Washington Post ignores a crucial fact, as HHS mandate cases head to high court

The other day, I wrote a post that ran under this long and, I admit, rather scary headline: "Wait! Did The New York Times just argue that voluntary religious associations are dangerous?"

The piece was part of a Times series called "Beware the Fine Print." As I stressed in my post, the reporting in this feature raised interesting, valid questions about "Christian arbitration" clauses in legal contracts, especially those linked to businesses -- as opposed to doctrinally defined schools, ministries and other faith-based nonprofits.

However, several of the case studies in this story suggested that its thesis was that it's dangerous, period, when religious groups create doctrinal covenants that define the boundaries of their voluntary associations.

This is, of course, a First Amendment issue that looms over one of last week's biggest stories, which is the latest challenge to the Affordable Care Act (also known, among its critics, as Obamacare) that is headed to the U.S. Supreme Court.

The key question: Can religiously affiliated schools, hospitals, charities and other nonprofit ministries be forced by the government into cooperating with acts that violate the doctrines that define their work and the traditions of their faith communities? Should the government actively back the efforts of employees (and other members of these voluntary associations, such as students) to break the contracts and doctrinal covenants that they chose to sign? Again, do Christian colleges have to cooperate in helping their own students and employees violate the covenants that they signed in order to join these faith-based communities? Do the Little Sisters of the Poor need to help their own employees violate the teachings of the Catholic Church?

Flip things around: Try to imagine the government forcing an Episcopal seminary to fund, oh, reparative therapy sessions for a gay student or employee who wanted to modify his sexual behaviors? Why force the seminary to violate its own doctrines?

This leads me to an interesting chunk or two of a Washington Post report about the Health & Human Services mandate cases that will soon be debated at the high court.

Here's the problem. The story never mentions the fact that many of these institutions require employees (and students) to sign doctrinal and/or lifestyle covenants affirming -- or at the very least, promising not to publicly oppose -- the faith traditions on which their work is based.

Deep down in the story there is this:

White House press secretary Josh Earnest noted that seven appeals courts had sided with the government’s position, and he said the administration is confident that “the policy we have in place appropriately balances the need of millions of Americans to have access to birth control, while also protecting the right of religious freedom that is protected in the Constitution.”
Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents the nuns, said government should not be “allowed to say that the Sisters aren’t ‘religious enough’ to merit the exemption that churches and other religious ministries have received."
The cases are something of a sequel to the court’s narrow decision in 2014’s Burwell v. Hobby Lobby that some closely held corporations are protected from having to provide contraceptive coverage that offends the owners’ religious beliefs.

"Religious enough?" Hold that thought.

Meanwhile, Hobby Lobby is, of course, a for-profit business owned and operated by religious believers. The cases how headed to the court are about doctrinally defined nonprofits of various kinds. Hobby Lobby was a fascinating case, but that really isn't the same thing as a school or ministry that functions as a faith-defined voluntary association.

Later on the Post added this:

In a case involving a college and a religious charitable organization, Judge Roger Wollman wrote for a unanimous appellate panel that the issue is whether the groups “have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute.”
Wollman said it was clear that the fines imposed for failing to comply with the mandate would be a substantial burden on the groups and that the government did not meet the test of proving there was no other way to meet its goal of providing women with contraceptive coverage.
The government says the rules should be different for churches than for the organizations in the current fight. Churches and purely religious organizations are more likely to hire workers who share their religious beliefs. Universities, hospitals and charities, on the other hand, will have many students and employees who do not share the views of the sponsoring religious groups, Solicitor General Donald B. Verrilli Jr. said in the government’s petition to the court.

What essential fact is missing from this passage? Again, the story ignores the fact that many of those colleges and ministries are defined by specific doctrinal statements that students and/or employees sign in order to work there.

Yes, there are faith-based schools that do not have these doctrinal covenants for employees and students, but I certainly would think that would weaken their case before the court if they refused to cooperate with the government's legally defined doctrines on marriage and sex. It would be TOTALLY appropriate, and relevant, for journalists to cite which ministries and schools have these doctrinal covenants and which ones do not.

But why ignore that many of these institutions do have these covenants and that women and men voluntarily sign them -- a combination of a legal contract and a personal vow -- in order to join these communities?

I mean, students do not HAVE to attend, say, East Texas Baptist University. Correct? They do so voluntarily. They could apply at a state school or a liberal Christian school that would not ask them to affirm traditional Christian doctrines on marriage and sex. They can make that choice. And does anyone have to work for the Little Sisters of the Poor? Is it appropriate for the government to actively support an employee who is seeking to violate doctrines in a covenant he or she willingly signed? Wouldn't that be an entanglement of state power in church doctrine?

As always, let me stress that journalists do not have to agree with these faith-based institutions on these issues, but it is essential to understand them in order to produce accurate coverage.

It is certainly essential, in a story of this kind, for journalists to at least MENTION that some of these institutions are voluntary associations built on covenants signed by employees and/or students. That's an essential fact in the story.

Now, did all of these institutions do a good job in informing members of their communities about the contents of these covenants? That's a great question to research. What do the covenants say? Are they clearly written? Which hospitals have them and which do not? Ditto for colleges. Ditto for nonprofit ministries and charities.

Chase down the facts and print them. But also note that there are faith-based, doctrinally defined institutions that do expect their members to keep the vows they take and to honor the covenants that they voluntarily signed. Is it the government's role to force these faith-based groups to cooperate in helping their members violate the doctrines (in newspaper speak, these are often called "rules") on which they are based?

Ask some church-state experts, left and right, about that. Please.

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