Scandal at Notre Dame

Updated:
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.

  • PetrusRomanus1

    Catholic bishops and archbishops think that they are above the law and beyond its reach. Plus, they expect the laws of the USA, both state and federal, to enforce their narrow, sectarian views of morality and society.
    The Catholic hierarchy thus equates their “religious freedom” with their CONTROL of legislation, law enforcement and media reporting. President Obama has popped their bubble and exposed bishops for the hypocrites they are. It’s way too late to believe any more that the earth is flat, or that today’s Catholic bishops lead the One True church, outside of which no one can be saved.
    And thanks for telling the truth about your alma mater, ND.

  • Joe.02

    I respect the religious beliefs of those that I personally disagree with and sometimes am upset when people on my side generally belittles “religion” generally. This issue suggests that there needs to be some sense of perspective on the situation or this distaste of “religion” will continue.

    Likewise, those who make these claims at times (I have seen it in discussions online) belittle different views (e.g., ridicule the idea that birth control might be necessary for one’s own moral and religious beliefs; many religions in fact even accept the morality of abortion in various cases) or look on w/o comment when this occurs (including more than one professor supportive of the claims).

    This makes it harder for some to accept that religious liberty is truly the concern here as compared to the religious beliefs of the specific claimants. Religious liberty for all requires more nuance and stopping extreme claims on all sides.

    • fredx2

      I agree. However, that is what the Religious Freedom Restoration Act did. There are two competing interests -the government claims that everyone in the country needs to have FREE birth control available to them. It is a somewhat odd claim, but that’s what they are claiming.

      The church claims that it simply cannot be involved in the provision of contraception.
      How to resolve these two competing interests?
      The RFRA says that we abide by the First Amendment, and allow the freest possible reach for free exercise of religion. But in cases where there is a “compelling interest” the government interest can override the religious interest.
      Now, is it necessary to force those who have religious objections to contraceptoin to provide contraception? Is it that important that we are willing to ignore the First Amendment?
      Especially where the law did not even mention the provision of contraception, but that is how the Obama administration oddly chooses to interpret the words of the ACA?
      Since contraception is relatively cheap, the government could easily provide the pills.. But in this case, the government appears to be intent on telling religious organizations that they will do what they are told, because they are the government and the government tells everybody what to do.
      The very idea of religious freedom, where it conflicts with their ideas, seems to bother them quite a bit.
      So, we have a balancing mechanism in place – RFRA. It gives us the maximum freedom of religion consistent with public need, and I think that is a very good balance.
      Remember – this is not the end of this. Next it will be a practice of Jews, or Muslims, or Rastafarians. I think we all want people to be able to follow their religions without public interference, to the extent reasonable.
      The Obama administration disagrees with that, they want a rule that says the government gets to tell everybody when to jump and how high.

      • Joe.02

        What RFRA “did” is ultimately something the courts will decide, but what it was said to “do” by its proponents when it was passed was return us to the state of the law before Oregon v. Smith. Then, see U.S. v. Lee, a person that enters the for profit marketplace cannot oppose their beliefs on employees, even if the social welfare program at issue is against their religious beliefs. There, an Amish employer opposed it based on religious beliefs. Attempting to set up a range of exemptions was deemed problematic and not compelled by the Constitution. A non-profit or religious employer has been treated differently, but even there, there was some minimum requirements for conscientious objection and exemptions.

        If RFRA is supposed to “restore” the law as it was, going further is a curious thing in that respect. Your use of caps aside, “everyone” is not getting “free” birth control. First, obviously, everyone doesn’t need it — like an elderly woman or something. Second, the average person is not actually getting it for “free,” any more than they are getting other health care for “free.” An employee works. In return, s/he gets a salary. Part of this salary can include benefits.

        Finally, it is not “odd” that the government determined contraceptives is a good thing. They are following the counsel of an independent health study that provided various things would promote preventive health, including the well being of children (e.g., having children in certain cases can lead to children with various health problems), and thus it is part of the necessary health insurance package. It also promotes gender equality among other compelling interests.

        But, as Marty Lederman has noted in depth at Balkanization, employers need not provide it. They need not have health insurance. Having it brings a tax break. Also, there are exemptions for religious institutions. The government DOES provide health care as an alternative in a range of cases. Religious organizations do not need to “do what they are told.” They have a range of autonomy here. The Obama Administration has continuously worked to find a good middle ground. Many realize this, including various nuns.

        Yes, it won’t stop here. If an exemption is supplied even from being required to fill a form or have a third party supply health insurance, what will be the next step? Refusal to cover vaccination? Religious claims that serving women is against one’s religion? Psychiatric care exemptions by religions who find it problematic? Will people complain about employees wanting “free” care when a Jehovah Witness employer doesn’t want to pay for a blood transfusion or even submit a form asking for an exemption since it will be too much “involvement”?

