Bench Memos

‘It Goes without Saying’?

Friday the 13th was an unlucky day for the Obama administration. That afternoon Brooklyn federal judge Brian Cogan enjoined enforcement of the HHS “contraception” mandate against a host of Catholic entities in the New York area, including the Archdiocese of New York as well as Cardinal Spellman and Monsignor Farrell High Schools. Judge Cogan’s opinion is generally well-reasoned and reaches the right result. But in it he adopted a passage from an earlier superb and correct opinion by Judge Diane Sykes (Korte v. Sebelius) for the Seventh Circuit, also enjoining enforcement of the HHS mandate.

Here is that passage, as quoted by Judge Cogan after noting that the burden upon the New York Catholic institutions was not that the law allows their employees to receive and use free contraception: “It goes without saying that [plaintiffs] may neither inquire about nor interfere with the private choices of their employees on these subjects.”

But this is surely mistaken. For it is surely at least arguable that the Catholic Church — say, the Archdiocese of New York — may “inquire” of employees whether they affirm and live according to the moral truths which the Church affirms and lives by. Take abortion, for example. Does it “go without question” that a Catholic parish school may not “inquire” of a prospective principal or religion teacher whether he or she affirms that killing one’s unborn baby is simply wrong? Does “it go without saying” that Cardinal Dolan may not “interfere” with the “private choice” of his own pastoral staff by making clear to each of them that they their continued employment as his teachers of doctrine depends upon their setting a proper moral example — and that having an abortion would be inconsistent with that example?

Indeed, abortion is just one of many “private choices” that Judge Cogan’s assertion would evidently reach. Take your pick of additional examples. Here is mine: Is it so obviously unarguable that a Catholic high school could not discharge a male theology teacher who abandoned wife and children to marry his boyfriend?

In truth, I think that in all these cases (and more) “it goes without saying” that these Catholic employers could both “inquire about ” and “interfere” with all these “private choices.” In truth, the Supreme Court made that pretty clear in the Hosanna-Tabor case.

Now, none of this is a criticism of Judge Sykes. Her case involved two for-profit companies, albeit family-run outfits with strong (as it happens) Catholic identities. But for Judge Cogan to mindlessly (I hope) apply it to the Catholic Church is surely mistaken.

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