a lousy job of fulfilling his thesis in practice

Tom Blackburn: As I indicated in parentheses in my message, Dolan completed his CUA doctoral dissertation in 1985.In 1992, CUA Press published Dolan's book titled SOME SEED FELL ON GOOD GROUND: THE LIFE OF EDWIN V. O'HARA.I have not seen either Dolan's 1985 dissertation or his 1992 book. But I assume that his 1992 book is a revised version of his 1985 dissertation.

Tom Blackburn, the Taco Bell stand owner is covered by the suit brought by the Thomas More Law Center on behalf of Legatus., which is an association of Catholic buiness owners and managers.http://www.thomasmore.org/news/tmlc-files-lawsuit-challenging-the-hhs-ma...

I'm impressed you heard of Edwin O'Hara! Doesn't sound like acontroversial or ground breaking topic...Wonder if he had much to say about religius freedom...

T. Farrell, thanks. I gotta remember to read the whole thing. John Hayes, double thanks. I had lost track of the real nuclear bomb in the assault. David, Bishop O'Hara was one of the good guys. Critical figure in creating the first minimum wage law, premature ecumenist and one of the founders of the National Catholic Rural Life Conference. And he had a lot to do with spreading CCD in this country. And other stuff.

NCR had an article on Archbishop O'Brien last FAll citing his work in Social Justice, liturgical renewal and biblical studies.http://ncronline.org/blogs/ncr-today/day-edwin-vincent-ohara

O'Hara

Thanks, Prof. Farrell - assumed too much in my indirect reference.Hate to borrow from Wikipedia but let's just highlight:http://en.wikipedia.org/wiki/Edwin_Vincent_O'HaraMoney quotes I was alluding to:- chaplain during WWI- leading force in enacting a minimum wage law through the state legislature in 1913; he later became the defendant in Stettler v. O'Hara when the law was tested and upheld in the U.S. Supreme Court in 1917 (contrast this to Dolan's current lack of experience and what position do you think O'Hara would have taken on PPACA and the HHS mandate?)- chosen to be chairman of the Oregon's Industrial Welfare Commission in 1913 - founder and director of the National Catholic Rural Life Conference, inspired by his ministry to those who lived in sparsely populated areas. According to him, "The Church is the biggest single factor in building up rural communities- In 1931, he was the only American bishop present when Pius XI delivered his encyclical Quadragesimo Anno, and spoke for the United States as delegates from each Christian nation reported the effects of Rerum Novarum (again, would suggest that you would find Sr. Carol Keehan using/living Rerum Novarum much more than Dolan, Wuerl, or Lori)- considered to be theologically liberal, particularly in the fields of liturgy and social justice- proponent of Catholic Action, he encouraged lay involvement and appointed laypeople to several top diocesan positions. Some believed he went too far in his promotion of the laity, leading even his own chancellor to resign in disapproval (do you see any of these bishops doing the same?)- led the effort to revise the Bible in simpler terms (contrast that to these guys defense of the MR3)Okay - without drilling down or going into more detail - this is why I posed my questions. If Dolan truly understood this archbishop and his contributions, his current and recent actions don't seem to reinforce my belief that he knew O'Hara very well - despite his thesis and later book?

John Hayes: Gerelyn will be happy to see that you supplied a link to her NCR piece about O'Hara.

And also to be remembered was Archbishop O'Hara's pivotal role in getting under way the Confraternity translation of the Bible, beginning with the New Testament. Now known as The New American Bible. For Catholics in the US, it was the successor to the Douai-Rheims version, and showed that American biblical scholarship had come of age.

