Notre Dame appeals to SCOTUS over ACA

The University of Notre Dame has appealed to the Supreme Court, requesting that it require the lower courts reconsider its case against the HHS mandate in the light of the Hobby Lobby decision. Notre Dame lost its previous appeal, in which three anonymous students filed an intervening suit.

One unique feature of the legal complaint that Notre Dame is asking be reconsidered is that it asserts government regulation which treats religious universities as distinct from houses of worship violates the university’s religious belief in the unity of the Church. In its complaint, the university writes,

The U.S. Government Mandate also improperly attempts to sever Notre Dame from the Roman Catholic Church. Notre Dame sincerely believes in the unity of the Catholic Church, including that Catholic educational institutions, especially Notre Dame, are by definition the “heart of the church” or Ex Corde Ecclesiae. Notre Dame’s mission is just as central to Catholic faith and life as the mission of Catholic houses of worship. Yet, the U.S. Government Mandate would limit the definition of “religious employers” to houses of worship, attempting to sever the Church from its heart and to divide the unified Church. The U.S. Government mandate would thus turn the broad right to Religious Exercise into a narrow Right to Worship.*

Irrespective of what one thinks about religious freedom, women’s rights to healthcare, or potential violations of the establishment clause, this is a troubling argument. If religiously-affiliated universities could not be treated as distinct from houses of worship without violating religious exercise rights, then effectively, students at those universities could not be protected from sexual misconduct, harassment, or discrimination by Title IX as Title IX is not applicable to houses of worship (nor could it be).

*It is worth noting that Notre Dame has argued in court in the past (cf. Laskowski v. Spellings and  Am. Jewish Cong. v. Corp. for Nat’l. & Cmty. Serv.) that activities such as the provision of healthcare coverage benefits do not constitute religious exercise.

13 thoughts on “Notre Dame appeals to SCOTUS over ACA

  1. I don’t think this is the intended claim. I think the claim is that limiting the referent of “religious employers” to houses of worship is in violation of the broad right to Religious Exercise. It is in violation of the broad right to Religious Exercise because it seems to arbitrarily decide how we must understand the relationship of the Church to churches, hospitals, universities, and other institutions that are *not* houses of worship, but are nonetheless religious. I am betting there is room in the law for ND to argue that Religious Exercise requires the extension of the referent of “religious employers” to encompass universities without affecting the requirements of Title IX.

    That said, I do not understand Notre Dame. At all. It is not, culturally or institutionally, *really* as committed to this somewhat idealistic relation between itself and the Roman Catholic Church as this argument suggests. What is the motivation? Money? Keeping up appearances? It is a little bizarre.

    Of course, constitutional law on “religion” and “religious exercise” is one shit-show after the next, which is what happens when you invest a semantically empty concept with deep significance. It’s always entertaining, though!

  2. Ligurio, that would be a more comforting interpretation to be sure! However, the claim cannot be that the government has arbitrarily decided how we must understand the relationship of the Church to churches, hospitals, etc., because the scope of “religious employer” for the purposes of the ACA is purposed to narrow in on those “purely” religious employers (houses of worship and religious orders) so that employees who would like coverage (far less likely if you are a member of an order, and your order objects to that coverage) are not without it. In other words, the definition of “religious employer” in no way limits the scope of what organizations count as “religious” (see, for example, the other category which Notre Dame objects being cast in, that of “eligible organizations” which can opt out of coverage by signing a self-certification form notifying the government that the organization has a religious objection to the rule).

  3. Well, even though I have no love for ND, I sure as hell don’t think they’re trying to get out of Title IX here. But now I see where we might be interpreting this differently. Your explanation of “religious employers” was very helpful. Here’s the argument of ND, as I understand it from this passage:

    Who says the government gets to decide that “religious employers” properly speaking are only houses of worship and religious orders? Suppose that Catholics think that all sorts of entities can be “religious employers” besides these two–universities, for example. Do Catholics have to abide by the government’s definition of what counts as a “religious employer”?

