A More Accommodating Accommodation?

Justice Kennedy’s Invitation to Compromise

While commentators on the Supreme Court’s decision in Burwell v. Hobby Lobby Stores have understandably focused on Justice Samuel Alito’s majority opinion and Justice Ruth Bader Ginsburg’s vehement dissent, the most important vote going forward belongs to Justice Anthony Kennedy. In his short and somewhat perplexing concurrence, moreover, Justice Kennedy offered a path to resolving the dispute over the Affordable Care Act's contraception mandate that could avoid another court decision altogether.

Justice Kennedy’s concurring opinion in the 5–4 vote last week expressed his agreement with the majority’s holding that some corporations are protected under the Religious Freedom Restoration Act (RFRA) and that, at least for the litigants at hand, the mandate unlawfully burdens their religious freedom civil rights. He also underscored that the free exercise of religion means more than just the right to hold beliefs and worship in private. Citing a First Amendment precedent (not just RFRA, which could be amended or repealed by Congress) to emphasize his point, Justice Kennedy said religious freedom includes “the right to express those beliefs and to establish one’s religious (or non-religious) self-definition in the political, civic, and economic life of our larger community.” His message to the Obama administration was unmistakably clear: You are not being sufficiently respectful of religious freedom.

At the same time, Justice Kennedy quietly gave notice to the next set of mandate opponents that their legal challenges might not be as successful as Hobby Lobby’s. He noted, as did Justice Alito’s majority opinion, that the Court’s Hobby Lobby ruling did not address the RFRA challenges currently in the judicial system brought by some religious nonprofit institutions, including the University of Notre Dame (where I am a professor) and the Little Sisters of the Poor.

But Justice Kennedy then went one step further, suggesting—not definitively, but unmistakably—that his vote for Hobby Lobby should not be interpreted as a sure vote for Notre Dame and the other nonprofit litigants.

The reasoning: These religious nonprofit litigants have been offered an accommodation by the Obama administration that would push off the cost and responsibility of contraceptive coverage to the nonprofits’ insurance companies and (for the self-insured) third-party administrators. The litigants do not see that accommodation as sufficient, of course, but its existence was enough for Justice Kennedy to write, “There is an existing, recognized, workable, and already-implemented framework to provide [the disputed contraception] coverage.” That accommodation, he said, furthers the government’s interests “but does not impinge on the plaintiff’s religious beliefs.” It does not take a mind-reader to see that he may say the same to Notre Dame and the Little Sisters of the Poor.

Why, then, would Justice Kennedy tell the Obama administration to take religious freedom more seriously and, at the same time, outline how he might rule in favor of the administration in the next round of cases?

An answer may lie in the opportunity afforded by the result of the Hobby Lobby case. The decision will send the Obama administration back to the drawing board to rework the Affordable Care Act’s regulations.

When it does so, the president should invite the religious nonprofits to the negotiating table to hammer out a compromise that implements contraception coverage in a manner that better protects religious freedom. As Hobby Lobby has shown, Justice Kennedy almost certainly holds the decisive vote in the next set of cases, and he has given both sides good reason to fear how he might cast it. Both sides, accordingly, have reason to avoid it.

This controversy need not be settled by the courts. It was provoked by an administrative rule issued by HHS; it could be resolved by a different, better, and more accommodating rule.

Back in 2009, Rev. John Jenkins, the president of Notre Dame, received sharp criticism from conservative Catholics for bringing President Obama to campus and giving him an honorary law degree. It was a generous gesture, given Obama’s record on abortion. Perhaps now is the time for Obama to return Father Jenkins’s invitation: Why not bring him to the White House, along with the Little Sisters of the Poor, close the doors, and keep everyone in the room until a compromise acceptable to all is found?

The president would undoubtedly take a hit from the far left for negotiating on contraceptive coverage, and the “war on women” rhetoric unquestionably plays well for Democrats politically. But in these excessively partisan times, it would be a notable achievement to show how Americans of diverse beliefs and different values can come together to find common ground.

Why not take up Justice Kennedy’s invitation to compromise? The alternative is for him to impose a decision, one that will inevitably further divide the country.

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Where do you think the accomodation currently came from?  Let's see - negotiation, etc. especially with CHA and other organizations.

