‘Sober Determination’ in Defense of Religious Freedom

I am particularly delighted that the University of Notre Dame is a party in the lawsuits being filed today in response to the Department of Health and Human Services coercive mandate. I certainly wish the federal government would not be eroding religious liberty in America, but I am tremendously grateful that Notre Dame is taking the lead in pushing back.

ND president Father John Jenkins writes:

Today the University of Notre Dame filed a lawsuit in U.S. District Court for the Northern District of Indiana regarding a recent mandate from the U.S. Department of Health and Human Services (HHS).  That mandate requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching.  The decision to file this lawsuit came after much deliberation, discussion and efforts to find a solution acceptable to the various parties.

Let me say very clearly what this lawsuit is not about:  it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services.  Many of our faculty, staff and students — both Catholic and non-Catholic — have made conscientious decisions to use contraceptives.  As we assert the right to follow our conscience, we respect their right to follow theirs.  And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents.  We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so.

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives.  For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions.  For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements.  If that happens, it will be the end of genuinely religious organizations in all but name.

The details of the process that led to the mandate are publicly known.  In an Interim Final Ruling issued August 3, 2011, the federal government required employers to provide the objectionable services. A narrow exemption was given to religious institutions that serve and employ primarily members of their own faith, but, departing from a long tradition in federal law, organizations like Notre Dame—schools, universities, hospitals and charitable organizations that serve and employ people of all faiths and none—were granted no exemption, but instead were made subject to the law to the same extent as any secular organization.  On September 28, I submitted a formal comment encouraging the Administration to follow precedent and adopt a broader exemption.

Despite some positive indications, the Administration announced on January 20, 2012, that its interim rule would be adopted as final without change.  After an outcry from across the political spectrum, President Obama announced on February 10 that his Administration would attempt to accommodate the concerns of religious organizations.  We were encouraged by this announcement and have engaged in conversations with Administration officials to find an acceptable resolution.  Although I do not question the good intentions and sincerity of all involved in these 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.   Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the government-mandated deadlines. 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.

It is for these reasons that we have filed this lawsuit neither lightly nor gladly, but with sober determination.

I would encourage Americans who value religious liberty to thank Father Jenkins. And I might note that one of the first people I heard from when the White House issued its non-accommodation accomodation on the Mandate, one of the first people I heard from leading the protest was ND law professor Carter Snead.

Thank you, Notre Dame. You might thank Fr. Jenkins here.

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  • Gerry

    “Many of our faculty, staff and students — both Catholic and non-Catholic — have made conscientious decisions to use contraceptives. ”


  • Mark of Lombard

    I am hoping that somewhere in Podunk, USA, someone, Sam Smith of Sam’s Shoe Repair, a non-Catholic business owner with one female employee, who happens to believe (though his church has no official position on it) that contraception is immoral, will sue the Obama administration as well. And I hope that the Supreme Court will make his case the one that includes all others. Because, pace Notre Dame, this is not about whether a religious institution can live out it’s mission: it’s much deeper than that. It’s about whether the government, on the flimsiest pretext imaginable, can force Americans to violate their own individual consciences. It doesn’t matter if the citizen has an organized church behind him or not. It doesn’t matter if 100% or 51% or 1% of his coreligionists agree with him, or indeed if he’s the only person in the entire country who believes as he does. The government still cannot in justice force him to violate his conscience this way.
    That’s why I’d really like this to be, not Notre Dame v. Sebelius, but Smith v. Sebelius–because the strength of the principle at stake here will show best with the weakest possible champion.

  • Ray Cormier

    While it is gratifying to see Notre Dame join the lawsuit, no thanks are due John Jenkins. If he had stood up to President Obama in 2009, rather than gushing all over him, referring to the neophyte president as “a great man”, perhaps he could have helped instill in him some sense of humility. Instead, he, along with the mainstream media (remember Newsweek’s Evan Thomas: “he’s God”), the rest of academia, and organized labor, all encouraging him to be bold, set his own course, transform America. Three years later, we have someone who feels unbound by the Constitution or any laws, he can’t find a nickel of spending to cut, the deficit goes up $4 billion a day, and he wants to do it for 4 more years. Wow.

  • Tom

    Kathryn, I’m a little concerned with Fr. Jenkins’ statement. His discussion about what “this lawsuit is about” seems to frame the issue solely around religious organizations and ignores the “Catholic who owns the Pizza Hut.” It seems as if Fr. Jenkins would be happy with a “broader exemtion” as long as it covered institutions like ND. It doesn’t overcome the fact that ND sued its commencement speaker, but it is a little concerning.

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