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Respondeo: A Reply to Michael Sean Winters (part 1)

Many thanks to Michael Sean Winters for continuing the conversation about the HHS regulations and religious liberty. I appreciate his comments very much. And I want to address his questions, which are very important Since he raises a number of issues, however, rather than doing one super-long blog post, I am going to be doing a few smaller blog posts over the next few days, trying to take the issues he raises one at a time. Even these posts will be longer than they should be, since I don't have time to write something shorter!1. Defining Exemptions does not equal Defining ReligionThe point of my column was to distinguish between two sets of concerns that the bishops seem to have about the mandate. First and most obviously, they are worried that it will make Catholic institutions cover contraception. Thats where most of the ink has been spilled in the discussion of this controversy. And I think Winters is focusing on this aspect of the dispute.But I really want to point out that this wasn't my main focus in the column. I wanted to address the second and deeper worry expressed by the bishops. They worry about what the mandate says about what the Catholic Church is. The original mandate exempts a narrow class of religious institutions (such as parishes and dioceses), but doesnt exempt Catholic universities and hospitals. So the bishopsand many other Catholicsfelt insulted and misunderstood. They sensed that the government was defining religion in too narrow a way way, and not appreciating the key fact that Catholic universities and hospitals are also imbued with a religious missionthe very same Catholic mission as parishes and dioceses.But heres the thing: In a nutshell, the government wasnt defining religion. It was defining an exemption to a particular law that applies to some but not all religious institutions. This is a crucial point. Only very rarely does the government say that youre religious or not religious. (When it does happen, its a clear case of someone scamming for somethinga group of prisoners who feel called to start a Church of Beer, Pizza, and Football, for example.) In the vast majority of cases, it accepts an institutions word that it is religious, in part because it doesnt want to get into the business of certifying religion thanks to Establishment Clause concerns. The government accepts an institutions religiosity, and then goes on to apply the other criteria at issue in addition to religiosity in order to say whether the institution is exempt from a particular law.

Some people have said, Why not use the tax code definition of religion to define the exemption from the HHS mandate. But the answer here is that the tax code doesnt define religion either. In this situation too, it defines an exemption to taxation applicable to some but not all religious institutions. The government generally accepts an organizations claim to be religious, but goes on to apply other criteria for exemption from taxation. So, for example, a group can be as religious as it wants, but if its not organized as a not-for-profit charitable corporation, it wont be exempt from taxationit will still have to pay taxes! Catholic schools and hospitals are exempt from taxation not simply because they are religious, but because they also meet the other characteristics necessary for tax exemptionthey are not-for-profit charities. One could imagine a for-profit Catholic facility (say, a rehab center) that wouldnt get tax exempt status. The rehabbing patients could be personally blessed and supervised by the pope himself (or Archbishop Ganswein, who looks like he would be very motivating to rehab patients), but if the center isnt organized as a not-for-profit entity, its just not going to get tax-exempt status.So the question that has to be asked is why the criteria for determining whether a religious institution is tax exempt are appropriate for determining whether it is exempt from other laws? Surely, we wouldnt say that the criteria for tax exemption should determine whether a Catholic institution was exempt from health and safety laws, or mandated reporter laws. The scope of any exemption has to depend upon the purpose of the law to which it attaches. A church-sponsored day-care institution, for example, might be exempt from taxationbut it should not be exempt from fire codes, despite the fact that the historic church building itself would be. And no one would say the day care center should be exempt!The same approach applies in determining the nature of the exemption from the contraception mandate. We need to ask what the scope of a religious exemption to a mandate to provide preventive services as part of a basic benefit package should bewhich is not at all the same question of what the scope of exemption to taxation should be.The original, narrow exemption generated a political, moral, and religious firestorm. It was a bad idea. But motives matter. Procedure matters. HHS did not pull the narrow original exemption out of thin air. Sensibly, it looked around, not just at religious exemptions in general, but at religious exemptions to contraceptive mandates. Twenty-eight states have contraception mandates. Some have religious exemptions, others have none. Some have broader exemptions, others have narrower ones. Federal anti-discrimination law requires coverage of contraception. So does the Medicaid programa federal-state partnership. HHS modeled its exemption on the language already in place in California and New York.This was not a legally rash move. Why is that? That language had been tested in two populous states, and more importantly, had already been challenged on religious freedom grounds and upheld by the highest courts in those states (see here and here; the church lost). So the language was at least somewhat road-tested, for a religious exemption to a comprehensive contraceptive mandate, not for an exemption to something else. If you're a lawyer looking for statutory or regulatory language, it's generally a good idea to turn to provisions that have been litigated and upheld. It's very true that the road-test wasn't perfect; RFRA doesn't apply to the states, and does apply to HHS regulations. But it wasn't just a shot in the dark, either.(A technical aside: The Becket Fund and the Bishops would distinguish the California and New York laws on the grounds that self-funded employers could escape the mandate through ERISA pre-emption. That's true but beside the point, I think. One of the reasons we needed comprehensive health-care reform was that ERISA allowed self-funded employers to escape a whole raft of state-insurance laws, not just the contraceptive mandates. The point of national health care reform was to make a standard benefit package available to most peopleand the contents of that benefit package are going to be controversial around the margins, for a range of reasons. Moreover, from a practical perspective, self-funding is only viable for employers of a certain size.)I understand the objections of the USSCB, Michael Sean Winters, and others that the original exemption was too narrow. I strongly agree with the objection that it was politically unwisein fact, it was clearly almost disastrous. But as a lawyer, I just cant go along with those who say that the original exemption was some sort of half-baked, new-fangled, anti-religious plot.And I think that matters. It is very important to me that President Obama and HHS not be anti-religious, given the enormous role that faith-based health care has played and will continue to play in this country. Political mistakes can be fixed by parties of good will. But anti-religious bias can't be fixed.Tomorrow: the current accommodation

