If not rendered moot by the Supreme Court's decision on Obamacare, the battery of lawsuits filed yesterday by Catholic institutions around the country could very well prevail, so far as this non-lawyer can see. Given a Supreme Court ideologically weighted the way it currently is, there are plenty of openings for a decision in favor of the plaintiffs.
This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.
As the complaint itself makes clear, there are far narrower grounds for the courts to grant Notre Dame and other like institutions an exemption from the contraception mandate, including (for example) that contraception is readily and cheaply available to those that want it. Consider, by contrast, the Jehovah's Witnesses opposition to blood transfusions. That is no less powerfully held a religious conviction than the Roman Catholic opposition to contraception. But not being covered for blood transfusions in a life-threatening situation is a far more dire circumstance--one where courts might well find coverage a compelling state interest to require a JW-affiated organization to cover blood transfusions for non-JWs in its employ.
Moreover, we have long had criteria for determining whether an institution is not "sufficiently religious" to warrant an exemption from otherwise applicable laws. A couple of decades ago I was involved in writing about an elite secondary school in Atlanta whose leadership had become fundamentalist, although it was not church-affiliated nor especially dedicated to providing religious instruction to its students. Indeed, it remained eager to get the most Ivy League-bound students possible, even as it subjected all employees to a Christian litmus test.
When a young Jewish woman was denied employment as a secretary after being asked whether she believed in the Trinity and answering in the negative, she threatened to file suit on the grounds of religious discrimination in hiring. Recognizing that it did not measure up as a sufficiently religious institution to be exempt from anti-discrimination employment law, the school changed its policy.
Do we want to allow any educational institution that wishes the right to be exempt from any and all laws that it claims are contrary to its religious principles? I don't think so. Is it impossible to differentiate institutions that are more and less religious for purposes of permitting exemptions? Of course not. The Obama administration may or may not be found to have drawn the line in a constitutionally acceptable way. But the hyperbolic rhetoric of Jenkins et al. is beyond the pale of their own court filings.