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Compliance Questions

The following column was published in the Irish Rover on Thursday, March 20, 2014. 

On February 12, the Seventh Circuit Court of Appeals held an oral argument in Notre Dame’s case against the HHS mandate. Among the more surprising moments was Judge Posner’s question to Notre Dame attorney Matthew Kairis, asking whether the use of birth control was a mortal or a venial sin. Even more surprising was the admission of ignorance by Kairis, a graduate of Notre Dame’s Program of Liberal Studies, followed by Judge Posner’s answer that it is a mortal sin.

Among the more difficult questions for the legal profession is the way in which its moral perspective is to interact with those of its clients. Robert Vischer has written that legal theorists tend “to steer clear of any explicitly extralegal conceptions of morality, opting instead to focus on client autonomy, client loyalty, political legitimacy, and justice understood as legal merit.” He argues that embedded in this focus, however, is an implicit morality that has at times exacerbated clients’ problems, rather than relieved them.

During the clergy abuse crisis, Vischer writes, “reliance on lawyers contributed to the Church’s utter failure to exercise its duties of pastoral care.” The legal profession’s aggressive posture, focus upon minimizing settlements, resistance to transparency, and frequent recasting of victims as responsible for their own injuries, often precluded the Church from truly acting as the Church. Rather, the pastoral morality of Christianity was supplanted by the adversarial morality of the legal profession. When Oklahoma governor Frank Keating resigned as head of a commission investigating the crisis, he said that the bishops had “turned to their lawyers when they should have looked into their hearts.”

This is not to suggest that the Church should disregard legal precautions and considerations. Rather, as U.S. District Judge Patrick Schiltz has pointed out, the Church’s lawyers “must always consider the impact of their actions not just on the verdict… but also on the ability of the church to conduct its ministry after the lawsuit ends.

For the first time in its more than 170-year history, the University of Notre Dame is offering contraceptives in its healthcare plans. In the midst of ongoing litigation, the University has decided—temporarily, it hopes—to comply with the federal requirement. Otherwise, the University risks fines of roughly $250 million per year. This compliance is surprising to some, especially given the University’s claim that it cannot comply “without violating its sincerely held religious beliefs.”

The compliance raises important questions regarding the present nature of this claim. The University has done what it claims it cannot do, so we are faced with two alternatives: either the University has chosen to act inconsistently with its beliefs, or it has discovered a previously unarticulated and acceptable mode of compliance. We ought not disregard the possibility of the latter. Undoubtedly, the University has sought excellent legal counsel, and it has continued to seek remedy against the mandate in the courts. For legal purposes, it’s quite likely that the University can comply and still maintain its religious objection. Compliance is not necessarily legal capitulation.

Thus, the University’s objection is likely to still stand legally. For legal purposes, Notre Dame can comply while being consistent with its convictions. This does not guarantee that compliance will allow for consistency in other realms, however. We ought not be fooled into believing, like the Church’s attorneys during the clergy abuse crisis, that legal considerations should provide the primary framework for our actions. Quite the contrary: Notre Dame’s philosophical and theological commitments must dictate the framework of its legal proceedings.

Of course, some have already made the kinds of arguments the University needs in order to comply while maintaining its mission. In a petition against Notre Dame’s lawsuit, many students and professors have argued that the “doctrine of double effect allows as morally permissible actions which are not intrinsically wrong, even if they have foreseen harmful effects.” Unfortunately, these petitioners have overlooked section 2370 of the Catechism, which states that any action seeking “to render procreation impossible is intrinsically evil.” Still, these are the kinds of arguments the University needs, even if this particular argument is fatally flawed.

The University cannot pretend that its actions are acceptable simply because they are legally consistent; rather, they must be philosophically and theologically consistent with its mission in order to be legally permissible. Notre Dame’s argument against the HHS Mandate is that the regulation is unjust to religious institutions. If we take seriously Martin Luther King Jr. and St. Augustine’s belief that “an unjust law is no law at all,” then we ought to take seriously our ability and perhaps duty to refuse compliance. Absent certain extralegal justifications, both the University and its attorneys have failed their duties to Notre Dame, to the Church, and to justice. Such a justification may exist, and I hope the university and its attorneys have found it. If they have, I’m curious to know what it is.

Christopher Damian graduated from Notre Dame with a B.A. in philosophy and is currently pursuing a J.D. and an M.A. in Catholic Studies at the University of St. Thomas. He blogs

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