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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I'm no lawyer, but so far as I can tell, Cathleen Kaveny's position is well taken.

"But as a lawyer, I just cant go along with those who say that the original exemption was some sort of half-baked, new-fangled, anti-religious plot."Who says that, exactly? I read both the bishops' documents and MSW' articles on the matter and I do not recall any such accusation. And the fact that there was some legal precedent for the decision, does not make it any less wrong (or right) on the merits (indipendently of its being politically unwise).

The analogies to health and safety laws and all the rest fail. The Catholic Church does not prohibit the activity mandated by those laws; it does prohibit the activity now mandated by the HHS. And in designing this mandate, which it knew ran counter to Catholic teaching, the Obama Administration chose the most restrictive religious exemption it could find, one eminently acceptable to its allies in Planned Parenthood.

The Catholic Church does not prohibit the activity mandated by those laws; it does prohibit the activity now mandated by the HHS.Thorin,That is not correct. The Catholic Church prohibits the use of contraceptives by individualsin theory, anywaybut it would be difficult to claim the Catholic Church prohibits "the activity mandated by HHS"that is, prohibits an employer from providing insurance to its employees who will then, independent of the employer, be contacted by the insurance company and offered coverage of contraception. Many Catholic organizations, because of state mandates, provide contraceptive coverage much more directly than this. Are they violating the prohibitions of the Catholic Church? Also, how many Catholic employers are there similar to Hobby Lobby (a for-profit corporation) who decline to provide contraception coverage for their employees? How many Catholic-owned drug stores do not sell prescription contraceptives and have a section devoted to condoms? How many employees decline to accept their employers' health care coverage because part of the money they pay toward the premiums (most employers make employees pay some of the costs) will go to cover contraception and abortion for their fellow employees?

The analogies to health and safety laws and all the rest fail. . . . Thorin,And yet we just had an attempt by a Catholic Church to declare itself exempt from these kinds of laws:

[A] Connecticut trial court rejected a Catholic churchs 1st Amendment defense to a damage claim against it by plaintiff who was injured while attempting to light a votive candle near the churchs altar. A loose kneeling pad in front of already lighted candles caused plaintiff to lurch forward and sustain injuries from her blouse being ignited. The court rejected the churchs argument that placement of the kneeling pads and candles are a matter within its discretion in interpreting religious law. The court instead held that plaintiffs claims can be resolved by the court applying only neutral principles of law that do not intrude on religious decisions within the church sanctuary.

Mr. Nickol,The Church teaches that contraception is intrinsically evil. The HHS mandate requires Catholic institutions to provide their employees with access to contraceptives and abortifacients, at no cost to the employee. The bishops, whose office makes them authoritative interpreters of what the Church teaches, tell us that Catholic institutions may not do this. They don't tell us that Catholic institutions may not comply with OSHA regulations or food safety regulations or fire safety regulations or anything like that. I agree, of course, that some Catholic institutions have failed to live up to Catholic teaching. That hardly excuses failure to live up to Catholic teaching in the future, much less gives the government a mandate to require Catholic institutions to disregard Church teaching.

