The Contraceptive Mandate Yet Again

Either these people have no money or they’ve already finished their Christmas shopping.  (I won’t say which category applies to me.)

Yesterday, the Cardinal Newman Society’s Patrick J. Reilly published an op-ed in the Washington Times criticizing an effort by the University of Notre Dame and the Catholic Health Association to offer a substitute for the very narrow exemptions contained in the regulations proposed by the Obama Administration.  Today, Rick Garnett comes to the defense of this effort, arguing that Reilly’s criticisms are unfair.

Here’s the Notre Dame letter, so you can see for yourselves.  And here’s the crucial language:

Therefore, Madam Secretary, on behalf of Notre Dame and other Catholic colleges and universities that share our mission and our moral convictions, I request that the definition be rewritten using the principles behind the ”church plan” exemption found in section 414(e) of the Internal Revenue Code, which was developed specifically to avoid chruch-state entanglements in religious governance relative to pension, health and welfare plans offered by religious entities.  This is the statute that should be used as a guide for determining the definition of a religious employer.  Section 414(e) considers whether an organization or institution “shares common religious bonds and convictions with a church” when determining if the organization qualifies as a “religious employer.”  This definition more adequately defines religious employers to include all organizations that work in ministries of the church.

For me, the problem with this language is that it tethers the exemption to connection with “a church.”  I don’t know whether Notre Dame’s President means that language narrowly—to refer to a particular house of worship—or broadly—to refer to a denomination.  In either case, it seems to exclude faith-based organizations that have a religious mission , but aren’t explicitly tied to houses of worship or denominations.  Where would a non-denominational evangelical college fall under these considerations?  Prison Fellowship Ministries?  Focus on the Family?  The proposed alternative language works reasonably well in the institutional environment of the Roman Catholic Church, less well in the more fluid and less institutionalized world of evangelicalism.  I won’t speak for other faith traditions, because I know them less well.

Lest you think that I’m bright enough to have come up with this reservation all by myself (having just finished grading four sets of papers and four sets of final examinations, my brain is basically mush), I’ll point you to a letter, signed by a variety of non-Catholic religious leaders, that has been sent to the President and has been, or will shortly be, posted on the website of the Institutional Religious Freedom Alliance:

We reiterate our opposition to the narrow exemption. We wish to stress that we strongly object to a revised exemption that is only broadened enough to include faith-based organizations that are affiliated with a specific denomination. We understand that such a compromise has been proposed to your administration. The suggested compromise discriminates against the many religions that organize themselves in ways other than by being centered on a denomination. Some faith-based organizations have an interdenominational or ecumenical affiliation. Yet others are linked with houses of worship that are not denominational at all. And a significant number of faith-based organizations are not affiliated formally with any house of worship or denomination. Rather, they are, and are considered in Federal law to be, religious organizations because of their religious mission, their faith-shaped internal operations, and their presentation of themselves to the community as religious organizations.

UPDATE:  Rick Garnett notes that the non-denominational  Colorado Christian University  has filed suit against the contraceptive mandate.