One of the more interesting issues in the controversy over the HHS mandate (or perhaps I should say one of the few that hasn't been flogged to death in the blogosphere) is the precise language regarding the scope of the exemption that HHS included for some religious employers. The final rule states that an institution is a "religious employer" for purposes of the exemption if it "meets all of the following criteria:"
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization [under the Internal Revenue Code].
45 C.F.R. § 147.130(a)(iv)(A)-(B).
Not surprisingly, those of us who object to the mandate regard this exemption as impermissibly narrow and, moreover, illegitimate government interference in deciding what does and does not constitute a "religious employer." I'm prompted to make this point because of a comment over at dotCommonweal that the exemption "is deliberately vague, of course, and there are good reasons to object to the way the Department of Health and Human Services designed the exemption--although that the government would try to figure out which institutions are religious and which are not is hardly unprecedented" (and linking to an earlier post on America's blog saying that the langauge of the exemption comes from labor and employment law). A few quick points for discussion:
The language of the HHS mandate is not (pace the author at America's blog and others inclined to view this as rulemaking as usual) borrowed from (and is substantially narrower than) religious exemptions in other regulatory settings such as labor and employment law. NLRB v. Catholic Bishop. 440 U.S. 490 (1979) and lower court interpretations of Catholic Bishop in such cases as Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) and Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (en banc) stand for the proposition that the state cannot (as a matter of statutory interpretation of the NLRA operating under a doctrine of constitutional avoidance) pick and choose which church-affiliated institutions are "sufficiently" or "completely" religious. See also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343 (1987) (Brennan, J., concurring in the judgment) ("[D]etermining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree.”)
In employment law, cases such as LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), hold that the exemption for religious institutions from Title VII's prohibition on discrimination based on religion is reasonably broad. As Judge Roth puts it in LeBoon:
First, religious organizations may engage in secular activities without forfeiting protection under Section 702....
Second, religious organizations need not adhere absolutely to the strictest tenets of their faiths to qualify for Section 702 protection....
Third, religious organizations may declare their intention not to discriminate, as the LJCC did to the United Way and in its employee handbook, without losing the protection of Section 702....
Fourth, the organization need not enforce an across-the-board policy of hiring only coreligionists....
We disagree with LeBoon's contention that the LJCC's willingness to welcome Gentile members and even to host Hindu services is incompatible with the view that the LJCC was a religious organization. Indeed, these characteristics are clearly tied to some of the Jewish principles that guided the LJCC-tolerance toward other faiths, healing the world, and doing the right thing. We will not deprive the LJCC of the protection of Section 702 because it sought to abide by its principles of “tolerance” and “healing the world” through extending its welcome to non-Jews.
503 F.3d 217 at 230.
So where did the HHS mandate exemption language come from? As one of the lawyers on the cert petition in 2004 challenging California's contraceptive mandate, I am fairly certain that the narrow, four-prong test in the HHS mandate initially appeared in a revised 1999 draft bill by then-California state senator Jackie Speier (now a US representative). In short, the language in the HHS exemption has always been about coercing Catholic social service agencies, hospitals, and universities and colleges to provide contraceptive coverage, and the problem now is the same that my colleagues and I stated then:
Catholic Charities’ stated purpose is not to “inculcat[e]” religious values, but to carry out the Church’s religious mission to perform corporal works of mercy. It provides social services to anyone in need, whatever his or her religious beliefs. And it employs those who, regardless of their own religion, embrace Catholic Charities’ mission and understand that it is pursued in conformity with the faith and teachings of the Church of which it is a part. In the judgment of the State, Catholic Charities’ religious rights are forfeited for these reasons—because, to put it bluntly, it puts its religion into practice and does so in an all-inclusive way. There is, California seems to say, something less religious about such an organization. A truly religious organization, in its view, would be more exclusive in its associations, more single-minded in its purpose, and less concerned about the welfare of others. It would be concerned only with drilling, or “inculcating,” its beliefs into the minds of its adherents.
There is no precedent for such a narrow view of religion.
Over at America, Prof. Nicholas Cafardi, whose work is probably familiar to many MOJ readers, has a post that is critical of the decision by Catholic institutions' to file lawsuits challenging the preventive-services mandate.
Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."
With all due respect, this charge misses the mark. These lawsuits do not, in any way, limit the ability of employees to purchase or use contraceptives, nor do they, in any way, limit the ability of Congress or the Administration to employ another way -- besides making objecting religious employers bear the cost -- of subsidizing contraceptives for women who work at such institutions. The imposition here is coming not from the plaintiffs, but from the Administration.
Prof. Cafardi also writes: "HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?" But, the President has not backtracked at all; the original mandate is in effect, is operative now, and the possible changes to that mandate remain unclear and, in any event, not yet operative.
As for the "why now?", question, Fr. John Jenkins's statement explained clearly why, with regret, he thought the case needed to proceed. It is entirely reasonable for these institutions -- who are subject to costly obligations *now* to prepare to comply with the current mandate -- to try to resolve the question of these obligations' legality now, rather than waiting to see if the regulatory landscape changes in some way, down the road. And, in any event, even the floated changes do nothing about the troublingly narrow religious-employer exemption contained in the current mandate.
In a National Catholic Reporter article, Doug Kmiec says the following:
The pro-abortion, even pro-infanticide, label tossed at Obama throughout the 2008 campaign was both unfair and contestable. The president is pro-decision-making by pregnant women, but he is not at all shy of saying how he hopes the decision would be made. Here is what the president said to the Domers:
"Maybe we won't agree on abortion, but we can still agree that this is a heart-wrenching decision for any woman to make, with both moral and spiritual dimensions. So let's work together to reduce the number of women seeking abortions by reducing unintended pregnancies, and making adoption more available, and providing care and support for women who do carry their child to term. Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women."
"Pro-decision-making by pregnant women." So this is how we, as defenders of the lives of children in the womb are to characterize the question of abortion? Someone like President Obama who would protect the lawfulness of deliberate feticide, enact policies to make it as widely available as possible, and support its funding with taxpayer money is not pro-abortion, he is merely "pro-decision-making by pregnant women"? Even when the decision (carefully left undescribed) is, in truth, a decision about whether to kill the child? It's this kind of abuse of language that people seem always to resort to when we want to obscure from view a deep injustice that is being done against our fellow human beings.
On the question of the fairness or unfairness of criticism of Barack Obama on abortion and infanticide, I would defy Doug or anyone else to identify errors of fact regarding what Obama has said and done in either of these two 2008 articles on the subject.
"Obama's Abortion Extremism":
http://www.thepublicdiscourse.com/2008/10/133
"Obama and Infanticide":
http://www.thepublicdiscourse.com/2008/10/282
What Yuval Levin and I report (and document) in these articles is either true or false. If it is false, the President's defenders should have no difficulty in exposing the falsehoods, since every point we address is a matter of public record. If what we report is true, then it is the defenders---at least the ones who continue to regard themselves as pro-life---who have some explaining to do, not his pro-life critics.
Tuesday, May 22, 2012
Overall, I think, a fine post by MIchael Sean Winters on Notre Dame's suit. There's some inflammatory language ("Sebelius and her fellow travelers") in a post that condemns inflammatory debate, but overall it seems to me incisive, and hard-hitting in the right places and manner. Money quote:
The central objection Notre Dame puts forward is that the Administration employs an unconstitutional standard in deciding what kinds of religious organizations are exempt from the new mandate and what kinds are not. This has been the central objection of many of us since the President’s January announcement, especially those of us who tend to lean to the left and care deeply about the Church’s social justice ministries. We reject – how can we not? – the distinction between a house of worship, which is exempt, and a religious charity, hospital or university, which are not exempt because, as Catholics, we believe that caring for the poor, healing the afflicted, and pursuing faith and reason together, are as essential to our Catholic identity as is our Sunday worship.
The Notre Dame complaint and Fr. Jenkins's letter explain cogently why, even assuming the administration's good faith in its claim to be seeking further accommodation, Notre Dame could not wait until it all might get sorted out. As is true in many cases, I think, the language of his message packs extra punch (more than most interventions on both sides of this debate) because it is measured, non-demonizing, and simply lays out the steps in the university's reasoning:
Although I do not question the good intentions and sincerity of all involved in [the further-accommodation] 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. . . . 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.
