Pod people: White House vs. the Wheaton College covenant

From the very beginning, some mainstream news organization have — appropriately so — emphasized that many, if not most, progressive religious organizations have not only supported Obamacare, but the controversial Health & Human Services mandate as well.

This raises a logical question: What are the doctrinal fault lines that are dividing religious groups on the many moral issues linked to the mandate?

Obviously, some groups oppose the mandate — period. Catholics oppose its requirement that all forms of contraception be covered. Then there are evangelicals, such as the Hobby Lobby owners, who have no problem with most forms of birth control, but oppose the so-called morning-after pill and other contraceptives that they believe — scientists are split on the issue — induce abortions.

That would seem to be that. However, there is another moral complication that is affecting many doctrinally defined ministries, non-profits and schools that continue to oppose the mandate. Yes, this is the Little Sisters of the Poor camp, which also includes many schools and universities, such as Wheaton College.

More on that in a moment, since this was the topic that drove this week’s episode of “Crossroads,” the GetReligion podcast. Click here to listen in.

So what is going on with Wheaton, the Little Sisters, et al.?

This brings us back to the infamous “tmatt trio,” those three doctrinal questions that I have long used — as a journalistic tactic — to probe the differences between warring camps inside various churches. Remember the three questions?

(1) Are biblical accounts of the resurrection of Jesus accurate? Did this event really happen?

(2) Is salvation found through Jesus Christ, alone? Was Jesus being literal when he said, “I am the Way, the Truth, and the Life. No one comes to the Father except through me” (John 14:6)?

(3) Is sex outside of marriage a sin?

Think about that third question for a moment. In recent decades, churches have been fighting about the moral status of homosexual acts and same-sex marriage. At times, it’s hard to remember that progressive and orthodox churches are also divided over the moral status of premarital sex and, in a few cases, even extramarital sex (some liberal theologians have argued that the redemptive work of the Holy Spirit can even been seen in some acts of infidelity).

This bring’s us back to Wheaton College and the other ministries, non-profits and schools that do not want to cooperate with the HHS mandate in any way. As I wrote the other day, many:

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.

Yes, these believers do not want to fund these behaviors that they believe are sinful and they also do not want to cooperate in any way with government efforts to encourage members of these doctrinally defined communities to break the vows or covenants that define these voluntary associations.

This brings us back to Wheaton College and the details of its Community Covenant for faculty, staff and students. Journalists who are covering that story need to read this document, including this chunk:

According to the Scriptures, followers of Jesus Christ will: …

* uphold the God-given worth of human beings, from conception to death, as the unique image-bearers of God (Gen. 1:27; Psalm 8:3-8; 139:13-16);

* pursue unity and embrace ethnic diversity as part of God’s design for humanity and practice racial reconciliation as one of his redemptive purposes in Christ (Isa. 56:6-7; John 17:20-23; Acts 17:26; Eph. 2:11-18; Col. 3:11; Rev. 7:9-10);

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

So what does that have to do with the Hobby Lobby decision and the follow-up nod from the court, a temporary injunction in favor of Wheaton College? The Los Angeles Times put it this way:

On Monday, in its decision in the Hobby Lobby case, the court approved religious exemptions for companies whose owners have religious objections to certain forms of contraception. In their opinions, the justices spoke approvingly of a compromise position the administration had previously adopted that is designed to shield religiously affiliated nonprofit employers from paying directly for contraceptives.

The language in Monday’s decision appeared to signal that the court would uphold the administration’s compromise, which has been challenged by dozens of religious colleges and charities. But in Thursday’s order, the court granted Wheaton College, an evangelical Protestant liberal arts school west of Chicago, a temporary injunction allowing it to continue to not comply with the compromise rule.

The college, whose mission statement says it “serves Jesus Christ and advances His Kingdom through excellence in liberal arts and graduate programs,” says its religious precepts forbid it from paying for so-called morning-after pills.

College officials refused even to sign a government form noting their religious objection, saying that to do so would allow the school’s insurance carrier to provide the coverage on its own.

You can find similar language in The New York Times story on the Thursday development, as well as the report in The Washington Post.

Note especially the blunt statement from the distressed Justice Sonia Sotomayor in this piece of the Post story:

… Some of the colleges and organizations say that signing the form authorizes the third parties to provide the contraceptive coverage, making them complicit in actions that offend their religious beliefs.

The ruling Thursday says Wheaton need only file a letter with the federal government stating the college’s religious objections. Presumably, the government then would notify the third party to provide the contraceptives.

“Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” the order said.

Sotomayor disagreed. She said the injunction “risks depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage.” And since the other ­cases around the country are indistinguishable, she said, the order might as well be national in scope.

Do you see the relevance of the Wheaton Community Covenant? In effect, the government is stepping in to help non-married members of the Wheaton community — note the reference to students — violate the terms of the covenant that they have voluntarily affirmed (some schools require signatures on the document).

So what were the questions that “Crossroads” host Todd Wilken and I ended up discussing? Well there were several. But here are a few important ones that I think reporters need to think about.

