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Bureaucrats at the Gate

As Belmont Abbey College discovered, the religious freedom of universities is under attack by government officials using radical interpretations of regulations.

By Jay Schalin

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September 08, 2009

Every American schoolchild is taught (or used to be taught) about how the Pilgrims faced unknown dangers and created the first permanent English settlement on our shores in order to worship in their own way and express their own beliefs freely. It is perhaps impossible to overestimate the importance of this concept of freedom of religion (and of other beliefs) to the American consciousness.

Yet we may be entering a period when religious beliefs that have endured for millennia can be denied for superficial reasons with the stroke of a bureaucrat’s pen.

One incident that threatens some very basic beliefs of a long-established religion is occurring at Belmont Abbey College near Charlotte, North Carolina. It is also one of the latest instances of what David French, a senior legal counsel at the Alliance Defense Fund, says is an emerging battle of “freedom of conscience issues in health care. ” In this battle, health care providers and professionals clash with the government over their right to refuse to perform procedures that conflict with their religious convictions.

Belmont Abbey was founded as a Benedictine monastery. Today it is also a Catholic undergraduate college with an approximate enrollment of 1,300 students. In 2007, an administrative review of its health insurance policy for employees revealed that the school paid for abortions, sterilization, and prescription contraceptives. The Catholic prohibition of these procedures was affirmed in 1968 by an encyclical by Pope Paul VI entitled “Humanae Vitae” (“Of Human Life”).

Belmont Abbey’s president, Bill Thierfelder, changed the policy to avoid these obvious contradictions with Catholic beliefs. But eight employees objected, complaining first to the state of North Carolina and, when that failed, to the federal Equal Employment Opportunity Commission (EEOC). They were more successful with the federals. The district director of the EEOC, Reuben Daniels, spelled out the rather suspect logic of its decision against the college in a letter dated July 30, 2009:

“By denying prescriptive contraceptive drugs, Respondent is discriminating based on gender because only females take oral prescriptive contraceptives. By denying coverage, men are not affected, only women.”

It is a decision remarkable for its expansive definition of discrimination—the school did not deny employment or promotion to anybody, there was no harassment, and nobody’s behavior was constrained in any way. The school was only choosing not to subsidize a practice it finds abhorrent—employees were free to practice contraception (or abortion or sterilization) without recrimination. They simply had to pay for such things out of their own pockets.

“We’re not saying you have to believe what we believe. We’re just not subsidizing something we don’t believe in,” Thierfelder explained in an interview.

“I was struck by the extreme sense of entitlement that a couple of these employees had, “ said French in a phone interview, “—that their quest for sexual autonomy somehow trumps the organization’s right to live out its Catholic mission, that their sexual autonomy is so important that it must even be subsidized.”

More troubling is the EEOC’s readiness to comply with their wishes. French noted that Daniels’ letter barely touched on any constitutional considerations. “You come to expect that there will be cranks and people who demand to have everything they want given to them,” he said. “But for the government to latch onto that mindset without even a cursory examination of the constitutional liberties involved is disconcerting.”

French, cited a 2006 Weekly Standard article by Maggie Gallagher to show how deep the rift is between the traditional religious community and its secular supporters and their opposition. Chai Feldblum, a Georgetown law professor who specializes in discrimination law (primarily involving gays), and who is highly sought after as a mainstream expert in such issues, said in Gallagher’s article that “when religious liberty and sexual liberty conflict,” she had “a hard time coming up with any case in which religious liberty should win.”

“It is a very radical notion that all other values in our culture must be subordinate to a very radical notion of sexual autonomy,” said French. And yet, the Georgetown professor’s thinking appears to be representative of much of the government

Because of its stance on contraceptives and other controversial issues like gay marriage, the Catholic Church has often been forced into a defensive position against the attack on religious freedom. For instance, the Wisconsin legislature recently mandated, through a provision in the state budget, that all providers of health care insurance—including Catholic schools and churches—must include coverage of contraceptives. (This was quickly denounced by the state’s bishops.) And Gallagher’s piece featured a Catholic adoption agency that closed its doors rather than place children with same-sex couples, which it was required to do in order to retain its state license after same-sex marriage was legalized in Massachusetts.

“It is a very threatening environment for Catholics right now,” Niall O’Donnell, a spokesman for Christendom College in Front Royal, Virginia, told the Pope Center. “It can be a lose-lose situation—standing up for your beliefs and maintaining your Catholic integrity. Catholic integrity is not very popular with the government.”

