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Barely fighting Irish

"Barely fighting Irish" Continued...

Issue: "The one and the many," Sept. 20, 2014

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.

CATHOLIC IDENTITY: Pro-life Notre Dame students hold an alternative commencement event to protest President Obama delivering the commencement address in 2009.
Scott Olson/Getty Images
CATHOLIC IDENTITY: Pro-life Notre Dame students hold an alternative commencement event to protest President Obama delivering the commencement address in 2009.
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.

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