Notre Dame panel on the HHS mandate

Last night, I participated in a panel discussion, sponsored by the Notre Dame Right to Life student group, on the HHS preventive-services mandate.  My focus was on the religious-freedom dimensions of the debate.  Here is a story about the panel from the campus newspaper.  And, here are the notes from my talk:

Because I am a lawyer, I cannot resist splitting hairs.  And so, I want to distinguish my question – the “religious freedom” question – from three others.

First, I am not talking about whether we think the “Affordable Care Act” is good policy, or whether the insurance-coverage mandate is constitutional, or whether we prefer the Democrats' health-care-related propossals to the Republicans'.  These are perfectly good questions, but they are different from the question whether religious employers should be exempt from the preventive-services mandate.  This question is not – it should not be – a “liberal” or a “conservative” issue.  Democrats and Republicans agree – liberals and conservatives agree – that America’s commitment to religious freedom is foundational, and fundamental.

Second, I am not talking about the merits of the Church’s teachings on sexual ethics, or about the social and other effects of contraception.  These are also – obviously – important questions, and others can speak more usefully about them than I can.  My point is, it should not matter, for purposes of the religious-freedom question, whether or not you are a Catholic, or whether or not you embrace the Church’s vision of human sexuality.  Remember:  It is always the case, in religious-freedom cases, that we are talking about the protection of minority views.  The whole point of constitutional protections for religious freedom, and of “accommodations” and “exceptions,” is to protect and respect minority and unpopular views.  After all, the views of the majority, and popular views, do not need special protection.

Third, I am not talking about the important, technical questions about whether it would constitute “cooperation with evil” for Notre Dame or other religious employers to comply with the mandate.  Smart people disagree about this question.  But, this question is different from the religious-freedom question.  The “religious freedom” of institutions like Notre Dame is not just the freedom to avoid being coerced into doing wrong.  It also includes the freedom of Catholic institutions to bear witness to the truth of the Faith, to act with integrity, and to act coherently, in accord with their Catholic character.

So, all that said, I want to (very briefly) mention three aspects of my question, the “religious freedom” question.

First, is the mandate unconstitutional?  Does it violate the First Amendment?  My answer to this question is . . . possibly.  [Explain.]

Second, is the mandate illegal?  That is, does it violate a federal statute, the Religious Freedom Restoration Act?  I say . . . probably.  [Explain.]

Third, is the mandate inconsistent with our traditions, and with our longstanding commitment to pluralism and religious freedom?  Here, I say . . . yes.  Even if we assume that the mandate is constitutional under current doctrine, and that it does not violate RFRA, this does not mean that it respects religious liberty, or that it is consistent with our traditions of accommodating minority views and valuing pluralism.  Sometimes, a democracy like ours, with ideals like ours, accommodates religious freedom even when it does not have to.  In this case, the better policy – the policy that better implements our commitments – is to provide a broader religious-liberty exemption to the preventive-services mandate. . . .