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The Church and the Mandate
National Review ^ | 12/19/2012 | George Weigel

Posted on 12/19/2012 5:11:47 AM PST by Servant of the Cross

The strategic situation after a year, and the terrain ahead

As the Catholic Church and the Obama administration approach the first anniversary of what has become the most serious confrontation between the Church and the federal government in U.S. history — a confrontation caused by a regulatory mandate implementing Obamacare — a review of the strategic situation is in order, with an eye to the terrain ahead. But given the confusions about this struggle that were sown in many minds during the presidential campaign (not least by the vice president of the United States), it is important to begin by remembering just what is being contested here.

Early in 2012, the Obama administration first announced, and then finalized, a regulation implementing the “preventive services” requirement of the Patient Protection and Affordable Care Act, popularly known as Obamacare. Issued by the Department of Health and Human Services, the regulation generally requires that health-insurance plans, including plans sponsored by employers, provide contraceptives, abortifacient drugs, and sterilizations without any cost (or “co-pay”) to the insured. While the mandate exempted certain religious employers, its definition of a “religious employer” was absurdly narrow and would not exempt the vast majority of Catholic educational, social-service, and health-care institutions, because they employ non-Catholics and serve non-Catholics.

The HHS mandate thus requires most Catholic institutions and employers to provide “reproductive-health services” or “preventive services” that the Catholic Church judges to be gravely immoral. In doing so, the mandate seriously burdens Catholics in the free exercise of their religious convictions. Those convictions are not abstractions. Religiously informed Catholic moral convictions are culture-building and institution-forming: They shape the ethos and activities of Catholic educational, charitable, and social-service agencies, and they shape the professional lives as well as the personal lives of conscientious Catholics.

Thus, in contesting the HHS mandate, the Catholic Church is defending and promoting religious freedom in full, as that first freedom touches both institutions and individuals. The Church is claiming the fundamental religious-liberty right to be itself, not least in its service to the poor, the vulnerable, and the marginalized; and the Church is defending the fundamental religious-liberty right of the people of the Church to be themselves, in their professional as well as their personal lives. In claiming and defending religious freedom in full, the Church is defending the American understanding, with which Catholic teaching is in full accord, that “religious freedom” cannot be reduced (as the Obama administration seems to want to do) to a privacy right to certain lifestyle choices — in this case, the choice to worship. Religious freedom in full is far more than freedom to worship without civil liability, although it surely includes that.

It should also be remembered, indeed underscored, that the Obama administration has laid this burden on Catholic institutions and Catholic employers in an unnecessary, and thus aggressive, way. The U.S. government has numerous ways to distribute contraceptives and abortifacient drugs, and to provide sterilizations. It need not conscript Catholic institutions and Catholic employers as governmental agents in order to meet the administration’s public-policy goals. Attempting to do so through coercive state power (i.e., the power to levy heavy monetary fines for non-compliance) breaches what has long been understood to be a secure boundary between the state and civil society in the United States.

Confronted by this challenge, which they did not seek but which they could not ignore, the Catholic bishops of the United States, under the leadership of their conference president, Cardinal Timothy Dolan of New York, and the chairman of their conference’s special committee on religious liberty, Archbishop William Lori of Baltimore, mounted a principled, vigorous campaign against this unconstitutional, discriminatory, and wholly unnecessary regulation throughout 2012. The bishops first tried to convince the administration that the HHS mandate should be rescinded. The administration then floated the notion of an “accommodation” that would nominally shift the obligation of providing (and paying for) coverage of “preventive services” from religious institutions and conscientious employers to the insurance companies. The bishops recognized this tactic for the shell game it was, repeated their call for rescission of the mandate, and reiterated their willingness to explain and defend their concerns to the administration.

The administration being unwilling to yield, the bishops reaffirmed their united opposition to the mandate at a meeting of their conference’s administrative board in March and again at a meeting of the full conference in June. The bishops also sponsored a “Fortnight for Freedom,” which sparked religious-freedom rallies around the country and culminated on Independence Day in a nationally televised Mass attended by an overflow congregation of more than 5,000 at Washington’s Basilica of the National Shrine of the Immaculate Conception. Throughout the summer and fall, individual bishops and state Catholic conferences underscored the primary importance of religious freedom as an issue in the 2012 election campaign. Exit polls on November 6 indicated that the bishops’ case was heard by a clear majority of those Catholics who regularly attend Mass.

