Cardinal Dolan Issues Letter Hinting at Legal Challenge

NEWS ANALYSIS: Church recalibrates after negotiations with White House stall and Blunt Amendment is defeated in the Senate.

(photo: EWTN News)

WASHINGTON — Cardinal Timothy of New York, the president of the U.S. Conference of Catholic Bishops, issued a letter to his brother bishops today, reporting that negotiations between the conference and the White House had “stalled” and that he was exploring legal remedies to address the First Amendment threat posed by the contraception mandate approved by the Obama administration.

“[O]ur bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro bono. In the upcoming days, you will hear much more about this encouraging and welcome development,” wrote Cardinal Dolan.

If the conference decides to sue, it will be joining several other entities who have brought legal action against the federal government, including the Eternal Word Television Network (EWTN) and Belmont Abbey College, both represented by the Becket Fund for Religious LIberty, a public interest group.

The Register is a service of EWTN.

Cardinal Dolan’s letter reported that the legal strategy would be addressed “at our upcoming administrative board meeting and our June Plenary Assembly, when we will have the chance to discuss together these important issues and our way forward in addressing them.”

Today’s letter marks an escalation in a church-state dispute that has now become a hot-button election-year issue, entangling the bishops’ conference — and Cardinal Dolan — in a deeply partisan battle.

Yesterday, March 1, Democrats in the Senate defeated the Respect for Rights of Conscience Act (S. 1467), designed to provide broad exemptions for employers and insurance carriers that objected to coverage of specific services on religious or moral grounds.

Yet Church leaders and their allies contend that the 51-48 vote in the Senate to table the bill only confirms the need for more effective outreach to the faithful and the general public — even as they continue to pursue other legislative and legal remedies.

“We will not rest until the protection of conscience rights is restored and the First Amendment is returned to its place of respect in the Bill of Rights,” said Bishop William Lori of Bridgeport, Conn. Bishop Lori chairs the Ad Hoc Committee on Religious Liberty of the USCCB.

In a statement issued after the vote, Bishop Lori expressed his gratitude to the bill’s chief sponsor, Sen. Roy Blunt, R-Mo., and the 47 other senators who backed the bill.

“We will build on this base of support as we pursue legislation in the House of Representatives, urge the administration to change its course on this issue, and explore our legal rights under the Constitution and the Religious Freedom Restoration Act,” said Bishop Lori.

After the defeat of the Blunt Amendment, House Speaker John Boehner vowed to find a legislative solution. But even if such a measure passed in the Senate, few expect that it could survive a presidential veto.

Downward Spiral

Cardinal Dolan’s March 2 letter echoes information and themes covered in a March 1 post on his personal blog. But the decision to release a letter may reflect a growing awareness that legislative remedies are unlikely to effectively address the threat posed by the HHS mandate.

Cardinal Dolan’s letter reviewed the events of the past weeks that have marked a downward spiral of relations between the USCCB and the White House, from Secretary Sebelius’ Jan 20 approval of the new rule t to President Obama’s Feb. 10 announcement of an accommodation. The adjustment, in which insurance companies, rather than employers, would be responsible for the total cost of abortifacients, contraceptives and sterilizations, was roundly rejected by the bishops and many other groups.

“At a recent meeting between staff of the bishops’ conference and the White House staff, our staff members asked directly whether the broader concerns of religious freedom — that is, revisiting the straight-jacketing mandates, or broadening the maligned exemption — are all off the table. They were informed that they are,” wrote Cardinal Dolan.

The White House, the cardinal reported, “advised the bishops’ conference that we should listen to the ‘enlightened’ voices of accommodation, such as the recent, hardly surprising yet terribly unfortunate editorial in America. The White House seems to think we bishops simply do not know or understand Catholic teaching and so, taking a cue from its own definition of religious freedom, now has nominated its own handpicked official Catholic teachers,” wrote Cardinal Dolan.

The cardinal referred directly to an editorial in America magazine, a Jesuit journal, that criticized the USCCB’s stance and recommended acceptance of the accommodation.

Meanwhile,  public statements issued by Sister Carol Keehan, the president and CEO of the Catholic Health Association, appeared to endorse the president’s accommodation. The White House and the Democratic leadership have repeatedly noted the lack of unity among Catholics on this issue, casting doubt on the validity of the bishops’ ongoing objections to the mandate.

