Monday, March 05, 2012

Top U.S. Bishop to All Bishops: ‘We Did Not Ask for This Fight, But We Will Not Run From It’

By Terence P. Jeffrey - March 4, 2012

Cardinal Timothy Dolan, archbishop of New York and president of the U.S. Conference of Catholic Bishops, sent a letter on Friday to all the Catholic bishops of the United States reasserting the conviction of the Catholic Church that it will not yield to the Obama administration’s command—issued in the form of a Health and Human Services regulation implementing the president’s health-care plan--that Catholics and Catholic institutions must violate the teachings of their faith by purchasing and providing health insurance plans that pay for sterilizations, contraceptives and abortifacients.

“We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans,” Cardinal Dolan wrote his brother bishops.

“We did not ask for this fight, but we will not run from it,” he said.

“Since January 20, when the final, restrictive HHS Rule was first announced,” Cardinal Dolan wrote, “we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it.”

Although the U.S. Conference of Catholic Bishops posted the cardinal’s letter on its website on Friday and issued a press release about it, neither The Washington Post nor The New York Times nor any other American newspaper that appears in the massive Lexis-Nexis database of news sources published a story about it in any of their Saturday editions. Nor, as of the early hours on Sunday, had any secular newspaper that shows up in a Google News search published a story about the letter.

Despite the silence from the establishment media, the cardinal’s defiant letter was in fact a major event in what has become the most significant confrontation over religious freedom in the history of the United States.

On Thursday, the Senate voted 51 to 48 to reject an amendment sponsored by Sen. Roy Blunt of Missouri that would have added “conscience protection” language to the Obamacare legislation, and thus protect employers from being forced to provide health insurance coverage for sterilizations, contraceptives and abortifacients if they have a moral or religious objection to these things.

If enacted, this amendment would nullify the HHS sterilization-contraception-abortifacient regulation insofar is it effects employers, but not insofar as it effects individuals who buy their own insurance and who would still be mandated under Obamacare to purchase insurance.

“And you now ask the obvious question,” wrote Dolan, “”What’s next?’”

Dolan first noted that the Obama administration’s regulation jeopardizes the church’s ability to carry out the ministries that he said have been entrusted to it by Jesus.

“As pastors and shepherds, each of us would prefer to spend our energy engaged in and promoting the works of mercy to which the Church is dedicated: healing the sick, teaching our youth, and helping the poor,” said O’Connor. “Yet, precisely because we are pastors and shepherds, we recognize that each of the ministries entrusted to us by Jesus is now in jeopardy due to this bureaucratic intrusion into the internal life of the church.”

Cardinal Dolan then said that the so-called “concession” President Obama had offered in February—that he would order insurance companies working with Catholic institutions to provide sterilizations, contraceptives and abortifacients to the workers at those institutions for free—did not solve the problem.

“For one, there was not even a nod to the deeper concerns about trespassing upon religious freedom, or of modifying the HHS’ attempt to define the how and who of our ministry,” wrote the cardinal.

“Two, since a big part of our ministries are ‘self-insured,’ we still ask how this protects us,” he wrote. “We’ll still have to pay and, in addition to that, we’ll still have to maintain in our policies practices which our Church has consistently taught are grave wrongs in which we cannot participate.

“And what about forcing individual believers to pay for what violates their religious freedom and conscience?” he wrote. “We can’t abandon the hard working person of faith who has a right to religious freedom.

“And three,” he said, “there was still no resolution about the handcuffs placed upon renowned Catholic charitable agencies, both national and international, and their exclusion from contracts just because they will not refer victims of human trafficking, immigrants and refugees, and the hungry of the world, for abortions, sterilization, or contraception.”

The cardinal revealed that President Obama had invited the bishops to work with the White House to “work out the wrinkles” on his proposed accommodation. But that effort failed to make progress as the White House showed no flexibility on the core issue.

“At a recent meeting between staff of the bishops’ conference and the White House staff, our staff members asked directly whether the broader concerns of religious freedom—that is, revisiting the straight-jacketing mandates, or broadening the maligned exemption—are all off the table,” wrote the cardinal. “They were informed that they are. So much for ‘working out the wrinkles.’”

The cardinal said that the bishops would continue to seek a legislative remedy to the administration’s attack on religious liberty and would also pursue protection of religious liberty through the federal courts.

“Perhaps the courts offer the most light,” he said, pointing to the Supreme Court’s recent 9-0 decision against the Obama administration in the Hosanna-Tabor case in which the administration tried to tell a Lutheran church who its ministers would be.

“Given this climate, we have to prepare for tough times,” the cardinal wrote.

He closed the letter by noting to his brother bishops that religious freedom now faces a threat not from a foreign enemy but from within the United States.

“Brothers, we know so very well that religious freedom is our heritage, our legacy and our firm belief, both as loyal Catholics and Americans,” he wrote. “There have been many threats to religious freedom over the decades and years, but these often came from without. This one sadly comes from within. As our ancestors did with previous threats, we will tirelessly defend the timeless and enduring truth of religious freedom.”

Read the entirety of Cardinal Timothy Dolan's letter by clicking here.