, as if, our bishops know, remember, and reflect on nothing in our own US church history and thus, their narrative suffers, diminshes our development and achievements, and ignores some of the episcipal wisdom from our history. Why?"Bill deH. --Your question about the competence of the bishops is relevant not just to the question considered in this thread. The competence of bishops and priests has become a universal problem in the Church.In an interview of respected church historian Vittorio Messori in LaStampa, Messori says that the Vatican is in a mess right now because of the "rampant mediocrity" of the staff there. He attributes that mediocrity to the sheer lack of priest in the Church now as compared with pool of priests in the pre-Vatican II Church. He argues that with the exodus of so many priests post-VII and the meager number of young men entering the priesthood since then , the dioceses world wide- simply do not have enough bright young men to send to staff the Vatican. It has resulted in this "rampant mediocrity" of the current Vatican staff at all levels.I submit that the same sociological situation is affecting the choice of bishops, including those in the u. S. A huge number of competent young men AND middle-aged ones must have left the priesthood in the decades since VII. This has resulted in a smaller poor of candidates for bishop, and this increases the likelihood that those chosen will not be as bright as those chosen in the past.So it should not be at all surprising that a bishop with a Ph. D. in history might not be the brightest bulb. In other words, the smaller pool of not-as-smart priests is affecting how the Church is being run.This seems far removed from the topic of the thread, but I suspect it is fundamental to the poor quality of the "debate" of the bishops with the administration. The usual nest of vipers, but today the real problem is rampant mediocrity - Vatican Insider

That URL doesn't seem to have gone through. Try this address, and go to the bottom of the page. You'll find the interview there.http://vaticaninsider.lastampa.it/en/homepage

I find this post a real head-scratcher, primarily because I don't really see the "false notes" we are supposed to find so objectionable. Cardinal Wuerl's omission of the fact that public comment window is still open? Hardly what we securities lawyers would categorize as a "material omission needed to make the statements therein not misleading." I suppose the description of the revised mandate as requiring Catholic institutions to serve and hire "only" Catholics versus "primarily" Catholics is a technical misstatement on the basis of the language; but it seems to me a distinction without a significant difference. The rhetorical point is made, I think: the mandate, even as revised, is so narrow as to require Catholic institutions to change their understanding of their mission to serve ALL. Furthermore, even if the bishops do replace the "only" with the "primarily", their criticism of its narrowness lingers, it seems to me. Of course Grant seems to concede this point in the very last sentence of his post: "If the answer to that last question is no, then perhaps the most prudent course is scrapping the narrow definition in favor of something with a bit more statutory precedent." That concession really has me scratching my head over what exactly has people's dander up. This seems to concede what Michael Moreland has pointed out on Mirror of Justice (and a point the Bishops made in their original response brief to the Mandate argued): that the definition is a significant and lamentable deviation from previous statutory definitions. Added up, this seems a pretty thin basis to me to accuse Wuerl (of all people) of falsehood.

Ann O. -- The same topic comes up in N. Cafardi's article on bishops' lack of fraternal correction, 3rd para. from end, talking about "a self-perpetuating mediocracy" resulting from the process of bishop selection. http://www.commonwealmagazine.org/fraternal-correction In 1970, when Joseph Ratzinger and 8 other German theologians wrote to German bishops on the need to rethink (not change) the rule of clerical celibacy, they made an interesting observation (among many): "We must also admit that we very often have the impression that where we are the present rule leads, to a not insignificant degree, not only to a shrinking of the number of candidates for the priesthood, but also to a reduction of talent, and thus effectively of the standards as well as the ability for employment of the priests who will be available in the future;"(Ger.) http://www.josef-bayer.de/akr/pipeline/210/zoelibat.htm (Eng.) http://www.pathsoflove.com/blog/ratzinger-rahner-et-al-on-celibacy-1970/

Thanks for the Ratzinger quote, Jack. No doubt Ratzinger, brilliant as he is and teacher that he was, has noticed the difference in abilities of the men he deals with. Not that you have to be brilliant to be an able administrator. But you do have to be willing to learn from others.What a fascinating letter that is. What they say about bishops' inalienable responsibilities and collegiality is most important, I think. I wonder how Ratzinger would argue against his prior arguments now.

