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.

Wednesday, December 21, 2011

A response to Tuesday's op-ed on Notre Dame, Fr. Jenkins, and the mandate

Tuesday's edition of The Washington Times included an opinion piece by Patrick Reilly ("Unholy abortion compromise"), who charges Fr. Jenkins and the University of Notre Dame (and others) with proposing to "replace what many consider to be an unconstitutional [HHS] mandate with language that, at best, is only marginally better for a select few[,]" thereby "threatening the rights of many religious organizations and insulting our Christian and Jewish brethren. By doing so, these prominent Catholic institutions undermine the interests of the Catholic Church and the defense of religious freedom."

This charge, in my view, is not fair.  (I responded earlier, here, to what I regarded and regard as other misplaced criticisms of Fr. Jenkins's letter.)

First, and in a perhaps-futile effort to head off suggestions in blog-world that I am merely slavishly defending my employer or that I've gone wobbly on the injustice of the mandate:  Yes, Notre Dame has, in my view, made some mistakes with respect to living out its Catholic character and mission, and yes, the mandate is unjust.

That said, I think Mr. Reilly's op-ed proceeds from a too-quick reading of Fr. Jenkins's letter to Secretary Sebelius, while neglecting his other public intervention on the matter.  In Fr. Jenkins's letter, he did not simply call for the replacement of the current (clearly inadequate) religious-employer exemption with Section 414(e) -- which deals with pension plans -- of the Internal Revenue Code.  True, that provision was cited as a guide, but Fr. Jenkins's focus was on the "principles" that he sees underlying that provision.  And, discussing these principles, he emphasized the importance of protecting generously those institutions or organizations that share “common religious bonds and convictions with a church" and "all organizations that work in the ministries of the church.”  In addition, he insisted that "an institution inspired by faith to serve beyond the limits of its religious denomination should not be judged less religious and hence less worthy of an exemption.”

As Mr. Reilly points out, Section 414(e) has been interpreted by the U.S. Court of Appeals for the Fourth Circuit in a narrow way -- a way that, in my view, would not be consistent with the "principles" mentioned in Fr. Jenkins's letter.  But, the fact that one court has used a particular, and inadequate, three-factor test to operationalize Section 414 hardly does not mean that Fr. Jenkins and Notre Dame are proposing to settle for this particular (and, I agree, inadequate) three-factor test in the contraception-mandate context or that such a test would be authoritatively adopted and employed in the enforcement of a broader religious-employer exemption to that mandate.  (My understanding is that the Fourth Circuit's interpretation has not even been adopted by the I.R.S.)

What's more, even if the Fourth Circuit's interpretation of 414(e) were what Fr. Jenkins is proposing as a substitute for the religious-employer exemption to the HHS mandate, I think Mr. Reilly overstates the "similar[ity]" between that court's third factor -- "whether a denominational requirement exists for any employee or patient/customer of the organization" -- and the current HHS exemption, which applies only to organizations that "hire and serve primarily people of the same faith."  (My emphasis).  The former actually is much broader.

At the end of the op-ed, Mr. Reilly adds to the charge that Fr. Jenkins is proposing a course that is "insulting [to]our Christian and Jewish brethren" with the suggestion that he is "simply working to protect [his] institution[].  But the practical effect of their proposed compromise would be to slam the door on most religious organizations while providing political cover to the Obama administration."  Certainly, I believe that it is not just Notre Dame's religious freedom that matters, and I hope that neither of these "practical effect[s]" comes to pass.  Still, the suggestion is not fair.  Here is the concluding paragraph of Fr. Jenkins's other public intervention on the matter, which appears on the USCCB's web site and which is signed by, among others, Carl Anderson of the Knights of Columbus (hardly a squish when it comes to life issues) and Archbishop Dolan:

The HHS mandate puts many faith-based organizations and individuals in an untenable position. But it also harms society as a whole by undermining a long American tradition of respect for religious liberty and freedom of conscience. In a pluralistic society, our health care system should respect the religious and ethical convictions of all. We ask Congress, the Administration, and our fellow Americans to acknowledge this truth and work with us to reform the law accordingly.

This is not, in my view, a statement that is either self-serving or insulting to non-Catholics or to institutions other than Notre Dame.


Garnett, Rick | Permalink

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Rick, I appreciate the conversation about this. I fear that you are confusing at times the question of fairness and accuracy. My op-ed is focused on the likely impact of replacing the HHS exemption with language similar to 414(e) as Fr. Jenkins and the Catholic Health Association have proposed. Given the facts presented, I hardly see that as unfair, even if you think there are counterpoints to be made. I should note that other legal experts have affirmed my argument, which was developed following a significant amount of homework.

I am grateful, however, that you did not skewer me for the very inappropriate headline to my WTimes op-ed, which I have asked to be changed.

You state that Fr. Jenkins did not urge HHS to replace the HHS exemption with the explicit language of 414(e), but instead advocated the principles expressed by 414(e). Here you assume that Fr. Jenkins was distinguishing words from meaning, even while pointing to a particular set of words in the law -- but that would have to be an assumption that Fr. Jenkins himself confirms. As for what those principles are, you argue that Fr. Jenkins "emphasized the importance of protecting generously those institutions or organizations that share 'common religious bonds and convictions with a church' and 'all organizations that work in the ministries of the church.'" Oh, but it is precisely these "principles" which are of concern! That's because of their prima facie discrimination against nondenominational religious entities, which in fact do not qualify for the 414(e) exemption and could not meet the standard of a relationship to an established church. These principles also do not correct the HHS mandate's violation of individual conscience rights or, as should be of special concern to Notre Dame, the impact on student health plans, which are not exempted from the mandate even at Catholic colleges and universities.

