The Lawsuits & the Tantrums

by Michael Sean Winters

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Reading court filings is not exactly fun, but it is often very clarifying. And, as is clear from several comments on this blog and elsewhere, and from conversations and emails, people would do well to actually read one of the lawsuits filed yesterday before pontificating on its merits. Or am I the only one tired – oh, so tired – of people blowing off steam, ignoring evidence that does not fit neatly into their prior narrative about whether Obama is hateful or the bishops are hateful, and failing to ask the kind of basic questions that should be asked when evaluating a lawsuit: Is this frivolous? Are the arguments compelling? Are there legal precedents? What are the relative values at stake?

Yesterday, I linked to the statement from the University of Notre Dame regarding its lawsuit. That statement included a link to the university’s court filing. Although I am not a lawyer, it is not a difficult document to read. The document states the university’s legal objections and cites relevant statutory and constitutional law. It also explains why the university is filing now: Revising health plans is a cumbersome and time-consuming process, the administration’s rule making has no definite end-point, and negotiations with the administration to find a settlement of the outstanding issues have not been promising.

The central objection Notre Dame puts forward is that the Administration employs an unconstitutional standard in deciding what kinds of religious organizations are exempt from the new mandate and what kinds are not. This has been the central objection of many of us since the President’s January announcement, especially those of us who tend to lean to the left and care deeply about the Church’s social justice ministries. We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship. The president’s subsequent “accommodations” have left that distinction in place for reasons no one seems to understand.

Notre Dame objects to this distinction between houses of worship and religious ministries not only because we Catholics see them as integrally linked. The lawsuit argues, persuasively, that in our constitutional framework, the government will necessarily find itself excessively entangled with religion in trying to determine which religious institution falls into which category. Franciscan University at Steubenville enrolls mostly Catholics. Are they exempt? Notre Dame enrolls many non-Catholics. Are they not exempt? Who decides? What percentage of co-religionists is necessary to meet the administration’s demand that an exempt institution “primarily” serve and employ co-religionists? And, who in the administration gets to decide whether a given institution has as its central mission the “inculcation” of religious values? Is there a criteria for this?

I would add at this point that all Americans should be nervous about entrusting such distinctions to the wisdom of HHS Secretary Kathleen Sebelius. You may recall her testimony before Congress on this issue when she admitted that she had not consulted with the Justice Department when drawing up the new rule and had likewise failed to consider any legal precedents for the rule. “Congressman, I’m not a lawyer and I don’t pretend to understand the nuances of the constitutional balancing tests,” Sebelius said. (Dear President DiGoia: Is this the kind of ignorance one wishes to commend to graduates?) Well, Madame Secretary, I am not a lawyer either. But, it doesn’t seem that difficult to figure out the “constitutional balancing tests” if she had cared to inquire. She might have done a Google search with keywords: Employment Division v. Smith; City of Boerne v. Flores; First Amendment. Is that too much to ask?

Certainly, the drafters of Notre Dame’s brief considered these “constitutional balancing tests.” Not for nothing does the first “count” of their suit invoke not the First Amendment but the Religious Freedom Restoration Act (RFRA). In 1990, the Supreme Court ruled that a “neutral law of general applicability” permitted no religious exemptions. That decision was written by Justice Antonin Scalia, but then he was considering peyote-smoking native Americans, not Holy Mother Church. In response, Congress passed and President Bill Clinton signed RFRA which goes where Scalia had declined to go: RFRA demands that federal laws that burden religious institutions must meet a standard of strict scrutiny, that is, they must advance a compelling governmental interest, must narrowly tailor the regulation in question, and there must be no other alternative non-burdensome means of achieving the government interest. In 1997, the Supreme Court threw out part of RFRA in the case City of Boerne v. Flores, but left other parts in place for purposes of limiting federal, as opposed to state or local, action. Notre Dame’s brief is particularly strong in arguing that HHS has not demonstrated a compelling governmental interest that cannot be achieved by other means, for example, through an expansion of Title X funds for contraception.

The difficulty in simply invoking the First Amendment is Justice Scalia’s decision in Employment Division v. Smith. The Notre Dame brief does not argue that the decision was wrong, it argues that “The U.S. Government Mandate is not a neutral law of general applicability” and it bases this claim on two distinct arguments. First, the mandate is “riddled with exemptions” and therefore is not “generally applicable.” Second, because the mandate “discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment.” I wish the brief had teased this out a bit more. It is not the case that the “disfavored treatment” is simply the result of Notre Dame’s commitment to the Church’s teaching regarding contraception. Notre Dame is targeted as “non-exempt” because it opens its doors, both in terms of enrolling students and hiring staff and faculty, to non-Catholics. If Notre Dame were, tomorrow, to banish all non-Catholics from its campus, it would qualify as an exempt institution. Is that what Sebelius and her fellow travelers want?