B2 said...

I wanted to post this response from a facebook debate that was raging. It is very informed and I hope you all enjoy it. By Dave Skalka:

I preface this by stating I am NOT taking a position nor arguing about contraceptive use or abortions or whether they should be provided free by the government, etc. Not a chance. But as Professor knows, the First Amendment is my favorite amendment, and I will take a position regarding the Constitution. This is most certainly a First Amendment issue, and enhanced by the 1993 Religious Freedom Restoration Act, which was unanimously upheld by the Supreme Court. Indeed, this is an area of law that the Supreme Court has had consistent unanimous opinions in support of religious freedom.

The argument is can the federal government tell a church that as part of its charitable operations it must pay and provide for its employees to take actions 180 degrees against long held religious beliefs. Mr. Nelsen's argument would certainly work if the regulation was that Catholic-run institutions cannot fire a non-ministerial/non-priestly employee if they go out on their own and have an abortion, or buy contraceptives. But that is not Sebelius' regulation (who, not coincidentally, is an ex-communicated Catholic). And the exemption provided is so narrow Jesus and his disciples would not meet it. Seriously. Because if the church organization serves people who do not share its faith, the exemption fails. And it is scary from a constitutional perspective that many I have heard say that it's ok because a large majority of Catholics don't follow their leaders' teachings -- an argument that states that there comes a subjective point that the government can step in and tell a religion it may no longer lead by example or actions and instead must conform to the government's position.

Assuming that a law is neutral in its application (not just facially) (and if not neutral it's toast), the court then asks two related questions: does the law's burden on religion serve a "compelling government interest," and is it "narrowly tailored" or the least restrictive means to furthering the government's interest? Even a neutral law may not substantially burden religious exercise unless that burden is the least restrictive means necessary to serving a compelling government interest. The interest stated by Sebelius is access to contraceptives. But there are in fact no barriers to adults obtaining contraceptives in the U.S. other than cost. So then what it really becomes is the interest is to make an employer pay for employee's contraceptives. That's not a compelling state interest. And it's not least restrictive (could have the government pay), and demands as to Catholic institutions that they commit "a grave sin" as stated by Pope Paul VI. Which, I add, is the furthest inquiry a government may take into a religiously held belief -- that it is an honestly held belief not raised simply to avoid the present circumstances. The government is not allowed to interpret the Bible for the church, or say well if "Catholics" took a democratic vote they would side with the government.

B2 said...

Additionally, and I don't remember the case but it was from the 80's, the exemption itself has a strike against it because the Supreme Court rejected fabricated lines between a church itself and the missions it carries out through education, health care, etc. -- a church cannot be compelled to guess what a secular court or president determines is their religious mission.

I note a comment above about the church's most "profitable ventures". The church has no such thing. Operating hospitals is a mission. Running charitable operations is a mission. Without donations/grants/foundations, Creighton Hospital would be bleeding in red ink in its care of bleeding shooting victims dropped on its doorstep every week, particularly when it was legal for the other hospitals in town to turn such emergency patients away who had no insurance.

If this makes it to the Supreme Court, it will be stricken. And it will be UNANIMOUS. Just like the 1993 Lukumi case. Just like the 2006 Gonzales case. And like the Lutheran church case issued just this January.


By: Dave Skalka

B2 said...
This comment has been removed by the author.
B2 said...

Dave Skalka: 1. I'm not citing the ministerial exemption, I'm citing the supposed institutional exemption Sebelius proposes, which is what has caused the uproar. If it involved an employee with a ministerial duty there would be no discussion to have. Normally there is an institutional exemption to protect religious charities and their freedom of religion, but here Sebelius' regulation on this states that charitable institutions can claim an institutional exemption only if they "serve primarily persons who share the[ir] religious tenets." Other than church services themselves, most of the church's lay organizations and all of its charitable work (as directed by the Bible) serve those in need regardless of religious tenets. It's not within her power to decide that going to church on Sunday is religious but operating a charity is not.

2. You are right that the Lutheran church case involved such a ministerial person and would not be directly applicable here (although the Gonzales and Lukumi cases would) but I referred to it to note that this a rare area of constitutional law that the most liberal and most conservative judges agree. You are wrong about the RFRA. The RFRA was unanimously ruled constitutional for all federal law purposes which is what this is.

3. A federal "labor standard" does not trump the First Amendment. "Labor standard" is not in the Constitution -- here it is a interpretation of power from the interstate commerce clause combined with crossing their fingers it is not interpreted as regulating insurance which has always belonged to the States. And there is a less restrictive option -- have the government pay for the contraceptives or insurance coverage.

4. Your double standard argument -- I frankly don't care what is on coinage. I will say as a country I believe we have been blessed more than others over our 230+ years because of the First Amendment and general belief among the populace instilled through Jewish, Christian, and Muslim faiths that we owe it to our creator to cherish life, treat others in certain ways, and not be all about "me." I suspect you are one who believes the protection provided in the First Amendment must be freedom "from" religion rather than freedom "of" religion. Taking your double standard argument, it means freedom of speech can only be freedom of speech if it is freedom "from" speech. What a scary country that would be.