By Dou­glas W. Kmiec -

Official White House Photo

Pres­i­dent Barack Obama at Notre Dame Uni­ver­sity com­mence­ment, May 17, 2009. Offi­cial White House Photo by Pete Souza. Pub­lic Domain.

Spurred by a con­tro­versy over a highly restric­tive reli­gious exemp­tion which as orig­i­nally announced had the net effect of man­dat­ing Catholic employ­ers to become facil­i­ta­tors of con­tra­cep­tive prac­tice, the topic of reli­gious free­dom con­tin­ues to roil the early 2012 pres­i­den­tial race.  The lead­er­ship of the Catholic bish­ops have called the skir­mish­ing a “war.”  Now, the golden-helmeted forces of the Uni­ver­sity of Notre Dame have come onto the field of bat­tle, ask­ing the judi­ciary to pro­tect the reli­gious free­dom of Our Lady’s uni­ver­sity from the Pres­i­dent who — over great con­tro­versy — was awarded an hon­orary degree from the insti­tu­tion often con­sid­ered the Catholic Harvard.

The bish­ops are wrong to use this mil­i­taris­tic exag­ger­a­tion; and like­wise, the Pres­i­dent and his advi­sors are wrong to under­state the reli­gious objec­tion, and unfor­tu­nately, (I con­fess that I remain Pres­i­dent Obama’s friend and sup­porter even as I haven’t always under­stood how he simul­ta­ne­ously embraces faith and dis­tances him­self from it), the Pres­i­dent is espe­cially wrong if he thinks ignor­ing the plight of Notre Dame and other Catholic employ­ers who self-insure, (and hence can­not take advan­tage of the loop­hole the pres­i­den­tial team devel­oped to calm the uproar among Catholic employ­ers gen­er­ally) will be over­looked in November.

All was avoidable.  That’s right, it was wholly unnec­es­sary for Pres­i­dent Obama to com­plete his admirable health care ini­tia­tive by dis­re­gard­ing the doc­tri­nal or insti­tu­tional teach­ing of the Catholic church, that is being defended, how­ever hyper­bol­i­cally, by the bish­ops, or the moral con­cerns of those indi­vid­ual Catholics — whether or not in a minor­ity (minori­ties being the usual sub­ject of human rights) — who still see or accept the teach­ing that arti­fi­cial means of con­tra­cep­tion degrades the mar­i­tal estate.

First, while there is some unclar­ity in the law’s appli­ca­tion, the gen­eral con­tours of the law are clear.  The Reli­gious Free­dom Restora­tion Act (RFRA) requires the Pres­i­dent and Con­gress to exempt wher­ever the prac­tice of reli­gion is sub­stan­tially bur­dened by fed­eral statute or reg­u­la­tion, there are less bur­den­some ways to accom­plish the fed­eral law’s objec­tive, and there is no com­pelling inter­est that over­whelms the reli­gious objection.

The Supreme Court sel­dom inquires, except in patently fraud­u­lent claims, into whether a reli­gious believer (or belief) is or is not sub­stan­tially bur­dened by a fed­eral requirement.  Catholic the­olo­gians can debate what does and does not make one morally com­plicit in another person’s immoral behav­ior until the prover­bial cows come home (or maybe Jesuit­i­cally dance with angels on the head of a pin), but for legal pur­poses, it will almost cer­tainly be stip­u­lated that employ­ers giv­ing out con­tra­cep­tion are morally com­plicit if the for­mal the­o­log­i­cal think­ing of the Church sug­gests that like­li­hood, which it does.

Sec­ond, there were, and remain, innu­mer­able ways for the Pres­i­dent to orches­trate the dis­tri­b­u­tion of free con­tra­cep­tives, so the chances of a court accept­ing the com­pul­sion of the morally unwill­ing as the least restric­tive means to accom­plish pub­lic pol­icy is vir­tu­ally refuted by statement.

Third, whether or not a sim­i­lar, even iden­ti­cally worded, reli­gious exemp­tion exists in other states means very lit­tle when resolv­ing  whether the exemp­tion is constitutional.  The Pres­i­dent is too smart a lawyer to accept the “everybody’s doing it” jus­ti­fi­ca­tion.  The exemp­tion, as Arch­bishop Wuerl of Wash­ing­ton D.C. has high­lighted, is pre­sump­tu­ous and far too narrow.  One would think requir­ing social ser­vice providers to only serve peo­ple of their own faith or to only employ peo­ple of the same faith would chal­lenge the very nature of faith at the core of Barack Obama’s community-centric, social jus­tice persona.

