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July 24, 2012

Petition / Protest regarding Notre Dame's challenge to HHS mandate

Brian Leiter notes, here, that a number of faculty, students, staff, and alumni have signed a petition opposing the University of Notre Dame's decision to challenge the HHS preventive-services mandate in court, and urging the University to "reassess its decision and change its course of action."  As I argued here, though, the lawsuit is (unfortunately) needed to vindicate the University's religious-freedom rights and, in Fr. Hesburgh's words, to challenge the government's "overreach."

This is kind of a dog-bites-man story, I realize -- of course there is disagreement among the Notre Dame community about the lawsuit, as about everything else.  Still, I was disappointed that the petition -- which was signed by some people I know and respect -- advanced what strike me as weak and underdeveloped arguments.

After urging that, given the "doctrine of double effect", it would not actually contrary to Catholic teaching for the University to comply with the mandate (a matter about which I gather informed and expert theologians reasonably disagree), the petition makes a number of conclusory and inaccurate legal assertions.  First, it states, without elaboration, that the mandate "plainly" is a neutral law of general applicability.  Actually, this is not "plain" at all, for reasons discussed in detail in the University's complaint and elsewhere. 

Second, the signers contend that the policy "advance[s] a compelling state interest", which it might, but fail to note that even a policy that advances such an interest must do so in a narrowly tailored way.  The mandate does not do so.  That is, there are other ways of promoting the government's asserted compelling interest that would be less burdensome. 

Third, the petition reports that when "members of a particular sect enter into commercial activity by choice, the limits they accept on their own conduct as a matter of conscience cannot be superimposed on the statutory schemes that are binding on others in that activity."  In fact, though, the entire point of the Religious Freedom Restoration Act is to say that, sometimes, they can.   

The petition exhorts us to "not forget the words of Supreme Court Justice Antonin Scalia, who in 1990 warned against making 'the professed doctrines of religious belief superior to the law of the land," but again misses the important legal point that Justice Scalia, in Smith, was addressing the question of judicially created exemptions for religious objectors, as opposed to legislatively created ones, like the Religious Freedom Restoration Act, which he clearly approved.

Finally, and going back to the "double effect" point, I should be emphasized that requiring culpable cooperation with evil is not the only way that state action could burden religious-freedom rights, within the meaning of the First Amendment or the Religious Freedom Restoration Act.

I understand that many in the Notre Dame community support the preventive-services mandate as a policy matter and oppose, for various reasons, the University's lawsuit, but this particular petition makes legal arguments that do not engage very well existing law.

Posted by Rick Garnett on July 24, 2012 at 04:23 PM in Garnett, Rick | Permalink

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