I agree that it is fair to acknowledge Fr. Jenkins' publicly stated concerns about the many failings of the HHS mandate and its impact on other religious groups. But again, my op-ed assessed the likely impact of the solution that CHA and Fr. Jenkins proposed, and that solution is dangerous and in fact contrary to Fr. Jenkins' stated concerns. If it is fair to acknowledge the concerns which Fr. Jenkins professes, then it is also fair to note a pattern in Fr. Jenkins' habit of claiming the highest ideals and acting contrary to them. Proposing the 414(e) language is, in my view, acting contrary to the important concerns which you cite.

Moreover, I suggest that you too quickly dismiss the Fourth Circuit's interpretation of the 414(e) language, which I readily acknowledge seems to be far narrower in scope than the legislation intended, at least to a layman's mind. Here I am at a disadvantage, for you are a highly esteemed legal expert on religious liberty, and I am not. But as noted above, I did a lot of homework on this and consulted other legal experts. Point taken that the Fourth Circuit's interpretation deserves to be challenged.

It is also true that there has not been substantial federal jurisprudence regarding 414(e), and so the Fourth Circuit interpretation might not stand over time. Nevertheless, when assessing the impact on religious organizations if HHS uses language similar to 414(e), it would be foolish to ignore the federal rulings that do exist, and reckless to advocate using language that has already been interpreted in a manner that poses problems. This is what CHA and Fr. Jenkins have done.

Moreover, the Fourth Circuit ruling does not stand on its own. It has become precedent in the Eighth Circuit (see 442 F.3d 648, a 2005 ruling again that rests on the Fourth Circuit's three-prong test for "common religious bonds and convictions with a church", the language or "principle" recommended by CHA and Father Jenkins). The Fourth and Eight Circuit rulings have been cited repeatedly in federal district court rulings, with varying degrees of compliance with the Fourth Circuit's three-prong test. So yes, the development of a nationally accepted interpretation of 414(e) may not be complete, but based on what we know to be the dominant interpretation in the federal courts, the proposal to replace the HHS exemption is clearly dangerous -- perhaps you might prefer "uncertain," but that would seem to understate the current state of affairs.

My questions are these: By what analysis of 414(e) did CHA and Notre Dame decide to propose it as a model for the HHS exemption, given the obvious discrimination against nondenominational religious groups, the lack of any protection for individual conscience rights, and limited federal jurisprudence raising doubts about whether even Notre Dame or many CHA hospitals would be exempted? A choice was made to point to 414(e), but why? Even if it broadens the HHS exemption somewhat, how can 414(e) be defended as a good model for a religious exemption that is acceptable to CHA and Notre Dame?

Posted by: Patrick J. Reilly | Dec 21, 2011 1:22:10 PM

Patrick, thanks for the response. I do not believe I have confused accuracy and fairness in the way you describe. As I see it, a critique like yours that omits information relevant to the charges being made (as yours did, in my view) is both inaccurate and unfair. But, I'll leave it to readers to decide for themselves whether your op-ed fairly interprets the Jenkins letter (with due regard for context, procedural posture, and political realities) or fairly speculates about his motives. This earlier post of mine, though, contains a lot of what I'd say in response to your comment: http://mirrorofjustice.blogs.com/mirrorofjustice/2011/10/two-misplaced-criticisms-of-fr-john-jenkins-at-first-things.html

Like you (don't forget), I think the mandate is unjust, and the religious-employer exemption ridiculously underinclusive. But, in my view, your piece unfairly tars with the Obama-invitation-brush a letter that, it seems to me, was designed to try to improve a bad law, while recognizing that not all the "badness" in that law could, given all the givens, be undone.

I cannot speak to what the legal experts you consulted did, or told you. But, as you might imagine, I have done some homework on these matters, too. Obviously, we agree that Section 414 would not, if incorporated into the HHS mandate, cure the mandate's religious-freedom and other problems (though it would be a more substantial improvement than you seem willing to acknowledge). In any event, as I said in post, I don't think it is fair or accurate to charge Fr. Jenkins with merely proposing to replace the HHS exemption with the 414 exemption (as interpreted by the Fourth and perhaps Eighth Circuits). Would a proposal to substitute 414 be risk-free? Absolutely not. But again, your piece was, in my view, too quick to speculate about bad motives or self-interest (in the face of the joint statement), when political realities provide a better explanation.

Posted by: Rick Garnett | Dec 21, 2011 1:41:54 PM

It might simplify the discussion were the discussors to avoid words that cannot be accurately defined. Thus, "unfair" is like beauty mostly in the eye of the user. Inaccurate is an exact word; when it is lanced, it should be followed by examples.
Fr. Jenkins has a long road to go to regain credibility. The position of Notre Dame seems to me like chickens coming home to roost. Fr. Jenkins opened the door to the chicken house to the fox, who is Mr. Obama.

Posted by: Gabriel Austin | Dec 22, 2011 3:27:03 PM