An exemp­tion that exempts reli­gion only where it is litur­gi­cally incul­cat­ing the faith is not the Barack Obama of 2006 who told the sojourn­ers of a far broader and far more impor­tant under­stand­ing of faith, both in his own life and in the har­ness­ing of gov­ern­ment for good. The Barack Obama of 2006 would not have accepted the crabbed under­stand­ing of reli­gion that dwells in the HHS man­date.  Here, it is best to recall his splen­did words directly:

You need to come to church in the first place pre­cisely because you are first of this world, not apart from it. You need to embrace Christ pre­cisely because you have sins to wash away — because you are human and need an ally in this dif­fi­cult journey.

It was because of these new­found under­stand­ings that I was finally able to … affirm my Chris­t­ian faith. It came about as a choice, and not an epiphany. …

That’s a path that has been shared by mil­lions upon mil­lions of Amer­i­cans – evan­gel­i­cals, Catholics, Protes­tants, Jews and Mus­lims alike; some since birth, oth­ers at cer­tain turn­ing points in their lives. It is not some­thing they set apart from the rest of their beliefs and val­ues. In fact, it is often what dri­ves their beliefs and their values.

And that is why that, if we truly hope to speak to peo­ple where they’re at – to com­mu­ni­cate our hopes and val­ues in a way that’s rel­e­vant to their own – then as pro­gres­sives, we can­not aban­don the field of reli­gious discourse.

Because when we ignore the debate about what it means to be a good Chris­t­ian or Mus­lim or Jew; when we dis­cuss reli­gion only in the neg­a­tive sense of where or how it should not be prac­ticed, rather than in the pos­i­tive sense of what it tells us about our oblig­a­tions towards one another; when we shy away from reli­gious venues and reli­gious broad­casts because we assume that we will be unwel­come – oth­ers will fill the vac­uum, those with the most insu­lar views of faith, or those who cyn­i­cally use reli­gion to jus­tify par­ti­san ends.

In other words, if we don’t reach out to evan­gel­i­cal Chris­tians and other reli­gious Amer­i­cans and tell them what we stand for, then the Jerry Fal­wells and Pat Robert­sons and Alan Keye­ses will con­tinue to hold sway.

More fun­da­men­tally, the dis­com­fort of some pro­gres­sives with any hint of reli­gion has often pre­vented us from effec­tively address­ing issues in moral terms. Some of the prob­lem here is rhetor­i­cal – if we scrub lan­guage of all reli­gious con­tent, we for­feit the imagery and ter­mi­nol­ogy through which mil­lions of Amer­i­cans under­stand both their per­sonal moral­ity and social jus­tice. Imag­ine Lincoln’s Sec­ond Inau­gural Address with­out ref­er­ence to “the judg­ments of the Lord.” Or King’s I Have a Dream speech with­out ref­er­ences to “all of God’s chil­dren.” Their sum­mon­ing of a higher truth helped inspire what had seemed impos­si­ble, and move the nation to embrace a com­mon destiny.

Our fail­ure as pro­gres­sives to tap into the moral under­pin­nings of the nation is not just rhetor­i­cal, though. Our fear of get­ting “preachy” may also lead us to dis­count the role that val­ues and cul­ture play in some of our most urgent social problems.

After all, the prob­lems of poverty and racism, the unin­sured and the unem­ployed, are not sim­ply tech­ni­cal prob­lems in search of the per­fect ten point plan. They are rooted in both soci­etal indif­fer­ence and indi­vid­ual cal­lous­ness – in the imper­fec­tions of man.

What explains Obama, then, v. Obama, now?

In this instance, it is most likely dis­agree­ment with the Church’s con­tra­cep­tive teach­ing which seems so fright­fully mis­taken and anachro­nis­tic, even on respect for life terms.  But unless a reli­gious prac­tice is tan­gi­bly and directly endan­ger­ing of the life or health of another, or den­i­grat­ing in ways that cut deeply against uni­ver­sal norms (such as Bob Jones University’s per­pet­u­a­tion of racial sep­a­ra­tion some years ago while it still enjoyed tax benefits),  it is not the president’s place to use reli­gious exemp­tion as an affir­ma­tion or dis­sent from the under­ly­ing doctrine.

