Notre Dame v. Obama and the Compulsion of the Morally Unwilling

By Douglas W. Kmiec –

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.

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!”

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Ambassador (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).