The Mandate War

National Review Online | Published on

By George Weigel

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The battle for religious freedom between the Catholic Church in the United States and the Obama administration just entered the second quarter.

The first quarter was bureaucratic and rhetorical. The debate began with the January 20 announcement that the administration’s implementation of Obamacare would require Catholic institutions and individual Catholic employers to provide “preventive health services” (including contraceptives, sterilization, and abortifacient drugs) that the Church rejects as gravely immoral. It was a clumsy attempt at coercing consciences, and it drew widespread condemnation across the spectrum of Catholic opinion.

The debate intensified after the administration announced, on February 10, a future “accommodation” of Catholic concerns; but the proposed “accommodation” was an accounting shell game that would change absolutely nothing in either the moral or the legal structure of the issue. Showing a remarkable degree of unanimity, the Administrative Committee of the United States Conference of Catholic Bishops rejected the “accommodation” at its March meeting and insisted that the issue at stake was not birth control, but religious freedom: The federal government was trying to compel the Church and individual Catholic believers to do something the Church’s settled teaching considers immoral. That same point was underscored a month later by the bishops’ Ad Hoc Committee on Religious Liberty in its Easter-week statement, “Our First, Most Cherished Liberty.”

Throughout the first quarter of this deadly serious game, the administration did not move a millimeter, the claims of its flacks and some of its Catholic apologists notwithstanding. The “contraceptive mandate” (which, remember, is also a sterilization and abortifacient mandate) is now law, without any “accommodation.” The administration continues to insist on provision of the services in question; it continues to define a “religious exemption” that is so stringent that it is not clear whether any Catholic entity (or Orthodox Jewish entity, or Mormon entity) would qualify; its narrow definition of “religious ministry” puts the Church in legal and financial peril for serving people who are not Catholics, which is another requirement of the Catholic conscience.

But the debate is not only about religious institutions; it is about the rights of conscience of employers (Catholic or otherwise) whose convictions require them not to include contraceptives, abortifacient drugs, and sterilizations in the health-insurance coverage they provide their employees. These men and women, like the numerous Catholic entities (including dioceses and educational institutions) that are self-insuring, are all put in grave legal and moral peril by the administration’s intransigent determination to impose its concept of “reproductive health” on the entirety of American society — and to force those who oppose that concept to provide the very means by which the concept is imposed.

Now comes the game’s second quarter, which will be legal, as the battle for religious freedom moves into the federal courts. A dozen lawsuits challenging the administration’s mandate are being filed today on behalf of more than 40 plaintiffs: Catholic dioceses, including the archdioceses of New York and Washington; Catholic social-service and health-care agencies; Catholic educational institutions, including the Catholic University of America, the Franciscan University of Steubenville, and the University of Notre Dame; and Catholic publications. These suits, in addition to those already filed by the Becket Fund for Religious Liberty and the Alliance Defense Fund on behalf of other religious litigants, ought to help clarify several sometimes-confused points in the months ahead.

