The Broader Significance of Notre Dame v. Sebelius

Richard Posner

Richard Posner

Current litigation pitting the religious conscience against Obamacare is obviously of interest to those who follow such things from a purely legal perspective. But it can be more than that – it can provide the opportunity for people of faith to ponder how they are to live among others who do not share that faith.  The latest decision (released yesterday) invites us to consider how much separation we should or must have from those things we find objectionable.

Consider the latest scenario in the United States Court of Appeals: Notre Dame is exempt from having to provide contraceptives.  But in order to claim that exemption the institution must complete a form that substantially says

I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.

Notre Dame is required to give copies of the signed form to its health insurance company and the plan’s administrator. EBSA 700Notre Dame objects to this on religious grounds by asserting that, by supplying copies of this form, they are “the cause” of the provision of contraceptives. But in Notre Dame v. Sebelius Judge Richard Posner replies “not so.”

Another way to describe the central issue is whether Notre Dame serves as a “trigger” to the procurement of contraceptives by filling out the form and mailing it. Posner sets forth several reasons why they do not.  To Posner, a more substantial cause is the legal obligation:

The delivery of a copy of the form to [the administrator] reminds it of an obligation that the law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it.

If there’s any joke intended by next using the Quakers to determine if Notre Dame is a “trigger” to contraceptive use, Posner never lets on.  In any case, he asks us to consider the hypothetical of a Quaker who is given exemption from military service, only to raise a religious objection that, because someone else must be drafted in his place, his religion is burdened by the mere existence of a draft.  Posner’s illustration is not entirely analogous to Notre Dame because of the paperwork, but presumably Posner would counter this objection by suggesting that even if the required paperwork is a burden, it is not a substantial burden.

Moreover, Posner points out that, even if Notre Dame were to refuse to sign the form and mail it, its employees and students would still have the right under the law to procure contraceptives through its insurer and administrator.

Generally addressing litigation like that of Notre Dame and Little Sisters , Posner sounds a bit flummoxed:

What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths.

On the one hand, individual conscience is not to be slighted. On the other hand, there are numerous religious faiths, and to accommodate them all according to their necessarily subjective consciences makes it difficult to have laws of general application. Such is the predicament of courts in this latest wave of litigation.

For case-specific reasons, it is not of great significance that Notre Dame lost this battle. More significant is whether subsequent judicial decisions will view these cases by assuming that religious objectors are burdened just because they say they are, or whether courts will analyze the relationship of legal obligations to the alleged religious burden to determine if the religious burdens are objectively substantial.

Roman coinGetting back to how we are to live in a pluralistic society, there are historic models to consider.  If we go back to New Testament times, there is the model of the Pharisees, with barriers constructed between them and the loathsome Gentiles.  Clearly that was not the model of the New Testament Christians.  Christians are not “of the world” but are called to live “in the world.”  There is a presumption that Christians are to even obey “Caesar” unless that obedience is entails disobedience to God. Does a person sin or cause sin if he sells a wedding cake for a gay marriage? For that question as well as the questions raised by Obamacare requirements, the form of Posner’s analysis is likely more helpful than jumping on any bandwagon.


Filed under Church and State, Courts, Culture Wars, Ethics, Free exercise of religion

30 responses to “The Broader Significance of Notre Dame v. Sebelius

  1. Richard

    Not good enough, MLM. How do you expect to increase your mailing list and bring in financial contributors if you write we should be reading some liberal judge’s analysis instead of screaming “The sky is falling?” You give us some pretty thin gruel here. I need to go back to read the Family Research Council’s stuff for excitement, like this:

  2. Richard, I like my blog the way I like my church: small. That way the riff raff go elsewhere.

    OK, now I’ll do that bandwagon reading you’ve linked.

    • Well Richard, the Pharisees believed in separation from sinners, the Pharisees were in the Bible, ergo separation is biblical.

      This reminds me of when Ross Perot was in the Republican primaries. Some voted for him with a “stick it to the parties” attitude but they figured he wouldn’t win. When he started doing well, they thought twice and he quickly became a footnote. Well, I wonder how many people supported this as a symbol to solidify their bases all the while figuring it would never make it through. The governor cannot be happy having that on her desk.

      • Richard

        No, I bet she isn’t. She is actually a devout memeber of the LCMS I hear–maybe the good old Lutheran sensibilities will kick in. Pray for us down here–some of us in authority in the churches are having to fend off the young bucks who eat this stuff up as they go to “war,” and then wonder why their elders aren’t egging them on.

      • Can you give me a sense of the demographics in Arizona? Which Arizonans drive this kind of thing? Any predominant denominations? Evangelicals in general? Rural folk?

  3. Richard

    Cultural conservatives drive this. AZ is still very much Goldwater country. There are pockets of areas that are liberal–maybe around Tucson, but this is still pretty conservative–I’m seen as a liberal in my church, which I’m not, but that’s the way things are; yes, there is a large rural area too which feeds off immigration issues and border security and which goes off the deep end. The cultural conservatives make much of “God” in campaign literature, but I’m not seeing any particular denomination. Mormon churches are big here–Senator Flake is LDS. Libertarianism is big–one of my fellow officers loved carrying his concealed into establishments which told him not to.

