Indiana has shown that it values religious freedom. The University of Notre Dame has a moral obligation to embrace it.
On Thursday, Indiana Gov. Mike Pence signed the state’s new Religious Freedom Restoration Act (RFRA), which says that government may not “substantially burden” religious exercise, except when using the “least restrictive means” of advancing a “compelling government interest.”
It’s similar to the federal law with the same name, which has been cited in a number of federal court cases involving religious freedom. The federal RFRA was central to last year’s Hobby Lobby ruling, in which the Supreme Court exempted certain private companies from the Obama administration’s requirement that employee health plans must cover sterilization and contraceptives, including some that cause early abortions.
Church leaders and attorneys also hope that RFRA will protect faith-based employers from any overreach resulting from laws redefining marriage, particularly attempts to require spousal benefits for same-sex couples even when it violates the employer’s deeply held beliefs. The results of RFRA claims in such cases are far from certain, but RFRA gives religious freedom a fighting chance.
There’s one catch: the federal RFRA applies to laws, regulations and actions of the federal government but not the states, where marriage is being redefined. So 19 states, now including Indiana, have passed state-level RFRA laws to place proper limits on the authority of state and local governments.
But last October, when a federal appeals court in Chicago struck down the state’s law defining marriage as between a man and a woman, there was no state RFRA protecting Indiana’s religious employers. The University of Notre Dame quickly offered spousal benefits to same-sex couples, insisting that it agrees with Catholic teaching in support of traditional marriage, but nevertheless claiming that it must comply with “relevant civil law.”
Of course, it was never quite clear what “relevant civil law” Notre Dame was referring to. As South Bend Bishop Kevin Rhoades pointed out in his public statement lamenting Notre Dame’s decision, there has been no clear indication that Indiana will force religious institutions to change their employee benefits in violation of their own beliefs.
What is clear, Bishop Rhoades suggested, is Notre Dame’s obligation as a leading Catholic institution to oppose laws that violate religious freedom—especially when that freedom “is threatened in potentially numerous ways by the legal redefinition of marriage.”
Cardinal Josef Ratzinger (later Pope Benedict XVI) said it clearly while doctrinal chief for the Vatican: “In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.”
But Notre Dame chose not to exercise that right. Five months later, Notre Dame has done nothing to assert its Catholic identity over an unjust law, whether real or perceived.
At least with regard to the Obama administration’s mandated insurance coverage for sterilization and contraception, it can be said that Notre Dame has gone through the motions, filing a lawsuit that it continues to pursue in federal court—even as it undermines its own case by simultaneously complying with the mandate. But on marriage, the University has seemed delighted to expand its spousal benefits, touting its “respect for diversity” and support for “GLBTQ families.”
Justifiably, some Catholics have charged the university with willfully compromising its Catholic mission. Last month three Notre Dame professors—the law school’s Gerard Bradley and John Finnis, and political scientist Daniel Philpott—wrote a scathing critique at Public Discourse that found Notre Dame’s actions to be “morally indefensible.” William Dempsey, whose Sycamore Trust organizes fellow Notre Dame alumni to advocate stronger Catholic identity at “Our Lady’s University,” has lamented the “astonishingly quick surrender” of Notre Dame to advocates for same-sex marriage—and even accuses the University of “encouraging” couples to violate Catholic teaching.
No doubt leaders of Notre Dame would defend their intentions, and now is their opportunity to prove it. Because if they don’t now take cover under Indiana’s RFRA and cease providing benefits that would have horrified Notre Dame’s Catholic founders, then there’s no confusing the message that Notre Dame will send to its students, its employees and the American public: We deny Catholic teaching on marriage.
To be sure, that’s an attractive option for those who would like to preserve Notre Dame’s standing in American society. To be faithfully Catholic is counter-cultural and even self-damaging today—especially for a university that thrives on the popularity of its athletic team and merchandise sales. It would be a tough thing to not be liked.
Worse, standing for Catholic beliefs could incur charges of discrimination, even when that’s the last thing that Notre Dame would ever promote. In its student activities and faculty relations, Notre Dame has often pushed beyond the boundaries of Catholic morality to prove that it loves and respects all its members, regardless of sexuality. Far better it would be to do the rewarding work of a faithful Catholic university, teaching why the Catholic understanding of marriage is most compassionate to children, to spouses and to all mankind.
Notre Dame is a Catholic institution, and it’s about time that it shares in the hard struggles of the many faithful Catholics and other Christians whose faith and morality are, sadly, no longer fashionable in the United States. It could uphold marriage while truly displaying Christian love and charity to all our brothers and sisters, and yet it would incur the hatred of those who fail to understand. But in so doing, Notre Dame could do more to teach its students and a nation about things that matter than it does in many of its classroom activities.
Notre Dame needs to take the exemption that has been made possible by Indiana—not simply to opt out of laws that don’t respect Catholic values, but to opt in again to the Catholic community that it has too often neglected for the sake of public prestige.