Attention editors: Is there a ‘Little Sisters’ case in your area?

While the post-Hobby Lobby meltdown continues on the cultural and journalistic left — this New Yorker piece is beyond parody — it’s important to remember that, from a church-state separation point of view, the most serious issues linked to the Health & Human Services mandate have not been settled.

Here at GetReligion, we have been urging reporters and editors to look at this as a story that is unfolding on three levels.

(1) First, there are churches, synagogues, mosques and other religious institutions that are directly linked to “freedom of worship” and, thus, in the eyes of the White House, should be granted a full exemption by the state. The problem is that the U.S. Supreme Court has never been anxious to define what is and what is not “worship,” since that is a doctrinal matter.

(2) Religious ministries, non-profits and schools that — functioning as voluntary associations — believe that their work in the public square should continue to be defined by specific doctrines and traditions. The leaders of these groups, for religious reasons, also believe that these doctrines and traditions should either be affirmed by their employees or that, at the very least, that their employees should not expect the organization’s aid in opposing them. In other words, these ministries do not want to fund acts that they consider sinful or cooperate in their employees (or others in the voluntary community, such as students) being part of such activities. More on this shortly.

(3) For-profit, closely held corporations such as Hobby Lobby which are owned by believers who do not want to be required to violate their own beliefs.

There are no conflicts, at this point, about group one. A major case linked to group three has just been addressed by the high court. But did the so-called Hobby Lobby decision also settle the cases in that second category? That’s the question that many newsrooms managers need to be asking because, as I argued the other day, in journalism “all news is local.”

So, journalists in Chicago, I am looking at you. This Associated Press report can serve as a wake-up call:

WASHINGTON – The Obama administration said Wednesday that the Supreme Court’s ruling in favor of the religious claims of Hobby Lobby and other for-profit businesses supports the government’s position in separate, ongoing disputes with religious-oriented nonprofit organizations.

The administration urged the justices to deny a request from evangelical Wheaton College in Illinois that the government says would block its students and employees from free access to emergency contraceptives. The Justice Department said the Hobby Lobby decision essentially endorses the accommodation the administration already has made to faith-affiliated charities, hospitals and universities.

Wednesday’s court filing was the administration’s first legal response to the Supreme Court decision on Monday that allowed Oklahoma-based Hobby Lobby Inc. and other businesses to assert religious claims to avoid covering some or all contraceptives in employee health plans. Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the requirement to offer birth control.

The problem, of course, is that the Wheaton College community covenant document includes a clear statement that this voluntary association will:

… uphold chastity among the unmarried (1 Cor. 6:18) and the sanctity of marriage between a man and woman (Heb. 13:4). …

Must the college cooperate in offering its students and unmarried employees — in violation of its own doctrines — all FDA-approved forms of contraception, sterilizations and even “morning-after pills”?

As I noted the other day, there is more to this conflict than the mere signing of a piece of paper that says these services will, allegedly be funded by the health-care providers themselves, with the government’s guidance (as opposed to these providers simply raising health-care rates for the affected ministries). The groups in this second, doctrinally defined ministry category are, in effect, asking that the government allow their voluntary associations to defend their own teachings when dealing with members of their own communities. Wheaton, for example, doesn’t want the government to help students and employees violate the vows they have, of their own free will, taken when they signed on with the college. (Wheaton College is, of course, part of the Council for Christian Colleges and Universities, the global network in which I teach and the CCCU has backed the school’s stance.)

The Associated Press editors take all of that complexity and condense it — in a set of unattributed factual statements — to the precise language used in White House talking points:

The issue in the lawsuits filed by Wheaton and other nonprofit groups is different because the administration already has allowed them to opt out of paying for the objectionable contraception by telling the government that doing so would violate their religious beliefs.

But they must fill out Form 700 that enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it. Insurers get reimbursed by the government through credits against fees owed under other provisions of the health care law.

