Barely fighting Irish

The University of Notre Dame was the only religious university of the dozens that challenged the Obama administration’s contraceptive and abortifacient mandate to fail to win a preliminary injunction. Questions about Notre Dame’s defeat include whether its legal failure indicated an identity crisis: Is it primarily a Catholic university, or a university striving toward the secular glory of an Ivy League institution?

Outspoken alumni are critical of the school’s perceived mishandling of the case, and the missed opportunity—with 12,000 students and substantial resources—to be the first organization not to comply with the mandate.

Protestants mostly do not share the strict view of contraceptives Catholics have forbidding their use (while both agree certain drugs mandated for coverage act as abortifacients). Yet 22 Protestant colleges and universities filed lawsuits against the contraceptive mandate, while only 10 Catholic schools did so.

Notre Dame lost its plea for an injunction at both the district and circuit level. When the 7th U.S. Circuit Court of Appeals panel wrote its opinion against the university, it excoriated Notre Dame’s legal counsel and the school’s handling of the lawsuit. Many at Notre Dame think the fault lies with a string of prejudiced judges and yes, indecisive school leadership, rather than mediocre legal counsel. “I believe that the carping from some quarters [about Jones Day, Notre Dame’s counsel] is unjustified,” said Rick Garnett, a professor at the Notre Dame Law School.

The case started badly. Notre Dame filed a lawsuit against the mandate in May 2012, which a district judge dismissed on the grounds that the case wasn’t ripe: The federal government was working out a new nonprofit exemption. That took over a year, and in July 2013 the Obama administration released its “accommodation” for objecting nonprofits.

Most nonprofit litigants laughed off the accommodation as a meaningless gesture and refiled their lawsuits. Notre Dame’s local Catholic diocese refiled its lawsuit at the beginning of September that year, but Notre Dame did nothing for months. The school’s third party administrator began informing faculty it would be covering contraceptive benefits through the setup outlined in the federal accommodation. In December 2013 the school, in a seeming about-face, refiled its suit, calling the accommodation unacceptable—only three weeks before the new insurance plan would have to cover the objectionable drugs.

No one seems sure what happened between July and December. At a November annual meeting, U.S. bishops issued a statement against the accommodation, while an alumni group dedicated to preserving Notre Dame’s Catholic mission also pressed the administration to refile. Asked about the delay by the federal district judge handling Notre Dame’s motion, Notre Dame’s counsel Matt Kairis referenced the bishops’ meeting, and said, “There was a great deal of theological analysis going on between July and November.”

The judge was frustrated with the last-minute motion and rejected it. “I’ve got 300 cases on my docket,” Judge Philip Simon told Kairis. The school immediately appealed to the 7th Circuit, which declined the motion on Dec. 30.

‘It would have been courageous and befitting [Notre Dame’s] status as the leading Catholic institution in the country not to comply. … Then that would put the ball back in Obama’s court, whether he was going to exact tribute from them or not.’ —William Dempsey

With no legal relief by Jan. 1, Notre Dame signed the form required by the federal accommodation, indicating its objection to contraceptive coverage and authorizing its third party administrator to provide the coverage to its employees. Then the school appealed to the 7th Circuit again, based on a U.S. Supreme Court order granting an injunction to the Catholic charity Little Sisters of the Poor.

A February hearing before three 7th Circuit judges went badly. Judge Richard Posner clearly already had decided the case for himself and took the argument time to dress down Kairis. Compliance with the mandate seemed “so trivial,” Posner said, and he exploded when Kairis tried to explain the burden on Notre Dame’s religious freedom: “Would you stop babbling?” he said. “When you’re asked a question—I don’t know, you must have argued cases before. When you’re asked a question, you’re not supposed to interrupt judges.” (In a 2010 blog post Posner wrote, “Why sex plays such a large role in Catholic doctrine is a deep puzzle.”)

Kairis, needled, tried to talk over the judge, fueling Posner’s frustration. He repeatedly yelled at Kairis, “Don’t interrupt me!” and threatened to end Kairis’ argument time. During the arguments, none of the three judges on the panel appeared to grasp how the religious accommodation worked.

Not surprisingly, the 7th Circuit ruled against Notre Dame, 2-1. The dissenter, Judge Joel Flaum, noted that every nonprofit had been granted an injunction except Notre Dame, but the court rejected Notre Dame’s appeal for a hearing before the full court.

NOTRE DAME'S CASE is now on hold until the university decides whether to file an appeal to the U.S. Supreme Court, which it has to do by October. Once again its strategy is unclear. The legal experts I interviewed all were bewildered that Notre Dame hadn’t already filed for an emergency injunction from the high court, as it granted an injunction to Wheaton College in July.

Kairis declined to comment for this article, consistent with his law firm Jones Day’s practice in these cases. Jones Day handles most of the mandate cases for Catholic litigants. Notre Dame’s spokesman Paul Browne said its lawyers were reviewing the new regulations, but stated, “Notre Dame’s position has been and remains that the government shouldn’t entangle the university in matters contrary to conscience.” That statement was the only response to my questions about the leadership’s perceived indecisiveness.

