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Court declines to hear Catholic Charities case

Blog reader Bob Nunz suggested that we start a new thread on the news yesterday that the U.S. Supreme Court declined to take up the case of Catholic Charities in New York, which opposes a state law requiring its health care plan to pay for, among other things, contraceptives.

Lower courts ruled that Catholic Charities is not a church, but a social services agency.



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I haven't read the appeals decision, but it appears to me to be consistent with precedent on the application of facially neutral regulatory provisions when they conflict with religious tenets. The Amish, for instance, lost their effort to refuse to pay social security taxes because they conflicted with their religious beliefs (no idea how). It's not like CC can't refuse to pay for the benefits -- they could refuse to provide insurance or pay people to buy their own. That's not a great trade-off, of course, but the state isn't required to regulate in such a way as to optimize the choices of religious organizations, just not to unduly burden them. There is an exemption in the law for churches, it's just that, apparently, CC didn't meet it. I assume that's where the real debate would be, but that's a factual determination of the kind that the Supreme Court doesn't normally review.

Do Catholic Charities and similar social service agencies receive governmental funding? If Catholic hospitals receive governmental funding (reimbursements, grants), can they ultimately refuse to authorize abortions and sterilizations on their premises? Is receipt of such funding the key to this kind of situation?

CC does receive government funding but I don't think that's the key to this particular dispute. It no doubt factored into the court's determination that CC was not a church, because it receives so much government funding for the provision of social services. Also, the law regulates insurers not CC directly (there might be a few twists here but I don't think so). The statute doesn't affirmatively require CC to do anything -- unlike, say affirmatively trying to require hospitals that take funding to provide specific services. Also the nature of the funding matters (participating in a federal program open to all health care providers is usually judged a bit differently than receiving direct government outlays for services provided to the government. in the latter case, the government is often much more directive about how the agency's employees are treated).Finally, CC could self-insure and escape the law (they might have to give up their status as a church plan under federal law. Yeah, it's complicated).

By tradition, the Supreme Court uses the "Rule of Four" to decide which of the 1500 to 2000 cases filed at the SC each year are placed on the court's docket for decision. The odds against being selected are quite high, about 20 to 1. A minimum of 4 justices has to vote to "grant certiorari," the technical term for the procedure by which the lower appellate court is ordered to send along the documents it considered in making its decision. With 5 Catholics on the SC, 4 of whom are considered very politically conservative (Roberts, Alito, Scalia, and Thomas), there must have been something they saw as a defect in the case--e.g., that CC has non-Catholic employees and serves non-Catholics--that convinced the 4 that this would not be the best case for testing the First Amendment religion issues being argued by CC.

If I have the circumstances right, CC in NY and perhaps California have argued that their religious views on social justice require that they include in their health insurance policies a drug payment benefit. If the state requires payment for contraceptive benefits, CC and a baptist co-plaintiff in New York argue that their religious beliefs prohibit such payments. It would seem they could be driven to withdrawing the drug benefit altogether.I find this a morally complex matter. On the one hand, I don't think the Catholic teaching on contraception is persuasive even to most Catholics; in particular, I don't think it is applicable or persuasive to non-Catholics, many of whom are covered by CC's health insurance policies. But if CC insists as a matter of conscience (as an arm of the Catholic Church), that it should not pay for services, I am inclined to take their conscience claims seriously. What are their choices?

(1) Hard to judge why cert is denied. I believe the answer is, however, that the real dispute is not the law, which actually provides a fairly broad exemption for churches, but rather the application of the law to the facts such that CC was determined not to be a church. That does raise a legal issue but it's not one that the justices would be likely to take on, especially from a state court determination, unless they thought that the standard had been set so high as to deprive the plaintiff of due process, or that it was rigged such that the state regulated via unrealistic standard what it was not permitted to regulate facially. There are cases that do turn on standards. The Cruzan case turned on whether Missouri's standard for determining whether a patient would have rejected additional treatment was too high. (2) It is my utmost hope that the justices would not take disputes involving the Catholic Church because they themselves are Catholic and would be trying to use their position to in some way advance the Catholic Church.

