Mirror of Justice

Tuesday's edition of The Washington Times included an opinion piece by Patrick Reilly ("Unholy abortion compromise"), who charges Fr. Jenkins and the University of Notre Dame (and others) with proposing to "replace what many consider to be an unconstitutional [HHS] mandate with language that, at best, is only marginally better for a select few[,]" thereby "threatening the rights of many religious organizations and insulting our Christian and Jewish brethren. By doing so, these prominent Catholic institutions undermine the interests of the Catholic Church and the defense of religious freedom."

This charge, in my view, is not fair.  (I responded earlier, here, to what I regarded and regard as other misplaced criticisms of Fr. Jenkins's letter.)

First, and in a perhaps-futile effort to head off suggestions in blog-world that I am merely slavishly defending my employer or that I've gone wobbly on the injustice of the mandate:  Yes, Notre Dame has, in my view, made some mistakes with respect to living out its Catholic character and mission, and yes, the mandate is unjust.

That said, I think Mr. Reilly's op-ed proceeds from a too-quick reading of Fr. Jenkins's letter to Secretary Sebelius, while neglecting his other public intervention on the matter.  In Fr. Jenkins's letter, he did not simply call for the replacement of the current (clearly inadequate) religious-employer exemption with Section 414(e) -- which deals with pension plans -- of the Internal Revenue Code.  True, that provision was cited as a guide, but Fr. Jenkins's focus was on the "principles" that he sees underlying that provision.  And, discussing these principles, he emphasized the importance of protecting generously those institutions or organizations that share “common religious bonds and convictions with a church" and "all organizations that work in the ministries of the church.”  In addition, he insisted that "an institution inspired by faith to serve beyond the limits of its religious denomination should not be judged less religious and hence less worthy of an exemption.”

As Mr. Reilly points out, Section 414(e) has been interpreted by the U.S. Court of Appeals for the Fourth Circuit in a narrow way -- a way that, in my view, would not be consistent with the "principles" mentioned in Fr. Jenkins's letter.  But, the fact that one court has used a particular, and inadequate, three-factor test to operationalize Section 414 hardly does not mean that Fr. Jenkins and Notre Dame are proposing to settle for this particular (and, I agree, inadequate) three-factor test in the contraception-mandate context or that such a test would be authoritatively adopted and employed in the enforcement of a broader religious-employer exemption to that mandate.  (My understanding is that the Fourth Circuit's interpretation has not even been adopted by the I.R.S.)

What's more, even if the Fourth Circuit's interpretation of 414(e) were what Fr. Jenkins is proposing as a substitute for the religious-employer exemption to the HHS mandate, I think Mr. Reilly overstates the "similar[ity]" between that court's third factor -- "whether a denominational requirement exists for any employee or patient/customer of the organization" -- and the current HHS exemption, which applies only to organizations that "hire and serve primarily people of the same faith."  (My emphasis).  The former actually is much broader.

At the end of the op-ed, Mr. Reilly adds to the charge that Fr. Jenkins is proposing a course that is "insulting [to]our Christian and Jewish brethren" with the suggestion that he is "simply working to protect [his] institution[].  But the practical effect of their proposed compromise would be to slam the door on most religious organizations while providing political cover to the Obama administration."  Certainly, I believe that it is not just Notre Dame's religious freedom that matters, and I hope that neither of these "practical effect[s]" comes to pass.  Still, the suggestion is not fair.  Here is the concluding paragraph of Fr. Jenkins's other public intervention on the matter, which appears on the USCCB's web site and which is signed by, among others, Carl Anderson of the Knights of Columbus (hardly a squish when it comes to life issues) and Archbishop Dolan:

The HHS mandate puts many faith-based organizations and individuals in an untenable position. But it also harms society as a whole by undermining a long American tradition of respect for religious liberty and freedom of conscience. In a pluralistic society, our health care system should respect the religious and ethical convictions of all. We ask Congress, the Administration, and our fellow Americans to acknowledge this truth and work with us to reform the law accordingly.

This is not, in my view, a statement that is either self-serving or insulting to non-Catholics or to institutions other than Notre Dame.