Who Is Notre Dame?

In its lawsuit challenging the federal contraceptive coverage rule, Notre Dame claims to have rights under the Religious Freedom Restoration Act. If Notre Dame is a group of human persons protected by RFRA, who are they?
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In its lawsuit challenging the federal contraceptive coverage rule, which requires most health plans to cover contraception without a co-pay, the University of Notre Dame claims to have rights under the Religious Freedom Restoration Act. RFRA protects "[a] person whose religious exercise has been burdened" by the government. Such a person can seek an exemption from a law the general population must obey if she has a sincere religious belief that will be substantially burdened. The assertion that Notre Dame can sue under RFRA raises the question: Who is Notre Dame?

The claim to RFRA's protections for "persons" would seem to rest on one of two theories: either that the term "person" should be read to include a corporation, or, that the corporation represents as-of-yet unidentified human persons, as when a church sues on behalf of parishioners. Notre Dame's court submissions exhibit confusion on this point, referring to Notre Dame both as having a "conscience" in the singular (suggesting the former), and as having plural "consciences" (suggesting the latter).

Though the Supreme Court held in Citizens United that corporations have some First Amendment speech rights, that does not mean corporations therefore have all the constitutional rights of people. They cannot vote, for instance, though voting is a form of speech. Furthermore, that corporations have particular constitutional rights, does not mean language in a statute protecting "persons" with religious beliefs must now be read to include corporations.

It is not clear how a corporation could even hold a belief. As an academic community whose practices are informed by the Catholic intellectual tradition, and which provides a forum for Catholic scholarship, Notre Dame has a religious character -- but this does not mean that it has "beliefs." A belief is a psychological state of conviction that corporations, not being sentient, cannot experience. Attributing a "belief" to a corporation rather than its constituents would be a substantial redefinition of the term.

Moreover, this understanding of institutional rights would be at odds with the Vatican's own declaration on religious freedom, which states that freedom of conscience has its foundation in the nature of the human person: the rights of religious communities are significant, but derivative -- and they are not to infringe on the rights of individuals.

If instead the theory is that Notre Dame is a group of human persons protected by RFRA, who are they? Are the religious beliefs of a university those of its faculty? Students? Administrators? President? Trustees? The court papers don't tell us.

"We Are ND," is the ever-popular cheer and inclusive slogan of the Fighting Irish, but the lawsuit indicates students and faculty aren't part of the "we" whose religious beliefs constitute Notre Dame's. Scholars across Notre Dame's campus have argued that providing contraceptive coverage in compliance with the law is not barred by Catholic doctrine, just as paying faculty a salary that might be used to purchase contraceptives is not. Some have even suggested Catholic teaching regarding the right to health care might require it.

The belief in question is not that contracepting is intrinsically evil. Given that plaintiff Notre Dame explicitly denies any belief forbidding coverage of contraceptives prescribed to treat medical conditions, the claim is to a belief that Catholic teaching demands an inquiry into and approval of the reasons a doctor has prescribed a patient contraceptives. Whose belief is this? Who exactly believes the hierarchy's teaching on contraception, overwhelmingly rejected by lay Catholics, must govern whether insurance provided to employees of varying religions meets minimum standards?

Scholars at Notre Dame have raised a number of theological questions regarding the lawsuit. (For example, here, here, here, and here). Notre Dame's administration has not addressed the questions raised in a letter signed by faculty, students, staff, and alumni despite repeated requests that it do so. It is odd that the beliefs alleged to be those of Notre Dame have not been explained to the Notre Dame community.

Perhaps the assumption underlying the lawsuit is that, by virtue of Notre Dame's Catholic affiliation, the relevant beliefs are those of Catholic authorities off-campus. This would be a troubling claim. There is not one easily identified permissible application of Catholic doctrine for every question, nor a single arbiter of how an autonomous institution must apply that doctrine.

The idea that the bishops dictate what Notre Dame's beliefs are would be contrary to Catholic teaching under Ex Corde Ecclesiae regarding the institutional autonomy possessed by Catholic-affiliated universities. It would be inconsistent with the rigorous scholarship and debate that take place on these campuses, as well as the Catholic tenet that honest, critical inquiry is truly an ally of faith. It would make Notre Dame a strange place to choose to study or teach theology, and endanger Notre Dame's ability to recruit non-Catholics and Catholics who do not believe the bishops' authority carries over to matters of individual conscience, law, or science.

Regardless of who the lawsuit envisions as the protected belief-holder(s), we believe the proposition that Notre Dame can hold one unified religious belief is antithetical to the very purpose of a university. Notre Dame's administration appears to disagree. Should it appeal the dismissal of the lawsuit or refile once the contraceptive coverage rule is finalized, the plaintiff should plead who or what is the person that holds the beliefs alleged. Perhaps more importantly, it should inform the members of the Notre Dame community, and those considering joining it, who can rightly claim "We Are ND."

A version of this article appeared in the South Bend Tribune.

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