The Broader Significance of Notre Dame v. Sebelius

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. Notre 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.

Getting 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.