Catholic Courthouse Comedy

By George Neumayr

Catching the Church out in another ostensible moment of hypocrisy, the mainstream media reported last week that a Catholic hospital in Colorado fended off a malpractice lawsuit by arguing that "fetuses" are not persons under Colorado law. The lawsuit revolved around a father's claim that the hospital's incompetence had resulted in the deaths of his two unborn children.

The court, argued the hospital's lawyer, "should not overturn the long-standing rule in Colorado that the term 'person,' as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define 'person' under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses."

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This appears to be a case of a secularized Catholic hospital taking advantage of a pro-abortion definition built into secular law to save money. Of course, the media didn't report it in those terms, as that would undermine the hypocrisy angle. But the story is not all that surprising. Secularized Catholic schools will sometimes play the same game, using a liberal line of defense to their legal benefit.

Jesuit St. Louis University, for example, found itself in a lawsuit back in 2003 with the Masonic Temple Association over a tax abatement the school had received from the state of Missouri to build a sports arena. A group of neighboring Masons didn't feel the school was entitled to government monies since it is a religious institution. To defeat the suit, the Jesuits argued that St. Louis University is not a religious institution and that it is "independent of the Catholic Church."

The case proved a curious spectacle. As the Jesuits vehemently denied the school's Catholic identity -- "Whatever its status in the past, Saint Louis University is not now controlled by any creed" -- the Masons sought to uphold it, noting the school's bylaws, which stated that it is "publicly identified as a Catholic university and a Jesuit university."

But heterodoxy is not always to the legal advantage of secularized Catholic institutions. Sometimes a faked-up conservative line saves them money too. In recent years, Catholic colleges, despite their rosters of pro-union professors, have argued against union formation for adjunct professors on the grounds that the schools are "religious" and thus deserving of an exemption from labor laws. (In 1979, the Supreme Court ruled that the First Amendment protected religious schools from federal labor oversight.)

Usually, these schools, as in the case of St. Louis University, want to be free of the Church. But when they want to save money by hiring a lot of adjunct professors and not letting them unionize, they tell the National Labor Relations Board (NLRB) that the schools are steeped in Catholicism. They suddenly discover that their financial interest clashes with their "social justice" and customary secularism.

This has resulted in the comedy of the federal government saying to these schools what many bishops won't: You are no longer visibly Catholic. In 2011, the NLRB told two Catholic colleges, St. Xavier University and Manhattan College (founded by the Christian Brothers), that they displayed no signs of a Catholic identity and therefore could no longer block the formation of a union. The NLRB cited as evidence for its rulings that the schools don't require students to take Catholic theology courses, that the faculties and boards retain just a handful of Catholics, and that their personnel and disciplinary policies generally show indifference to Church teaching.

Administrators at these schools have balked more loudly at these rulings than at the HHS mandate. It is another case of the Obama administration shrewdly exploiting secularization within Catholic institutions to swoop down and essentially control their policies.

Confused bickering among liberals usually on the same side broke out after the NLRB's rulings. The head of Manhattan College argued with a straight face that the school's secularization embodies the religion of the post-Vatican II Church and that the Obama administration was punishing it for straying from the traditional faith. Obama's NLRB, albeit inadvertently, has done more to light a fire under these schools than the bishops. Chalk it up to the accidental collision of motives. The NLRB is forcing these schools to hire more Catholics or unionize. Unlike in the Colorado case, the best legal option here, much to their dismay, is orthodoxy.

George Neumayr, a contributing editor to The American Spectator, is co-author (with Phyllis Schlafly) of No Higher Power: Obama's War on Religious Freedom.

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