Bench Memos

Law & the Courts

The Imaginary Becket Fund Conspiracy

In a beyond-bizarre post for the National Catholic Reporter, Michael Sean Winters faults the Becket Fund for Religious Liberty for supposedly forcing the Little Sisters of the Poor—the Becket Fund’s client in the Tenth Circuit challenge to the HHS mandate accommodation—to adopt a position on illicit material cooperation with evil that Winters imagines to be inconsistent with Catholic teaching. Winters’s claim is bereft of logic or evidence, and his own position on illicit material cooperation with evil appears to be based on a blinkered understanding of the role of the form that the Little Sisters are being required to submit. Specifically:

1. Winters asserts that the Little Sisters “are being used, and used badly,” by the Becket Fund’s “religious liberty campaign.” He wants the American bishops to rescue the Little Sisters from the Becket Fund’s supposedly baleful influence. As he puts it, “last time I checked, it was the bishops, not the Becket Fund, who are charged with passing on the deposit of faith according to the teachings of the Second Vatican Council.”

Winters is evidently unaware that the American bishops are taking exactly the same position on moral complicity as the Little Sisters in various lawsuits around the country—lawsuits, incidentally, in which they are not being represented by the Becket Fund. That fact rather undermines his evidence-free claim that the Becket Fund is responsible for the Little Sisters’ position on moral theology.

2. I’ll leave the dispute over moral theology to the moral theologians.* But I will note that Winters’s account understates the nature of the complicity that is alleged to be coerced. As the certiorari petition filed by the Becket Fund on behalf of Houston Baptist University puts it (emphasis added):

These cases are not about whether the government can force religious employers to execute a “bit of paperwork.” … Rather, they are about whether the government may force religious employers, contrary to their religious convictions, to comply with a mandate to provide contraception coverage to their employees in a way that is “seamless” and ultimately involves the provision of contraceptive coverage via the religious employers’ own plans.

Indeed, the Obama administration’s newly released final rule on the accommodation makes clear that it will distribute the contraceptives from within the Little Sisters’ “insurance coverage network” and use their plan’s “claims administration infrastructure” to distribute the contraceptives and make payments.

*Addendum: A reader calls to my attention that 67 Catholic theologians and ethicists filed an amicus brief in the Tenth Circuit supporting the Little Sisters’ understanding of Catholic moral theology.​ And so did the U.S. Conference of Catholic Bishops.


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