I think much of the confusion comes from the bishops' vision that the solution is in broadening the definition of "religious employer", while the administration's position is that the definition of "religious employer" is already settled and the solution is in creating (as they already have) a separate exempt category of "non-profit organization with a religious objection to providing contraception cover in health insurance" The four criteria that define a "religious employer" don't apply to that separate exempt group, although some comments give the impression that they do. The difference between the two groups is that employees of a "religious employer" do not get free contraception. Employees if the separate exempt group do get free contraception, but not from the employer (assuming the administration solves the problem for self-insured plans). I think that difference is the reason why he administration wants to keep the two groups separate.The fourth point of the "religious employer" definition includes "churches" and "integrated auxiliaries of churches". Here's the IRS explanation of why a hospital is not an "integrated auxiliary" of a church:

Example 3. Organization C is a hospital that is described in sections 501(c)(3) and 509(a)(1). Organization C is affiliated (within the meaning of this paragraph (h)) with a church. Organization C is open to all persons in need of hospital care in the community, although most of Organization Cs patients are members of the same denomination as the church with which Organization C is affiliated. Organization C maintains its name on hospital listings used by the general public, and participating doctors are allowed to admit all patients. Therefore, Organization C offers its services for sale to the general public on more than an incidental basis. Organization C annually receives $250,000 in support from the church, $1,000,000 in payments from patients and third party payors (including Medicare, Medicaid and other insurers) for patient care, $100,000 in contributions from the public, $100,000 in grants from the federal government (other than Medicare and Medicaid payments) and $50,000 in investment income. Total support is $1,500,000 ($250,000 + $1,000,000 + $100,000 + $100,000 + $50,000), and $1,200,000 ($1,000,000 + $100,000 + $100,000) of that total is support from receipts from the performance of services, government sources, and public contributions (80% of total support). Therefore, Organization C receives more than 50 percent of its support from receipts from the performance of services, government sources, and public contributions. Organization C is not internally supported and is not an integrated auxiliary.26 CFR Ch. I (4109 Edition)http://www.gpo.gov/fdsys/pkg/CFR-2009-title26-vol13/pdf/CFR-2009-title26...

At one point in the Arroyo interview, Cardinal Wuerl brings up the fact that the first colony to establish religious toleration (1649) was Maryland, founded, by grant of Charles I to Catholics, led by Lord Baltimore. Those colonists, accompanied by two Jesuits, landed on an estuary of the Chesapeake Bay on 25 March 1634. The founding place, St. Mary's County, is in the present archdiocese of Washington. Cardinal Wuerl goes on to relate, as a historical point (aside?), that under the reign of William and Mary, Catholics in Maryland lost their freedom to worship and a public voice in 1704 (1702?). Fair enough, but then Archbishop Lori jumps in to decry this decision in favor of the English Anglican ascendancy as an evidence of "radical secularism." This seems to me as a historian wide of the mark. A running roughshod over historical facts, as Bill de Haas has mentioned above.During the 2008 electoral campaign, various bishops made their misgivings related to an Obama presidency evident. And immediately after Obama's election, this continued. Some of these sharp statements came from the American curialists, Cardinal Stafford and the then Archbishop Burke, but just as much, and more tellingly, from the apex of the NCCB leadership. (It should be understood that American cardinals in Curia have little effect on the decisions of the US conference. They are not members of the conference. They have some limited influence no doubt, but it is the home bishops, with both voice and vote, who set the policy.) In any case, not a promising start in the period from November 2008 to January 2009, and just after.It seems to me, looking back over the strong but always civil leadership of the conference in the three decades from Archbishop Dearden to Bishop Pilla (both natives of Cleveland), that the present episcopal rhetoric has been alarmist, even verging on apocalyptic. How to tamp this down? Last week, Bishop Stephen Blaire appeared to be raising this question in both his initial and subsequent statements.On the other hand, is there convincing evidence that the Administration is open to meeting the bishops' concerns beyond "the accommodation." Is that possible? Or is it all about campaign monies in a difficult electoral cycle? I doubt that Democrats have any hope of receiving major funding from wealthy Catholic donors, but that they will do well with those groups who oppose the "accommodation." As well as "an accommodation of the accommodation." Is this the ultimate calculus?The provision of health care for close to forty million uninsured surely suggests, impels the opposing sides to attempt a last good faith effort. And it seems to me that the bishops as Christian leaders are called to model a more Christ-like example of how this conversation should be carried on. Even, one hopes, to a satisfactory resolution.

