Why should courts take religious freedom more seriously, given that Notre Dame administrators have effectively admitted their conscience claims were unserious?

On occasion, every pundit has to eat her words. It’s pretty rare to have to do this within 20 minutes of publication. But that’s where I found myself last week, after writing an essay in praise of my alma mater, the University of Notre Dame, congratulating her on the courageous decision to discontinue contraceptive sponsorship in university health plans.

I finished the article on Monday, and woke up Wednesday morning to see it in print. Twenty minutes later, I was reading the disheartening news that the school had just reversed course, agreeing to continue contraceptive coverage as before.

For crying out loud, Notre Dame. Can’t you leave us time to pat you on the back before sawing off the branch? Now I know how it feels to be the New York Times.

Notre Dame Jukes on Contraception

According to Paul J. Browne, the university’s vice president of communications, there was no flipping or flopping with this decision. The university made a small factual error, then corrected that misinformation. The tortuous logic behind this requires some explanation.

After the initial release of the contraceptive mandate, the Obama administration worked out an “accommodation” permitting Notre Dame (and other employers with religious objections to contraceptives) to transfer the cost to a third-party provider. Notre Dame had to facilitate the arrangement, however, by filing relevant paperwork.

In a subsequently filed lawsuit, the university argued that this accommodation was inadequate, because the requirement to cooperate with the mandate’s provisions conflicted with its religious mission. It should be noted that the Catechism of the Catholic Church (quoting the papal encyclical Humanae Vitae) deems artificial contraceptives “intrinsically evil.”

Now that the Trump administration has relaxed the relevant requirement, it is within Notre Dame’s power to discontinue the coverage altogether. Alternatively, the school can choose to continue in the status quo that it previously declared unacceptable.

After initially suggesting that it would discontinue the coverage, administrators now claim they simply had no intention of interfering with already established arrangements. They had assumed the third-party providers would discontinue their contraceptive coverage. If they wish to go on providing free contraceptives, that’s their choice.

Does that look like a dodge? It is.

It’s a Rationalization for Capitulation

More explanations will surely be forthcoming, but they’ll easily be seen for what they are: weak rationalizations for near-total capitulation. This is all pretty embarrassing, given that the university has already claimed in court that the accommodation it is now accepting conflicted with its religious mission. Now administrators are implying that they don’t actually care about contraceptives as such; to them the whole fight was just about a formal principle. It doesn’t actually matter if women use contraceptives, or even if the university is needlessly complicit in their provision. All that matters is that the administrative state not be permitted interfere.

Did you hear that Notre Dame had backed down? You misunderstood. They are choosing to continue their contraceptive coverage, which means that this is a win for the university! Religious freedom reins supreme!

In a speech Tuesday night, university President Fr. John Jenkins pressed this angle, arguing it was important for the university to resist the unjust law, lest it “lose its ability to assert those rights in matters that are far more grave from a Catholic perspective.” Could he have found a clearer way to say “The Catholic teaching on contraceptives doesn’t really matter”? That’s a pretty serious insult to those of us who believe and live it.

Even on the level of religious freedom, though, this is a sad conclusion to what could have been an inspiring story. Why should secular courts take religious freedom more seriously in the future, given that Notre Dame administrators have effectively admitted that their conscience claims were unserious? Secularists are already inclined to think that religious teachings are, just in general, an exercise in empty legalism. The Notre Dame administration seems to be working overtime to confirm this view.

Presumably, the real truth is that university officials were conflicted about the best way to handle this hot-button issue. By giving them the freedoms they claimed to want, the Trump administration exposed their bluff and left Notre Dame officials looking like hypocrites. This is not a shake-down-the-thunder moment for the Fighting Irish.

Notre Dame Isn’t a Lost Cause, Though

I don’t want to sugarcoat this conclusion, because it’s frankly disappointing. At the same time, it doesn’t help to stew in bitterness, so I’m opting instead for a pundit pivot. Although I greatly regret being wrong about the university’s “fidelity and courage,” I still think it’s important to appreciate why Notre Dame matters. Hypocrisy notwithstanding, the school is still important, and will surely continue to be a meaningful battleground for hot-button cultural issues.

Many faithful Catholics would scoff at this claim, having already concluded that Notre Dame is a lost cause. I’m still inclined to resist. The university has some egg on its face here, as do I. At the same time, I can think of several other (nominally) Catholic schools that would never consider taking a stand on the contraceptive issue.

The school’s original stand (the one I formerly praised) combined the single most counter-cultural measure in the Catholic Catechism with a political concession from the Trump administration. In the academic world, this is very toxic stuff. From an administrator’s perspective, there was always a lot to lose and little to gain by sticking their necks out over contraceptives.

In retrospect, an up-front capitulation would have been preferable to this failed sortie. (Perhaps Jenkins should have a chat with Vice President Mike Pence about the travails of half-hearted religious-liberty warriors.) Even so, the evidence still points towards some contingent at Notre Dame that wants to fight for the school’s Catholic character. They lost this round, but there were enough of them to make the battle competitive. That’s not something to take for granted nowadays, in the very-liberal world of academe.

The Real Question

Is there still space in American culture for middle ground spaces like the University of Notre Dame that haven’t entirely conformed themselves to the mores of either the cultural right or the cultural left? Or have we become so totally polarized that every organization, institution, or public personality must pick a side?

I found myself reflecting on this last month, when several of my friends and personal acquaintances joined in the National Football League boycott, expressing the hope that their initiative would pressure players and coaches into making an apologetic donation or gesture, thus expiating their sins against the American flag.

Have we become so totally polarized that every organization, institution, or public personality must pick a side?

I found this disturbing. To some of these friends, I posed the question, “Would it bother you if your effort succeeded, at the cost of players being coerced (on pain of unemployment) into an insincere and hypocritical apology? After all, more than a third of Americans say that the protests were good and appropriate, and we should surely consider that at least some of the protestors would agree.”

My friends’ response, in effect, was that the people who approved of the protests probably didn’t, in most instances, watch football. Football is beloved by the sorts of Americans who also revere the flag. In red-state America, standing for the anthem is obligatory, and it’s insulting for the NFL, ESPN, or other sports-related organizations to side with the mainstream media instead of their own fans. No one is entitled to a spot on a pro football team, and those who are lucky enough to work in the industry ought to respect the mores of red-state America (or pay the price).

This argument has some force. But if football “belongs” to the Right, then the Left could surely make the similar claims over the academy, Silicon Valley, or Hollywood. Would the Right be prepared to accept more special-snowflake campus protesters, more Brendan Eichs and James Damores, and perhaps fewer Christian wedding photographers, as the natural price of making football (and other right-leaning cultural bastions) into their safe spaces?

Obviously, liberals could ask themselves similar questions. Is it okay for Colin Kaepernick to be steamrolled, if that allows you to do the same thing to conservative law professors? There’s no formal negotiation table, of course. But civic norms can erode pretty quickly when their defenders all start abandoning the field.

For those of us still hoping to avoid a war of all against all, a university like Notre Dame is still worth watching. For decades, Notre Dame has been a reputable research university; it has also been America’s pre-eminent example of a Catholic university. It is becoming increasingly difficult to retain both ambitions, but there’s much to be gained if it can find a way to thread that needle. Notre Dame could represent the sort of middle ground where people of diverse perspectives can still meet and talk, even in our increasingly polarized society. That will not happen, though, if the Left succeeds in bringing it completely to heel.

Don’t stop fighting, Irish. Although the odds be small, I’m still hoping for a win.