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October 22, 2009

Guest post: Belmont Abbey, continued

Rabbi Yaakov Menken is the Director of Project Genesis, a Jewish cyber-outreach organization based in Baltimore.

I am honored that Professor David Neipert, one of the faculty members who initiated the EEOC complaint against Belmont Abbey College, saw fit to respond to my earlier article on this topic. Given his personal involvement in this case, it is obvious that he begins with a far greater knowledge of its particulars, and I appreciate his sharing his perspective of the facts.

Here are the key points that he has made, to the best of my understanding:

1. The status of Belmont Abbey College as a religious institution is questionable. This is buttressed by the fact that the college "advertised itself as an equal opportunity employer and freely accepted funding that was not available to religious institutions." Additionally, the majority of its faculty, staff, students, and alumni are not Catholic.

2. The college offered coverage for these services for 26 years, "indicating that this was a change of a deliberate policy." It was then done immediately, unilaterally, and without discussion, and the college refused to negotiate.

3. It is not the eight faculty members, but the school, that is attacking religious freedom. "Forcing us to abide by a Catholic approved health plan makes no more sense than prohibiting a Catholic plumber from eating a Pork sandwich for lunch if he works at a Jewish hospital." Professor Neipert was assured that he would "not be expected to adopt Catholic practices and that not being Catholic would not affect my career in any way."

Let us address each of these in turn.

In order to question Belmont Abbey's status as a religious institution, Professor Neipert conflates two entirely different standards, from two vastly different sections of the law. He writes that "the college actually went to the federal court of appeals arguing that it was not religious in order to obtain state funding." The decision in that case, however, states that "in the charter of the college, the fourth stated purpose speaks of Christian inspiration, fidelity to the Christian message and of reflection upon the growing treasury of human knowledge in the light of the Catholic faith." [These four purposes are apparently drawn directly from Pope John Paul II's definition of a Catholic college.] The decision further quotes from the faculty handbook to the effect that BAC is a "Catholic institution."

On the contrary, in that case the question was whether the state could legally provide tuition grants and scholarships to students attending Christian colleges in order to receive an education in the liberal arts. "A three-judge court held that the two colleges in question, although they had religious ties, were not so pervasively religious that their secular activities could not be separated from their sectarian ones; and that the program did not involve excessive entanglement on the part of the state with the religiously affiliated colleges, so that application of the scholarship program to the colleges did not violate First Amendment rights." Under the law, the state cannot provide tuition grants to young monks joining the Belmont Abbey, but can provide them to their peers, whether Catholic or otherwise, attending Belmont Abbey College. That hardly means the college isn't "religious."

Even the claim that "the majority of the faculty and students are not Catholic" is problematic at best. According to the Office of the President at BAC, the majority of the administration, the Board of Trustees, the faculty, and the resident students are all understood to be Catholic (the college does not formally survey faculty). In the same legal decision mentioned above, the court states that "Catholics predominate on the Board of Trustees, the offices of administration, faculty and staff of the college," and comprise roughly 70% of the students. While I hesitate to take an anonymous comment on a blog as having any credibility, someone claiming to be a junior at the college writes on that "the student body overwhelmingly supports Dr. Thierfelder and the Abbot in this decision." So I would say the jury is still out on that claim.

Sadly, the fact that this coverage sat on the books for 26 years, if true, is no proof that it was there intentionally. It is clear that neither the president nor the Abbot knew that their insurance coverage provided for services that violated Catholic teachings. They took action not to discriminate against any party, but to remove the college from paying for activities which violate their religion, and did so as soon as they became aware of the issue. They didn't discuss, negotiate, or delay, because following the tenets of the Catholic church is part of the charter of the school, and not something that can be discussed, negotiated, or delayed.

Professor Neipert is unable to understand why the monks of Belmont Abbey might go so far as to close the college rather than pay for the violation of their religious beliefs. This is because he is only considering the importance of earthly things such as degrees, donors and college credits. While he claims to be fighting for religious principle, he fails to demonstrate an understanding of the overriding importance of religious law to those truly sincere in their faith.

