Notre Dame Law Professor on the Mandate and Martyrdom
University of Notre Dame Law School Professor Gerard Bradley sees ”institutional martyrdom” ahead for his employer and the other Catholic institutions suing the government over the HHS contraceptive mandate–even if the mandate itself is ruled unconstitutional.
What do the University of Notre Dame, EWTN, and the Archdiocese of New York have in common?
More than you probably think. Each is a Catholic institution, of course. Each is also suing the Obama Administration over the HHS “contraception” mandate. Each is going to be spared the Hobson’s choice between complying with the mandate and betraying its mission if any one of four possible scenarios comes to pass. Each nonetheless continues to stand in grave peril of institutional martyrdom.
The Catholic institutions will be spared an immediate Hobson’s choice if the Supreme Court rules the Patient Protection and Affordable Care Act is unconstitutional, the Obama administration fares badly in the religious liberty lawsuits, the Obama administration softens its approach, or Mitt Romney is elected president.
Even if one of these scenarios comes to pass, however, Bradley says that the “day of reckoning” on the issue of religious liberty will merely be postponed, not averted.
The ideological commitments that have emboldened the Obama administration about contraception are deeply held. They are held to be very important. They are resilient. They are not limited to the reproductive rights supposedly protected by access to contraception, even when contraception is broadly defined to include abortifacient drugs. These deep convictions about liberty and equality and religion entail trouble for religious liberty, no matter which exit route the present mandate takes.
Although the Obama administration clearly has embraced certain ideological commitments that make it hostile to Church teachings on contraception and abortion, such ideas are not peculiar to it. These ideas are widely held in our our society. Indeed, these attitudes will still be held and promoted by powerful segments of the population, no matter what happens in November.
This far into the Age of Aquarius, no more needs to be said about the meaning and seductive appeal of “equal sexual liberty.” It is the emerging public orthodoxy about where sexual satisfaction, expression, and identity fit into the good life, and about the government’s responsibilities to establish conditions that make this life achievable for all with ease. This orthodoxy commands the cultural heights and has achieved ascendancy in the academy. We are in the midst of a high-stakes fight over its grip on our law. The outcome of this battle is in doubt.
It is easy to see already that “equal sexual liberty” is a natural predator of Catholic institutions, which are standing contradictions of almost all that the new orthodoxy proposes. What is not so apparent, however, is why the new orthodoxy has so totally eclipsed considerations of conscience, tolerance, and liberty in the thinking of self-identifying liberals such as Barack Obama. It is scarcely surprising that he and other like-minded officials are beguiled by “equal sexual liberty.” It is nonetheless curious that they should so remorselessly subordinate religious liberty to the new ideological colossus. One would think that our cherished “first freedom” would have a bit more staying power.
One of the reasons the idea of freedom of religion just isn’t that important to adherents to the new orthodoxy is that they don’t see religion as having anything to do with objective truth:
It is natural, and right, to say that the HHS mandate undermines religious liberty. But it is important to add that this argument about religious liberty is more about the adjective than it is the noun. It is chiefly an argument about whether religion is about reality, truth, the way the cosmos is really structured, or whether it is about the byways of an individual’s psyche.