Notre Dame alumni oppose recent legislation in the District of Columbia

The Supreme Court recently remanded the University of Notre Dame’s lawsuit against the HHS mandate to the 7th Circuit Court of Appeals, ordering a reconsideration of the case in light of Burwell v. Hobby Lobby Stores, Inc.  Notre Dame has sought judicial relief from the mandate, a regulation issued under the Affordable Care Act on August 3, 2011, which requires employer health insurance plans to provide free access to contraceptives, sterilizations, and abortifacients, since May 21, 2012.

Meanwhile, Notre Dame alumni have contributed to the defense of religious liberty in another arena: by advocating against two recent pieces of legislation passed by the Council of the District of Columbia that have the potential to adversely affect the cause of religious liberty across the country.

The Reproductive Health Non-Discrimination Act (RHNDA) and the Human Rights Amendment Act (HRAA) are currently undergoing a statutorily-required period of Congressional review before they take effect in the District.  Both bills have received strong opposition from many quarters, including from organizations such as the Susan B. Anthony List, March for Life, Family Research Council, the USCCB, Knights of Columbus, Catholic University of America, and the Archdiocese of Washington.  Several Notre Dame graduates are involved in this effort, including Angela Flood (’89), Secretary for Communications for the Archdiocese of Washington, Jennie (Bradley) Lichter (’04), Staff Counsel at the Archdiocese, and Cynthia DeSimone Weiler, Chancellor and General Counsel of the Archdiocese, who is married to Notre Dame graduate Tom Weiler (’00).

RHNDA expands the definition of sex discrimination under DC law to prohibit discrimination on the basis of “reproductive health decisions.”  The bill prohibits religious, faith-based, and pro-life organizations from choosing not to hire, or choosing to discipline, or fire, an employee who chooses to publicly make known his or her reproductive health decision that conflicts with the organization’s own sincerely-held beliefs.  In other words, religious, faith-based and pro-life groups cannot ensure that their own employees support the mission and principles of their organization without risking a lawsuit.

RHNDA was introduced in the Council of the District of Columbia on May 6, 2014, and was sponsored by all 12 members of the Council.  It was passed by the Council on December 17, and was signed by Mayor Muriel Bowser on January 23.  Without Congressional action, RHNDA will take effect 30 legislative days after March 6—the date the bill was transmitted to Congress.

HRAA would repeal the “Armstrong Amendment”—a provision of the District of Columbia code passed by Congress as part of the District of Columbia Appropriations Act of 1990.  The Armstrong Amendment recognizes the freedom of religious schools not to fund or provide facilities or otherwise endorse or recognize persons or groups promoting homosexual identity and conduct.  By repealing the Armstrong Amendment, HRAA’s enactment could lead to religiously affiliated schools in DC being forced to violate their sincerely-held beliefs about marriage and human sexuality or else be subjected to lawsuits and be forced to expend significant resources to defend their rights in court.

HRAA was introduced in the Council on May 21, 2014, was passed on December 2, and was signed by Mayor Bowser on January 25.  It also was transmitted to Congress on March 6, and will go into effect after 30 legislative days unless Congress acts to overrule it.

Other notable figures who have publicly opposed these bills include former DC Mayor Vincent Gray, Cardinal Donald Wuerl of the Archdiocese of Washington, and John Garvey, President of the Catholic University of America (CUA).

On December 2, then-Mayor Vincent Gray wrote to the Council requesting that the final vote on RHNDA be postponed “until significant legal concerns expressed by the [DC] Office of the Attorney General are resolved.”  Gray noted that he had shared with members of the Council a review of the bill by the Office of the Attorney General (OAG) that “deemed the legislation legally insufficient.”  (This legal analysis by the District’s OAG has not been made available to the public.)

Gray elaborated: “According to the OAG, the bill raises serious concerns under the Constitution and under the Religious Freedom Restoration Act of 1993 (RFRA).  Religious organizations, religiously-affiliated organizations, religiously-driven for-profit entities, and political organizations may have strong First Amendment and RFRA grounds for challenging the law’s applicability to them.”

Gray informed the Council that he could not support the legislation unless it included an exemption for religious and political organizations to ensure the protection of the religious and political liberty interests secured by the First Amendment and RFRA, but the Council did not transmit the bill to the Mayor’s office until after Bowser had succeeded Gray.

On March 2, Cardinal Donald Wuerl published an entry on his blog, Seek First the Kingdom, responding to the passage of RHNDA and HRAA.  In it, Wuerl deplored the silencing of the Church’s voice: “Some who reject the Church’s teaching—who choose to live by another set of values—not only find the voice of Christian values annoying, they would like to see it silenced or at least muted.”

Cardinal Wuerl noted that with the passage of RHNDA, “we are about to be forced to accept on our teaching faculties, Church staff and charitable services personnel those who live in a way that publically repudiates the teaching of the Church.”  HRAA would “require Catholic schools to formally recognize, endorse, and support student groups dedicated to promoting homosexual behavior.”