CC's choice is to self-insure without state regulation. Something like 75% of employers with more than 500 employees self-insure. You work through the same companies, you just pay as you go and it's usually cheaper than buying insurance. (In this case CC might have to give up something but it's not something related to conscience, it's related to a federal exemption that doesn't get them a lot anyway except fewer reporting requirements.) CC could also calculate the cost of contraception per member per month and deduct that cost from the employer's contribution to benefits. CC could pay each employee an allowance so that the employee could purchase their own insurance benefits. Many individual plans lack mandates found in group plans.CC could adopt a high deductible plan so that it would be unlikely to absorb the cost of routine contraceptive care. The state doesn't have to make CC's claim to conscience totally cost free.

Current church state jurisprudence (employment division v. Smith et seq.) doesn't require the state to give religious exemptions from the provisions of neutral state laws for the public good that aren't discriminatory in intent. States can decide to give exemptions--but that would require them to look favorably on the church and its doings. This in my view, is another problem with strategy's such as Archbishop Burke's.

Barbara--Perhaps I could have been clearer. I wasn't implying that Catholic justices would grant cert simply because CC has a Catholic pedigree, only that at least 4 of the 5 Catholic justices are known to be both politically and religiously conservative, and perhaps therefore more open to reexamining the state of the law on the First Amendment and religion. I don't think it would matter to them if the charity were Mormon or Lutheran or Baptist, so long as it had the right set of facts, etc. In fact, granting cert in a case with a non-Catholic religious charity would likely give them cover against a charge of Catholic bias.

Thought it worth mentioning that in his installation homily, the new Archbishop of Baltimore spoke very strongly about religious freedom.

As Barbara pointed out, the Church has the freedom to decline payment for birth control, abortions or other medical procedures it finds sinful, though the state puts it in a difficult position of having to find another way to insure employees.The Amish want to remain separate, taking care of each other through family and community resources, rather than social security (or self-employment) taxes. This was an issue in my father-in-law's community. I don't know whether they accept the payments or use Medicare now that they've retired.

Joseph, the Hyde Amendment passed in the mid-1970's dealt with that on a federal level. Court takes very few of the cases on offer to them.

The Amish case was really quite interesting (I started remembering details). I think the gist of it was that most of the employees involved were Amish, that the Amish do not avail themselves of Social Security benefits, and argued that therefore, they ought not to have to pay SS taxes, especially when they conflict with their religious tenets, as embodied in their commitment to care for each other. Here are some problems:First, some Amish do avail themselves of some state benefits, for instance, special educational benefits that, to some extent, they disproportionately need because of a higher incidence of genetic diseases. The state certainly will (and could) never legislate in such a way as to fix this religious tenet as part of state law (not give benefits to an Amish person because a central tenet of Amish faith is not receiving such benefits). That would run afoul of the establishment clause.Thus, an Amish person who qualifies for Social Security and who needs it will not be turned down by the federal government, and it seems fundamentally unfair for the state to go out of its way to ensure that such a person (hypothetical, unidentified, average Amish person who might in fact not even exist) never qualifies by making sure his Amish employer never contributes on his behalf. Again, that would elevate the interests of the religious denomination over the individual rights of the adherents to determine for themselves whether they'd like to be supported by their brethren or just live off SS. Basically, the Amish case was an attempt to get an extension of the principles of the Yoder case in Wisconsin, also involving the Amish, regarding compulsory school attendance (or equivalent home schooling) which, in my humble opinion along with that of Justice Douglas, was erroneously decided in the first place. Anyway, the CC case raises somewhat different issues, and the legislation does have an exemption for churches.

My opinion of the Amish is clouded by personal contact with them and the emotional fallout my father-in-law, who left the community, had to deal with.Their schools basically teach reading the Bible and doing farm accounts. There is no science, literature or anything else of the kind. Many believe the world is flat. Any kid who wanted to go beyond the eighth grade would be prevented by his parents.An Amish education, in its omissions and errors, practically forces an individual to remain in the community. See Lawrence Cunningham's review of "Plain Secrets" in the latest edition of C'weal, which sounds like a fairly even-handed look at the Schwartentruber sect. That book could have been written about my father-in-law, who left his community and family at 16.But I digress.

