Notre Dame, et al., finally are getting their day in court concerning the Obamacare Contraceptive Mandate. Notre Dame’s case centers on the premise that the government’s compromise in formulating the mandate still leaves religious organizations required to be agents authorizing contraceptive coverage, which violates Notre Dame’s (et al.) religious beliefs.
Two things about this case disturb me. One is the Seventh Circuit’s attitude in hearing the case, as illustrated by this exchange:
Matthew Kairis (representing Notre Dame): The government is requiring Notre Dame to play a role.
Judge Richard Posner: But that role seems so trivial.
The role exists, and it forces the school to violate its fundamental religious tenets. There’s nothing trivial about that.
The other thing is this argument by the government’s attorney, Mark Stern. It’s a slippery slope, Stern claims, threatening the heart of the contraception mandate. This goes along with his distortion of Notre Dame’s position:
It’s not enough that Notre Dame is going to get out of it, they don’t want anyone else to get in.
The first is at the center of the problem with the contraceptive mandate: the mandate forces religious entities and secular entities that try to operate according to their owners’ religious tenets (see, for instance, the Hobby Lobby case) to violate those tenets, and so is a violation of the Establishment Clause. Of course the mandate should be threatened. It should be eliminated.
As to the latter, surely Notre Dame has an opinion on the morality of other organizations providing contraceptives and abortifacients. However, Notre Dame is not presuming to speak for them or about their legal right to provide these things, nor is Notre Dame arguing that health plan providers should be barred from offering coverage that provides these things. Notre Dame and its fellow plaintiffs are merely arguing that they ought not be forced to be parties to the transactions.