Jeff Landry: If you'll recall, I opposed the original version of the mandate, including the narrow definition of "religious employer." I'm perfectly comfortable agreeing with Moreland about the structure of the exemption -- as it's written. That is not the basis for my having pointed out that Cardinal Wuerl and Archbishop Lori made significant errors when describing the effects of the contraception-coverage mandate. The basis for that is simply what was entered into the federal register. The difference between "primarily" and "only" is anything but insignificant. It could mean the difference between having employees who receive contraception coverage and not having any employees who receive such coverage. The bishops have argued that that is a very big deal. I can't imagine you disagree. And the question of when the mandate kicks in is not insignificant either, because it's pertinent to the plaintiffs' claim that they had no choice but to file now. Both points could affect their standing.

Thanks, John Page - yes, re-watched Arroyo, Wuerl, Lori last nite. Picked up on the "cherry picking" in terms of framing historical events, etc. A few other things raised concerns for me in re-watching:- sorry, find Wuerl's "dramatic whispering" to be off-setting- towards the end of the interview, Lori draws attention to another meme - "radical secularism" is the key danger. Sorry, radical secularism means what in this context - appears to be defined and thrown in any time someone wants to be "dramatic" but is unable to do an analysis that is based upon facts. It is basically a Fox News tactic to "hysteria"- Wuerl spends time, at one point, on the CA case from 10 years ago. Like many comments in this interview, he conflates, if not, downright changes the facts. The case was catholic charities (not the church) and it went to the state supreme court. The court made its "exemption" ruling based on a number of criteria - catholic charities failed quite a few of these criteria, not just a "definition". But, the key phrase for me was Wuerl stating that this court case is 10 years old, was not "federal" but state and therefore, can not be "Normative". Okay, buy that to a point but Wuerl needs to understand that using the same approach and methodolody, someone could say that these lawsuits argue that HHS has changed the usual federal definition of "religious institutions" - he and Lori asked why they can't just continue what other federal departments use? (aside - he suggests that HHS got its definition from the ACLU?? proof? so what? as if ACLU is evil?) So, applying his approach, why can't someone in HHS say that prior federal departments' definition is also not "Normative" - it can change and does? Just seems to be inconsistent - state of CA is not normative but past federal department's definitions are normative?You might want to read MSW's NCR posting this morning. He does a very good job of picking up where Blaire backtracked. The real danger here is the continued co-opting that appears or is partisan. Note that neither Wuerl nor Lori ever broadened the interview in terms of the church's position on religious liberty covering actions such as recent state laws before the SCOTUS on anti-immigration (which the USCCB has spoken out on); said nothing about Kansas passing anti-sharia law last week, etc. MSW also does a good job of delinating between "conscience" and the four part religious exemption definition. (pet peeve - neither Wuerl, Lori, or Pee Wee Herman ever really explained the HHS four part defintion - they always conflated it into one definition - wonder why? They also never explained that the HHS mandate is not final - comment period continues so why file lawsuit now? As others have stated, they also got the implementation start date wrong - August , 2013 not August, 2012)

Cardinal Dolan's comments in general seem to be getting increasingly extreme. His most recent blogpost on our Archdiocesan website tries to justify our abysmal ordination record (2 priests this year in a diocese of 400 parishes) by referencing another conservative blogger who argues that things will turn around because our diocese is one of those led "by bishops that are committed to a bold and courageous defense of orthodox Catholicism".I thought that was a really strange thing for the Cardinal to post. Does he think that other bishops are NOT defenders of orthodox Catholicism? What possible good would it do to post something like that, even if it is really what he thinks?