I read some things about this case when the original court decision went against Catholic Charities. From what I recall:* As stated, the law does have a religious exemption, but Catholic Charities does not qualify as a religious organization under the law's definition. For example, a religious organization is defined as one that primarily employs members of a particular denomination, and whose service is directed toward members of that denomination. Neither of those conditions reflects Catholic Charity's mission nor the reality of who works for them and who they serve. (The State of NY seems to operate under a rather pre-Vatican-II ecclesiology).* Regarding its options: at the time of the original court ruling, I believe Catholic Charities NY announced that, while they appealed, they would go ahead and add the birth control "benefit" to their health plan - an announcement that troubled me on a couple of different levels. It's hard to see carrying the benefit as anything less than material cooperation in contraception. Now that it has apparently exhausted its appeals, I hope it will adopt a rational alternative - self-insurance seems like a no-brainer.In response to the question, does Catholic Charities accept government funding? The answer is, yes - nationally, government funding accounts for over 2/3 of its funding. Catholic Charities provides vital social services, and my modest experience working with them and with government agencies who provide similar or overlapping services is that Catholic Charities does it in a way that is both more efficient and more caring and humane than government agencies. I don't doubt that this consideration weighs heavily on the minds of the agency's directors who are seeking a way out of this pickle.

Forgive me if I question the acceptance of federal funds by a church to begin with. This usually transforms charities into businesses. Having written and received a few federal grants, I noticed how suddenly many greedy rather than needy people, are suddenly calling you for favors or contracts etc.In general federal monies denigrates religion and reduces it to just another greedy supplicant. For example when a child in a group home reaches the age of 21 s/he is summarily pushed out on the street because the state or federal funding has ceased. There is hardly any coordination with parishes or any othe services to support that still fragile child.Catholic Relief Services is an amazing exception. I do not believe they receive much public funds, if any.

Re the Amish: What was troubling about Yoder was that, at least in my view, it co-opted the state's police authority to carry out the wishes of a specific religious group to perpetuate its lifestyle by foreclosing any other opportunities to its adherents when they are too young to have any say. Their only choice is to behave differently with their own children when they become adults. Because it was styled as an exemption from state law rather than coercion by the state, I think that the justices missed the larger point -- it valued the organizational interests of the larger denomination at the expense of the individual who could, after all, choose to continue as an adult in the Amish community, albeit a better educated one. Keep telling yourself: CC can self-insure and can adopt any of the other measures I outlined above. Employers with fewer than 50 employees self-insure. CC has no excuse other than institutional inertia if it really objects to paying for insurance that covers contraception but can't find a way around it. (My guess is that CC doesn't want to have to make the decision itself and wants the imprimatur of the state's exemption because, after all, CC employees might prefer to work elsewhere.)

many thanks for the fine posts and particularly Jim's cites.(As a footnote, I'm going to suggest another thread, since Kathy mentiom\ned Bishop O'Brien's installation speech. He seems to be committed to a real inner city presence for the Church in Baltimore, not what sems to be happening in other major matropolises. Is this worth some discussion?)

HI, Bill, re: government funding for Catholic Charities: it's not exclusively Federal government funds, maybe even not predominantly so. I.e., states, counties, etc. are also sources of government funding.I share your instinctive distrust of dependence on government funding and its potential to compromise the mission. But here's another way to look at it: these government bodies make enormous amounts of funding available to address various social needs. (Whether "enormous" = "enough" is another discussion - certainly, I'd argue that for programs like housing assistance, more should be made available. But still, they are dollar figures that seem like a lot of money to those of us who aren't in Bill and Melinda Gates' income tax bracket). There is an important question of stewardship with funding of this nature: we have an obligation to see that this funding is used wisely, and as effectively as possible, and in a way that doesn't cause evil or enable problems. If Catholic Charities did not step forward to claim the funding and provide these services, the money would not go away, it would simply be directed elsewhere, either to other private agencies or used by the government itself to provide direct assistance. That being the case, I'm in favor of the aid being rendered by an organization with a track record for doing good work, and that does its best to do it in a way that is consonant with church social teaching.In Deus Caritas Est, the Holy Father stated tht the church *must* engage in the sort of labor in the vineyard that Catholic Charities provides - indeed, he named Caritas (of which Catholic Charities is the US affiliate) as a concrete instance of that good work.

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