Bench Memos

Lawsuits Seek to Vindicate Religious Freedom

Today, a large and diverse group of plaintiffs — including health-care providers, universities and schools, and social-welfare agencies — filed lawsuits in a dozen federal courts, challenging the administration’s rule that requires many religious employers to provide coverage to their employees for sterilization, contraception, and some abortion-causing drugs. These lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act, and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate, a mandate that would impose a serious and unnecessary burden on many religious institutions’ commitments, witness, and mission. The mandate purports to require many religious schools, health-care providers, and social-welfare agencies to compromise their institutional character and integrity. In a society that respects and values diversity, as ours does, we should protect and accommodate our distinctively religious institutions, and welcome their contributions to the common good.

I am particularly pleased that my own University, the University of Notre Dame, has filed a suit of its own. The complaint is powerful, and is available here. I am also proud of our University’s president, Fr. John Jenkins, for his eloquent and clear explanation of the University’s decision to proceed with the case. As he put it, this case

is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services. . . . This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions.

For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements.  If that happens, it will be the end of genuinely religious organizations in all but name. 

Fr. Jenkins is right. These lawsuits are not asking the courts to endorse the plaintiffs’ religious views, only to respect and accommodate them. Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values. In a pluralistic society, people will often disagree about values and policies, and it will not always be possible to accommodate those who object in good faith to regulatory requirements. At the same time, a society like ours — with a Constitution and federal religious-freedom protections like ours — will regard it as often both wise and just to accommodate religious believers and institutions by exempting them from requirements that would force them to compromise their integrity. This is such a case.

We Americans do not agree about what religious freedom means, but we have long agreed that it matters, and should be protected through law.

True, there will sometimes be tension and conflict, and trade-offs and compromises. Given our deep-rooted commitment to religious freedom, though, our goal as a community should always be to strike the balance in a way that honors that commitment.


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