Bishops Defend Legal Strategy

A look at the impact of the bishops' decision to sue the Obama administration on religious-liberty grounds over the health-care mandate.

WASHINGTON — Last September, the U.S. bishops struggled to raise awareness about an “interim final rule” for co-pay-free contraception, approved by the Obama administration in August 2011.
Now, in the wake of 43 Catholic groups filing 12 lawsuits across the nation on May 21, recent polling confirms that the controversial federal rule, approved Jan. 20, has emerged as an election issue. Public opposition has mounted against the controversial rule, while partisan forces and their media allies argue that Catholic leaders are “carrying water” for the GOP.
When Bishop Stephen Blaire of Stockton, Calif., expressed alarm recently about the danger of politicizing the Church’s First Amendment fight, his comments in a small Catholic journal fueled news stories about divisions within the U.S. Conference of Catholic Bishops.
Bishop Blaire later clarified his remarks, stating that he endorsed the legal strategy worked out by the USCCB. But the flurry of headlines prompted by his remarks showed that the bishops’ campaign was under intense scrutiny.
On May 27, The New York Times’s editorial page attacked the decision to approve the 12 lawsuits. “It was a dramatic stunt, full of indignation but built on air,” read the editorial, which concluded that the legal strategy was “a clear partisan play.”
The editorial argued that the federal law “could probably be justified under Supreme Court precedent, including a 1990 opinion by Justice Antonin Scalia” — a reference to a much-discussed Supreme Court ruling broadly viewed as weakening First Amendment rights.
“But that argument does not have to be made in court, because Mr. Obama very publicly backed down from his original position and gave those groups a way around the contraception-coverage requirement,” noted the Times, repeating the administration’s assertion that its Feb. 10 “accommodation” effectively addressed the concerns of objecting religious groups.
During a May 24 address at a high-level conference on religious freedom in Washington that drew constitutional scholars, religious leaders, legislators and activists, Archbishop William Lori of Baltimore, the chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty, defended the bishops’ decision to approve the 12 lawsuits.
Archbishop Lori noted that the lawsuits marked a necessary, if unwelcome, phase in the U.S. bishops’ effort to address an “unprecedented” threat to the free exercise of Catholic institutions. In other words, the lawsuits were not frivolous, but a last resort.
Throughout 2010 and 2011, he noted, the USCCB pursued a parallel strategy of influencing the Obama administration’s health-care policies and promoting legislative remedies to broaden conscience rights. 
During that period, the conference sought to counter a campaign to include contraception and abortion-inducing drugs in mandated “preventive services” for women under the new health bill.
“Despite these numerous opportunities to avoid the train wreck, on Feb. 10, HHS finalized the August regulations ‘without change,’ closing the door on any chance of removing the offending items from the mandate or expanding the exemption,” stated Archbishop Lori, making the point that the bishops’ conference sought to head off the church-state contest well ahead of the presidential election.
Bishop Salvatore Cordileone of Oakland, Calif., a speaker at the Washington conference, summarized the judgment of most bishops when he told the Register, “I don’t think we can bank on getting concessions from the Obama administration, though we can hope.”

‘Bizarre Turn’
While some bishops have focused on the HHS mandate’s narrow religious exemption, which does not shield Catholic hospitals, universities and social-service agencies, Archbishop Lori stressed that the fight was also about resisting unlawful government coercion.
“In a bizarre turn, those same advocates accuse the Church of somehow forcing its beliefs on others through the law, when the exact opposite is true,” he said.
The “strange inversion” of this dispute, he suggested, reflected a shift in cultural values.
This confusion, he added, “underscores the depth of the problem we face and points to the long-term remedy for it, which is teaching about religious freedom.”
Most speakers at the May 24 conference, hosted by the Ethics and Public Policy Center, a Washington-based research center, shared Archbishop Lori’s harsh judgment of the HHS mandate.
But one speaker, William Galston of the Brookings Institution, a former advisor to President Bill Clinton, expressed skepticism about the need for passionate rhetoric and legal challenges.
“The Church, in my judgment, is not conducting a ‘war on women,’ and the Obama administration is not conducting a war on religion,” Galston told the conference audience.
In the United States, he added, “There is no guarantee that the requirements of religion and faith will be fully compatible” with democratic society.
Galston’s remarks underscored the uncertain outcome for the 12 lawsuits filed May 21.
Constitutional scholars report that U.S. federal courts are notoriously fickle in their rulings on First Amendment cases, and experts predict that the 1993 Religious Freedom Restoration Act will provide a better standard for the plaintiffs in the lawsuits.
And while conference speakers like Robert George of Princeton University and Hannah Smith of the Becket Fund for Religious Liberty provided a compelling framework for evaluating threats to religious freedom at home and abroad, Archbishop Lori acknowledged that Catholic leaders must continue to advance their case in the public square. A Knights of Columbus-Marist Poll, conducted in mid-May, found that just 50% of respondents knew about the HHS mandate fight, though 74% of those polled believed that freedom of religion should be protected, even if it conflicted with other laws.
The coordinated lawsuits filed against the federal government were accompanied by a parallel media strategy that defended the need for the legal challenge on television news shows and op-ed pages — though some television networks ignored the story.
“With this week’s lawsuits, the bishops join a growing army of other plaintiffs around the country, Catholic and non-Catholic, who are asking the courts to repel an unprecedented governmental assault on the ability of religious persons and groups to practice their religion without being forced to violate their deepest moral convictions,” explained Harvard law professor Mary Ann Glendon in a May 21 column in The Wall Street Journal.
The White House issued a statement soon after the lawsuits were announced, asserting that it did not want a legal fight with religious groups and that dialogue with Catholic leaders would continue.
Yet in a reminder that Church leaders navigated a treacherous landscape during an election year, Catholic leaders were soon under fire to explain why there were “divisions” within the bishops’ conference.
Just two days after the lawsuits were filed, Washington Post columnist E.J. Dionne, a self-identified “progressive Catholic,” challenged the appearance of a united Catholic front.
“There is a healthy struggle brewing among the nation’s Roman Catholic bishops. A previously silent group, upset over conservative colleagues defining the Church’s public posture and eagerly picking fights with President Barack Obama, has had enough,” Dionne asserted, citing as evidence Bishop Blaire’s published interview with America, the Jesuit magazine, that expressed concern about the politicization of the Church’s stance on the HHS mandate. Dionne also found it “significant” that “the vast majority of the nation’s 195 dioceses did not go to court.”