In any event, dis­agree­ment with the under­ly­ing doc­trine should not be used to col­lat­er­ally “pun­ish” the Church — yet, this is what the con­stricted exemp­tion effec­tively does.  Bluntly, the exemp­tion is unmind­ful of what many pro­gres­sive the­olo­gians and many of us reg­u­lar folk just sit­ting in the pews admire: namely, that our Church is a con­tin­u­a­tion of what Christ would do if He still walked among us: extend His love and under­stand­ing and its mod­ern tan­gi­ble equiv­a­lents through com­mend­able social ser­vice to all in need.  Why exactly does the Pres­i­dent find it appro­pri­ate to defend the stan­dard given to him by His HHS Sec­re­tary which stands his favorite pas­sage from Matthew 25 on its head?  In 2008, can­di­date Obama told Rick War­ren that the great­est moral fail­ing of the nation was  not abid­ing by “that basic pre­cept in Matthew that what­ever you do for the least of my broth­ers, you do for me, and that notion of — that basic prin­ci­ple applies to poverty. It applies to racism and sex­ism. It applies to, you know, not hav­ing — not think­ing about pro­vid­ing lad­ders of oppor­tu­nity for peo­ple to get into the mid­dle class. There’s a per­va­sive sense, I think, that this coun­try, as wealthy and pow­er­ful as we are, still don’t spend enough time think­ing about the least of us.”

Finally, while the Pres­i­dent may or may not be ashamed to have been sued by Notre Dame after being hon­ored by the flag­ship of Catholic Uni­ver­si­ties in the United States, he should be.  In his com­mence­ment address, Obama promised dia­logue not direc­tives; he reaf­firmed rights of con­science, not coercion.   That is not what his final reg­u­la­tions do in this instance.  Both in the gen­eral bur­den the law rep­re­sents, and in the par­tic­u­lar bur­dens placed on his hon­orary alma mater.  The Pres­i­dent ought to rethink mat­ters, with­draw the error, and redraft the exemp­tion to reflect that made avail­able to the enti­ties that are deemed char­i­ta­ble under the gen­eral laws.

Is it in the nature of Amer­i­can pol­i­tics to cor­rect error?  Modernly,  and sadly, No.  Nev­er­the­less,  it remains in all of our natures to act with an ethic of kindness.  To bor­row a favorite phrase of the President’s: “Yes, We Can!”



Douglas W. KmiecAmbas­sador (ret.) Dou­glas W. Kmiec is Caruso Fam­ily Chair and Pro­fes­sor of Con­sti­tu­tional Law & Human Rights, Pep­per­dine Uni­ver­sity. In addi­tion to being an author and syn­di­cated colum­nist, he has been priv­i­leged to serve Demo­c­ra­tic and Repub­li­can pres­i­dents alike. Until recently, upon nom­i­na­tion by Pres­i­dent Obama and con­fir­ma­tion by the Sen­ate, he was U.S. Ambas­sador to the Repub­lic of Malta. Ambas­sador Kmiec had pre­vi­ously served as head of the Office of Legal Coun­sel (U.S. Assis­tant Attor­ney Gen­eral) for Pres­i­dents Ronald Rea­gan and George H.W. Bush, where his opin­ion writ­ing led to the non-discriminatory appli­ca­tion of fed­eral law to those hand­i­capped by AIDS. The Ambassador’s aca­d­e­mic career includes serv­ing as Dean & St. Thomas More Pro­fes­sor of The Catholic Uni­ver­sity of Amer­ica in Wash­ing­ton, D.C. and Pro­fes­sor and Direc­tor of the Cen­ter on Law & Gov­ern­ment at the Uni­ver­sity of Notre Dame, where the Ambas­sador taught for close to two decades. Most recently he has writ­ten a mov­ing book,Lift Up Your Hearts — The True Story of Lov­ing Your Ene­mies; Trag­i­cally Killing One’s Friends, & The Life That Remains,” (Embassy Inter­na­tional 2012).




  1. Santa Barbara says:

    Is this pseudo-Catholic STILL around? He STILL sup­ports Obama?  And he pre­sumes to lec­ture the Bish­ops on how they are charged with pro­tect­ing the exe­cu­tion of the Church’s dogma. A very typ­i­cal Obama sycophant.

  2. Houghtongrandmal says:

    Doug Kmiec, if he had any decency, would hang his head in shame at his role in elect­ing this tyrant.

    Why should and why would any­one lis­ten to any­thing Doug Kmiec has to say?

  3. CatholicDad says:

    The Doug Kmiec who told Catholics it was AOK to vote for Obama? And got an ambas­sador­ship (which he promptly lost through his incom­pe­tence) in return?
    THAT Doug Kmiec?
    He should do penance in sack­cloth and ashes, bare­foot in the snow, for sell­ing out his own Church.

  4. Kz Seea says:

    Amen to the pre­vi­ous 3 comments!

  5. Justin says:

    Great arti­cle.

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