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.

Sunday, December 22, 2013

St. Joseph, Protector of the Church and of the Little Sisters of the Poor, Pray for Us

Saint Joseph was the focus of this morning’s homily at our parish. I experienced some homiletic drift, but of a good kind. Our deacon spoke of St. Joseph’s quiet strength, his integrity, and his fidelity. His discussion of these characteristics brought me to thinking about and praying for the Little Sisters of the Poor, who model these characteristics every day. 

Following their foundress St. Jeanne Jugan, the Little Sisters of the Poor have a special devotion to St. Joseph. The congregation’s “Spirituality” webpage explains: “Jeanne’s devotion to St. Joseph was an extension of her trusting abandonment to God. In him she found a father in the likeness of our heavenly Father, whose Providence watches over the little ones. She turned to him to obtain bread for the poor and chose him as Protector of our Congregation.” 

I’m sure that the Sisters have asked St. Joseph to pray for them over the past several months as they have attempted to deal with the Administration’s contraceptives mandate in a way that allows them to act with quiet strength, integrity, and fidelity. Each of their homes for the elderly poor becomes subject to massive daily fines if they are not in compliance or have not received injunctive relief by January 1, 2014. 

This weekend is a particularly anxious time for the Sisters, as the federal district court is likely to rule soon on their request for a preliminary injunction. An order issued this past Wednesday stated that “[t]he parties are advised that the Court will issue a ruling on the pending motions shortly.” As one of the lawyers for the Little Sisters in this case, albeit one playing a much smaller role than the lawyers on the case from the Becket Fund and Locke Lord, I share the Sisters’ anxiety even as I believe their claims for relief to be strong. 

I have not blogged very much about the case, as the legal filings speak for themselves. But I think it appropriate here and now to express my regret that the Obama Administration’s refusal to exempt the Little Sisters and others similarly situated has injected not only anxiety, but also disappointment, into this Advent season of hopeful expectation. The cause for anxiety is obvious. The disappointment stems from the unreasonableness of the Administration’s position (although the reason that this is disappointing is admittedly not so obvious unless one gets into the details of the legal arguments). 

Before explaining further, I should add that I am not disappointed simply to be on the other side of the Administration in a case. I have often participated in and thought carefully about hard cases where the legal arguments on both sides have much to recommend them. But this is not one of those cases. And the Administration’s position has so little to recommend it that it is difficult to explain on any other ground than that the Administration seeks to prove that it can force its will on the Little Sisters and others similarly situated. Somewhat amazingly, the Administration says that forcing the Little Sisters to comply will have no effect on advancing the Administration’s objectives related to contraceptives coverage, but the Administration nevertheless refuse to exempt them. Why not?

Like many other religious organizations, the Little Sisters self-insure and offer benefits through a plan administered by a third-party administrator. As a non-exempt religious nonprofit, the Administration’s final rule on the contraceptives mandate allows the Little Sisters to satisfy their obligation under the contraceptives mandate by signing a form that designates their plan administrator as responsible for providing the contraceptives coverage that the Little Sisters themselves object to providing. Among the problems with this arrangement is that the Little Sisters have a plan administrator, Christian Brothers Services, that also objects to providing this coverage. 

The Administration sees no difficulty because the governmental enforcement mechanisms for ensuring administrators’ compliance with the contraceptives mandate are supplied by ERISA, and the Little Sisters’ plan is a “church plan” that is not subject to ERISA. The Administration says that the Little Sisters should just sign the designation form to avoid the fines that they would otherwise have to pay. This is no burden on the Sisters, says the Administration, because the designation form is legally meaningless. The Administration further asserts that the Little Sisters lack standing to object to this forced choice between participation in the scheme and massive fines. 

Two district court rulings (from the Eastern District of New York and the Western District of Oklahoma) that have addressed the Administration’s church plan arguments thus far have ruled against the Administration using some pretty strong language. Thus far, however, the Administration has pressed on seemingly undaunted.

Catholics have many titles that we use when asking various saints to pray for us. One of St. Joseph’s traditional titles is Protector of the Church. It is appropriate today for us to pray: St. Joseph, Protector of the Church and of the Little Sisters of the Poor, pray for us.


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