    I take it that the government’s attempt to “narrow” the scope of “religious employer” for the purposes of the ACA is just what’s being contested, as this arguably limits the free exercise of those who, on religious grounds, believe differently.

    This is what I think all the pablum about “Notre Dame *sincerely believes* …..that it is somehow [metaphorically] ‘the heart of the Church” and so forth is doing. The government doesn’t get to decide so easily what counts as a “religious employer” if, indeed, its doing so unduly constrains the actions of those who believe differently.

  4. This isn’t about trying to get out of Title IX, I don’t take it: the worry seems to be that this opens the door, if successful, to getting out of Title IX. Right philodaria?

  5. Right, I certainly don’t think they are intentionally trying to get out of Title IX. The problem is that if the government cannot separate houses of worship from universities for the particular purposes of the law, then they wouldn’t be able to separate universities from houses of worship for Title IX. The ACA rules recognize that there are other institutions which both employ people and are religious–so the argument isn’t about who gets to be a religious employer in the colloquial sense–it’s about the technical legal terms distinguishing between different kinds of religious institutions.

  6. I find it interesting that these discussions center on religious freedom rather than a public/private distinction (as a feminist of course, I think that there’s a lot less in the private sphere than others).

    But consider: if hospitals are “houses of worship,” can doctors then refuse women life-saving and medically necessary (or even just legal) abortions and tell women they are going to hell if they have one? Can doctors refuse patients pain medication on the grounds that suffering brings them closer to God? Could professors in these institutions claim that they don’t need to call on women students because St. Paul enjoined silence upon women? Could a private school beat children because of what it says in the Bible (yes, I’ve heard people use this excuse for child abuse before)?
    Honestly, I don’t see a limit to what they can “opt out” of as an “exercise of religion”.

    The point is that if you are participating in the civil sphere of society and in particular you have a fiduciary role over someone (as universities do with regard to their students) then you should be bound by certain duties and laws (e.g., non-discrimination, health regulations, FERPA…). Otherwise we are simply giving institutions–claiming they are religious, even though they are not in fact primarily places of worship and receive government funds (e.g., universities)–a free pass out of our commitment to basic equal protection under the law. And the problem is that anyone can claim anything is a matter of religion, regardless of how discriminatory, harmful, and oppressive it is.

  7. “St. Paul enjoined silence upon women…” Not fair! That was deutero-Paul! A wannabe poseur. Paul was down with Thecla and Phoebe.

  8. Right, philodaria, the issue is what counts as a religious employer and the resultant freedoms that are granted. Notre Dame isn’t trying to get all the freedoms of a “house of worship”, just some of them. So they would surely be willing to regard themselves as not quite a church, but still think that they should be exempt from government laws that ask them to violate Catholic teaching as they interpret it. To say that they want to be considered like houses of worship in one respect (that they are a religious employer) does not entail that they want to be considered like houses of worship in all respects.

    In other words, narrowing the scope of ‘religious employer’ narrows the scope of the attendant exemptions. It is the exemptions that ND cares about, not the label, and the idea that religious practice is somehow limited to something you do in a church. Catholic organizations ought to be able to conduct themselves publicly in a manner that gives witness to the unique Catholic vision of the good life. And so limiting that on the basis that they aren’t ‘houses of worship’ is a misunderstanding of religious freedom.

  9. notinviolation — “To say that they want to be considered like houses of worship in one respect (that they are a religious employer) does not entail that they want to be considered like houses of worship in all respects.”

    The issue is that this is not what the legal argument (clearly, in any case) says. They make several arguments in their legal complaint to the effect of what you write in your comment, but then *also* make the argument about the disparate legal terms violate their belief in the “unity” of the Church. The problem is what that argument, as stated, would effect.

  10. I should have noted in my previous comment– one reason why the issue cannot simply be that religious practice is not limited to what you do in a Church is that the regulations already recognize this fact. That is why religious universities were given the option of filling out the 700 form, and why Notre Dame (among others), did fill it out.

Comments are closed.