In a recent e-mail, Notre Dame Law Professor and Mirror of Justice blogger Rick Garnett made some points about the university’s recent lawsuit against the H.H.S. mandate. In a post yesterday I referred to Grant Gallicho’s analysis at DotCommonweal about the scope of the religious exemption already offered. Grant believes it is more generous than most of the administration’s critics realize.
Garnett is not as confident that Catholic elementary schools and social welfare agencies are, as Grant argues, shoe-ins for a religious exemption from the mandate and argues that it is not clear that the relevant language would treat even a diocese as a religious employer.
He writes: “I think it is entirely reasonable for these plaintiffs to read the relevant text and conclude that they cannot be confident that they would be covered," points spelled out in greater detail in the briefs filed on May 21.
In any event, Garnett argues that the exemption remains “simply too narrow” and despite non-binding assurances in H.H.S. documents, he worries that its language could spread throughout the federal “regulatory regime in a way damaging to religious freedom." He adds, “The way regulations are written involves a whole lot of cribbing and borrowing, and there’s no reason to have any confidence that a future regulator, in a different context, won’t decide that the narrow exception would work well in her bailiwick, too."
The "four-pronged" definition of a "religious employer" who is exempt from providing contraception coverage is taken word-for-word from a California law passed in 1999 and a New Yrk law passed later. It was not invented by HHS.
Does Professor Garnett know of any diocese in California or New York that has been denied exempt status in the past 13 years? Or any church?
But two things are abundantly clear. First, the Administration has offered various potential solutions to try to address what is the stated concern, for Church related institutions to have to directly pay or otherwise facilitate contraception coverage. Second, this doesn't seem to be the actual endgame for the Bishops. Though they expressed their concern in terms of religious liberty and not having to pay for services they find morally objectionable, they don't seem interested in any way to actually separate out that provision. In the "Taco Bell" exception, they've indicated they want the mandate for contraception coverage per se removed, so that no employer, religious or otherwise, ever has to provide it.
Finally, I will confess I do trust the current Administration, or any future administration of any party within the conceivable political zeitgeist, to not send shock troops in arresting Bishops and martyring them. That's just not going to happen, and concerns that being compelled to work through a third-party administrator or some other legal separation mechanism such that the employees of Catholic institution have contraceptive coverage, while separating out any direct link of behalf of the Church related employer, will invariably lead to martyring of the faithful in an attack on the Church in general, is just a bizarre chain of stacked inferences