These days, good news about religious liberty is hard to come by. So although they are minor accomplishments relative to the Health and Human Services (HHS) contraceptive mandate looming over Catholic institutions, two recent wins in Congress and the New Hampshire state legislature offer glimmers of hope to a church under siege.
Last week, New Hampshire’s House of Representatives voted to exempt religious employers from the state’s 12-year-old insurance law mandating contraceptive coverage. The bill, championed by House Speaker William O’Brien (a Catholic Republican), now goes to the Republican-controlled Senate.
If the Obama administration’s federal mandate is allowed to stand, the New Hampshire bill could be largely symbolic. Even if approved by the state Senate, Gov. John Lynch, a Democrat, seems inclined to veto it. The New Hampshire Civil Liberties Union - no champion of civil rights for the church - has said it will sue to block the law.
But every such fight only highlights for Americans the many threats to Catholic employers beyond the HHS mandate, like the 28 states that already have contraceptive mandates, many without adequate exemptions for religious groups.
For faithful Catholics, it’s pleasantly surreal to see so many of the laity and bishops standing strongly in defense of the church - especially when the particular concern relates to contraception, a matter on which so many Catholics dissent.
The New Hampshire law is not so broad as the HHS mandate. It requires that prescription contraceptives be covered by employee insurance if other prescription drugs are covered.
Nevertheless, it is a problem for faithful institutions like the College of Saint Mary Magdalen in Warner, N.H. The college’s president, George Harne, testified before the state House last month in support of the bill to protect religious employers.
“The state of New Hampshire is interfering with our ability to be fully Catholic and violating our religious freedom,” Mr. Harne said plainly.
William Fahey, president of the nearby Thomas More College of the Liberal Arts, told the National Catholic Register that he has been seeking ways around the state law. By next month, the college will be in a self-insured plan with other small Catholic organizations, thereby escaping state regulation but still under the HHS mandate should it survive.
In fact, religious colleges like Magdalen and Thomas More have many more concerns than the HHS mandate. Even if that problem disappears, the federal Equal Employment Opportunity Commission has not overturned its 2009 ruling that Belmont Abbey College in North Carolina violated federal nondiscrimination law by refusing to provide insurance for contraceptives. Last year, the National Labor Relations Board declared two Catholic colleges ineligible for religious exemption from labor law; the colleges may have to seek relief in federal court.
But one additional federal threat to Catholic colleges may be going away, thanks to another victory in the U.S. House on Feb. 28. The decisive 303-114 vote was to overturn a Department of Education regulation that could cripple religious colleges. The bill now goes to the Senate.
Whether it’s the direct lending program, which largely removed student aid from the private sector, or stringent oversight of independent accrediting agencies, the Obama administration has been engaged in a dangerous power grab for control of higher education.
That’s the intent behind the Education Department’s 2010 regulation forcing states to monitor colleges that are granted state charters as a condition for college participation in federal student aid programs.
But such scrutiny opens to the door to politicization of the state chartering process, and that is a danger for religious colleges, given the proclivity in recent years of state governments to trample on the rights of religious institutions. One can imagine the interference of state legislators and regulators who oppose creationism or other religious principles in the classroom, insist upon employee benefits for homosexual partners, or demand compliance with state and federal insurance mandates.
Although the Higher Education Act has long required state authorization for a college to participate in federal aid programs, many states have not aggressively monitored colleges and the Department of Education generally assumed state approval of a college unless problems were reported. But the Obama administration’s regulation now requires state approval of colleges “by name” and a state process “to review and appropriately act on” complaints about any approved institution.
When issuing the regulation, the Education Department acknowledged that it had received complaints from college leaders that “a State’s role may extend into defining, for example, curriculum, teaching methods, subject matter content, faculty qualifications, and learning outcomes.” Others feared that states might “impose homogeneity upon institutions that would compromise their unique missions.”
In response, federal officials simply agreed that the new regulation does “not limit a State’s oversight of institutions.”
It seems that the Obama administration perceives few limits on government power over higher education - whether at the state or the federal level - even when the First Amendment rights of religious colleges are threatened.
Meanwhile, though, we can take comfort in small victories. With every struggle, the plight of religious organizations becomes more apparent, and that in itself is an important step toward restoring respect for religious freedom in America.
Patrick J. Reilly is president of the Cardinal Newman Society, which works to renew and strengthen Catholic identity in Catholic higher education.