This constant mantra about no input from non-profits; religious organizations, etc. is off track. 

Rather, certain religious organizations don't like the accomodation; don't agree with CHA, etc. and want even more *protection* - whatever that means.  (cultic behaviors; anti-women; misunderstanding of healthcare in general; misguided notion of natural law that is outdated, etc.

Notre Dame and the Little Sisters of the Poor are complaining that requesting an accomodation causes the government to pursue its policy through alternative means. There is no way for them to be accomodated while ensuring that their employees get coverage for contraception. There is no negotiating with this. Notre Dame and the Little Sisters of the Poor cannot be happy unless they get to dictate what health insurance their employees get.

Sadly htis isn't about the accomodation.  This whoe challenge is about defeating the Affordable Care Act and ultimately the president.  the Bishops and their allies couldn't succed at the polls so they have taken a new approach.  Good grief, what in heaven's name are they worried about?  They have to fill out a form?  Perhaps if the Church could actually make a coherent case as to why contraception is wrong, it would be irrelevant whether it is covered or not.  But having lost that battle in a rout, something like 90% of Catholic women have used birth control at one time or another, they have taken to fighting this silly battle to undermine Obamacare.  When you want to have universal health care, you need to define what that means.  We can argue about that, and we did.  The Church's position lost. 

I think Mr. Munoz missed the point and got his facts tangled up. As Bill de Hass pointed out, the Obama administration met and received comments from religious organizations and negotiated an accommodation...albeit, not to the satiisfaction of the USCCB. Under the so-called accommodation, cerain Catholic religious organizations do not have to cover or pay-for contraceptive products and services in their employee's health benefit plans. Under the accommodation, the employer's insurance company or third party administration will provide this coverage at no cost. What is the point of further negotiation that will also provide unfeathered access to contraceptive products and services at no cost...something the Obama adminsitration and Justice Kennedy believe is an appropriate compromise. 

The Little Sisters of the Poor is a different case. They are arguing that "signing a form" acknowledging their request for an exemption to the contraceptive mandate, is moral, material and direct coorperation with something their religious beliefs consider evil and immoral, namely, to directly facitilate their employee's access to contraceptive products and services at no cost. Do you really think that the SCOTUS will want to get into the definition of direct and indirect agency in the religious sense? How else can the government know if a non-profit religious organization wants an exemption, other than by written documented evidence?

 

 

 

isn't this whole argument a little silly, though?  the Church wants to avoid paying for contraception yet the majority of Catholic women, never mind non-Catholics, have used birth control of some sort.  this is some sort of Catholic Kosher, except that the Catholics in the pews ignore it.  The Church has never really made a coherent argument for why it is a bad thing to use birth control.  It never made an argument that people inside or outside the Church bought.  Now filling out a form is a violation of the rights, yet many  major archdioceses already provide contraception coverage and did so BEFORE the mandate.  Apparently its only a problem if you are required to sign a form saying you don't want to do it.  Actually doing it, not so much.

The Obama administration definitely needs to back off from their various encroachments on freedom of conscience and religious freedom, which try to make the American Church-State relation more like the hostile one of places like France (whereas the US founding was actually not strict Enlightenment but more Lockean/Puritan).

On the other hand, actual (as opposed to "more Catholic than the pope") Catholic doctrine does not morally require that Catholics (or anyone) refuse the "compromise" of signing a form saying one objects to providing contraceptive coverage.  The material cooperation thing is a remnant of the moral manuals (and, though not without some merit, less adequate than more precise moral language/theory) and (more importantly) often follows a physicalist tradition mistakenly basing morality on causal chains rather than ends actually sought by agents and whether such ends are reasonable and pursued through good means.

I would say that those signing such forms do not want to advocate contraception. If they really did, they would be doing something different, in the properly moral sense.

The problem here is that the bishops have been getting advice from people like the NCBC and more Catholic than the pope moralists.

When you fully extend the string of consequences from any of these arguments, it becomes obvious that the bishops' argument is much more an anti-Obama one than an anti-contraception one. This is why I think Jim Dunn is spot on.

