This article was first published in the Chronicle of Higher Education on June 3, 2012.
A Matter of Faith and Freedom
By John Garvey
A wonderful story in the second book of Maccabees describes the martyrdom of the old scribe Eleazar. It occurred during the Hellenizing campaign of Antiochus Epiphanes. He forced the Jews "to forsake the laws of their fathers and cease to live by the laws of God." Eleazar was ordered on pain of death to eat pork. He refused.
The men in charge of the sacrifice, who had known him for a long time, took him aside and offered to spare him if he would just eat something that looked like pork. "Such pretense is not worthy of our time of life," he said, "lest many of the young should suppose that Eleazar in his 90th year has gone over to an alien religion[.]" And so they killed him.
This is a story about religious freedom, and it has two points. The first is that we should put our duty to obey God's laws above our obligation to the state. (And it is cruel on the state's part to force people to commit sinful acts.) The second is that, quite apart from our own failure in forsaking God's laws, we do an additional wrong in leading the young to believe that this is acceptable.
I have found myself thinking a lot about Eleazar in the past few months, as we have looked for a way to escape the dilemma the Department of Health and Human Services has posed for The Catholic University of America with its mandated-services regulation. The regulation orders the university, in its student and employee health-insurance plans, to cover surgical sterilization, prescription contraceptives, and drugs that cause early-stage abortions at no added cost to the subscribers. If we fail to do this, we will have to pay a fine of $2,000 per full-time employee, or roughly $2.6-million per year.
The Catholic Church believes that married couples should be open to the possibility of new life, and that artificial interventions to prevent or terminate pregnancy are wrong. News coverage of the dispute has observed that many members of the church dissent from this teaching. Many of the Hellenized Jews in Judea went along with Antiochus's decrees, too. That division of opinion did not make the treatment of Eleazar any more liberal.
Like Eleazar, our university has been ordered by the government to do something it views as morally wrong. America, unlike the Seleucid Empire, has traditionally taken a tolerant view toward folks in that predicament. When West Virginia ordered the children of Jehovah's Witnesses to salute the flag (an act they viewed as sinful), the Supreme Court said, "If there is any fixed star in our constitutional constellation, it is that no official ... can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Like Eleazar, we are not concerned only about the uprightness of our own behavior. We are worried that we will do an additional wrong by leading our students to believe that the actions the Department of Health and Human Services seeks to promote are acceptable. Our mission, as a Catholic university, is to see that our students grow in wisdom, age, and grace during their time here. We teach that virtues like chastity, fidelity, and respect for life are not just ideas worth debating in philosophy class, but also ideals worth living. Compliance with the government's mandated-services regulation would make that a lesson in hypocrisy.
It is always preferable to work out conflicts like this in the political arena, but that option does not seem promising. After the regulation became final, in February, the Senate narrowly rejected an amendment that would have provided an opt-out for employers with moral objections.
In March the department published something it called an advance notice of proposed rule making, suggesting that after three months of discussion it would propose some adjustments. But if any such proposal resembles the solution outlined in the March notice, it will offer little relief. Meanwhile, the mandated-services rule is effective in its current form, and we will be obliged to comply with it in health-insurance contracts we must begin negotiating in a few months.
In the hope that we can avoid that unpalatable course, we have filed suit to block the rule. We were joined in this suit by the University of Notre Dame, the Franciscan University of Steubenville, and the University of Saint Francis (among some 40 other Catholic institutions). At stake are the religious rights of more than 200 Catholic colleges and universities nationwide.
Under a genuine accommodation, the government could attain its goals while respecting fully the constitutionally protected rights of our universities to remain true to our founding missions: the development of intellect and the inculcation of virtue. Barring that, we feel compelled to seek relief from the courts.
John Garvey is president of The Catholic University of America and a former dean of Boston College Law School. He is a co-author of “Religion and the Constitution.”