        What about if the employer doesn’t want to cover pregnancy as part of the health insurance package (it has the right to not have insurance at all, just like Hobby Lobby does, but refuses since it might be disadvantageous somehow) since they think unmarried people having babies is immoral? Or, is this really just about “free” birth control?

        The state of the law here provides a good middle ground while providing a chance for the individual to have health insurance that allows him or her a better ability not only to protect their health but to do so following their individual moral path. And, the average person doesn’t do this for “free” but by working, paying taxes and so forth. I would “agree” this is a good thing.

  • Norman Lampton

    I am astonished by Dr. Griffin’s thesis herein. I am a Catholic; who did not attend Notre Dame but instead Benedictine College in Atchison, KS. This is a clear instance of what are becoming known as cafeteria Catholics. That is I will pick and choose what of the doctrines of the church I like. Unfortunately the church makes us all banquet Catholics; we are bound by the entirety of the doctrine. We may argue and make remonstrance that the doctrine is in error; as has happened many times through out the life of the church; but unless and until there is pronouncement of change it remains the doctrine.
    The analogies to the Amish and Quakers are a stretch. The social security payments are tax; just as the Quaker can’t complain that the income tax collected is used for the Defense Department. If the administration wants to provide this coverage it can do so just as it funds abortion through Planned Parenthood.
    I respectfully make remonstrance to Dr. Griffin that pronouncement of church doctrine must follow the canonical methods of doing so.
    {Besides my JD I have an M.Div.}

    • RB

      Why should any doctrine ever change? Divine teaching cannot change to suit the opinion of society. If that were the case we’d have never made it this far. What a crisis we’re in thanks to people who think anything can actually be changed!

    • Joe.02

      The Amish comparison is on point — as noted by Marty Lederman at his blog, the covered employer does not need to provide health insurance with its required components. Doing so avoids a tax, which is put toward just what you suggest — the cost of coverage of health insurance on exchanges and so forth. The Amish employer if anything had a harder time of it, not being able to avoid Social Security payments via a monetary alternative.

      If doctrine is so fundamental to the Catholic Church, it is largely to blame for the current state of affairs as it mostly blithely looks on while most Catholics, e.g., violate the sacrament of marriage by usage of contraceptives on a regular basis. At any rate, Catholics need not violate the doctrine here, nor do only Catholics go to Notre Dame or work at their institutions. The individual choices are their own, just like they have the power to use their salaries from the college bookstore for birth control or even abortions w/o being fired. Many of whom are not Catholics. Ministerial employees can very well be treated differently.

    • In Search Of The Lost Chord

      ALL christians are “biblical cafeteria” christians. NO christian follows everything in the bible. The federal government funds “anti-abortion” medical care through Planned Parenthood. NO federal money funds abortions. By providing good medical care, sex education and contraception, Planned Parenthood PREVENTS abortion by helping most women to get pregnant only when they choose to do so. Defunding Planned Parenthood WILL cause an increase in un-safe abortions. Remember, abortion does not kill babies, it prevents zygotes from developing into human beings.

  • Prospero2

    If Notre Dame is going to ignore Federal law, the US–while fighting the ND in court–should also begin withdrawing federal grant monies from the University, gently at first, but more rapidly the longer the university refuses to obey the law. There are many law-abiding colleges and universities in the country that will be grateful for (and more deserving of) Notre Dame’s forfeited funding.

    • fredx2

      What law? The bishops are following the Religious Freedom Restoration Act, which the Obama administration refuses to acknowledge. So should tunds be removed from he Obama administration? The Obama administration also refused to acknowledge the long held doctrine of a ministerial exception in constitutional law, and the Supreme court slapped them down 9-0 – Including the two justices that Obama appointed.
      Also, it is not pointed out that the Law passed by Congress merely said that “preventive medicine” must be covered under the law. It said absolutely nothing about forcing ANYONE to provide contraception.
      The Obama administration decided that Preventive medicine included free contraception. So the Obama administration used their power to stretch the definition of preventive care to be whatever they wanted it to be.
      If nothing else, that sort of high handed attempt to twist the law to fit their ideological pretentions should bother everyone who cares about the law.

  • Steve Rosenberger

    Why do the men in dresses who rape children oppose contraception? Perhaps they are concerned it would reduce their supply of children to rape.

    • RB

      You’re sick in the head. I want to be a priest, and I will gladly suffer the persecutions of sick people like you for the Holy name of Jesus.

  • There was nothing “shrewd” about Judge Posner’s draft case analogy. It was, rather, duplicitous, as Professor Griffin would know if she listened to the oral argument. (In which Judge Posner’s bullying water boarding of Notre Dame counsel suggested the bias against the Church’s teaching on contraception that he has displayed elsewhere.) What counsel said in reply to Judge Posner’s question was that beyond the legal issue of substantial burden on religious freedom lay the statute’s test of compelling public interest. That issue plainly would be resolved against the objector, since the public interest in drafting those who are not conscientious objectors is as about as compelling as one can imagine. Judge Posner must have known that what he described as counsel’s position was misleadingly incomplete. Even if he had forgotten, he knew what the statute would require in the hypothetical. But to deal with it would have disclosed his analogy as anything but “shrewd.” The opinion, in fact, is an analytical mess rooted in a fundamental error, namely, that the third party administrator of Notre Dame’s plan is obliged by law to furnish the benefits even if Notre Dame does not file the certification that authorizes the administrator under the governing statute (“ERISA”). That is flat out wrong, as counsel pointed out but as Judge Posner does not acknowledge. I do not say that a rational legal argument in support of the mandate cannot be made. I do say that it most certainly was not made in this case.

