Michael Sean Winters comments in the National Catholic Register:
This morning, the University of Notre Dame will re-file its lawsuit against Kathleen Sebelius, Secretary of the Department of Health and Human Services, regarding the administration’s controversial contraception mandate. Notre Dame originally filed suit last year, but the suit was dismissed in January, 2013 because the mandate had not yet taken effect. It is scheduled to take effect January 1, 2014.
If the University of Notre Dame is not a ministry of the Catholic Church, what is it? This is the question the Obama administration has been unable or unwilling to answer the past couple of years in the seemingly endless back-and-forth over the HHS mandate. U.S. laws have long recognized a “ministerial exemption” to the application of its laws. For example, the Civil Rights Act of 1964 exempted religious institutions from its requirements. And, in January, 2012, the U.S. Supreme Court upheld the ministerial exemption in a unanimous 8-0 vote in the case Hosanna-Tabor v. EEOC.
In its filing, Notre Dame makes clear that the core issue is whether or not government can or should be so entangled with religious institutions that, no matter its objectives in terms of public policy, it places those institutions in compromising situations. The complaint, filed in the U.S. District Court for Northern Indiana states:
This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to force the University of Notre Dame (“Notre Dame”) to pay for, facilitate access to, and/or become entangled in the provision of products, services, practices, and speech that are contrary to its sincerely held religious beliefs. It does not authorize the Government to coerce Notre Dame to participate in a program whose central financial premise—“cost neutrality” through reductions in the number of childbirths—is antithetical to Notre Dame’s faith. Finally, it does not authorize the Government to require Notre Dame to facilitate and appear to endorse practices that Catholic doctrine considers morally wrong.
This is not about Taco Bell or Hobby Lobby, which may be led by people with deep religious convictions, but which are obviously not ministries. This is about a Catholic university that is permeated from top-to-bottom by its religious mission, despite what you might have heard about Notre Dame from its critics at the unfortunately named Cardinal Newman Society. . . .
In November 2013, at the Federalist Society's National Lawyers Convention, Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit moderated a panel on Religious Liberties: Religious Liberty & Conflicting Moral Visions. Participating were:
- Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty
- Prof. William A. Galston, Ezra Zilkha Chair, Governance Studies Program, The Brookings Institution
- Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions Department of Politics, Princeton
- Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
You can watch a video of the event here.