    • A blanket exemption from commerce with gays is over the top and it does strike me as the attitude of Pharisees toward Gentiles. Having said that I understand the offense of having to directly facilitate a gay wedding in some respect. I just don’t see how an exemption is granted on a legal basis without a chaotic picking and choosing. Maybe this gets clearer over time.

  4. Richard

    Yes, a blanket exemption is over the top. I understand the offense of “directly facilitating” a gay wedding, but culture warriors like Mohler talk about “endorsing” a gay marriage as being an issue. These are pretty slippery terms. In the meantime, with all the fighting, the Gospel gets lost.

  5. Richard, re the Mohler piece, it’s interesting how warriors like Mohler claim the civil rights movement for the pro-life cause (a link that always leaves me scratching my head) yet ding the gay rights movement (where the link seems a little more sensical even if not complete).

    And he didn’t seem to quite close on the counter-point to Powers.

    Their article also perpetuates another major error — that the wedding of a man and a woman under sinful circumstances is tantamount to the wedding of a same-sex couple. In their words, “This makes sure to put just one kind of ‘unbiblical’ marriage in a special category.” But a same-sex marriage is not “just one kind” of an unbiblical marriage — it is believed by conservative Christians to be no marriage at all.

    But neither is an adulterous marriage, as in a woman who no-fault divorces her husband and marries another man. And what about Christians who marry non-Christians? But where are the pastry and floral dissenters (and their advocates) when these folks wants their services? Charges of hypocrisy are indeed overplayed anymore, just like claims of addiction. But I don’t see how Mohler escapes the charges of selectivity.

  6. Richard

    Affirmative. And we shouldn’t be maintaining any gay trucks, right? Or filling up gas tanks–I mean, think of the sexual connotation to that!

  7. Richard

    Boy, there are some good quotes in the book by Molly Worthen, “Apostles of Reason.” Get this one: “Evangelicals are idealists, yes. They are also pragmatists. They talk so much of “the Christian worldview” because they believe in it-but also because it is a powerful rhetorical strategy. It curtails debate, justifies hard-line politics, and discourages sympathetic voters from entertaining thoughts of moderation or compromise.” Zing!

  8. Philosophical idealism & political rhetoric. Umm, but who’s ever seen that before?

  9. Richard, do a reductio ad absurdum. Go the GA and amend the overture with a entreaty for religious freedom against Obamacare. Then add another amendment for creationism in public schools. Then another one against pornography on the internet. Then you’ll have to throw in another against liberal activist courts. Then, in support, say there’s no reason the PCA can’t take as many positions as the CRC ( and see what kind of reaction you get.

    I also see an overture on child abuse. “Everyone against child abuse say ‘aye’…”

  10. Richard

    I know, I know. It was this wording that caused my blood pressure to spike: “Be it further resolved that Presbytery encourage their Pastors, Elders, Deacons and members to recognize their responsibility to do all in their power to peacefully petition the civil magistrate, that such men and women who practice, approve, or condone homosexuality not be invested with the authority to teach in schools or to use the powers of their vocation to influence our citizens to approve of or practice homosexuality.”
    You really can’t make this stuff up, can you? The polite German word for this is: “unglaublich.” I hope a lawyer didn’t write this.

  11. Richard, that single PCA church making the statement tells us “We affirm that the highest purpose to which woman was created was to bare and nurture the offspring from her marital union in keeping with the God-given mandate to be fruitful and multiply and fill the earth.” I guess it’s only men whose chief end is to glorify God and enjoy him forever. A scan of the church website and the pastor’s Facebook points toward the church being theonomic & patriarchal.

  12. Richard

    Yeah, I have found some theonomic and patriarchal (Vision Forum) elements in our denomination; drives me nuts. I think they meant “bear” by the way, but maybe the male author had something else on his mind. We have to take exceptions to the Confessions as elders if we’re not “6/24 hour” young-earth creationist types, but it’s OK to be theonomists. Go figure.

  13. Richard

    Came across an interesting book in my local library past weekend, by John Compton, a Political Science Prof at Chapman University, “The Evangelical Origins of the Living Constitution.” So far it’s been a fascinating read, with a thesis that 19th century evangelicals, not New Deal reformers, paved the way for judicial tinkering with property rights and issues of federalism. Pretty compelling stuff–another thing for which we can blame the “Second Pretty Good Awakening.”

    • News to me but it makes sense. Revivalists would be concerned with pushing through moral positions regardless of federalism concerns. The Carrie Nations of the world aren’t looking at the long term consequences of how reform is accomplished.

  14. Richard

    The book came out in March. Compton does a bang-up job so far (I’m half way through) of describing how revivalists “came to regard as sinful many activities and forms of property that the Founding generation had tolerated, or even actively promoted.” He deals with lottery and alcohol bans pushed by revivalists and how they were struck down by state courts as violations of property rights–which led them to believe “any hope of national regeneration depended on a turn away from the inflexible property protections and jurisdictional boundaries of Founding-era constitutionalism.” Haven’t got to the chapter on Lochner yet and the tie-in, but makes a whole lot of sense. I suggested an interview to Ken Meyers. Looks like old D.G. Hart is right again.

  15. Richard

    “The Evangelical Origins of the Living Constitution” is turning out to be on the money. Here is a summary:
    I wrote Dr. Compton an appreciative note; turns out he is Presbyterian, to boot.

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