The fight is over completing the form, which the nonprofits say violates their religious beliefs because it forces them to participate in a system to subsidize and distribute the contraception.

At this point it would be good to know what the leaders of these ministries say about this collection of unattributed statements. What are their arguments and how would they word them? What are their core beliefs? Do they even agree that these AP statements are an accurate summation of their case?

(Cue: crickets)

In other words, this AP report — on these crucial points — is a one-side PR release, not a journalistic effort to report the views of leaders on both sides of this crucial First Amendment debates. Is this journalism?

So, newsroom leaders, do you have a group-two ministry located in your region? Is this a “local” story that you should be covering?

To check that out, click here for an easy-to-use graphic from the Becket Fund. And note the language in this Christianity Today report about this conflict. The Eternal Word Television Network quote is crucial:

At least 50 cases involving nonprofit organizations, many of which had been on hold, should be affected by the Supreme Court’s narrow decision to side with Hobby Lobby and Conestoga Wood Specialties in the debate over whether they should be required to pay for some forms of birth control that are possible abortifacients, according to the Becket Fund. A total of one hundred cases, involving both nonprofit and for-profit firms, have challenged the HHS mandate, which requires employers with more than 50 employees to provide health care insurance including 20 kinds of contraception.

Some cases ask for broader exceptions than Hobby Lobby and Conestoga did. For instance, the court document granting an injunction to the Catholic Eternal Word Television Network (EWTN) notes that “The Network refuses to provide, subsidize, or support health insurance that in any way encourages the use of artificial contraception, sterilization, or abortion, all of which it considers ‘grave sin.’”

The leaders of EWTN do not want to “encourage” in any way acts that — according to the doctrines that define the ministry — “grave sin.”

The big question: Will the high court now say that the government has the right to require ministries to help employees (and students, for example) commit acts that violate the doctrines and vows that define their work and common lives in these associations that they have voluntarily joined? Stay tuned. This is the next story.

Same as it ever was: It’s time for a new, old GetReligion
Members mourn Atlanta church; why don’t they talk?
Wait? Who is calling who an ‘evangelical’ or ‘conservative’?
Church of The New York Times keeps preaching its own faith
About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Jane Dunn

    The views of the colleges are widely available since all of them have filed numerous legal memoranda and briefs. Just because the AP didn’t give a particular cite for the views it attributes to the colleges doesn’t mean that the AP is repeating the government’s talking points.

    Here, for example, is Wheaton’s position, which is pretty much what the AP reported.

    “Wheaton is religiously opposed to emergency contraceptives because they may act by killing a human embryo. Hobby Lobby, slip op. at 36; Ryken Decl., Dkt. 41-1 at ¶ 41 (Appendix at 75). Wheaton wishes to exclude these drugs from its health plans. Hobby Lobby, slip op. at 36; Dkt. 41-1 at ¶¶ 41, 56. Wheaton believes that if it takes the action coerced by the government—signing the Form—it “will be facilitating abortions,” and if it does not comply, Wheaton “will pay a heavy price.” Hobby Lobby, slip op. 2; Dkt. 41-1 ¶ 56 (describing Wheaton’s view on moral complic- ity).”

    Wheaton’s July 2, 2014 Reply Brief, which can be found at the Becket Fund’s site, at p.5.

    You ask “What are their arguments and how would they word them? What are their core beliefs? Do they even agree that these AP statements are an accurate summation of their case?”

    Those things are all easily found in the briefs submitted by the parties and helpfully collected at the Beckett Fund’s site. Before you throw mud at the AP, you might want to do some homework, the same kind of homework you expect other journalists to to before they report.

    • tmatt

      Right. Readers should look up all the documents on their own. Also, Wheaton is not the only voice in this — a big one, yes — and that is not all of their stance.

      Sometimes, it is good to talk to real people, even when they are religious believers. Reporters need to bite the bullet and talk to people.