Grant:"Im perfectly comfortable agreeing with Moreland about the structure of the exemption as its written. That is not the basis for my having pointed out that Cardinal Wuerl and Archbishop Lori made significant errors when describing the effects of the contraception-coverage mandate. "Sure. You may be perfectly correct in pointing out some "non-insignificant" inaccuracies in the way the bishops made their case. Still, I also was puzzled that you wrote such a long post parsing such details when you seem to agree with the core of the matter (that the new "definition" is too narrow). I mean, if the matter is important why not say it, and why choose instead to focus at great length on what, after all, are "not-insignificant but still minor" technical issues?

Grant, With regard to your comments on standing and the proposed accommodation (the exact nature of which has not been formally proposed), you should read the Becket Fund's responde to the government's motion to dismiss in the Belmont Abbey case:http://www.becketfund.org/wp-content/uploads/2012/04/BAC-Opp-to-MTD-time... brief does a good job of addressing several of the arguments you have made about the timing of the lawsuits and the proposed accommodation. One point made in the brief (p. 19) that you and others have not mentioned regarding the proposed accommodation is that the administration has proposed that insurance companies and third-party administrators for self-insured plans can fund the costs of providing contraceptive coverage for employees of objecting religious institutions through drug rebates, service fees, dis-ease management programs, or other sources that would normally benefit the religious institution. In other words, the religious institutions will be paying for the contraception coverage indirectly by losing these benefits that they would otherwise have received from the insurance company pursuant to their contract and existing law.

Grant:What would your reaction have been if Wuerl et. al. had said "the mandate is so narrowly, and is such a departure for statutory precedent that it requires that we serve and hire 'virtually only' Catholics?As for standing to bring the suit, I don't see how this can be considered premature under current justiciability standards.

Grant,Thanks for the last paragraph of your long post.

Carlo: Yes, I have correctly identified Cardinal Wuerl's, Cardinal Dolan's, and Archbishop Lori's distortions of the mandate -- both the structure of the exemption and the timing of its effects -- over which the first two archbishops are suing the Department of Health and Human Services. The USCCB has characterized this dispute as a battle over the soul of the nation. The issues involved are complex. They deserve careful explanation.MikeD: I've seen that argument, and am not persuaded by it. First, the logic of the objection ought to have fueled the plaintiffs' objections to paying insurance companies at all, because every dollar that goes to an insurer that covers contraception (or abortion) indirectly pays for those services. Second, most insurers are for-profit companies. When an insurance company saves money, it is under no obligation to pass along those savings to its customers. Third, there are two kinds of costs involved. One is upfront -- what it costs per enrollee to cover contraception. That amounts to between $20 and $40 per person. Second is what it costs the insurer over the life of a policy to include contraception coverage. Actuarial studies have shown that including contraception ends up being at least cost-neutral. That is, insurers have not seen their overall costs go up from including contraception coverage -- even after adding it to policies without raising premiums.

Jeff: What's wrong with the word "primarily"? It could mean 51 percent. "Virtually only" is too sloppy.

Here's a link to the MSW post Bill deHaas refers to above:http://ncronline.org/blogs/distinctly-catholic/religious-liberty-being-h...

"Whats wrong with the word primarily? It could mean 51 percent."Precisely; it could mean a host of things, which is what the injury is. As a matter of regulatory caprice, subject to various interpretations, it is a ripe conflict. And the bishops' point is that the test is so narrow as to render it's effect harmful to the self-understanding of the Church's institutions. I see John Garvey is making this point in today's WaPo.