  • jereuter

    Excellent essay Dr. Griffin. Well reasoned and persuasive. Notre Dame is being intellectually dishonest.

  • fredx2

    Posner’s hypothetical about the Quaker misses the point entirely.

    In his hypo, the Quaker is upset because another person is forced to fight in a war in his place. And his religion teaches that no one should fight in a war. Therefore the Quaker claims that if another is drafted in his place, it violates his religious beliefs.

    But that is not what the church is doing.

    Catholics do not want to be complicit in any way with the provision of contraception. The government insists they sign a paper that effectively says “I authorize my health insurance company to give free contraception to my employees”. Rather like a totalitarian government, the administration wants them to sign a paper that makes them violate their conscience – when there is no need to do so.
    We generally try to avoid such things in the United States if there is any possibility to avoid it.
    The government has a hundred other choices available to it that don’t violate anyone’s conscience. It could provide contraception to the employees directly, for example, rather than trying to force a reluctant third party to do it.

    In order for Posner’s hypo to be accurate, the Government would have to force the Quaker to sign a paper that would specifically authorize the government, on his behalf, to go out and get another person to fight in his place. That would be coercive, and just plain wrong. A Quaker would quite properly refuse to sign, because he cannot be party to war in any way.

    In fact, the corrected hypo shows the strength of the Catholic position.

  • kkaplan

    I would ask Judge Posner why, under his logic the Government couldn’t compel the Quaker to fight or be jailed for not doing so?

    By his own statement, religio conviction is allowing the Quaker an exemption (from fighting).

    • Joe.02

      The concern is that even asking for an exemption is an issue, not that the exemption itself is a problem. That is, there is a “substantial” burden test, not that any “burden” at all should be enough. Still, precedent holds that there is not a constitutional right to an exemption here, though it has always been given to some degree as a matter of grace.

    • kkaplan

      Joe,
      There are several distinct issues here – but at the end of the day, it’s hubris for anyone (even Posner, who I respect) to tell someone what is or isn’t a violation of the tenets of their own faith.

      That being said, the RFRA does offer protections above and beyond what the Smith Court proposed. It doesn’t seem as clear of a case that they one should be able to summarily dismiss this without considering if there IS a compelling interest test – which is what Posner seems to be doing.

  • fredx2

    And please. let’s keep clear what this controversy is about, and what it is not about:

    “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”

    No one is attempting to limit their “intimate personal choices”. They can contracept all day, every day, and no one will say boo to them. But they have claimed that they can force a Catholic instutition to buy them contraception.

    That is an entirely different matter.

    That’s what’s wrong with amicus briefs these days. All too often, they are not real briefs arguing the complex legal issues involved. They are political pieces, rah-rah documents that often ignore facts or law that obviously applies, so that they can make such over the top statements that seek to inflame rather than enlighten.

  • JohnC

    So you’re disappointed that your alma mater is fighting against being forced to provide artificial birth control, sterilizations, etc. – things that are objectively and intrinsically evil in the sight of God as revealed in His Bible and through His Church? What were you doing back then when you were skipping theology classes? Why did you even attend a Catholic university when you so obviously disagree with some of the core teachings of Catholicism (and until the 1930s the teaching of all Christianity)?

    Your entire argument is predicated on the assumption that the Constitution entitles the Federal Government to pass laws forcing an employer to provide such “health care”. You state “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.” But there *is* a
    constitutional rule, Article 1 of the Bill of Rights, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Isn’t the ACA, in this case, in fact *explicitly* prohibiting the free exercise of religion on behalf of Notre Dame and other Catholic institutions?

    Later you say “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.” Huh? Notre Dame is following the teaching of the Catholic Church in this matter. Who else would you propose to “…determine what is immoral or moral, scandalous or pure, under Catholic theology” – Obama? The Government? You??

    Finally, how precisely is the University limiting the rights of Jane Does 1, 2, and 3 to make intimate personal choices? They are free to procure birth control any way they want. If they expect their employer to pay for said birth control, they are free to find an employer that does so, and not continue to work for one that doesn’t. Please elucidate for me where the constitution provides for the “right” to
    have someone else pay for their intimate personal choices…
    I don’t know you Dr. Griffin, but I wonder if your interdisciplinary work in law and religion primarily involves using the law to bludgeon religious institutions? I’ll pray for you and your soul, Dr. Griffin, because from a Catholic point of view you clearly need it…