Over at NCR, Michael Sean Winters praises Notre Dame President John Jenkins for the letter (pdf) he sent on Wednesday to Health and Human Services Secretary Kathleen Sebelius in which he claims that new mandates for the coverage of contraception would put the University and other religious institutions in "an impossible position." Jenkins says:

"This would compel Notre Dame to either pay for contraception and sterilization in violation of the church's moral teaching, or to discontinue our employee and student health care plans in violation of the church's social teaching. It is an impossible position."

Winters is impressed by this line of reasoning, writing:

"Father Jenkins makes a point that had not previously occurred to me - or to anyone else whose writings on this topic I have seen. It is just as morally objectionable to stop providing health care coverage as it is to provide coverage for procedures we find morally objectionable."

He then goes on to ask why the Obama administration would allow Planned Parenthood and others to pressure it into putting such good friends in such amoral and, apparently,logicalquagmire. But, are these two things, the Church's moral teaching and its social teaching really in direct contradiction? Is making contraception available to individuals acting on their conscience who choose to take advantage of such services"just as"objectionable asdenying healthcare access to an entire workforce?There seems to be a deep equivocation here, which is common among religious opponents of health care reform, between allowing individuals to choose to engage in actions that we find morally questionable and social or corporateparticipation in such actions. Providing access to morally questionable procedures merely creates the space for individuals to act freely, but denying access to health care would be a morally questionableact perpetrated by the institution. Thus, the claim that health care mandates ensuring access to medical procedures forces Catholic institutions to choose between participating in two different butequally immoral actions doesn't wash. The provision of access is not the same thing as active participation.There is a second and, in some ways, more interesting issue that Jenkins raises in his letter. Jenkins claims that the narrowing of the government's religious exemption implies that Notre Dame is "less religious" for serving students and employing faculty and staff who are not Catholic. Jenkins writes:

"According to the proposed definition, only those organizations that 'primarily serve persons who share its religious tenants' count as religious employers. Although our Catholic convictions inspire and motivate the educational mission of Notre Dame - and inform us about what we cannot ethically do - we nevertheless serve many others who do not share our Catholic faith. As Cardinal Keeler said of the Catholic schools in his diocese, many of which serve the poorest neighborhoods: 'We do not educate our students because they are Catholic; we educate them because we are Catholic.' We believe that an institution inspired by faith to serve beyond the limits of its religious denomination should not be judged less religious, and hence less worthy of exemption."

Here, Jenkins' seems to be challenging the Obama administration on the grounds that it is infringing upon Notre Dame's religious freedom, by presuming to define what counts as a "religious institution." This is how law professor Carter Snead described the controversy intoday's edition of Notre Dame's student newspaper, The Observer, saying, "[The Obama administration]had a very, very narrow religious conscience exemption. You wouldn't require the Holy Cross priests to cover contraception for the brothers [but] any entity that is not a church itself is not exempt from the mandate. [...] It's about religious freedom, it's not about contraception."However, if it is the case that we educate non-Catholics because "we are Catholic," this seems to be, in part,because as Catholics we recognize and respect the religious freedom of our students as well as our non-Catholic colleagues. For all the conservative bluster about "freedom," many conservatives fail to recognize that providing access to health care is about making it possible for individuals to make necessary decisions with regard to their heath care in consultation with their doctors and consciences free from the fear of financial burden. Aside from a more liberal interpretation of this freedom as simply creating the opportunity for individuals to choose, many of the poor populations that, asJenkins points out, are served by Catholic schoolsare the most adverselyaffected bythe financial burdens that a lack of access to certain health care options, including contraception, creates. If "we" are committed to the religious freedom of our students and colleagues it stands to reason that we would provide them with the opportunity to make medical choices in accordance with their own consciences.Secondly, regarding the question of identity, it seems strange to claim that qualifying for areligiousexemption as defined by the government would make one more or less religious. Indeed, it seems strange to correlate degrees of religiosity with one's stance on particular public policy decisions at all. This suggests that religious believers and practicionerscould not have good religious reasons forallowing for freedom ofconscience in such matters.Furthermore,definingchurches and religiousuniversities differently by law doesn't entail a judgment with respect to their relative degrees of religiosity. Presumably, Jenkins would admit that the CatholicUniversity of Notre Dame is not aCatholic parish, at least insofar asits faculty, staff, and students do not play the same roles as the clergy, staff,and congregations that gather for worship and catechesis. These different roles, of course, involve different commitments on the part of the employees and different goals with respect to what is on offer for those being served. At the same time, however, no one would want to say that this difference in mission implies a different level of "religiosity," rather it simply highlights the fact thatchurches and universitiespursue slightly different ends and that this requires different considerations, legal and otherwise,with regard to the means by which such ends are pursued, includingwhatcan reasonably be expected of theinstitutions that support such pursuits.Of course, I am only presuming that Jenkins would admit the difference between a Catholic parish and a Catholic university. If Jenkins reads the old statute for religious exemption as applying to aninstitution that "shares common religious bonds and convictions with a church" in the strong sense that his protest seems to imply, this would, at the very least, require a serious revision of Notre Dame's policies regarding the commitments of its students and faculty, which would push it, as Gary Caruso wrote in today's Observer, "towards seminary status and away from an open university." Certainly, it is entirely up to the administration of Notre Dame whether it wants to take such steps, but until it does, it only breeds confusion among faculty and students as to what is expected of them as they pursue their studies. As the student editor's of the Observer point out, Jenkins' rejection of the recommendations of the "Institute of Medicine," the board of experts charged with adjudicating whichmeasures should be deemed medically basic for inclusion in the health care provision, stands in contradiction with a "Jenkins administration that has vociferously supported scientific research." In light of these reflections, it seems that whatever "impossible position" Notre Dame claims has been forced upon it, the equivocation that Jenkins has introduced between the mission of the university and the mission of seminaries and parishes and between the moral status ofcontributing to freedom of choice in health careand denying any health care choices whatsoever, arguably leaves the members of the Notre Dame community even more befuddled and, what is worse, hampers the kind of inquiry that is ostensibly thevery raison d'etre of the university.In sum, just as the provision of access is not the same thing as active participation in the health care decisions of individuals, qualifying for legally definedreligious exemption is not the same thing as being religious. "We" Catholics need not fear being defined out of our faith by the government nor need we fear sacrificing our religious freedom to the freedom of others, rather we should see that every expansion of freedom, moraland intellectual,contributes to creating the very possibility of faith as a gift that is truly un-conditional and auto-nomous. This to say that the "greatest" faithexists where there isnothing that can keep us from the love of God, which is always without condition and completely self-legislating. Or, to put it in the words of former Notre Dame Executive Vice President,Fr. Edmund P. Joyce, which adorn the base of a statue of he and Fr. Theodore Hesburgh that stands outside the Notre Dame library, Notre Dame is first and foremost a university and only insofar as it excels as a university can it give proper homage to the patroness who bears as one of her noble titles, Seat of Wisdom.