ND Expert: Religious liberty lawsuit to 'vindicate constitutional commitments'

Author: Shannon Roddel


Today, the University of Notre Dame, along with a diverse group of universities and schools, health care providers and social welfare agencies, filed federal lawsuits challenging the Obama administration’s rule that requires many religious employers to provide coverage to their employees for sterilization, contraception and some abortion-causing drugs.

The lawsuits are efforts to “vindicate the country’s constitutional and traditional commitments to religious freedom and pluralism,” according to University of Notre Dame Law Professor Richard W. Garnett, whose teaching and scholarly research focus on constitutional law and religious freedom matters.

“These latest lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate,” says Garnett, a past clerk to former Supreme Court Chief Justice William H. Rehnquist. “This mandate imposes a serious and unnecessary burden on many religious institutions’ commitments, witness and mission. It purports to require many religious schools, health care providers and social welfare agencies to compromise their institutional character and integrity. In a society that respects and values diversity, as ours does, we should protect and accommodate our distinctively religious institutions and welcome their contributions to the common good.”

Garnett emphasizes the lawsuits do not challenge or object to the broad goals of the Affordable Care Act and do not seek to limit any employee’s access to the drugs and procedures in question.

“These lawsuits are not asking the courts to endorse the plaintiffs’ religious views, only to respect and accommodate them,” he says. “Religious institutions are not seeking to control what their employees buy, use or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission and values.

“In a pluralistic society, people will often disagree about values and policies,” Garnett says, “And it will not always be possible to accommodate those who object in good faith to regulatory requirements. At the same time, a society like ours — with a Constitution and federal religious-freedom protections like ours — will often regard it as both wise and just to accommodate religious believers and institutions by exempting them from requirements that would force them to compromise their integrity. This is such a case. We Americans do not agree about what religious freedom means, but we have long agreed that it matters and should be protected through law. True, there will sometimes be tension and conflict, and trade-offs and compromises. Given our deep-rooted commitment to religious freedom, though, our goal as a community should always be to strike the balance in a way that honors that commitment.”

Contact: Richard W. Garnett, 574-631-6981, rgarnett@nd.edu