The HHS mandate requires Catholic institutions to provide their employees with access to contraceptives and abortifacients, at no cost to the employee. Thorin,We're dealing with the law here, so I think we need to be very precise. The HHS does not require Catholic institutions to provide insurance at all. If they are covered by the mandate, they may instead pay a tax/fine of $2000 per employee per year, which is less than the cost of providing insurance. If the organization opts to provide insurance, the contraceptive coverage will be provided by the insurance company, with no involvement by the employer, and at no cost to the employer. It is true that if an organization provides insurance, the employees may choose to receive contraceptive coverage from the insurance company. But there is a difference between (1) the employees getting contraceptive coverage as a result of their employer providing insurance and (2) the employees getting contraceptive coverage from the company. The difference may not be of the magnitude the Catholic Church wants, but it is nevertheless a difference. The bishops, whose office makes them authoritative interpreters of what the Church teaches, tell us that Catholic institutions may not do this.I would have to be convinced the bishops actually say Catholic institutions may not do this, as opposed to saying Catholic institutions object to doing this. As you probably know, Catholic organizations here in the Archdiocese of New York, unless they self-insure, are in compliance with the New York State mandate to provide contraception coverage directly. If Catholic institutions may not do this, then I fail to understand why Cardinal O'Connor does not bring them into line. As you probably know from the many discussions of this topic, Bishop Morlino of the Diocese of Madison, Wisconsin, reluctantly gave up self-insuring health care for his diocese and complied with the Wisconsin mandate to provide coverage the includes contraception. Are you saying that some Bishops have failed to live up to Catholic teaching? And some Cardinals? I think it is incorrect to say that Catholic organizations "may not" comply with a state mandate or a federal mandate to provide contraceptive coverage (if they provide insurance coverage). Too many have complied over more than a decade to argue compliance is forbidden. This is, however, departing from the topic, which is Prof. Kaveny's response to Michael Sean Winters that the government is not "defining religion." Rick Garnett points out over on Mirror of Justice:

I am also inclined to agree with Cathy that the claim that the mandate is wrong because it "defines religion" is not entirely right, or is at least more complicated than those making it sometimes make it sound. After all, if one has a legal regime -- as we do -- that singles out "religion" for distinctive treatment (see, e.g., the First Amendment, but also RFRA and various tax-law provisions) one has no alternative to defining, for particular purposes, and not necessarily in an all-encompassing or grand sense, "religion." That said, the exemption-eligibility definition -- whether in the mandate context or in another -- does and will reflect certain premises and judgments about religious practices, traditions, beliefs, and believers, and those premises and judgments can be more, or less, appreciative of religious faith, religious conscience, and religious institutions' freedoms. Here, they are not appreciative enough, in my view.

Cathleen Kaveny's discussion of whether the HHS mandate "defines religion" is a worthwhile contribution, certainly, but why does she to on to analyze and defend a non-existent regulation? No one knows what the terms of the so-called "accommodation" will be. Dr. Kaveny quotes what HHS has said are the "objectives," but how they are to be accomplished is left to the future. Particularly nettlesome to HHS, perhaps, is how to impose the cost of these benefits on the administrators of self-insured employers, such as Dr. Kaveny's Notre Dame. HHS says that insurers will actually save money from providing the coverage, so there is a rationale, right or wrong, for making them pay for it. But there is no such rationale for the administrators of self-insured plans. How can they be prevented from including the cost in their administrative fee? But if the cost is to be borne by the employer, a central component of the "accommodation" that Dr. Kaveny thinks "makes sense" vanishes.

that Dr. Kaveny thinks makes sense vanishes . . . William H. Dempsey,I can't find makes sense in Prof. Kaveny's post. It doesn't seem to be a quote. What position are you attributing to her with that statement? She indicates she will discuss the accommodation tomorrow. I am confused.

I'm no lawyer, but if the Catholic Church is so bent out of shape by the mandate to supply health insurance that covers artificial birth control, why not present to the government a signed sworn statement from each and all of their employees that the would not use artificial birth control since it's against Church teaching. I think that would lend a lot of weight to their case.

Thorin: "The Church teaches that contraception is intrinsically evil. The HHS mandate requires Catholic institutions to provide their employees with access to contraceptives and abortifacients, at no cost to the employee..."To be more accurate, the HHS mandate requires all employer health insurance plans, not Catholic institutions per se, include access to contraceptives (not abortifacients; that's an assumption re contraceptives you're making that HHS doesn't share) as part of preventive healthcare services, which are provided without copays. The fuss is over who is or is not exempted from the mandate. The fact that HHS immediately exempted all specifically religious organizations, namely churches, is a pretty good indication it didn't want to offend Catholics. How many other religous organizations in the US object to contraception, after all?

Mr LancellottiI agree that the bishops have not called the HHS mandate half-baked or new-fangled, but they have called it anti-religious. I think the USCCB document 'Our First, Most Cherished Liberty' stated that clearly. I also believe that the Fortnight for Freedom campaign was an attempt to rally the church behind the idea that Obama administration was assaulting religion.

To David Nickol: The "makes sense" is in her original article that Mr. Winter analyzes. Here is what I mean: The mandate that is now in effect requires Catholic hospitals and schools and similar employers to provide the contested coverage at their cost. HHS has given them a one-year delay, during which it says it will substitute a regulation under which it says it will "accommodate" objections by various steps, including making it cost-free to the employers. It is this general promise that Dr. Kaveny says "makes sense" and that is the subject of her article once she gets past the question whether the govt is "defining religion" in an objectionable sense. My question is simply how one can persuasively analyze a regulation that has not been promulgated and that poses severe practical problems based simply on a general statement of HHS's "objectives"?

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