In his letter, Cardinal Dolan said the conference would “continue to accept invitations to meet with and to voice our concerns to anyone of any party. … But as we do so, we cannot rely on off-the-record promises of fixes without deadlines and without assurances of proposals that will concretely address the concerns in a manner that does not conflict with our principles and teaching.”

He told his brother bishops that they should “prepare for tough times,” but that the nation’s legacy of religious freedom was worth defending.

Educating the Faithful

Cardinal Dolan’s apparent decision to explore legal action will likely galvanize his allies on Capitol Hill, the academy and in the pews. But a future legal challenge is likely to parallel a stepped-up communications effort to deepen public awareness regarding the issues at stake.

Such a campaign will be fought at every level, from the nation’s pulpits to newspaper editorial pages to the campaign trail. This month, for example, Evangelicals and Catholics Together, an ecumenical initiative established by Father Richard John Neuhaus and Charles Colson, published a statement about religious freedom in the March issue of First Things. The U.S. bishops have reached out to evangelicals, but there is growing awareness that a great deal more must be done to educate the faithful and collaborate with a range of religious and political allies.

Robert George, the prominent Catholic author, public intellectual and McCormick Professor of Jurisprudence at Princeton University, suggested one plan for accelerating the bishops’ campaign against the HHS contraception mandate.

On the run after giving the keynote address at a March 1 conference sponsored by the Berkley Center Religious Freedom Project at Georgetown University, George paused to outline his idea. He proposed that a videotape should be produced and distributed throughout the nation that featured both Cardinal Dolan and a constitutional scholar outlining the threat posed by the HHS mandate.

George said his plan was based on Cardinal Dolan’s original request that every Catholic pastor in the United States read a letter explaining the Church’s objections to the mandate. Most dioceses complied with that request, reportedly prodding Obama to produce his accommodation.

The Princeton scholar was among hundreds of academics and other prominent Catholics that signed a statement attacking both the original HHS mandate and the president’s accommodation.

“The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust.  Under the new rule, the government still coerces religious institutions and individuals to purchase insurance policies that include the very same services,” said a portion of the “Unacceptable” statement, marking the Feb. 10 “accommodation.”

No doubt, the USCCB will review a host of proposals designed to fuel a more intensive engagement with ordinary Catholics and other Americans sympathetic to religious-freedom concerns. But the path ahead poses significant difficulties for the conference.

Over the past five weeks,  Cardinal Dolan and Bishop Lori have struggled to get their message out to the public. As the bishops and their allies have sought to clarify their objections to the accommodation, they have been ambushed by an intensely partisan campaign that characterized the bishops’ stance as an attempt to bar access to contraception, rather than a defense of religious freedom.

Two recent House hearings, scheduled on Feb. 16 and Feb. 28, were supposed to frame the HHS mandate’s threat to First Amendment rights, but also featured rhetorical attacks on the Church leaders’ true motives.

Partisan spin marked the March 1 vote on the Respect for Rights of Conscience Act. Rep. Nancy Pelosi, D-Calif., described the bill as “the latest ploy in the Republican agenda of disrespecting the health of American women,” and Planned Parenthood charged that the proposed bill would permit a woman’s boss to dictate what prescriptions she could obtain.

A March 2 editorial in The Wall Street Journal noted the distortions contained in Pelosi’ rhetoric. “It sounds medieval. But, in fact, the provision that the Senate tabled yesterday would merely have restored the status quo ante of one month ago. Those were the dark ages before the Obama administration overturned traditional conscience protections with its birth-control insurance mandate under the Affordable Care Act,” wrote the Journal.

That said, the Journal’s editorial suggested that the partisan obfuscation should give opponents of the mandate cause for hope: “The fact that Democrats don’t dare to accurately describe their own positions, or the regulations that they want to foist on everyone else, shows how extreme those positions and regulations really are.”

On Saturday, March 3, Cardinal Dolan also urged Catholics to take action: “It is a freedom-of-religion battle. It is not about contraception. It is not about women’s health. We’re talking about an unwarranted, unprecedented, radical intrusion” on “a church’s ability to teach, serve and sanctify on its own.”

Register senior editor Joan Frawley Desmond writes from Chevy Chase, Maryland.