Had Obamacare been deemed unconstitutional by the U.S. Supreme Court, the immediate crisis for both Catholic institutions and conscientious Catholic employers would have abated, as the HHS mandate and other implementing regulations would have been rendered moot. But as no such outcome was assured, dozens of plaintiffs, including both Catholics and Protestants, filed suit specifically against the mandate in federal courts across the country. As of mid-December 2012, there are more than 110 such plaintiffs, including colleges, universities, charities, voluntary associations, businesses, and dioceses. Over 40 such suits are now being litigated.

The plaintiffs in these suits have argued that the mandate violates the 1993 Religious Freedom Restoration Act (RFRA), which was passed by overwhelming majorities in both houses of Congress and signed into law by President Bill Clinton. According to RFRA, the U.S. government may substantially burden the free exercise of religion only if it is clear that such burdening is the “least restrictive means of furthering [a] compelling governmental interest.” Given the multiple ways in which the government already “furthers” its stated interest in facilitating the distribution of contraceptives and abortifacient drugs and in providing sterilizations, it seems clear that the mandate is a wholly unnecessary burden on employers who have objections to providing such services on the grounds of religious conviction.

As I write, plaintiffs have obtained preliminary injunctive relief against the mandate in four cases. Only two adverse rulings on the merits have been handed down; both are oddly argued, and one of them is currently being appealed in the Tenth Circuit. Moreover, each of the six cases in which decisions have been rendered involves a for-profit business, a class of litigants whose religious-liberty claims are regarded skeptically in some quarters. Thus it seems not unreasonable to expect similar anti-mandate decisions on behalf of non-profit employers, e.g., religious colleges and universities, religious charities, religious social-service agencies, religious health-care facilities, and dioceses.

The course of litigation to date suggests that a Supreme Court decision on the HHS mandate will not require another tortuous revisiting of the First Amendment. The mandate has very little chance of clearing the high bar set by RFRA for burdening the free exercise of religion, which is the legal question at the forefront of the mandate lawsuits. Thus it seems eminently reasonable to expect that the legal challenges to the mandate will ultimately be vindicated by a Supreme Court that, in January 2012, upheld the “ministerial exemption” from equal-employment-opportunity law in a 9 to 0 decision in which the Obama administration’s two Court nominees joined.

A year into this contest, the Catholic Church in the United States has every reason to think it is winning the battle for religious freedom that it was compelled to engage when the HHS mandate was finalized. Yet there will be a substantial period of time — probably a year and a half, perhaps longer — before the final legal decision is rendered. Meanwhile, the mandate went into force on August 1, 2012 (for any health-insurance-plan renewal initiated after that date), although many Catholic institutions have been able to take advantage of a year-long “safe harbor” (i.e., non-compliance) period conceded by the administration — a period described by Cardinal Dolan as “a year in which we’re supposed to figure out how to violate our consciences” and a concession obviously intended to punt the mandate issue down the field, past the 2012 election. With the safe harbor set to expire on August 1, 2013, what should be the Church’s strategic approach between now and then — between the impending full implementation of the mandate after the safe-harbor period ends and what can reasonably be expected to be a final victory in the Supreme Court?

1. The first thing to keep firmly in mind is that the mandate is just that — an arbitrary regulation implementing the Obamacare law, not a regulation statutorily required by that legislation. The mandate can be rescinded by future regulatory action; the mandate would have been rescinded had the 2012 election turned out differently; the administration could rescind it now, if it chose; a future administration could rescind it. Despite the Supreme Court’s June 2012 decision in NFIB v. Sebelius and the president’s reelection, the mandate is not set in legal concrete, now or in the future.