Do unmarried Wheaton students and staff members have a legal right to break their promises and to engage in premarital and even extramarital sex, while obtaining the contraceptives of their choice? Of course they do.

Do the leaders of Wheaton College (as well as other non-profits in the Little Sisters centrist camp) have a right to resist efforts by the government to force them to cooperate in these efforts to help students and staffers violate this voluntary doctrinal covenant that defines their community?

Are there other cases in which the government plans to attack doctrinally defined voluntary associations of this kind, requiring their leaders to cooperate in efforts by the state to undermine their work?

So, so, so many questions.

Journalists, the Wheaton College covenant is part of the story. Please read it, then quote it.

Enjoy the podcast.

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.

  • Julia B

    I apologize at the outset for what has to be a longer than normal comment:

    Wheaton College and Little Sisters of the Poor et al don’t want to sign the government form so they don’t have to pay for the 4 kinds of birth control at issue or for birth control at all. Plaintiffs say signing the form makes them complicit and this is being scoffed at by critics. It occurred to me that maybe it has something to do with how the form is worded.

    I found it on-line and I can see their problem. It doesn’t just say they won’t pay for it – it is actually requiring Wheaton and the Little Sisters to CERTIFY that their coverage qualifies for an accommodation regarding certain contraceptives so it doesn’t have to cost-share.

    As is, the form is actually an authorization by Wheaton and Little Sisters to be sent to the health plan administrators, notifying them they are to pay for the items. Shouldn’t it be up to the government to certify that refusal qualifies the health plan to pay for the contraceptives? Just leave off the top paragraph on the form. [SEE below]

    The Court gave Wheaton an emergency order on Thursday that it could sign a simple refusal to pay until the merits of their case are argued. I’m thinking this is a signal of where the majority may go with this issue.

    Check it out: essential parts of EBSA Form 700 – easy to Google the whole form

    “This form is to be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131.”

    [here be boxes for info on the organization & the person signing.]

    at bottom: “I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.”
    [notation about who qualifies to hold out as a religious organization]
    “I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.”

    • tmatt

      The mystery to me: If the insurance company is (wink wink) going to fund these free services, why do they have to come THROUGH THE WHEATON PLAN? Through the Little Sisters plan? Why not give the services away through some other system?

      I have yet to see a news story that pursues that angle. It seems important to make Wheaton attack Wheaton, to make the Little Sisters attack the beliefs of the Little Sisters.

      • fredx2

        The government funds planned parenthood. All the government has to do is say “if someone writes to you and asks for contraceptives, send them some. We will cover the relatively low cost. If an employee comes to you and an IUD implantation is requested, and it is not funded by their employers plan, do it and send us the bill.
        It’s not hard. The government seems intent on showing that it can dictate what religions can do and cannot do, and in demonstrating their power.

      • Jane Dunn

        Because the insurance company is **not** going to find the birth control “through the Wheaton plan.” The accommodation for religious non-profits specifically requires the insurance company to segregate funds and provide the birth control separately.

    • Jane Dunn

      “Shouldn’t it be up to the government to certify that refusal qualifies the health plan to pay for the contraceptives? Just leave off the top paragraph on the form.”

      – You raise a good point. As I understand it, but I am not an ERISA lawyer, the form is worded the way it is because the employer, under ERISA, has to formally appoint the insurance company or third party administrator as a “plan administrator” before they have any obligation to do anything.

      I don’t know whether that is correct or not. There are a couple of recent posts at scotusblog.com that analyze in some detail the issue of the legal significance of the form and whether or not the government can require the insurance company or TPA to take on the birth control obligation without their formal appointment as a plan administrator by the employer.

      It seems like there should be a way to resolve the issue, but it’s also not clear whether the non-profits would sign anything that would trigger a chain of events resulting in no-cost birth control being made available to its constituents.

  • Daniel Merriman

    Tmatt, the whole history of federal employee benefits law is against you. Covenants and contract provisions are irrelevant when weighed against a protected right. I remember one of the first meetings I had with a senior lawyer and our outraged client when I first started practicing law in 1979. The Employee Retirement Income Security Act of 1974 had by that time had an opportunity to have some questions resolved by the courts. I can well remember the incredulous look on our client’s face when, after having successfully sued for an injunction to enforce a non- compete agreement (but being denied monetary damages, which he in fact suffered), we told him that he would still have to pay his ex-employee’s pension. There may be some modest accommodation for those like Wheaton who have sincere religious objections, such as sending a letter to the Secretary instead of their insurance carrier, but their covenant will have no bearing on the case, just as covenants not to compete have no bearing on an employee’s pension rights.

    The bottom line is that Wheaton’s employee’s are going to have a right to no cost sharing access to contraceptives, and Wheaton will at best get a fig leaf of accommodation. Whoever thought employee benefits law would be a good hill to die on made a bad strategic decision.