Which brings us to the final, and surely the most crucial point of Professor Neipert's rebuttal of my earlier post: his claim that it is he and the other seven faculty members that are fighting for religious freedom, rather than Belmont Abbey College. While he attempts to draw a parallel to "prohibiting a Catholic plumber from eating a Pork sandwich for lunch if he works at a Jewish hospital," a more accurate analogy would be if the plumber were to demand use of the hospital microwave to heat his sandwich, rendering that microwave unusable for the preparation of Kosher food afterward. The college is not prohibiting an employee from undergoing voluntary sterilization or taking prescription contraceptives; it is only excluding itself from assisting financially in that effort.

There can be no confusion on this point. The college, by not paying for something which violates Catholic religious tenets, is not imposing its faith upon Protestant, Jewish, Muslim or atheist faculty or staff. It is merely observing its own faith.

While Professor Neipert and his seven colleagues may be confused about this, the EEOC is not. The EEOC already dealt with the claim of religious discrimination, and rejected it because "benefits were not changed based on each individual employee's religious beliefs; contraception benefits were removed from the health plan for all employees, regardless of their religion."

So Professor Neipert's response is enlightening but also perplexing. He tells us that their cause is one of noble principle, that they went to court "to protect our religious freedom not to have religious practices imposed upon us by our employer." If that is true, one wonders why they continue to pursue a case that they have already lost.

In his essay of over 1,200 words, Professor Neipert does not so much as mention the word "gender" -- the sole basis upon which the EEOC rests its case. Perhaps he recognizes that the charge of gender discrimination is logically vacuous, considering that Catholic teachings are equally relevant to any form of interference with reproduction, whether by man or woman. Perhaps he understands how incomprehensible it is for six men to continue to claim personal standing under Title VII, when all that remains is a charge of discrimination against women. Perhaps he also recognizes that if the EEOC position were to be sustained, the same tenuous logic ("Respondent is discriminating based on gender because only females take oral contraceptives") would immediately require employers to pay for abortion on demand as well. Instead, he attempts to wave a banner that the EEOC has already discarded.

Regardless of the outcome in this particular case, the "freedom" to compel your employer to help you violate his or her own religious tenets will not be granted. As long as a condition is imposed upon all employees and does not require a religious observance, the EEOC will not call that "discrimination." An employer affiliated with the Je-ovah's Witness might not provide for blood transfusions, or health care at all. A Muslim employer can tell you to stand facing Mecca in respect of those praying, he just can't order you to pray. A Hindu employer, just like a vegetarian employer, can prohibit beef consumption on the premises of his or her business. And, of course, a Jewish hospital can insist that anything placed in the microwave is certified Kosher.

Prof. Neipert claims this is all a matter of principle, the EEOC has discarded that principle, and the case is lumbering forward. Perplexing, indeed.

Posted by Matthew Hay Brown at 5:00 AM | | Comments (3)


Why did you remove the comments?

The Rabbi asks why we are pursuing a claim we have already lost. He should pose that question to the college, not us. There was a preliminary finding where a small local office ruled for the college. Upon review by the experts at EEOC in Washington they did find gender discrimination and the college is appealing a case it has already lost. EEOC has also made a finding of retaliation against the college for the tactics it used against us. It is true that the college could drop its medical plan altogether and avoid this issue. I stand by my statement that the college is majority non-Catholic, based on survy date I have seen.

Dr. Niepert is misinformed in regard to the Catholic majority at the College, although he is correct if he maintains that the majority of faculty would not self-identify as Catholic. On the other hand, there has never been a poll, so that cannot be stated with certainty. I have worked at the College for 35 years, and the claim that it is not a Catholic institution is specious. One of the eight faculty members involved in this affair has told me that it was instigated by a breach of contract, and not because of the "religious" aspects of it. I am sorry that Dr. Niepert is unable to appreciate the "higher value" aspect of the discussion, but there it is.

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About Matthew Hay Brown
Matthew Hay Brown writes and blogs about faith and values in public and private life for The Baltimore Sun. A former Washington correspondent for the newspaper, he has long written about the intersection of religion and politics. He has reported from Africa, Asia, Europe, Latin America and the Middle East, traveling most recently to Syria and Jordan to write about the Iraqi refugee crisis.

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