Regulatory imprecision is itself a harm? I'm dubious. Maybe the defendants' arguments for dismissal are weak, but that doesn't mean the plaintiffs had no choice to file now, weeks before the Supreme Court will announce its decision, weeks before the accommodation's comment period had closed. As for an institution's self-understanding, why isn't it entirely up to the institution itself?

Grant, I appreciate the fact-checking (and watching these sorts of things so I don't have to), but it seems to get lost in a sea of your opinions. Here is how I would boil down the fact-checking part of this piece:- The say the exemption requires all employees and clients to be Catholic, but it actually only requires these groups to be primarily Catholic.- There is not overwhelming unity of Catholic authorities behind the lawsuits, as claimed by Archbishop Lori- Arroyo implied that the mandate will kick in for religious employers on August 2012, when it will actually not be enforced for them until August 2013.Then there are all the points of opinion which detract from the focus on fact-checking and make the length of the post unwieldy:- The bishops should have acknowledged that the Obama administration has formally announced an intent to make accommodations for religious employers and has initiated a comment period that is currently underway.- The way Cardinal Wuerl spoke about the accommodation was unusually positive.- Cardinal Wuerl doesn't acknowledge Bishop Blaire's comments as a critique.- The Obama administration should reconsider the narrow exemption.Separating these into two distinct posts would give the fact-checking part more emphasis and credibility, making it more capable of challenging those who disagree with your opinions to be more careful about the facts.

MikeD, the administration has not "proposed" that third party administrators of self-insured plans use rebates, etc to pay for contraception overage. That's one of several brainstorming ideas they mentioned in the request for comments.I wasn't immediately convinced by any of the possibilities they mentioned for self-insured plans, but we'll have to see what they come up with after he comment period ends. For insured plans,, they proposed that the insurance company pay for the contraception out of its savings from reduced childbirth and child health expenses. That did seem plausible to me although I haven't heard any official response from the tinsurance companies. .

"... our diocese is one of those led 'by bishops that are committed to a bold and courageous defense of orthodox Catholicism'."Irene --Making such a statement does suggest strongly that C. Dolan has met some opposition from brother bishops == and that indeed would be good news. Surely it's not his orthodoxy that seems to be under fire, so it must be his self-styled "bold and courageous" defense that is causing opposition. That's the way it looks, anyway.

- Arroyo implied that the mandate will kick in for religious employers on August 2012, when it will actually not be enforced for them until August 2013.It's a definitional problem depending on what you mean by "religious employer"The people who get the extension until August 2013 are not "religious employers" - as that term is defined in the HHS regulation. The people who get the extension unil August 2013 are described by HHS as "non-exempted, non-profit religious organizations with religious objections to such coverage" [of contraception coverage in their health insurance]. That covers Catholic hospitals, universities, charities, etc. "religious employers" are exempt, so they are not part of that group. In August 2012, the requirement to provide contraceptive cover will come into effect for everyone except for "religious employers" (who are exempt permanently) and "religious organizations wih religious objections" (who are exempt until August 2013 while a permanent solution is worked out). As I said in an earlier comment, the roadblock in the negotiations is that the bishops want to merge the two groups* and the administration wants to keep them separate. *and perhaps expand the "religious employer category" by adding the Taco bell stand.

Sometimes hard to separate out whether a bishop's statements reflect his personal political beliefs or church teaching:

In agreeing with Chaput that the proper role of government in solving the national health-care crisis is not necessarily "a national public plan," such as Obama's, Aquila spoke of the danger of thinking "the national government is sole instrument of the common good."The Denver Post http://www.denverpost.com/recommended/ci_20731047

