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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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Thanks, John, for such a detailed post.As I noted before, the question of "whose money is being spent and for what" seems to be core in ways that the bishops do not 'fess up about. As noted, $2.9 billion of federal monies goes to Catholic Charities in different grants which represents 62% of its total amount for dispersal. Can the case be made that the government would be a controlling interest through a Board of Directors if it were constituted proportionately and therefore would have its say about how other policies would be implemented? this obviously izs not the case, but when cardinal Dolan says "Just leave us alone about how we administer our religious charities," he simplifies considerably.The case with schools and universities is even more complex, I guess, but it does not seem diffcult to make some other arguments.I have thought that the bishops sense of "relgious freedom" in some ways stopped its historical appreciation in the mid-19th century when Catholic entities were entirely funded by Catholic interests, individuals, or philanthropists as if there has not been a complex inteweaving of funding sources for "religious" endeavors -- education, health, charities -- since then.

As noted, $2.9 billion of federal monies goes to Catholic Charities in different grants which represents 62% of its total amount for dispersal.David,I think this misses the point. The government is buying services from Catholic Charities, not making charitable contributions. Catholic Charities receives the contracts because it is the most cost effective supplier. The fact that it is the government purchasing services should be irrelevant to the decision process. Further, Directors are responsible to the owners of the companies, not the customers.

If Catholic Charities is a "company" then they should not expect dany special treatment or exemption as a religious organization.

BrucePoint well taken, However, i reallize that and know that "purchase of services" is done through Catholic Charities because it is efficient, etc. However, it is an entity like many oither non-religious not-for-profits that compete for federal monies and grants to deliver these services in the name of "Catholic charities" as if this philanthropy were entirely coming from the Church. If Cathollic Charities were left to raise only its own funds in the other ways that it does, then it should have greater control, but these programs are hardly clear to most of the public who think "Isn't it great that Charities supplies this" when it is often a mix or- even exclusively- federal/state funds that enable programs to exist. Also, although the Board exists to promote and monitor the mission of the organization -- and in this case is responsible to the Bishop -- the polnt is not only to whom it is responsible, but how it is constituted. All know that big donors-whether in for-profit or not-for profits like Catholic Charities -- have a substantial role in the Board. My point is that IF the government, as the biggest contributor/buyer of services, were to be represented representationally, there would a clearer sense that this was not just a "private" charity of the Church - which I think is truly the impression that the Cardinal and other are trying to commuiicate to the faithful. Cdl. Dolan and others have essentially said , "It's our money so let us do with it as we see repsonsible" and that is simply not true. If Catholic Charities were not doing some of the fine work that it does, there are many other non-profits who are often contesting to do the same work - in childcare, soup kitchens, charities, etc.--without a sectrarian dimension at all.

David Pasinski: I don't think the government should be represented on the Board of Catholic Charities.Moreover, I don't think the government wants to be represented on the Board of Catholic Charities.

I don't think the government should be represented there either. I guess I am not making my point that the threats coming from the hierarchy that "we will have to shut down OUR charities" is an extortionary threat when this large a percentage of monies for "our charities" comes from the goverment if the grants were available to other entities also, there aref other non-profits not beholding to the diocese would would pick up the opportunity to fill the void created. I am not advocating that approach nor that the government have a place at the table, but the illusion is prsented to boards and from them to the public that "WE-- Catholic Charities, the Church -- are doing this" when the actiuality is "we re doing this -- BUT with a lot of government support without which we may not be able to do it!" That is one reason why I find the approach of Cardinal Dolan and some others so intentionally deceptive.

63% of the Catholic Charities budget is a lot of money. How worried are the bishops about losing this money?

OK, the bishops are over-stating their case about Catholic Charities. I understand that much.

Bill Mazzella: By virtue of their professional training, the Catholic bishops are preachers.They are not politicians, so they are not accustomed to the give and take of politics. As a result, they are probably not worried about losing a big chunk of the government funding of Catholic Charities.

Cdl. Dolan and others have essentially said , Its our money so let us do with it as we see repsonsible and that is simply not true.David,I dont ever recall anyone - Cdl Dolan, any Bishop, or otherwise - making that statement. What they have said 'We govern these institutions and oversee what, how and where they provide services.' IMHO, that is fundamentally different than 'its our money.' And I do not believe this argument really has anything to do with money: remote material cooperation is independent of whether it costs money, is revenue neutral, or saves money. Many people want to attribute motives - partisan, money, power etc - but all those miss the morals which is what Dolan etc have repeatedly attributed to their actions.