The Notre Dame suit lists an additional seven counts, some tied to violations of the Administrative Procedures Act – Notre Dame charges that the administration did not follow standard, legally mandated standards for rule-making, raising issues not only about Sebelius’ ignorance but about her competence – and others pointing towards related infringements of the First Amendment, including the right to free speech.

The brief also repeats something Father Jenkins said last year, during the initial comment period, that bears repeating: “Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate and Exemption, Notre Dame is uncertain as to its rights and duties in planning, negotiating, and/or implementing its group health plans, and it is threatened with the impossible choice between paying for prescriptions and procedures in violation of the Catholic Church’s moral teaching, or discontinuing its health plans in violation of the Catholic Church’s social teaching.” It would be nice to see some of our conservative friends make this point more clearly: Just as Catholic institutions cannot provide contraception without violating their conscience and mission, so too must Catholic institutions provide health care to their employees and students to remain faithful to the Church’s social teaching, which is also moral teaching. When someone cavalierly says, “If this mandate is not changed, we will cease providing insurance” they are violating a part of Catholic teaching to justify a different part. It is precisely in such moments that we must look for solutions that satisfy the entirety of our tradition and while the issues are not exactly the same, the disposition of then-Archbishop William Levada and then-Mayor Willie Brown to reach an agreement in a similarly difficult policy situation commends itself to both the Church and the White House.

Last night, at the National Press Club, Catholic University’s Columbus School of Law sponsored a panel discussion on religious liberty. The panel included CUA President John Garvey, University of Virginia law professor Douglas Laycock, Helen Alvare of George Mason University School of Law and Asma Uddin, a lawyer with the Becket Fund who spoke very powerfully about the situation of religious liberty in countries abroad. The panel was moderated by Georgetown’s Thomas Farr who began the session by asking each of the panelists to define religious liberty and assess how it is doing at this point in our nation’s history. All four were in general agreement about the definition offered by Garvey, namely, that religious liberty is “the right of an individual or a group to act on religious convictions without government interference.” Professor Laycock stressed the fact that religious liberty must be for everybody, Professor Alvare noted the essential group nature of the right and Ms. Uddin worried that in some countries, the government invokes its proper concern for public order to “swallow up” rights.

What most interested me was the fact that all four also agreed that religious liberty was “in a bad way,” more so than it was 20 or 30 years ago, and all pointed to Scalia’s Employment Division v. Smith decision in 1990 as a principal culprit. So, this fight over religious liberty has been going on for sometime, some of the protagonists are surprising, and as a legal matter, the issues remain contentious. Professor Laycock also noted that the situation of religious liberty has improved over the past 20 or 30 years in regards to funding and neutrality issues. Indeed, it is ironic that the Obama administration has significantly increased its funding of various Catholic charities and agencies, even if it continues not to understand us in regards to this mandate.

I cannot predict whether or not the Notre Dame or the other lawsuits will succeed. I will say, and say clearly, I have been appalled by some of the negative comments directed at Father John Jenkins of Notre Dame in the past twenty-four hours. Those who accuse him of “caving” to the bishops need to provide evidence that Father Jenkins is acting against what he believes is in the best interest of the institution he leads or admit that they are engaged in a profoundly sinful calumny. My colleague Mr. Briggs has determined that Father Jenkins was “playing for the crowd” but he offers us no sources for the claim. Nor can I fail to note the press release from the group “Catholics United” which therein betrays itself as little more than a fellow traveler for this administration, a front organization, a shill. Such a shame. As I said at the outset, I am past tired of those who subscribe to a prior narrative and refuse to let any evidence modify their prejudices. And, anyone who is prepared to believe the worst about the bishops and the best about the politicians is a person who is at best naïve about politics.

Yesterday, I voiced the concern that the USCCB had gotten further out on the limb than they might want to be on this issue of religious liberty, that some of their histrionics are actually undercutting their argument, and that it is getting harder and harder not to believe that they are serving a partisan agenda whether they intend to or not. But, the Catholic Left is just as short-sighted, just as capable of nastily assuming the worst motives on the part of their opponents, as are the folks advising the USCCB to ramp up the volume. There are serious issues at stake here, legal and constitutional issues. But no issue is more worrying than the evident lack of intellectual seriousness and presumption of bad motives to be found on both sides of the debate. In a democracy, one of the functions of debate is to temper and direct the passions, not to inflame them, to require argument and evidence, not mere ranting. There is nothing liberal about the stance of many liberals insofar as they put their ideologies ahead of the evidence and there is nothing conservative about conservatives who show no concern about inflaming a political debate. Liberals should go to their room and re-read John Locke. Conservatives should go to their room and re-read Edmund Burke. And, all Catholics should go to their room and read the Notre Dame brief before casting aspersions upon its authors.

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