John Garvey (ND ’70) wrote to Council Chairman Phil Mendelson on November 13, 2014, while the Council was considering the two bills, to “reiterate the opposition of The Catholic University of America to” HRAA and RHNDA.  “Both Acts,” Garvey wrote, “would seriously restrict our ability to educate our students and to run a university according to Catholic principles.”  Garvey noted that HRAA repeals language that has served DC and CUA since 1988 (the Armstrong Amendment) and would require the university to “recognize and support organizations that advocate practices contrary to Catholic doctrine.”

Garvey objected that RHNDA unlawfully restricts the university’s ability to execute its teaching function and live out its mission.  The university does not monitor the off-duty conduct of its employees, nor does it need to know the particulars of employees’ reproductive health decisions, but “such decisions could become conspicuously public in a way that damages the University’s teaching function, and in such cases the University must be free to take action that is consistent with the mission of the University and the teachings of the Catholic Church.”

While Garvey’s objection went unheeded by the DC Council, he emphasized in a statement to the Rover that CUA remains dedicated to opposing these pieces of legislation.  “We are the national university of the Catholic Church,” Garvey said.  “Both of these measures undercut our ability to shape our educational environment so that it is consistent with the teachings of the Church.  Both bills would restrict our freedom to carry out our mission through hiring decisions, standards for performance and conduct, and recognition and operation of student organizations.  We offer our students a welcoming environment that does not need the government to determine how we handle matters of human sexuality.”

Despite such opposition, RHNDA and HRAA were passed by the Council in December and transmitted to Congress on March 6.  Under the Constitution, Congress has exclusive jurisdiction over the District of Columbia “in all cases whatsoever” (Art. I, Section 8).  The D.C. Home Rule Act of 1973 gave the District the ability to pass its own laws, but retained to Congress a 30-day window in which to review all DC legislation before it goes into effect.  If Congress disapproves of these bills within the 30 day window by passing a Disapproval Resolution, the bills will be blocked from taking effect (provided that Congress’ resolution is signed by the President).

Proponents of the RHNDA bill hope to see similar legislation passed across the country.  The legislation was passed first in DC in part because of the district’s small legislative chamber (a 12 member Council) relative to state legislatures.  As of this past fall, however, similar bills were pending in five states: Illinois, Michigan, New York, North Carolina, and Ohio.

Opponents of the bills are urging Congress to pass a Disapproval Resolution, and see this as an opportunity for Congress to defend religious liberty in the face of future threats. Because of Congress’s oversight of the District, Congress now has the chance to weigh in—and send a clear message to state legislators considering similar bills that this legislation is an unacceptable intrusion on constitutional freedoms—before it spreads any further.

“Given the enormous importance of protecting the freedoms of religion, association, and speech nationwide, it is vital for Congress to be on the record protecting these fundamental rights, which D.C.’s RHNDA clearly undermines,” Cynthia DeSimone Weiler, Chancellor and General Counsel for the Archdiocese of Washington explained.

Ryan T. Anderson, the William E. Simon Fellow at the Heritage Foundation and a Notre Dame graduate (PhD ’14), wrote of the importance of Congress overturning these bills that, “Protecting religious liberty and the rights of conscience is the embodiment of a principled pluralism that fosters a more diverse civil sphere—and a peaceful coexistence even amid disagreement.  In a nation founded on limited government and religious freedom, government should not attempt to coerce any citizen, association, business or school into promoting or paying for abortion, or celebrating same-sex relationships.”

On March 18, Senators Ted Cruz, Texas Republican, and James Lankford, Oklahoma Republican, introduced resolutions of disapproval that, if passed by Congress and signed by President Obama, will overturn the DC Council’s passage of RHNDA and HRAA.  Barring the successful passage of these resolutions of disapproval, the legislation in question will become law in DC on April 17.

In a statement released after he introduced the resolutions of disapproval on the Senate floor, Cruz emphasized, “The D.C. Council is attempting to force religious institutions to … make employment decisions, or participate in activities that directly violate their faith.

“Rather than discriminating against pro-life and religious organizations, D.C. should welcome diversity of thought and protect the freedom of conscience.  We must stop this assault on the Catholic Church, and we must act to protect religious liberty.  Congress has a constitutional responsibility to oversee the nation’s capital, and I urge my colleagues in both houses to pass this resolution and affirm the First Amendment rights of all citizens.”

In a statement released Wednesday afternoon, Lankford said, “What the D.C. Council has done is a major threat to the fundamental right to religious freedom for D.C. residents and organizations, and a brazen display of intolerance.  The Constitution provides that all Americans enjoy the right to live a life in accordance with their convictions of faith. Limiting religious practice to a church building is a weekend hobby, not a personal faith. The First Amendment is first for a reason—it cannot be ignored by the D.C. City Council.”

Notre Dame alumni will continue to work to see that the First Amendment rights of religious, faith-based, and pro-life organizations are respected in our national capital and across the country.

Action Item: Please contact Senator Ron Johnson (R-Wisc), Chairman of the Senate Homeland Security and Governmental Affairs Committee, and Representative Jason Chaffetz (R-Utah), Chairman of the House Oversight and Government Reform Committee, to ask them to move the resolutions of disapproval through their committees as quickly as possible, so that the resolutions may receive consideration by the full Senate and House within the allotted time.

Timothy Bradley is a junior studying theology, economics, philosophy, and Constitutional Studies, and hailing from St. Edward’s Hall.  Contact him at tbradle5@nd.edu.