Frivolous Lawsuits?
Dionne’s remarks prompted another round of media stories speculating that “ultraconservative Catholic leaders” were filing frivolous lawsuits.
However, in an interview with the Register, Edward Dolejsi, executive director of the California Catholic Conference, strongly disputed the suggestion that some California bishops were opposed to the plan.
“Just because a diocese is not in the lawsuit doesn’t mean they are not supportive. If you look at the list of plaintiffs, there is a strategy in a variety of media markets with a variety of plaintiffs,” said Dolejsi.
“The California bishops remain committed to the strategy laid out by the USCCB administrative board,” he stated.
Bishop Blaire subsequently issued a statement endorsing the USCCB legal strategy.
Cardinal Donald Wuerl of Washington, a member of the bishops’ Ad Hoc Committee for Religious Liberty, jumped into the debate, defending the USCCB’s plans and vouching for the bishops’ unity on the issue.
During a May 27 interview on Fox News, Cardinal Wuerl dismissed the suggestion that the absence of some dioceses in the nationwide legal action signaled their opposition to the conference’s strategy and noted that landmark legal challenges involved a single plaintiff.
The cardinal expressed frustration with the Church’s critics, who argue that the bishops’ conference should continue to negotiate with the Obama administration rather than turn to the courts.
“Last time the government said we are going to hear from you, 200,000 suggestions went in, and not one of them was accepted,” he recalled, in a reference to the Department of Health and Human Services’ request for comments in the wake of the “interim final rule” approved in August.
Last fall, at the direction of their local bishop or state Catholic conference, Catholics throughout the nation registered their opposition to the mandate, flooding the agency’s email system.

Obama Losing Support
The May 27 Times editorial expressed doubt that the bishops would win their case in court.
“The First Amendment also does not exempt religious entities or individuals claiming a sincere religious objection from neutral laws of general applicability, a category the new contraception rule plainly fits.”
The Times noted the Supreme Court’s 1990 ruling in which Justice Antonin Scalia concluded that “the professed doctrines of religious belief superior to the law of the land” would mean allowing “every citizen to become a law unto himself.”
In 1993, Congress sought to broaden religious exemptions and conscience protections with the Religious Freedom Restoration Act, which directed government agencies not to “substantially burden a person’s exercise of religion” without a compelling state interest. And, when necessary, government should adopt the least restrictive means of securing that compelling interest.
The Times asserted that the HHS mandate, “by promoting women’s health and autonomy,” met the standard of the 1993 law.
Yet the headlines prompted by the May 21 lawsuits underscore the potential danger for Obama as he continues to defend the constitutionality of the HHS mandate.
In April, a Pew Research Center poll reported that support for the president among non-Hispanic Catholics had dropped from 45% in March to 37% in April in key swing states like Ohio and Pennsylvania.
Subsequent polls have confirmed this trend. And two days after the 12 lawsuits were filed in courts across the country, Obama expressed his support for Catholic institutions at two fundraisers.
“My first job as a community organizer was with Catholic churches, [which] taught me the power of kindness and commitment to others in neighborhoods,” he declared at a Hollywood event on May 23.
Yet Bishop Blaire’s recent comments in America, about the danger of politicizing the mandate fight, hinted at simmering fears that a legitimate religious-freedom battle could be hijacked by Republican forces during an election year, with unpredictable consequences.
“I think there are different groups that are trying to co-opt this and make it into a political issue, and that’s why we need to have a deeper discussion as bishops,” he said.
Cardinal Timothy Dolan, president of the bishops’ conference, and Archbishop Lori have acknowledged the difficulty of clarifying the Church’s immediate goals amid partisan spin and ongoing public confusion about the issues at stake. They have announced plans for a fortnight of prayer for freedom, ending on July 4, an initiative that underscores the spiritual foundation of religious liberty and is designed, no doubt, to help inoculate their crusade against uninvited special interests.
But Church leaders also have depended on their Capitol Hill allies to support this First Amendment fight, and so must balance fears of politicization with the practical reality of effecting change in a democracy.  Thus, at the May 24 conference, Archbishop Lori expressed an unapologetic commitment to the strategy worked out by the USCCB leadership, in consultation with top legal scholars and other experts.
“Although fighting the tide of secularism in general and current threats to religious liberty in particular can seem like a daunting task,” he said, “we know that with God all things are possible; and we know that prayer is the ultimate source of our strength in this fight.”

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