Tuesday, May 22, 2012
Winters on the Notre Dame Contraception-Mandate Suit
Overall, I think, a fine post by MIchael Sean Winters on Notre Dame's suit. There's some inflammatory language ("Sebelius and her fellow travelers") in a post that condemns inflammatory debate, but overall it seems to me incisive, and hard-hitting in the right places and manner. Money quote:
The central objection Notre Dame puts forward is that the Administration employs an unconstitutional standard in deciding what kinds of religious organizations are exempt from the new mandate and what kinds are not. This has been the central objection of many of us since the President’s January announcement, especially those of us who tend to lean to the left and care deeply about the Church’s social justice ministries. We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship.
The Notre Dame complaint and Fr. Jenkins's letter explain cogently why, even assuming the administration's good faith in its claim to be seeking further accommodation, Notre Dame could not wait until it all might get sorted out. As is true in many cases, I think, the language of his message packs extra punch (more than most interventions on both sides of this debate) because it is measured, non-demonizing, and simply lays out the steps in the university's reasoning:
Although I do not question the good intentions and sincerity of all involved in [the further-accommodation] discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution. . . . We will continue in earnest our discussions with Administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/05/winters-on-the-notre-dame-contraception-mandate-suit.html
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"We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship."
This is respectable and all, but houses of worship continue to be treated differently than other places. For instance, the government has special rules to carefully treat them in respect to the surveillance and there is special concern -- not shown respecting hospital janitorial staffs and the like -- their sanctity seems to be violated.
Also, others honestly believe that a broad range of jobs are "essential" to "identity" for religious practices. The open-ended nature of this is seen by the Blount Amendment, which after all received broad Republican support in the Senate. There IS a difference particularly when non-believers are employed and serviced. I think you should be careful here. If a church and a hospital is going to be put on the same level, or a more similar level, you might not like the end result.
Posted by: Joe | May 22, 2012 10:58:39 PM
Joe, with all due respect, the Sanctity of every human life is violated when a State mandates that free contraception be provided for all thus promoting promiscuity and the sexual objectification of the human person.
Posted by: N.D. | May 23, 2012 8:59:19 AM
Joe, you raise a fair point that houses of worship are different from religious social services, schools, and hospitals in some ways. Winters's point, and mine, was that the latter categories should not be excluded from protection on a matter implicating their religious norms and identity. Particularly when it is sufficient trigger for the exclusion that the organization primarily serves people rather than preaches, or that it primarily reaches outside its faith (that is, a categorical exclusion of social services). I think -- I hope -- that religious freedom is still valued enough in this country that one can draw analogies to houses of worship in order to show why protection should extend beyond them. If we get to the point where we have to distinguish houses of worship sharply in order to preserve minimal protection just for them ... that's a foreboding thought.
Posted by: Tom Berg | May 23, 2012 9:08:19 AM
I also thought that Winters' post on that was really good. I wish that more people would take the time to read thoughtful commentary like that on this issue, because we all know how badly understood the issue has become in the public discourse (admittedly, that is largely the fault of people arguing badly against the mandate).
Posted by: Chrysologus | May 23, 2012 9:13:56 AM
This discussion centers on the skilful rights-based framing of the complaint drafted by Jones Day. But the public policy question the courts face can be more appropriately stated along these lines:
"In the government's efforts to achieve the important public health and welfare goals of population control, reduction of out of wedlock births, advancing personal control over reproduction, reducing the frequency of abortion, and preventing the sexual transmission of disease, to what extent must government forego means found after extensive study to be reasonably necessary to accomplishing these important objectives in order to accommodate religious doctrinal objections of certain employers who refuse to provide or facilitate access to such means for their employees or their charitable or educational beneficiaries?"
Posted by: George Conk | May 23, 2012 10:05:07 AM
"In the government's efforts to achieve the important public health and welfare goals ..."
The Federal govt's efforts, specifically - a gov't that's constituted with enumerated powers - and it's questionable at best whether pursuing these kinds of goals belongs within its powers.
"... of population control, ..."
Ah, yes, too many breeders ruining America.
"... reduction of out of wedlock births, ..."
Because they were so astronomically high before the invention of the Pill and have already plummeted with the fairly easy availability of the Pill - so we have lots and lots of reason to think that if we just add to the whole mix the requirement that Catholic employers cover that $9/month or so for their employees, there'll be a further significant reduction.
"... advancing personal control over reproduction, ..."
"Personal control" might mean taking responsibility for either coming up with that $9 on one's own, or being chaste (that goes for both men and women).
"... reducing the frequency of abortion, ..."
See the point before the last one.
"... and preventing the sexual transmission of disease, ..."
Yes, the Pill works very well for that.
"... means found after extensive study to be reasonably necessary ..."
What study exactly has even shown that easy availability of contraception advances these goals - let alone that requiring Catholic employers to pay for employees' contraceptives advances these goals?
"... in order to accomodate religious doctrinal objections of certain employers ..."
Actually, in order to comply with what to any reasonable person is the clear meaning of a provision of the very Constitution that establishes the gov't in question.
Basically, you're allowing a dubious reading of what the Constitution does charge the gov't with doing, "trump" an obvious reading of what the Constitution forbids the same gov't from doing - all on the basis of a lot of nonsensical claims about the value of the specific thing you want it to do.
Posted by: Kevin Miller | May 23, 2012 7:08:24 PM
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