2. If the mandate is not a settled matter, neither is the extent of the safe-harbor period. If the administration chose, it could extend the safe harbor beyond August 1, 2013, and broaden it to include for-profit employers — and if it really intended no burden on Catholic employers, it would do so, until such time as the courts settled the matter of the mandate’s legality. Still, absent such unlikely action from an administration that has always seemed determined to bring the Catholic Church (and other institutions of civil society) to heel, the “safe harbor” can be extended and broadened legislatively: as part of budget negotiations between the House of Representatives and the White House, or by a denial of appropriations to enforce the mandate. There is strong sentiment against the mandate in the House of Representatives, and effective ways should be found to bring that sentiment to bear, quickly, on an extension of the safe harbor, which would bring at least temporary relief to those institutions and employers that now face difficult decisions about compliance.

3. From the outset of the controversy, the U.S. bishops have taken the correct constitutional and legal position that the HHS mandate is an unjust infringement of the rights of both Church institutions and employers with conscientious objections to providing insurance coverage for “services” they deem morally objectionable. It is imperative that this both/and approach be maintained until a legal victory is achieved. Thus the bishops must firmly reject any Obama administration attempt to split the opposition by providing an “accommodation” for religious institutions while insisting that the mandate applies to lay employers with religiously informed conscientious objections. Any agreement to such an “accommodation” would not only undercut the legal case being pursued; it would do grave damage to the bishops’ teaching authority and capacity for future pastoral leadership.

4. Absent an extension of the safe-harbor period and a broadening of its scope, there are no easy answers to the dilemmas faced by those with conscientious objections who are now required, or soon will be, to comply with the mandate. Interim tactics to address these dilemmas will likely be suggested by Church leaders or theologians or both. Any such interim tactics cannot concede the principle that the mandate is unjust and illegal; ought not establish irreversible practices or precedents; and must not undercut the larger strategic goal of defeating the mandate at law.

5. Given the 2012 election results, the most promising route to final victory in this contest lies through the federal courts. It is entirely possible, indeed probable, that a judicial consensus holding that the mandate is a clear violation of the Religious Freedom Restoration Act will form in 2013 — a consensus that will likely support relief for both Church institutions and for-profit employers. Thus it is imperative that great care should be taken to avoid undermining the prospects for a satisfactory judicial resolution of the matter — either by public discussion of potential “deals” to be made with the administration, or by the imprudent airing of interesting but abstract theological questions that will inevitably be interpreted by the media and the public, and may be interpreted by the administration and the courts, as an attempt to justify a way out of the current conflict or, worse, to legitimate a surrender under duress. This is a legal and political battle, not a university seminar in moral theology, and it must be approached as such.

Throughout 2012, the memory of St. Thomas More — the lord chancellor of England who gave up his office and eventually lost his life because he refused to sacrifice his religious convictions and conscience to the will of King Henry VIII — has loomed over the mandate debate. As this issue continues to be contested in 2013, it is important to remember that More was a principled politician and a tactically skillful lawyer who wanted to use the arts of politics, and the available mechanisms found in the law, to defend a good cause and vindicate the rights of conscience.

That is what the U.S. bishops have been doing for the past year: using the available legal instruments and the arts of persuasion to remedy a serious injustice.

Religious leaders are, by nature and training, understanding and accommodating. But in the case of the HHS mandate, there can be no accommodation, for what is at issue is a first principle of justice that touches every American, even as it bears on the future health of American democracy and the future existence of a robust civil society in these United States. Throughout 2012, the Catholic bishops rightly insisted that this is not a Catholic fight, but rather an American fight: a battle to vindicate what has been recognized since the Founding as the first freedom, religious freedom.

That will be as true in 2013 as it was in 2012. The Catholic Church, with its allies from other religious communities and its allies among constitutionalists, will best serve God and country by working with tenacity and skill in the tangle of legal argument and political persuasion, until the mandate is no more. That is the strategic goal, which the Church seeks for America as well as for itself and its people. The legal path to victory is the appropriate, indeed the essential, tactical method suggested by a proper understanding of the cardinal political virtue of prudence.

