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The government’s not-so-insensible “conscience clause”

Gary Caruso | Friday, September 30, 2011

This week, Notre Dame president, Rev. John I. Jenkins, C.S.C., publicly commented on the Obama administration’s proposed health regulations governing women’s preventive services. In a letter to Health and Human Services Secretary Kathleen Sebelius — “the daughter of a distinguished Notre Dame alumnus and faculty member,” as Jenkins noted to strengthen his case — Jenkins referred to President Obama’s 2009 commencement address at Notre Dame. While speaking about abortion rights at that time, the president spoke of his agreement with Jenkins for “a sensible conscience clause” exempting religious institutions that oppose abortion procedures from such mandates. Unfortunately, Jenkins now muddies the issue with an attempt to equate contraception with abortion.

At the heart of Jenkins’ objection is the definition of a “religious employer.” Jenkins prefers to use a broad “church plan” financial-based IRS definition that purposely encompasses the widest latitude in separating church-state conflicts. This view is exactly the approach the bishops in Illinois are using in court to challenge the state equality clause that requires Catholic services to place foster children in households with same-sex partners. Regardless, such a view on social issues always conflicts with a democracy’s equality doctrines.

To the dismay of Jenkins — and more specifically the Catholic Church’s hierarchy — the HHS definition is a narrow one defining religious employers as organizations that “primarily serve persons who share its religious tenets.” However, the federal government is correctly proceeding with just that approach.

For Notre Dame to primarily serve those who share its religious tenets, both in academic content and national entertainment value, the university would need to become a seminary. The university would at that point need not offer alternative theological views. It would not need to invite pro-choice advocates like President Obama or former New York Governor Mario Cuomo to speak openly about their pro-choice constituencies to whom they are accountable. It most certainly would be a closed, narrowly teaching institution rather than one that pursues open discourse.

Women’s preventive health services — more specifically, that politically charged “c” word — is not, and does not deserve to be classified with abortion services. Yet religious hardliners view contraception as vile as abortion. How preventing A from uniting with B to create C equals D, “death,” is a stretch when considered within the public health arena. It puzzles liberal Catholics when mentioned in the same breath with the AIDs epidemic in Africa and the Catholic Church’s gradual softening of its stance. It mystifies Domers who recall hardliners cleansing their own board of trustees when a trustee was seemingly forced to resign this past summer merely because she supported a “known” pro-choice organization. Such actions move Notre Dame towards seminary status and away from an open university.

The Catholic Church holds a mix of opposing positions as doctrine that filters down to its learning institutions. Some Catholic universities recognize gay students while others do not. Some offer co-ed dormitories while others dare not. Notre Dame at one time never thought to become co-ed until society almost passed it by. While these are the more silly of contradictions, other dogma is not.

American bishops are eager to deny communion to Catholic elected officials who represent their majority pro-choice constituencies rather than the Pope, as John Kennedy loudly proclaimed his independence from the Church in 1960 to assuage fears of electing a Catholic puppet president. Yet those same bishops turn a silent blind eye on death through execution when, for example, Virginia Governor Bob McDonnell (ND-’76) executed a woman with a 72 IQ. In the end, McDonnell solely held that woman’s life in his hands, but puffed his macho bravado through the execution rather than choose life. Therefore, it is easy for church leaders to conveniently lump their perceived seriousness of contraception with that of abortion. Such dichotomies, however, push Catholics to move away from the church.

Jenkins’ eloquent plea to Sebelius is an attribute to the quality education Notre Dame offers its students. His rhetorical cadence makes for a compelling argument, although his content may not stand on its merits. But in the end, whenever the various social mores of all religious thought are considered, democratically free societies must treat everyone equally.

That may be a hard pill to swallow, especially when some overact; for example, using logic like their public freedoms to keep “Christ” in Christmas over others’ freedoms to ignore Christ in favor of Moses. The Illinois constitution’s definition of equality of opportunity and the HHS narrow definition of a “religious employer” are the sensible conscience clauses of our time. Religious institutions need to adjust in a way that casts off ancient and outdated traditions whose time to end is upon us.

Gary Caruso, Notre Dame ‘73, serves in the Department of Homeland Security and was a legislative and public affairs director in President Clinton’s administration. His column appears every other Friday. He can be contacted at [email protected]

The views expressed in this column are those of the author and not necessarily those of The Observer.