    • TJ

      When you say the history of federal employee benefits is “against” Tmatt, you seem to be forgetting that he is a journalist commenting on journalism and their coverage of the story, not a lawyer defending Wheaton’s opinion. The fact that a voluntary covenant doesn’t hold much legal value does not mean it holds no journalistic value. Reporting on it absolutely would add important context to the story, which is the actual bottom line.

      • Daniel Merriman

        So, this story is not about what it is really about, which is how the ACA is likely to be implemented in light of RFRA? No, instead let’s keep it focused on the culture war. Hobby Lobby is a very workmanlike decision on a reasonably close question of law, not the Magna Carta that the right-wing culture warriors want it to be, nor the latest attack in the war on women that the left-wing culture warriors have made it. These are really pretty ordinary cases– courts harmonize federal statutes and administrative law every day, local color be damned. It seems to me that the public would benefit from reporting on that aspect of these cases.

        There was one journalist who called Baltimore home that would have understood this. ” The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” Unfortunately, tmatt seems obtuse to what would have been so obvious to H L Mencken.

        • tmatt

          The key here is the voluntary association, involving the students. PRIVATE schools, left and right, are allowed to create such covenants and make them binding on voluntary members of the association.

          Journalists should cover that story.

          • Daniel Merriman

            Oh please. Your statement is way too broad and certainly was not true even before the ACA. Example: suppose a Wheaton student is fitted with an IUD before starting her freshman year. She then seeks routine medical care at the Wheaton student clinic and during the course of her examination the IUD is discovered. Clinic informs the administration, which then expels her. Student sues Wheaton under the privacy provisions of HIPPA. Who wins?

            You seem to be trying mightily to keep this story in a culture war frame. The ACA won’t be a barrier to any covenant anyone wants to enter into voluntarily, just don’t expect federally protected rights to take a subordinate position.

            Journalists seem to be challenged enough to accurately report actual court decisions without chasing angles that won’t have any bearing on the outcome.

  • fredx2

    So assume then that Wheaton college starts expelling students who take advantage of getting free contraceptives. Presumably most students would get their free contraceptives from the student health center. So they might have access to the information.
    Would the Obama administration then sue the school?

    • helen

      If Wheaton objects to providing contraceptives, would the student health service have to stock them?
      Our liberal state university gives them away, I’m told, but Wheaton is a private school.

  • Russ Dewey

    You have given us a great example of begging the question (as that phrase was originally meant to be used). “Was Jesus being literal when he said, “I am the Way, the Truth, and the Life. No one comes to the Father except through me” (John 14:6). But there are very good reasons to believe Jesus never said any such thing! The book of John is clearly not from Jesus or a close associate or witness of Jesus. It came far too late, and it was written in elegant Greek. Its tone is unlike the earlier gospels and blatantly political, aimed at shoring up the early institution of the church by supplying needed “quotations” to justify narratives coming into being a century or more after Jesus. The egotistical Jesus pictured in John is bizarrely out of sync with earlier gospels. Not only did Jesus never proclaim himself God (until the book of John’s author put those words in his mouth) none of the earliest, most likely authentic quotations of Jesus has him even speaking in the first person! The bits and pieces we have of his discourse are all in the form of parables. Ironically, this will be well known to one group of readers (those acquainted with the past century and a half of Biblical scholarship) and totally unknown to others (who avoid scholarship and regard the 3rd Century collection of gospels as perfect). To my mind, only one of these groups is really seeking the truth; the other group thinks they already have it so there is no point in using critical thinking or scholarship in the first place.

    • Manfred Arcane

      You really don’t know what you are talking about. Many serious scholars, even some “liberal” ones, believe that the Gospel of John was actually written quite early, well before the 3rd century. You seem to be the one that “thinks they already have the truth.”

      • Russ Dewey

        No need to debate it here. But I can’t resist pointing out a few things. First, the disciples did not speak Greek. The Greek in John is “elegant” not complex; it came a man who knew the language well. The “little group” with the “black and white marbles” consisted of some of the most distinguished Biblical scholars in the country, but your comment is very typical of the belittling comments that head-in-the-sand conservatives make about it (sort of like the Fox News take on global warming!). I am not an authority, but I have read the last few decades of Biblical scholarship, and it is fascinating. There is a meaningful distinction to be made between a Jesus-centered approach to Christianity (one that takes seriously the scholarly attempts to reconstruct the message of Jesus) vs. a Pauline, early-church dogma centered approach (one that takes the 3rd Century narratives as God-given and final). To understand this controversy, appreciate it, and ponder the implications, you have to open your mind enough to actually read and contemplate the scholarship of learned people who have devoted their lives to this.

        • FW Ken

          Some of us have read these claims, as well as the claims of scholars who refute them. However, this is not the place for promoting your personal opinions, but discussing journalism.

    • helen

      1. Who is “you”?

      2. Funny; I heard a Pastor say just yesterday that John was written in “simpler Greek, which made it a good place to start when learning Greek.”

      3. “the past century and a half of Biblical scholarship” … Does that include the little group which decides what Jesus said with black and white marbles!? :(

      • tmatt

        And your journalism comments, people?