Irene Baldwin @05/29/2012 - 9:41 am asks, "What possible good would it do to post something like that . . . ?"By posting something like that, Cardinal Dolan bolsters his self-image as a bold and courageous defender of orthodox Catholicism, on the one hand, and, on the other, tries to goad less bold and courageous bishops to be more bold and courageous -- in short, to follow Cardinal Dolan's example of being bold and courageous.He would almost certainly allow that his fellow bishops ARE defenders of Catholic orthodoxy. But he might see their zealotry for defending Catholic orthodoxy as less bold and courageous than his zealotry is.Now, does this perhaps suggest that some of his fellow bishops have criticized him for being overly bold and brash in defending Catholic orthodoxy?I doubt it.However, there does appear to be a split among the bishops. It appears that some bishops would prefer to emphasize social justice, while other bishops would prefer to emphasize Catholic teachings regarding sexual morality. The bishops who would prefer to emphasize Catholic teachings regarding sexual morality elected Timothy Dolan president of the USCCB.

John Hayes: regarding that IRS example from your 5/29 12:16 am comment: it is very interesting, and it makes me wonder whether the criterion used in that example - sources of funds - would be used to determine whether an organization like Notre Dame would qualify as a religiously exempt organization for purposes of the HHS mandate. However, the HHS mandate itself seems to refer, not to sources of funds, but to a determination of whether its employees and its clientele are primarily of the same religion.

"In August 2012, the requirement to provide contraceptive cover will come into effect for everyone except for religious employers (who are exempt permanently) and religious organizations wih religious objections (who are exempt until August 2013 while a permanent solution is worked out)."Conceivably, could an employee of a "religious organization with religious objections" sue the Obama Administration in August and ask a court to invalidate the extension until August 2013?

could an employee of a religious organization with religious objections sue the Obama AdministrationJim,I think the employee would sue their employer. The employer is required under the final rule to provide the contraceptive service. The proposed 'enforcement holiday' is only the government saying they would not sue the employer with religious objections.

Jim Pauwels, When I did that, I was wondering what would happen if you did away with the first three criteria for being a "religious employer" (teach tenets, hire and serve primarily your own) and left only the fourth test. That says:"(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, asamended"That's a section of the Code that exempts churches/religious organizations and related entities from filing income tax returns. Here's what that section says:

(A) Mandatory exceptionsParagraph (1) shall not apply to(i) churches, their integrated auxiliaries, and conventions or associations of churches,(ii) any organization (other than a private foundation, as defined in section 509 (a)) described in subparagraph (C), the gross receipts of which in each taxable year are normally not more than $5,000, or(iii) the exclusively religious activities of any religious order.http://www.law.cornell.edu/uscode/text/26/6033

The IRS has A 14-point list of characteristics to determine if you're a church, and thy are pretty much obvious ( http://www.irs.gov/charities/churches/article/0,,id=155746,00.html )The interesting thing is the definition of an "integrated auxiliary of a church"

The term integrated auxiliary of a church refers to a class of organizations that are related to a church or convention or association of churches, but are not such organizations themselves. In general, the IRS will treat an organization that meets the following three requirements as an integrated auxiliary of a church. The organization must:~Be described both as an Internal Revenue Code section 501(c)(3) organization and be a public charity under Code section 509(a)(1), (2), or (3),~Be affiliated with a church or convention or association of churches, and~Receive financial support primarily from internal church sources as opposed to public or governmental sources.Men's and women's organizations, seminaries, mission societies and youth groups that satisfy the first two requirements above are considered integrated auxiliaries whether or not they meet the internal support requirement.Source: Publication 1828, Tax Guide for Churches and Religious Organizationshttp://www.irs.gov/charities/churches/article/0,,id=155750,00.html

The example I posted before is one of three the IRS gives to explain how to apply the "financial support" test. It looks as if, even if you did away with the first three criteria, Catholic hospitals, universities and most charities couldn't qualify as "religious employers" because the church doesn't provide at least half of the money they spend. It sounds as if a parish elementary school could qualify if less than half its expenses were covered by grants and by tuition paid by parents - and if the church collected money to support it rather than the school running its own fundraising drives.

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