But standing up for the Catholic faith is exactly the course Thierfelder and Belmont Abbey are taking. Thierfelder said that, upon receiving notification of the EEOC’s ruling, the school sent a formal response defending the school’s case, asking the federal agency to reconsider. “I really do hope they’ll look at our argument and change the ruling,” he added.

If not, Thierfelder said the EEOC would very likely attempt to have some sort of reconciliation process designed to “get us to take an action that in their minds would satisfy the discrimination. Of course, there’s not going to be any way to do that if they want us to subsidize contraceptives.”

If reconciliation fails, the EEOC will then likely sue Belmont Abbey to enforce a policy change. Thierfelder remains adamant. He has repeatedly said that the school will not subsidize contraceptives under any circumstance and has stated that the school would shut its doors before doing so.

This issue cuts to the core of Catholic teaching about life. Not only is contraception forbidden by the Church, but Thierfelder said that some types of chemical contraceptives actually perform a sort of abortion. The drugs prevent a fertilized egg from attaching to the wall of the uterus so that it dies. “There is conception [in this situation]. Our faith believes that life begins at conception.” And life, according to the “Humanae Vitae,” is sacred.

Thierfelder also pondered whether, if the EEOC can force the school to cover contraceptives, it will later attempt to enforce coverage of abortion and sterilization procedures as well.

Michael Barnett, the director of leadership development for the American Life League, a Catholic pro-life organization, raised the question, in an interview, whether there is a larger political intent behind the Belmont Abbey case. He suggested that it might be a signal to Catholic schools who are considering taking the same stance toward contraceptive and other sexual autonomy issues: “Don’t even think about becoming more authentically Catholic, or this is the sort of pressure you will face.”

The Belmont Abbey case might have immediate implications for other small Catholic and religious colleges with a traditional bent. Christendom College’s O’Donnell said that his school’s policy has not yet provided coverage for contraceptives. But very recently, the school’s longstanding insurance provider “embedded” such coverage into the school’s health plan, without offering any explanation for the action. He said the school has voiced its complaint to the insurance company and hopes to have some resolution by October when the new plan takes effect.

At Franciscan University in Steubenville, Ohio, David Schmiesing is the vice president of Student Life. In a phone conversation, he initially indicated that, since Ohio has no state law like North Carolina’s that mandates coverage of contraceptives in all employee health plans, he felt the school was safe from government intrusion in the matter. (North Carolina’s law provides an exemption for religious organizations. Belmont Abbey qualified for such an exemption, which is why the complainants had to turn to the federal EEOC.)

Schmiesing also said, that even with such a law, Franciscan would easily qualify for the religious exemption because it has a more overtly Catholic workforce and student body than Belmont Abbey. However, upon hearing that Belmont Abbey had indeed qualified for the state exemption on the grounds that it was primarily a religious institution, and yet it was actually declared in violation of the federal Title VII (of the 1964 Civil Rights Act) workplace discrimination statutes, Schmiesing changed his view. “That is something we should be very concerned about,” he said.

French said that religious schools can try to insulate themselves from government intrusion in some matters by becoming more religious. For instance, many schools insist that faculty and other staff attend the church the school is affiliated with as a condition of employment.

A handful of colleges have also attempted to limit the government’s ability to interfere with their operations by not taking state or federal money, and by not participating in government financial aid programs.

Yet neither of these tactics would help Belmont Abbey in its conflict with the EEOC. Belmont had a state exemption on religious grounds, and French said of the attempt to limit intrusion by rejecting government aid, “I often hear that these colleges just need to stop taking state funding. Well, that doesn’t relieve you of all state regulations.”

French also warned that if the “EEOC steamrolled over the college here in the absence of sweeping national health care reform, think how much worse it will be if we had a national health reform plan that said, ‘all health insurance must include the following elements.’”

At Belmont Abbey, Thierfelder has essentially drawn a line on the ground and said, “beyond this point we will not yield.” He said he has the support of both the school’s trustees and the “members of the college”—the monks who are the school’s true governing body. He also said that he has received encouragement from thousands of people all over the country who realize the importance of Belmont Abbey’s stand, including many non-Catholics.

“This isn’t about just Belmont Abbey,” he explained. “This is about religious liberty."

 


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