Notre Dame Sues the Federal Government in Order to Avoid Providing Reproductive Services to Its Female Students and Employees

Along with dozens of other Roman Catholic organizations, Notre Dame University recently sued the federal government over federal executive regulations, promulgated through the Department of Health and Human Services (“HHS”), that require it to include contraception, abortion, and sterilization in its healthcare plans.

This is the second major federal-court battle over the federal healthcare system.  The first, of course, was composed by the series of cases that were filed by state Attorneys General challenging the constitutionality of the Affordable Care Act (also known, largely by its detractors, as “Obamacare”).  That challenge will be addressed by the Supreme Court by the end of this Term, which will occur at the end of June.

When you add all of these new lawsuits over mandated reproductive coverage for women together, and add in, as well, the persistent public-relations efforts that have mounted by the bishops regarding this issue, the result amounts to an aggressive push by the United States Conference of Catholic Bishops.  Such efforts, however, would not have been necessary had the bishops won the political battle and obtained an exemption for all religious institutions from providing reproductive healthcare to women.

Essentially, houses of worship are exempt from covering reproductive medical care for women.  But the exemption does not cover institutions, like Notre Dame, which have numerous employees who don’t share the faith, or which serve numerous individuals who are not of the faith.  The bishops lost that battle, and now, they are enlisting the courts in their efforts to obtain the exemption that they failed to persuade the Obama Administration to provide.

This is a complicated lawsuit that will provide fodder for many columns to be written by myself and many others, not to mention many opinions by federal judges and courts.  For purposes of setting the stage, though, in this column I will focus solely on the potentially misleading rhetoric of the Complaint and public statements by the bishops.

The Current Battle Over Religious Institutions and Healthcare Is Not an Instance of Religious Discrimination, and Freedom of Religion’s Position in the First Amendment Is Not Especially Significant

High-level bishops and their legal spokespersons fanned out into the media as soon as the suits demanding an exemption from the Administration’s mandate were filed.  Their goal was to champion a single idea: the idea that the absence of the exemption was an instance of severe religious discrimination and persecution.  They are arguing that the Constitution mandates accommodation.

The first paragraph of the Complaint states that “[t]his lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference.”  By the end of the paragraph, the religious institutions and their attorneys have worked themselves up to making an even more grandiose claim: the claim that religious freedom is the “most fundamental of American rights.”

Historians will tell you two things about such a claim.  First, the “First Amendment” is not first because the Framers believed that rights to speech and religion were more fundamental than, say, the right to a jury trial or the right to avoid unreasonable searches and seizures, which were set out in subsequent amendments.  To the contrary, historical accident made “the First Amendment” first, so the notion that the right to religious exercise is most fundamental because it is in the “first” amendment needs to be set aside early in this litigation.

Second, the true innovation in the United States Bill of Rights was not contained in its protection of the free exercise of religion, as much as it was contained in the Establishment Clause, which instituted the then-novel concept of a separation between church and state.   The Notre Dame complaint is part and parcel of the seemingly endless push by religious organizations and nonprofits in this era to obtain free exercise at the expense of separation.

It Is Not the Case That Federal Programs Cannot Constitutionally Compel Religious Institutions to Act Contrary to Their Beliefs; That Has Been Allowed in Numerous Supreme Court Cases

Moreover, there is an even more concerning sleight-of-hand in this attack on the provision of reproductive services to women, and that is the bald assertion in the Complaint, and in the bishops’ busy public-relations push, that a federal program that requires a religious organization to act contrary to its beliefs is automatically in violation of the First Amendment.  That is simply not so.

Religious organizations are not autonomous entities in our culture, but an integral part of it, and they are often subject to the law even if it means there is an incidental burden on their religious conduct.

There is no constitutional requirement that the law must mirror a religious organization’s beliefs and worldview, despite the rhetoric that is being invoked on this issue.  Indeed, the Supreme Court has not followed the logic of the Complaint in the least, as a set of key cases demonstrates:

In United States v. Lee, decided in 1982, the Amish challenged the federal law requiring them to take out Social Security taxes and contribute a share to their employees.  Why did the Amish initiate such a challenge?  Because they sincerely believed that the members of their community should mutually support each other, and that the Social Security system violated that religious worldview.   The Supreme Court held, however, that the Amish had no First Amendment right to avoid paying Social Security taxes like everyone else.  Yes, the taxes were inconsistent with their beliefs and, yes, they had to obey the law.

Then, there was Bowen v. Roy, decided in 1986, in which a Native American family objected to their child having to obtain a Social Security number in order to obtain federal welfare benefits.  The Native American plaintiffs sincerely believed that the assignment of a number to their child would rob the child of its soul.  The Supreme Court rejected their First Amendment arguments, saying that to participate in the federal welfare system, they would have to obtain the required Social Security number.  Again, the requirement was in conflict with their beliefs, and again, the First Amendment did not protect the religious party’s desire to avoid the government’s obligations.

Finally, there is Jimmy Swaggart Ministries v. California Board of Equalization, decided in 1990, in which Swaggart fought the state tax on retailers for items (such as mugs bearing religious symbols) that he sold in-state as part of an evangelical crusade.  The Supreme Court held that the organization had no First Amendment right to avoid a flat tax on the sale of goods in the state.

Whether this case is closest to Lee or to Bowen or to Swaggart, or to the many other cases in which the First Amendment proved not to be a defense for a religious believer, is a matter for a later column to address.  My point here, though, is quite simple:  The argument being thrown around in these lawsuits is not nearly as clear as the rhetoric in the papers and on the airwaves would have you believe.  In paragraph 7 of the Complaint, Notre Dame boldly asserts, “If the Government can force religious institutions to violate their beliefs . . . there is no apparent limit to the Government’s power.”  This is just plain exaggeration, not constitutional doctrine, and no reporter, or voter, or anyone else should be misled by it.

On this score, paragraph 103 of the Complaint asserts that “Notre Dame’s President, Rev. John Jenkins, also noted that religious organizations such as Notre Dame should not be required ‘to participate in, pay for, or provide coverage for certain services that are contrary to our religious beliefs or moral convictions.’”  But, in fact, that happens all the time.

The onus is going to be on Notre Dame and the other Catholic institutions that are filing suit against the Obama Administration, to explain how their cases differ from the long line of Supreme Court free exercise precedents that have carved out precious little space for the sort of claim that is being launched here.

To be sure, the Constitution is just half of what the bishops are arguing when it comes to the religious-exemption issue.  But it is more than half of their rhetoric, which is filled with talk of “constitutional rights” and the First Amendment.  Americans, particularly religious believers, are being told that this is an unprecedented attack on “religious freedom.”  Not so.

The bishops are also relying heavily on the Religious Freedom Restoration Act (“RFRA”).  I will leave the RFRA element for a later column, because it presents its own separate issues.  As I will explain in that future column, RFRA represents a radical expansion of actual free-exercise precedents, as the Court explained in Boerne v. Flores.   

But RFRA is worth a quick mention here, simply to point out to the casual observer of this political battle that when Notre Dame wraps itself in “religious freedom” in this debate, it is not limiting its arguments to what the Constitution requires.  To the contrary, it is also reaching for non-constitutional theories to now obtain what it has failed to obtain through the political process.  Paragraph 2 of the Complaint intones supposed tenets of the history of religious liberty, as though the Framers would have been unquestionably on the bishops’ side.  Yet, as Professors Ellis West and Philip Hamburger have well established, the First Amendment does not provide for the mandatory accommodation, by the government, of religious practice, through special exemptions.  The bishops’ attempts to wrap their arguments in history are thus nothing more than poor law-office history.