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Errantry: Novak's Journal
...Words to cast/My feelings into sculpted thoughts/To make some wisdom last
Theological Notebook: The Religious Freedom Lawsuits 
31st-May-2012 12:07 am
Thomas More
While I was away from my journal last week, it was interesting to see the Catholic Church's impasse with the Federal Government come to a head in the form of a constellation of lawsuits over the circumventing of the First Amendment protection of religious freedom. Constitutionally, it's going to be interesting to see how this plays out, in seeing whether the First Amendment protections retain their traditional precedence, or whether some of the unwritten rights more recent constitutional interpretation has found imbedded within these will gain a primacy over the explicitly-stated protections that are (I assume) going to be argued to be built upon these unstated rights.

The Wall Street Journal ran an essay by Harvard's Mary Ann Glendon explaining why the United States' Catholic Bishops were going to court against the government, and around the same time, I received a mass e-mailing from John Jenkins, C.S.C., the President of Notre Dame, outlining why the University was part of the group filing these suits. These struck me as worth copying into the journal for future reference as what will perhaps be the biggest First Amendment battle of my lifetime plays itself out.
Why the Bishops Are Suing the U.S. Government
The main goal of the contraception mandate is not to protect women's health. It is a move to conscript religious organizations into a political agenda.

By MARY ANN GLENDON

This week Catholic bishops are heading to federal courts across the country to defend religious liberty. On Monday they filed 12 lawsuits on behalf of a diverse group of 43 Catholic entities that are challenging the Department of Health and Human Services' (HHS) sterilization, abortifacient and birth-control insurance mandate.

Like most Americans, the bishops have long taken for granted the religious freedom that has enabled this nation's diverse religions to flourish in relative harmony. But over the past year they have become increasingly concerned about the erosion of conscience protections for church-related individuals and institutions. Their top-rated program for assistance to human trafficking victims was denied funding for refusing to provide "the full range of reproductive services," including abortion. For a time, Catholic Relief Services faced a similar threat to its international relief programs. The bishops fear religious liberty is becoming a second-class right.

Along with leaders of other faiths who have conscientious objections to all or part of the mandate, they hoped to persuade the government to bring its regulations into line with the First Amendment, and with federal laws such as the Religious Freedom Restoration Act that provide exemptions to protect the conscience rights of religious institutions and individuals.

On Jan. 20, however, HHS announced it would not revise the mandate or expand its tight exemption, which covers only religious organizations that mainly hire and serve their co-religionists. Instead, the mandated coverage will continue to apply to hospitals, schools and social service providers run by groups whose religious beliefs require them to serve everyone in need.

Continued attempts to solve the problem by negotiation produced only an announcement by the Obama administration in February that insurance providers would pay for the contested services. Since many Catholic entities are self-insured and the others pay the premiums, the bishops' concerns were not alleviated.

The main goal of the mandate is not, as HHS claimed, to protect women's health. It is rather a move to conscript religious organizations into a political agenda, forcing them to facilitate and fund services that violate their beliefs, within their own institutions.

The media have implied all along that the dispute is mainly of concern to a Catholic minority with peculiar views about human sexuality. But religious leaders of all faiths have been quick to see that what is involved is a flagrant violation of religious freedom. That's why former Arkansas Gov. Mike Huckabee, a Baptist minister, declared, "We're all Catholics now."

More is at stake here than the mission of all churches, including the Catholic Church, to provide social services like health care and education to everyone regardless of creed, and to do so without compromising their beliefs. At the deepest level, we are witnessing an attack on the institutions of civil society that are essential to limited government and are important buffers between the citizen and the all-powerful state.

If religious providers of education, health care and social services are closed down or forced to become tools of administration policy, the government consolidates a monopoly over those essential services. As Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops, put it, we are witnessing an effort to reduce religion to a private activity. "Never before," he said, "have we faced this kind of challenge to our ability to engage in the public square as people of faith."

With this week's lawsuits, the bishops join a growing army of other plaintiffs around the country, Catholic and non-Catholic, who are asking the courts to repel an unprecedented governmental assault on the ability of religious persons and groups to practice their religion without being forced to violate their deepest moral convictions.

Religious freedom is subject to necessary limitations in the interests of public health and safety. The HHS regulations do not fall into that category. The world has gotten along fine without this mandate—the services in question are widely and cheaply available, and most employers will provide coverage for them.

But if the regulations are not reversed, they threaten to demote religious liberty from its prominent place among this country's most cherished freedoms. That is why Cardinal Dolan told CBS's "Face the Nation" on April 8: "We didn't ask for this fight, but we won't back away from it."

Ms. Glendon is professor at Harvard Law School.

A version of this article appeared May 22, 2012, on page A17 in the U.S. edition of The Wall Street Journal, with the headline:
Why the Bishops Are Suing the U.S. Government.

Likewise, I wanted to make a point of copying Fr. Jenkins' letter into the journal:
May 21, 2012
A Message from Father John Jenkins, C.S.C.,
President, University of Notre Dame


Today the University of Notre Dame filed a lawsuit in U.S. District Court for the Northern District of Indiana regarding a recent mandate from the U.S. Department of Health and Human Services (HHS). That mandate requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching. The decision to file this lawsuit came after much deliberation, discussion and efforts to find a solution acceptable to the various parties.

Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services. Many of our faculty, staff and students -- both Catholic and non-Catholic -- have made conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs. And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents. We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so.

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.

The details of the process that led to the mandate are publicly known. In an Interim Final Ruling issued August 3, 2011, the federal government required employers to provide the objectionable services. A narrow exemption was given to religious institutions that serve and employ primarily members of their own faith, but, departing from a long tradition in federal law, organizations like Notre Dame—schools, universities, hospitals and charitable organizations that serve and employ people of all faiths and none—were granted no exemption, but instead were made subject to the law to the same extent as any secular organization. On September 28, I submitted a formal comment encouraging the Administration to follow precedent and adopt a broader exemption.

Despite some positive indications, the Administration announced on January 20, 2012, that its interim rule would be adopted as final without change. After an outcry from across the political spectrum, President Obama announced on February 10 that his Administration would attempt to accommodate the concerns of religious organizations. We were encouraged by this announcement and have engaged in conversations with Administration officials to find an acceptable resolution. Although I do not question the good intentions and sincerity of all involved in these discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution. Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the government-mandated deadlines. We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.

It is for these reasons that we have filed this lawsuit neither lightly nor gladly, but with sober determination.

The lawsuit is available online at http://opac.nd.edu/public-information/hhs-complaint
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