  • This is not an argument about birth control, nor is it part of some “War on Women” waged by misogynistic clerics and their political allies from the fever swamps of the Right. The mandate is being legally challenged, in twelve different federal district courts, on the grounds that it violates the provisions of the Religious Freedom Restoration Act and the First Amendment’s guarantee of the free exercise of religion. If those legal protections mean anything, they must mean that neither religious institutions nor individuals can be compelled to provide “services” that are readily available through means other than coercing religiously informed consciences. Contraceptives are more readily available in the United States in 2012 than either cigarettes or beer. There is no compelling public need to dragoon institutions and individuals who conscientiously object to providing them into doing so – with the threat of ruinous financial penalties if they do not.
  • This argument over the meaning of religious freedom was not initiated by the Catholic Church; it was initiated by an administration that seems to regard “religious freedom” as merely a privacy right to certain kinds of recreational activities (like worship). As in its international human-rights policy (which speaks exclusively of “freedom of worship”), the administration seems unwilling or unable to grasp an elementary truth: Religious convictions are community-forming, and those communities, like the individuals whose conscientious convictions form them, are the subject of genuine religious freedom.
  • More than free exercise is at stake here, though. For the administration is arguably violating the intent of the “no establishment” provision of the First Amendment, which (among other things) means that the federal government is incompetent in theological matters. Yet that is precisely the turf onto which the administration is intruding with its attempts to define religious institutions, ministries, and employers so narrowly that Jesus and the Twelve would almost certainly not qualify, having fed five thousand people who were not “church members.”
  • While the media’s attention to this battle has typically focused on the U.S. bishops’ conference and the administration, with Cardinal Timothy Dolan (the conference president) in one corner and President Obama and HHS Secretary Kathleen Sebelius in the other, the number and character of the litigants now challenging the administration’s mandate ought to make it clear that this is not “the bishops vs. the administration” during an election year; it is the administration vs. the Catholic Church on an issue of first principle. That one of the litigants is the University of Notre Dame, which in 2009 gave President Obama an honorary doctorate of laws and invited him to address its commencement ceremony, ought to underscore the point that the mandate is regarded as a threat to religious freedom far beyond the boundaries of the bishops’ conference. As Notre Dame’s president, Father John Jenkins, C.S.C., put it, “this [suit] is about the freedom of a religious organization to live its mission.” Period.
  • The clock is ticking, and the pace of the battle will now accelerate. The mandate was finalized “without change” on February 12; it is now law. The mandate is scheduled to go into effect on August 1, with a “safe harbor” for some entities until August 1, 2013 — a “safe harbor” famously described by Cardinal Dolan as “a year in which we’re supposed to figure out how we can violate our consciences.” Even those entities to which the administration extends this “safe harbor,” however, remain vulnerable to private action to enforce the mandate (affording Ms. Sandra Fluke her second 15 minutes of fame?). Thus it would seem important that one part of the litigation strategy be the pursuit of a preliminary injunction that would prevent the mandate from going into effect this August. That would not only relieve pressure on Catholic institutions and Catholic employers to decide whether to shut down their schools, hospitals, and social-service agencies in response to the mandate; such an injunction would also signal clear concerns from the federal bench about the legality of the mandate.
  • While Obama supporters (inc
    luding some Catholics) will contend that this is partisan politics, it isn’t — except insofar as the administration has made it so. It was the administration that refused to countenance Catholic concerns before and after the mandate was issued. It was the administration whose apologists (including Secretary Sebelius) bent every effort to turn what was clearly a religious-freedom issue into a “War on Women.” It has been the administration and its Senate allies, like Majority Leader Harry Reid, who have refused to enter into any sort of serious discussion aimed at mitigating Catholic concerns. It is the administration that seems willing to drive the Catholic Church out of health care, education, and social services if that is what is required to enforce the administration’s notions of “reproductive health” and “reproductive choice.” If the administration pays a price for this in November, it will have no one to blame except itself.

Legal victory in the third and fourth quarters of this battle is not certain, but it seems likely. For it is very difficult to see how the administration can justify this burdening of Catholic employers (and other employers with religiously informed moral objections to the mandate) under the provisions of the Religious Freedom Restoration Act. As the battle continues, it will be important, amidst the litigators’ argument and the administration’s attempts to reply, to remember that what is at stake here is nothing less than the future of civil society in the United States.

A victory in the lawsuits filed against the administration’s mandate will be more than a victory for religious freedom, important as that will be. It will be a victory in defense of the social architecture of American democracy. Government is not the only custodian of the common good. The institutions of civil society bear a significant and irreducible responsibility for the common good, a responsibility they must be able to fulfill freely, without unwarranted interference from an overweening state that is ignorant of the limits of its legitimate reach. That is the truth for which today’s Catholic litigants are contesting — and they are doing so on behalf of all Americans.

- George Weigel is distinguished senior fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.