Scandal at Notre Dame

Posted in: Constitutional Law

I am disappointed to see my alma mater, the University of Notre Dame, leading the litigation charge against the contraceptive mandate of the Affordable Care Act (ACA). The mandate requires employer health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. The ACA originally exempted purely religious employers like houses of worship from its requirements, but otherwise applied the contraceptive regulations to religious employers like Notre Dame.

The uproar against the Obama Administration about that original rule was equally vigorous and ridiculous. The Catholic bishops and other religious employers like Notre Dame accused the Administration of conducting a war on religious freedom, even though there is no constitutional rule that excuses religious employers from compliance with the law. Amish employers, for example, have long been required to pay Social Security taxes, and fundamentalist Christian employers to pay men and women equally. As the Catholic Church should have learned from its child abuse crisis, moreover, bishop employers are expected to obey the criminal laws and civil reporting statutes even when their rules against public scandal tell them not to. Notre Dame should have obeyed the original law and provided coverage to its 5000 full and part-time employees and 11,500 graduate and undergraduate students, who include Catholics who obey or disobey their church’s teaching, Jews, Muslims, Hindus, Buddhists, Agnostics, Atheists and others whose use of contraceptives is their own constitutionally-protected business.

Unfortunately, it is virtually impossible for politicians to confront the political clout of organized religions, and the Obama Administration caved in to its religious critics like Notre Dame. Back in 1993, similar political pressure led Congress and President Clinton to produce the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion,” and currently wreaks havoc on the rights of women, gays and lesbians. In the spirit of accommodation, Obama naively offered a compromise that he thought would answer the religious employers’ objections by requiring someone else to provide the insurance coverage. Under the new rule, all Notre Dame had to do was inform the administrators of its insurance coverage that it objected to the contraceptive mandate, and the administrator would provide the contraceptive coverage that the university opposed. In Notre Dame’s case, this required two actions. By December 31, 2013, it would have to inform Meritain, the third-party administrator (TPA) of its employee insurance plan, and by August 31, 2014, Aetna, the company that insures its student body, that it “opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” Then Notre Dame’s role would end, and the companies’ obligations would begin. Meritain’s and Aetna’s expenses were reimbursable by the federal government,

After the new regulations were issued in July 2013, Notre Dame complied with them. It informed Meritain of its objections. Soon thereafter, Meritain undertook its job of notifying Notre Dame employees of the availability of contraceptive coverage. Then, surprisingly, “at the last minute” and “creat[ing] its own emergency” (as criticized by two federal judges), Notre Dame rushed to court to voice its objections to the new compromise and its view that the regulations violated RFRA, as well as constitutional guarantees of free exercise, free speech and the constitutional prohibition on the establishment of religion.

Notre Dame’s argument strangely focuses on scandal, which in Catholic theology, the complaint explains, is defined as “leading by words or example others to engage in wrongdoing.” “Scandal is an attitude or behavior which leads another to do evil. The person who gives scandal becomes his neighbor’s tempter.” One must read the complaint carefully to understand how Notre Dame tempts her neighbors to engage in contraceptive use. Whenever Notre Dame signs the form objecting to contraception, the complaint alleges, it “triggers the provision of ‘free’ objectionable coverage to Notre Dame’s employees in a manner contrary to its beliefs.” Notre Dame argues that by signing the objection, it “facilitates” contraception, and (incredibly) by doing so “will lead many to think Notre Dame condones these services, and hence undermines the role of Notre Dame, a Catholic educational institution, to educate others on a matter of religious and moral significance.”

As the italicized words confirm, Notre Dame’s insistence that it objects to the “trigger” and not to contraception itself is risible. Its core argument is the non sequitur that by signing a form that says it opposes contraception, it actually condones it. Moreover, federal district court Judge Philip Simon found that, pre-mandate, “[a]s Notre Dame admitted at the hearing, Notre Dame had already instructed its TPA in past years to not include contraception in its plan. So Notre Dame isn’t modifying its behavior in the least. The only thing that is modified, then, under the accommodation, is that when Notre Dame tells the TPA not to provide contraception on Notre Dame’s plan the government and the TPA pay for contraception.Seventh Circuit Court of Appeals Judge Richard Posner further demolished Notre Dame’s “trigger” argument when he explained that federal law requires Meritain and Aetna to provide insurance coverage to Notre Dame students and employees. Federal law, not a Notre Dame signature, triggers contraceptive coverage. Notre Dame’s argument thus stretches factual causation beyond credible limits.

Notre Dame rejects all these logical and legal arguments on the grounds that only it can determine what is immoral or moral, scandalous or pure, under Catholic theology. The university buttresses that claim with the problematic RFRA. Under RFRA, Notre Dame argues, Catholic theology defines a substantial burden on religion. Even if judges think signing the form is acceptable, Catholics believe it is not. Accordingly, the school concludes, the law must yield to Catholic theology, which forbids the public scandal of Notre Dame’s signing a paper restating what it already tells its insurance brokers every year.

That argument must be rejected. We have heard it before. In the name of avoiding public scandal, Catholic cardinals from Boston to Los Angeles covered up the sexual abuse of children and hid priests from prosecution, all the while arguing in courts across the country that the First Amendment shielded them from compliance with the law. With this in mind, we need to remember that the law must govern the churches, not the other way around.

Judge Posner shrewdly explained how novel and extreme in American history is Notre Dame’s claim “to have the right to have an exemption without claiming it.” At oral argument, he posed the following hypothetical:

Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who’s been called up tells the Selective Service system that he’s a conscientious objector. The Selective Service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he’s told: “you know this means we’ll have to draft someone in place of you”—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and, by doing so, would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to “trigger” the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non-Quaker replacement? That seems a fantastical suggestion. Yet confronted with this hypothetical at the oral argument, Notre Dame’s counsel acknowledged its applicability, and said that drafting a replacement indeed would substantially burden the Quaker’s religion.

Posner’s hypothetical illustrates the problem with broad claims like Notre Dame’s that RFRA replaces the law with the plaintiff’s individual morality. Unfortunately, not all judges have shown the insight of Judges Simon and Posner. Judge Flaum dissented in the Seventh Circuit case of Notre Dame, and other courts have awarded temporary victories to employers that are in the same situation as Notre Dame, ruling that any time a religious group claims a substantial burden it cannot be challenged.

I was fortunate to be among the first women admitted to Notre Dame. Today, as then, I urge the university to listen to Notre Dame women. Three Notre Dame students, Jane Does 1, 2, and 3, have filed an excellent Intervenors’ Brief urging that RFRA not be “transformed into a trump card to be played by the University at will” to limit the rights of its women employees and students to make intimate personal choices.

That would be the real scandal.