TOPICS: Culture/Society; Government; News/Current Events
KEYWORDS: church; fight; mandate; religiousfreedom
The battle for religious freedom is "not a Catholic fight – it is an American fight"!
1 posted on 12/19/2012 5:11:53 AM PST by Servant of the Cross
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To: NYer; Salvation; wagglebee

Religious liberty ping.

2 posted on 12/19/2012 5:13:27 AM PST by Servant of the Cross (the Truth will set you free)
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To: Servant of the Cross

Oh, please. If most Catholics had voted against obama, we wouldn’t have him as our chief cheerleader for abortion.

3 posted on 12/19/2012 5:19:45 AM PST by freeangel ( (free speech is only good until someone else doesn't like it)
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To: freeangel

“Oh please” yourself. What’s your point? Some [self-identified] Catholics voted for the Evil One, so now all Catholics’ First Amendment rights are forfeit? I’m a Catholic. This was the eighth Presidential election in which I’ve voted, and the eighth one in which I’ve voted for the Republican candidate. Please list which of my Constitutional rights are forfeit, in your view.

4 posted on 12/19/2012 5:48:04 AM PST by Campion ("Social justice" begins in the womb)
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To: Campion; freeangel

Funny how the Mainline Protestant churches never seem to get any scorn, but a lot of them gave up completely on defending their faith completely and support socialism outright.

So what makes the Catholic Church so bad? That is still struggles to enforce orthodoxy in its members?

That it is fighting an internal battle to save itself from the collaborators of the Left?

5 posted on 12/19/2012 5:59:49 AM PST by Shadow44
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To: freeangel

If the Church did not want the mandate then they had to take down Obama. Case closed.

They made an attempt to reason with him and he would have none of it. As it became clear this was heading to a confrontation they decided they did not have the stomach for it and quietly slinked away.

A clear and ongoing directive from the pulpit that Catholics could not vote to re-elect this man is what was needed. For the Bishops, a Bridge Too Far it seems.

6 posted on 12/19/2012 6:05:13 AM PST by Buckeye McFrog
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To: Servant of the Cross

Obamacare is the Act of Supremacy. The Mandate is the Treasons Act.

7 posted on 12/19/2012 6:05:22 AM PST by Oratam
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To: Buckeye McFrog
If the Church did not want the mandate then they had to take down Obama. Case closed.

Organizing and focusing institutional will to defy the state and take the consequences, which include financial and criminal litigation, is a quicker process for some religious groups than others. You see, the Catholic Church has a lot of members.

8 posted on 12/19/2012 6:25:27 AM PST by SamuraiScot
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To: Servant of the Cross

To the best of my knowledge most Muslim non-profits are for Muslims, by Muslims, only hire Muslims long-term (for the most part), so this would pretty neatly bypass them wouldn’t it?

9 posted on 12/19/2012 6:44:55 AM PST by mrsmel (One Who Can See)
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To: freeangel

“Oh, please. If most Catholics had voted against obama, we wouldn’t have him as our chief cheerleader for abortion”.

Did you read the article? Here’s what Mr. Weigel said:

“Exit polls on November 6 indicated that the bishops’ case was heard by a clear majority of those Catholics who regularly attend Mass”.

He has previously pointed out the obvious, clearing up the falsehood about this which the media, who is believed by you and the majority of Americans, that there IS NO Catholic vote. The truth is that there is a practicing religious vote, to which all belong. Within this group, the majority voted agaist all of this.

Again: Anyone can call themselves Catholic. We have freedom of speech. It is up to the individual, not the media, to determine who is sincere and who is not.

Furthermore, the Church has a role, it does not include punishment nor exclusion. Members who go against Catholic teaching exclude themselves. Here’s how it works: A person who calls themselves Catholic is required to follow its teaching. If this person goes against the teaching they have much oppportunity to repent (change). When they refuse until death, that’s where the sanctions come in. There are 4 places to go and, as far as we know, that person is no longer the one who makes the choice. His behavior during his life speaks for him, then they are sent on.

In the case of much responsibility and high visibility, any scandal is greater and there is more firm sanctions.Most think that clergy are protected and already saints. It is the opposite. They are judged very firmly as they lead. They can lead many people on the wrong path.

