Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, October 10, 2011

Misplaced criticisms of Fr. John Jenkins and Pres. John Garvey

Both Stephen White and Matthew Franck have posts up at First Things in which they lodge objections to certain features of John Garvey's recent opinion piece in The Washington Post and of the recent letter that Notre Dame's President, and my colleague, Fr. John Jenkins, sent to HHS Secretary Kathleen Sebelius, urging her to improve the dramatically inadequate religious-employer exemption to the new health-care law's contraception-coverage mandate.  I say it with great respect, but these posts strike me as unfairly critical and as insufficiently appreciative of the specific context in which Fr. Jenkins's letter was submitted (i.e., commentary to an administrative agency's proposed interim rule) and of his letter's specific goal.

First, it seems wrong to fault Fr. Jenkins for (entirely sensibly) attempting to move Sec. Sebelius to the right decision by saying nice things about her connections to Notre Dame and its mission and by reminding her that Pres. Obama did call publicly (even if we might reasonably suspect that he didn't really mean it) at Notre Dame for a more religious-freedom-friendly approach than the one he and his Administration seem (unfortunately) to be taking now (on several fronts). 

Fr. Jenkins, in his letter, is trying to effect a better outcome than the one proposed in the relevant interim rule.  He is not writing as a scholar (though he is one) or making a general intervention as a public intellectual.  He is the representative of a large institution that would be seriously and negatively affected by the proposed interim rule.  It makes little sense, in my view, to fault him for not using this particular occasion to denounce the immorality of the mandate itself.

Second, Mr. White seems to impute to Fr. Jenkins the claim or view that there is a moral equivalence between dropping employee health coverage and paying for abortion-causing contraceptives and sterilization.  I don't think Fr. Jenkins said that, even if he did say that he thinks it would violate Catholic Social Teaching to fail to provide employees and students with insurance.

Next, Matt Franck, in his post, finds much to praise in Fr. Jenkins' letter, and correctly reminds us all that abortion is wrong, not "wrong for Catholics."  He writes:

Father Jenkins and President Garvey admirably defend the institutional conscience rights of their universities, and that is rightly their foremost concern. But by not going on the offensive against the basic immorality of the Obama administration’s rule, they backed into a purely defensive stance. The Obama administration may not budge from its rule as proposed. But one danger is that it will accept a “Jenkins-Garvey” solution, expanding the “religious employer” exemption in the HHS rule and then trumpeting the administration’s “reasonableness.”

Franck and I agree entirely about the basic immorality of the administration's rule.  (I am sure that Fr. Jenkins also joins us in agreement.)  But, with all due respect, I think it is entirely reasonable (and not cause for criticism) for Fr. Jenkins and Pres. Garvey to proceed on the basis of the (sound) assumptions that the mandate itself is not going to be dislodged unless the next election dislodges it and that this Administration is not open, at all -- it should be, but it is not -- to a conscience-exemption to the mandate for those (in Franck's apt words) "marooned outside the ambit of the rule’s exemption, as insurers, employers, and employees."  Yes, given the givens, Fr. Jenkins and Pres. Garvey are in a "defensive stance," but sometimes events and facts-on-the-ground make such a stance the only feasible one.  

As I see it, response by the folks at the Notre Dame Center for Ethics and Culture to Fr. Jennkins's letter is a better one:

We commend the President for speaking out for Catholic institutions across the country who refuse to pit the Church's moral teaching against the Church's social teaching. His is a voice which needs to be heard in this debate, and we hope other university presidents and directors of Catholic hospitals will follow his lead in proclaiming the truth.

To be sure, I agree entirely with Matt Franck that the Hyde Amendment was and remains a great success, and will be very happy if the Administration is moved by the powerful arguments set out in the response to the proposed rule of the Witherspoon Institute’s Task Force on Conscience Protection.  I see no need, though, to focus on or complain about what else could have been in Fr. Jenkins' and Pres. Garvey's interventions when (i) there is so much in them that is good and (ii) they reflect (what seem to to me to be) sound conclusions about strategy-and-tactics.


Garnett, Rick | Permalink

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I am so glad you wrote this post.

I doubt that Fr. Jenkins' letter would have been more effective if instead of saying, “Of course, Madam Secretary, as the daughter of a distinguished Notre Dame alumnus and faculty member, you are no stranger to our mission," he had said, “Of course, Madam Secretary, as a longtime darling of the abortion industry, you are no stranger to our mission.”