      • Jane Dunn

        Um, no, I didn’t say “readers” should look up all the documents. I said bloggers who hold themselves out as journalistic watchdogs should do their homework before taking potshots at another journalist’s work. In court, a lawyer is not permitted to ask a question for which she has no factual basis. Journalistic ethics should be fairly similar.

        Wheaton’s brief is just one example because the GR post mentioned Wheaton. Have you found any that call into question the AP’s report? Have you or Bobby Ross even looked?

        • fredx2

          It interesting you would hold bloggers to a very high standard, one that the AP almost never meets anymore. Witness the Tuam “babies in the septic tank story”.

          But anyway, you misunderstand tmatts point. He was not saying that you should not have summarized the position of the Colleges, based on documents they filed in court cases.

          He was saying that after you summarized them, the story should next have included some quotes from Wheaton or others who could have responded to the governments position. This was not done, so in what sense are you doing more than just repeating what the government told you in the story?

          After all, the Justice department’s position is kind of weird. If you read the decision, it is clear that the language the Justice department cites comes from the “Least restrictive means” part of the decision.
          The court was merely saying “Look, there were less restrictive means of doing this. The existence of less restrictive means is proven by the fact the government offers an accommodation to the Little Sisters of the Poor. Having offered it to the Little Sisters, they certainly could have offered the same to Hobby Lobby.”
          The court did not say that such an accommodation was going to fly in every case. Under RFRA, each case is different since each deals with a different religion, with different religious sensibilities.
          Since Hobby Lobby owners are evangelicals, they may have no problem with such an accommodation. It may work for their religious beliefs.
          However, Catholic nuns, who have to live by a different set of rules, may be religiously troubled by any cooperation of any type.

          In the end, AP reported what the government said. And not much more. You should have gotten the opposite legal view.

          The only exuse is: “We quickly ran with the government’s position, and we are going to run the opponents side tomorrow. ”


          • Jane Dunn

            No, Fred. The AP reported both sides based upon the widely available and multiple recitations of what the religious non-profits have said on this exact point. The religious non-profits have responded to the government many, many times. Note that the brief I quoted is a Reply Brief.

        • tmatt

          Oh, I know who the sources are and I can find them. So can any other reporter who wishes to do so.

          You can also call experts ON BOTH SIDES on this thing called a telephone.

          • Jane Dunn

            You still haven’t provided any indication that AP got anything wrong. The best evidence of the non-profits’ response to the government is in the briefs they filed in response to the government. Why would they comment again. That’s just likely to confuse the issue? Plus, lawyers have some ethical obligation not to try their cases in the press and the clients are not really the best ones to speak to the legal issues.

            Ross’s criticism wasn’t about not speaking with the non-profits. It was “What are their arguments and how would they word them? What are their core beliefs? Do they even agree that these AP statements are an accurate summation of their case?” The answers to **those** questions are all in the legal briefs.

  • Daniel Merriman

    Wheaton was granted emergency injunctive relief by the S.Ct. today, July 3. The relief granted– instead of filling out a form that goes to the employers insurance carrier or third party administrator, send a letter to the Secretary of HHS. Same as in Little Sisters, as predicted.

    At some point, which is coming very, very soon, these cases are going to be decided like any other employee benefit cases. I suppose local color might be nice to read about, but it won’t make any difference to the outcome. The lawyers briefs are what counts, not some administrator’s particular whines.

    Oh, for the record, the underlying bedrock principle of employee benefits law is: employee’s rights come first. And second. And third. Any accommodation given to employers will be minimal, not because they are religious, but because they are employers. Any employer not in your category 1 is ultimately going to have to live with the fact that somebody, somewhere is going to provide their employees with no cost sharing access to contraceptives.

  • Thomas A. Szyszkiewicz

    The NY Times covered the Wheaton SCOTUS story this morning in a way that can only be described as one-sided:
    Birth Control Order Deepens Divide Among Justices
    Hardly anything from the order, just about everything from Sotomayor’s dissent, and one line from Mark Rienzi.