What has the USCCB achieved if the concept of insurance is upheld and merely the mechanics changed? A large number of people pay into a risk pool to pay for expenses that a relatively smaller number of people will incur. Somebody pays. Acting in a "facilitating" way to make that process efficient and fair (by secular definitions) should not be a matter for religiously bent people to object to. The mechanics of the situation make no difference. Someone is always paying.

If objecting to every alternative, every accommodation, that results from negotiation or discussion is the predetermined outcome from the religious group, then you have to conclude that every solution will be objectionable--in my mind, an unreasonable stance. That is why the framers wanted religion to be protected and that we should be protected from it as a governing platform. The idea that religious rights (freedom) can be extended to the point where they impinge on the rights (freedom) of non-believers is the entire problematic part of this. This is the pinch point that cannot be argued away. My rights end where your nose begins. The Court effectively changed this. This is wrong.

I am very dissappointed at the responses above.  The average reader seems to feel that government is inherently correct and most readers hesitate to question their governments actions and repression of religion.  Your readers may want to learn abut other governments in recent history that have repressed religious freedom and allowed no dissent - Mao and China, Cuba and Castro, Hitler and German, come to mind - in favor of Government control.  

There is no reason for the outcry over the decision.  All abortion and contraception available before June 2014 IS AVAILABLE NOW TO ANY WOMAN WHO WANTS IT .  It's who pays for them that is the issue, and the court declared that if payng for it profoundly affected your religious beleifs you didnt have to pay for that. 

The readers hopefuly will appreciate that same issue for the Little Sisters, instead of falling in line behind this Administration on every issue.

Oh please...what a load of nonsense.  When did the Obama Administration repress any one's relgious freedom?  Mao? Hitler, Castro?  Seriously? That is an utterly disgraceful and disgusting comment whether it comes from the likes of you or the likes of Bishop Jenky.   If those comparisons were true, or even vaguely close, the Catholic bishops would be breaking rocks in northern Alaska, not holding meetings in resorts in Florida.  And it is a huge problem that people make those statements and those comparisons, including knuckleheaded bishops.  This is a debate about policy and what should and should not be covered by a health plan, what constitutes sound public policy in that regard. And you're right inpart, it is about who should pay.  And whether corporations have religious rights and how far the rights of owners extend in a corporate structure.  It isn't an attempt to repress relious freedom. 

But please note: Nobody is prevented from praying, from going to the church, synagogue or mosque of his or her choice.  You can even pray in th emiddle of a public park if you want.  What you can't do is make me join you.  Archbishop Lori hasn't been hauled out in chains for organizing his silly fortenight for freedom, nor has that knucklehead Bishop Jenky been thown in a maximum secruity prison for comparing the President to Hitler.  If YOU have any doubt that they would have been under any of your examples, you clearly have no sense of history.  And your idiotic comment make a mockery of those who did and who still do suffer and face death for their faith.  It happens in many places.  The United States is not one of those places. 

"Back in 2009, Rev. John Jenkins, the president of Notre Dame, received sharp criticism from conservative Catholics for bringing President Obama to campus and giving him an honorary law degree. It was a generous gesture, given Obama’s record on abortion. Perhaps now is the time for Obama to return Father Jenkins’s invitation: Why not bring him to the White House, along with the Little Sisters of the Poor, close the doors, and keep everyone in the room until a compromise acceptable to all is found?"

 

Nothing generous about it. Jenkins was (typically intellectual lib) cowardly and faithless in doing what he did. Kennedy is precisely the same way. Spineless. Having 'men' like him run the nation is massive social stupidity. He's prototypical of so many in law, govt, hardly alone.

 

Notre Dame and the Little Sisters of the Poor are complaining that requesting an accomodation causes the government to pursue its policy through alternative means. There is no way for them to be accomodated while ensuring that their employees get coverage for contraception. There is no negotiating with this. Notre Dame and the Little Sisters of the Poor cannot be happy unless they get to dictate what health insurance their employees get."

Nor should they be. They're the ones supplying the benefit. Where do (you) libs get off dictating what benefits an org should provide its employees? Crazy. People are stupid to put up w this kind of thing.

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About the Author

Vincent Phillip Muñoz, the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at the University of Notre Dame, is author of God and the Founders: Madison, Washington and Jefferson (Cambridge University Press).