The Church is all about freedom and, as such, very amenable to the Constitution of the U.S. Anyone has the freedom to come and go out of the Church and to call themselves Catholic when they have no idea beyond 2nd grade teaching what the church is.

It is up to us, utilizing freedom of choice and thought, to discern (not judge- judgement is for the after life and it is not our job), get a clue, that this person who is an ignoramous about the Church, but calls themselves Catholic, is full of crap and is capable of voting for a pro abortion candidate who has no regard for the Constitution.

I suggest reading the article.

Mr. Weigel is jsut about the most articulate, informed and consistent man (not just Catholic) writing today.

10 posted on 12/19/2012 6:48:59 AM PST by stanne
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To: Buckeye McFrog
If the Church did not want the mandate . . .

I should remind you also that the Church in the US since the 1980s has gone from being essentially led by a homosexual-promoting socialist who invented the "seamless garment" in order to oppose U.S. defense against Communism and endorse pro-abortion, pro-labor politicians—Cardinal Bernardin—to defying the Democratic Party that had protected (and corrupted) American Catholics and their shepherds for a century.

Under Cardinal Dolan, the USCCB is taking a stand not only against abortion, but contraception and homosexuality. For what had become a large, assimilated, watered-down organization, this is a dramatic resurrection in process. The improvement exists because of advancing age, retirement, and death among the old Labor bishops, and the persistent appointment of some real men by JPII and B-16.

Remember the Arian heresy. Things were so bad by the Council of Nicea that only a few bishops (such as Athanasius and Nicholas) openly challenged the Arians. But thanks in part to Constantine (and the Holy Ghost), the battleship was turned. Reality being what it is, we need to be thankful and keep fighting.

11 posted on 12/19/2012 7:04:30 AM PST by SamuraiScot
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To: stanne

I do not understand why the church allows avowed democrats to remain as members of the church unless it is for the money that these democrat scum fork over to the church.

I would expect a zero tolerance of democrat filth.

12 posted on 12/19/2012 7:06:50 AM PST by soycd
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To: SamuraiScot


I do find reviewing scripture and familiarizing ourselves with ancient Western Civ, there is hope an direction.

Cardinal Dolan and his group need a lot of prayers (from everyone). It serves them well to protect our country’s freedoms and they know it.

I remember the day Reagan died, I was at Mass, and the priest, (military chaplain) a young man from some rough city in NJ, said Reagan was a fallen away Catholic, was divorced and remarried and just did not necessarily espouse the Church.

But, he said, “I honor him, as we all should do, because while in office he did everything necessary to preserve our freedom to practice our faith in our country, and that was his job”.

13 posted on 12/19/2012 7:13:41 AM PST by stanne
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To: soycd

OK, let’s try this again.

The Church is not a nation. Its laws are enforced by the Creator. And just as teh Creator mandates, there is no forcing that anyone can do. When one is and only when one is received into the Church through proper reception of sacraments, they are thouroughly informed that if and when they chooose to turn away from the Creator, there will be Hell to pay.

No amount of earthly sanctions could ever top that, and they are not given anyway.

It is up to the individual to descern whether nayone is following the teaching of the Church.

When a catholic who makes it their prudent and wise practice to be and stay informed about the teaching of the Church, encounters someone who does not do so but calls themselves Catholic, to include clergy, the learned one knows immediately just as any conservative can discern a liberal who calls himself conservative.

The church is not an enforcement society. It is true freedom. It tells us what to do for our own salvation and joy and we are the ones who choose for and against. That’s it.

14 posted on 12/19/2012 7:21:17 AM PST by stanne
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To: soycd

Oh, and any Church leader who holds money higher than adherence to Church teaching will have a lot to answer for, but the Church itself does not condone corruption.
Cardinal Dolan has had enough of all of that. Keep an Eye on him and please pray for him. He’ll be “covered in infantry”.

15 posted on 12/19/2012 7:25:05 AM PST by stanne
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To: stanne

Thank you for your valuable contributions to the thread. I had to post & run and you responded admirably.

16 posted on 12/19/2012 10:56:55 AM PST by Servant of the Cross (the Truth will set you free)
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