In the eyes of many people, nothing good will ever come out of Notre Dame again unless time travel is somehow possible and history can be changed so that Obama was never given an honorary degree.

Posted by: David Nickol | Oct 10, 2011 7:15:02 PM

Thanks for posting the links. Reading the two presidents, with their measured, reasonable positions ... well, I was impressed by their arguments, proud even. It will be interesting to see what President Obama does here. it seems like a no brainer (to me) that he would adopt a revision along the lines of what the academics want, he could then claim the mantle of "reasonableness" and "large spiritedness" (and still play to the Planned Parenthood crowd by correctly saying they got 98% of what they wanted). Seems like a no brainer to me for the president to "capitulate" on conscience: the costs seem few, the benefits many. Unless, he is simply going to try to get re-elected w/out any serious Catholic support, and by playing only to his base (what someone recently noted Bush/Rove did in 2004, playing only to their base ....)

Posted by: Anon | Oct 10, 2011 8:04:00 PM

My goodness. I wonder how much Fr. Jenkins and the President Garvy paid Mr. Garnett to write this ebullient piece of fiction.

Fr. Jenkins will win the day by complimenting the same Kathleen Sibelius who was requested by her bishop not to receive the sacraments because of her pro-abortion views? Which she continues to ignore.

Father Jenkins who honored the most pro-abortion President in the history of the United states who lied through his teeth re: abortion. He now writes a soft, pleading letter to the same Kathleen who claims to be at war on this issue?

Fr. Jenkins who prosecuted the pro-life protesters at Notre Dame but allowed pro-choice protesters free sway? Oh...and he ignored the requests of his ordinary!

Father Jenkins who, as a priest, failed to denounce the immorality of the mandate in the name of social justice???

The absurdity of this article cannot be overstated, it is simply stunning.

Somebody needs to get Mr. Garnett a copy of the Catechism of the Catholic Church...... Don't bother to get one for Fr. Jenkins, he won't read or follow it.


Posted by: Mike Malone | Oct 11, 2011 12:06:13 AM

There is nothing that would preclude any of our Catholic Universities and Colleges from making a joint statement in support of a conscience clause that would be consistent with the protection of the Right of all persons to practice their Religion in private and in public as provided for in our Constitution. Such a statement would send a clear message to this administration that we will not remain silent in the face of their astounding attempt to deny our Right to live our lives according to our Faith.

I think Father Jenkins, President Garvey and Professor Garnett are all well aware of The Catholic Church's teaching on the Sanctity of every human life, and recognize this teaching to be a universal Truth and not just a Catholic belief.

Posted by: Nancy D. | Oct 11, 2011 10:19:05 AM

Wouldn't the federal Religious Freedom Restoration Act apply to any and all requirements of the Health Care Act? If I recall correctly, this statute, while not applicable to the actions of state governments, still applies to all federal statutes.

If so, then I would think one could rather easily argue that requiring religious institutions to cooperate in sinful behavior is a substantial burden and I would think it would be hard to argue that the federal government has a compelling interest in forcing such institutions to pay for such conduct given that the government has never attempted to force such conduct before.

I realize that the California Supreme Court rejected these arguments when made in the parallel case under state law a few years back, but that decision was pretty bad, in my opinion. It just summarily dismissed the arguments, and perhaps there'd be a better hearing in federal court? Not much basis for hope, perhaps, but it is something to think about. Haven't really studied it, but perhaps there are better precedents in federal courts?

Posted by: Sally Rogers | Oct 11, 2011 11:03:50 AM

I am not a Lawyer, so I guess I simply don't understand, if mandatory contraception was not part of the Health Care Bill that was passed, then on what basis does HHS make the claim that they can mandate contraception by Law to begin with?

Thanks for all your hard work towards creating a Conscience Clause that protects our Right to live our lives according to our Faith, Professor Garnett.

Posted by: Nancy D. | Oct 11, 2011 1:37:23 PM

Nancy, it's one of the dirty little secrets of lawmaking that Congress often speaks generally, in the laws it passes and the President signs, and leaves a lot of interpretation and gap-filling to the relevant executive and administrative officials.

Posted by: Rick Garnett | Oct 11, 2011 1:59:57 PM

"and leaves a lot of interpretation and gap-filling to the relevant executive and administrative officials."

Regulation writing is where the action is, and that fact provided a substantial justification for opposing the health care plan in the first place. What you see is not what you get.

Posted by: Brian English | Oct 12, 2011 11:15:21 AM