“Where I stand, there’s no difference between [the Notre Dame] leadership and the U.S. Conference of Catholic Bishops,” said Carter Snead, a professor at the Notre Dame Law School. Snead has stayed in close contact with school administrators over the course of the lawsuit. He wouldn’t go into specifics about what their discussions have been but doesn’t question their commitment. “The suggestion from some camps that the university is half-hearted—I don’t see that at all.”

At the 7th Circuit hearing Judge David Hamilton, who ultimately ruled against Notre Dame, said doubts about Notre Dame’s sincerity don’t matter from a legal standpoint. “One thing on the issue of sincerity,” he said. “There is a long tradition in our First Amendment jurisprudence of providing protection to people who are prodigal sons, who are not saints, who are not entirely consistent in their views.”

But Notre Dame’s sincerity does matter to Catholics worried about the school’s direction. “Notre Dame is right there at the midpoint, where religion forces and secular forces are in intense competition,” said William Dempsey, a Notre Dame alumni who has been critical of the school’s handling of the case. “But it’s more Catholic than any other Catholic university except Catholic University. … It’s taken on a lot of water but it’s not at the bottom yet.”

Dempsey heads Sycamore Trust, an alumni group seeking to keep the school faithful to its mission. The group reports on school activities to alumni and shares alumni concerns with the administration. Each year Sycamore gives $50,000 to Notre Dame, according to tax filings, but financial support isn’t its leverage. “They have a very big following,” said Ryan Madison, a philosophy professor at Notre Dame and associate director of the university’s Center for Ethics and Culture.

Sycamore watched the lawsuit developments closely, and urged the president to stick with the case. Dempsey, a lawyer who clerked for former U.S. Supreme Court Chief Justice Earl Warren, knows constitutional law. He thinks the Jones Day lawyers have done a good job, but said he would have made the arguments somewhat differently.

“Notre Dame has not been consistent and resolute in the pursuit of this matter,” Dempsey said. “We were proud of Notre Dame at the start, very proud, because Notre Dame and Catholic University were the only major Catholic universities in the country to file lawsuits.” But the school waited too long to file appeals and in the meantime announced to employees that it was going to comply with the mandate, he said. With 12 governing board members, it would be “scarcely surprising” that there’d be division of opinion, said Dempsey. “But it’s too bad when that becomes evident, your internal struggles with it.”

Notre Dame is under the oversight of its founding religious order, Holy Cross. Its president must be a priest of the order, and 12 fellows, half of whom are members of the Holy Cross, oversee the board of trustees. The school requires a majority, but not all, of its professors to be Catholic.

The bishop of the local diocese is supposed to have a relationship with the school, but that is largely undefined. When I asked the spokesman of the local diocese for an interview to discuss its relationship with the school and what role it played in the mandate case, he sent a one-line statement that the diocese supports Notre Dame’s case. The spokesman refused to answer any other questions about the diocese’s relationship with the school. The bishop has the authority to deem an institution no longer Catholic, but that hardly ever happens.

BECAUSE NOTRE DAME was one of the only nonprofits not to receive an injunction, it was one of the only ones to have to make the decision about whether to comply with the mandate. Not complying meant potentially millions upon millions of dollars in fines. Many nonprofits in their legal filings talked about not violating their consciences, but haven’t faced the choice to pay the penalty for their position. Conestoga Wood, the Mennonite-owned company whose case went to the Supreme Court with Hobby Lobby, also didn’t win an injunction and complied with the mandate under protest. Dempsey and others dreamed that Notre Dame might be the first not to comply.

“The financial risks are very substantial but Notre Dame is a very wealthy institution,” said Dempsey. “It seems to me it would have been courageous and befitting their status as the leading Catholic institution in the country not to comply. … Then that would put the ball back in Obama’s court, whether he was going to exact tribute from them or not.”

Michael Bradley, a recent graduate and son of Notre Dame law professor Gerry Bradley, agreed. Bradley has followed the case closely, and edited the Irish Rover, an independent student newspaper often critical of the administration’s decisions in regard to its Catholic mission. “If some smaller Christian institutions were to resist, not that many people would care,” he said. “There’s a great opportunity being squandered.”

On the South Bend, Ind., campus, most students are paying more attention to the administration’s $400 million development campaign around the football stadium called “Campus Crossroads,” Bradley said, and what that development means for Notre Dame’s identity.

But Notre Dame has a conservative student body, especially compared to its peer institutions. When Notre Dame student magazine Scholastic polled students for the 2012 elections, Mitt Romney won over Barack Obama by a point, while nationally, Obama won 18- to 30-year-olds by a wide margin. Notre Dame’s right-to-life group is the largest student group on campus. No one interviewed knew of any organized opposition to the lawsuit on campus, aside from individual professors and students.

The mandate came out when Erin Stoyell-Mulholland was a freshman. The law school organized a panel about the religious liberty issues surrounding the mandate, and the event was packed. As a junior she became head of the right-to-life group on campus and continued to follow the case. “People were getting sick of hearing about the mandate,” she said. But the lengthy proceedings may succeed in helping more students understand what’s at stake. “I didn’t know much,” Stoyell-Mulholland said. “I think students are getting educated [on the mandate] … more educated than students on other campuses.”