It's probably worth pointing out that the issue of whether religious institutions such as hospitals, universities, charities, etc should be considered integral parts of a church's ministry is not a new issue brought up by the HHS mandate. It has been around for at least 35 years. This is part of a 1977 article from the Fordham Law Review by Charles Whelan S.J., who was a Professor of Law at Fordham and an Editor of America He was commenting on the IRS regulations as they stood then and suggesting that those institutions be treated the same as churches "except for those institutions that both serve the general public and derive a substantial percentage of their current operating budget from state or federal sources." After several lawsuits, that change was made.

It should be easier than it has been for Congress and federal taxofficials to understand the utter astonishment of the Americanchurches at being told that their educational, charitable and welfareorganizations are not integral parts of their church structures. MostAmerican churches would prefer to retain the traditional exemption ofthese institutions from having to file annual financial reports with theInternal Revenue Service. But they would not fight the imposition ofsuch a reporting requirement nearly as hard if the requirement wereimposed by legislative language that did not distinguish between thetraditional component parts of American churches in terms of their"churchness" or "church-relatedness." If, after careful consideration, Congress judges it desirable to impose the reporting requirements of section 6033 on church-relatedcolleges, universities, hospitals, orphanages, old age homes and similarcharitable, educational and welfare organizations, Congress shouldrevise section 6033 along the following lines. Churches and all of theirtraditional component organizations would remain exempt from thereporting requirements except for those institutions that both serve thegeneral public and derive a substantial percentage of their currentoperating budget from state or federal sources.Charles M. Whelan, "Church" in the Internal Revenue Code: The Definitional Problems , 45 Fordham L. Rev. 885 (1977),http://ir.lawnet.fordham.edu/flr/vol45/iss5/1

This 1991 Law Review article analyzes the threee lawsuits (one Baptist, two Lutheran) that led to the IRS revising the definition in 1986:

the Revenue Procedure establishes a test according to which anaffiliated agency is assumed to be internally supported by a church unless itboth:1) Offers admissions, goods, services, or facilities for sale, other thanon an incidental basis, to the general public..., and2) Normally receives more than 50 percent of its support from acombination of governmental sources; public solicitation ofcontributions (such as through a community fund drive); and receiptsfrom the sale of admissions, goods, performance of services, orfurnishing of facilities in activities that are not unrelated trades orbusinesses.Derived from the sensible recommendation of Father Whelan in his 1977 articlein the Fordham Law Review," this rule allows the government to have someobjective measure of the relationship between a church and an affiliated agency.Edward McGlynn Gaffney Jr., Governmental Definition of Religion: The Rise and Fall of the IRS Regulations on an "Integrated Auxiliary of a Church", 25 Val. U. L. Rev. 203 (1991).http://scholar.valpo.edu/vulr/vol25/iss2/3

Thank you for these detaailed articles!Bruce, I think we do see the stance of Cdl. Dolan differently. His tenor and that of other episcopal documents has been "we will have to close if this 'liberty' is not restored." That may mean forfeiting whatever funding these contracts provide as well as dropping worthwhile services. It just seems like a threat and a game of chicken that has less basis in moral theology and more in power politics-- but that is admittedly an opinion.

A quick note on "governnace" and money.I see SNAP is accusing (with some reason) now Cardinal Dolan of proposing to pay pedophile priests to quoetly leave (20G's each) and of "hiding assets/"IMO this is not only clearly about power but using money/influence and power to protect the institution.

"It looks as if, even if you did away with the first three criteria, Catholic hospitals, universities and most charities couldnt qualify as religious employers because the church doesnt 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."John, thanks for those excerpts and comments - very helpful background.Regarding your conclusion which I've pasted here: I'd expect that the church's position, based on its own theology, would be that the church consists of more than the formal institution; it encompasses the entire People of God; and so, if (for example) the bulk of Notre Dame's funding consists of tuition payments collected from students and their parents who are primarily members of the Catholic church (including loans and grants which pass through the hands of those students and parents), and donations from alumni and other donors who are members of the Catholic church, then in fact the bulk of Notre Dame's funding comes from the Catholic church. And so, theologically, it meets the fourth criterion. Naturally, whether that theological point can be translated into a practical and persuasive legal argument, I couldn't say.

This is all tortorous, but I suppose that's law.In all of these suits, although there has been some support from other religious groups, it is notable that there has not been a widespread outrage of an attack on relgious liberty in general which one would expect if this was seen as a true affront. Could it be that most, not all, faith tradtions are comfortable with these distinctions (and not just with the contraception issues) and that the bishops reach here is distancing them even more interreligiously also? Or have I missed something?

Could it be that the other Christian religions would be extremely discomforted if they had to defend *all* religious freedom including that of the Muslims? By keeping silent they avoid having to defend any form of sharia.Lot's of people believe in the Bill of Rights only insofar as the Bill protects *them*.

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