Bishop Kevin Rhoades on spousal benefits, religious freedom, and Notre Dame

Bishop Kevin Rhoades, of (my own) the Diocese of Ft. Waye-South Bend, has this column in the weekly issue of Today's Catholic, in which he discusses, among other things, the recent court decisions involving challenges to states' marriage laws and those decisions' implications for the religious freedom of Catholic institutions.  He also addresses, in a thoughtful way, the recent announcement by the University of Notre Dame that it will provide spousal benefits to all legally married spouses of employees.

I should note that some critics of Notre Dame's move have suggested that it is inconsisent (or worse!) for Notre Dame to agree to "comply with the civil law" when it comes to providing benefits to all those who are, under Indiana law, "spouses" while at the same time challenging the contraception-coverage requirements in the Affordable Care Act.  I  do not quite see the inconsistency, though.  It is true, certainly, that in both cases, there is the possibility of causing scandal and demoralization to those who care (as we all should) about Catholic institutions' (and especially Notre Dame's) authentic Catholic character and mission.  And, in both cases, the relevant "civil law" -- the HHS mandate, or the Seventh Circuit's decision invalidating Indiana's marriage law -- is vulnerable to criticism as being unsound.  

That said, and for starters, it seems to me that the question whether it constitutes culpable cooperation with wrong to provide spousal benefits through a benefit plan (that is, a contract) that uses the term "spouse" and defines that term with reference to Indiana law might not be the same as the question whether providing coverage for the objectionable "preventative services" constitutes such cooperation.  (In my own view, the nature of the burden imposed by the HHS mandate on Catholic institutions is best framed not in terms of cooperation, but in terms of mission, character, and authenticity.  After all, a law can burden religious exercise even if it does not compel or require wrongdoing.)  What's more -- and not to sound like an Unfrozen Caveman Lawyer -- there is the fact that RFRA is available to challenge the mandate while it would not, I assume, be available as a defense in a benefits-contract dispute between the University and one of its employees.  (I assume that state and federal law would -- at least for now -- allow the University to change prospectively the terms of its benefits-plans, but I have not studied the issue.)          

The University of Notre Dame -- where I am pleased and blessed to teach, study, and live -- aspires to be a distinctively and faithfully Catholic research university that is interesting and excellent precisely because of, and note despite of, the fact that it is distinctively and faithfully Catholic.  This aspiration means -- necessarily and unavoidably -- that the University will be called, sometimes, to decisions and actions that put it at odds with the certain features of our culture.  It's not easy or comfortable, especially for an intellectual community that -- quite correctly -- wants to be an engaged force for good in the world, to resist or dissent from that which either elites or political majorities declare correct or mainstream but, again, sometimes witness and integrity will require it.

 

The regulatory and legal landscape -- in addition to the cultural environment -- for authentically Catholic institutions is, certainly, becoming more complicated and less hospitable.  Navigating that landscape, faithfully, will become increasingly difficult and will involve close decisions and fine distinctions.  Before too long, I - like Bishop Rhoades -- worry that Catholic hospitals, schools, universities, and social-service agencies will be aggressively pushed to the margins, intrusively regulated, and foolishly de-funded.  The struggle to vindicate the religious freedom of these institutions is going to intensify and its uphill angle will steepen.