Last week, Gary Caruso argued that "religious institutions need to adjust in a way that casts off ancient and outdated traditions whose time to end is upon us." Caruso was questioning University President Fr. John Jenkins' recent petition to the U.S. Secretary of Health and Human Services (HHS) that the definition of "religious employer" in the pending health care regulations be expanded so that the University will not be required to issue contraceptive services in future health insurance packages.
I believe arguments like Caruso's overlook the significance of the Framers' decision to include in the First Amendment the guarantee that Congress will neither make laws "respecting an establishment of religion, or prohibiting the free exercise thereof." The Framers could have written that "Congress shall make no law prohibiting the flying of kites." Instead, they chose to focus on religion. They felt there was something special about religion — as opposed to kite flying — that made it worth mentioning in the Constitution.
The Founding Fathers believed it would be wrong for Congress to impose a national religion. At the same time, by using the word "exercise," they codified their consensus that it would be wrong for Congress to unduly prevent people from practicing their religious beliefs, even if those beliefs are considered by some (or, indeed, the majority) to be "ancient and outdated."
In recent years, the U.S. Supreme Court has agreed that protecting religion is a national imperative. The Court has ruled, for instance, that a person cannot be forced to serve in a war that conflicts with his religious beliefs, and that the government cannot compel Amish children to go to school past the eighth grade.
Plainly stated, the regulations issued by HHS prevent Notre Dame from exercising its Catholic mission. They would require the University to dispense artificial birth control, in direct contradiction of Catholic moral theology, which would likely prompt Notre Dame to withdraw from providing health insurance to students and employees — something that can hardly be said to be promoting of the dignity of the human person.
Taken together, this all means that it is wrong to suggest that Jenkins is misguided in requesting an exemption from the pending law. For as our courts have held, in a situation like this, it is the government — not religion — that should do the "adjusting" out of respect for our constitutional commitment to preserving the right of individuals and institutions to freely carry out their sincerely held religious beliefs.
Michael Wester
law student
Morrissey Manor
Sept. 30
