The Supreme Court on October 6 unexpectedly declined to review appeals from federal court rulings that struck down state marriage laws in Utah, Oklahoma, Virginia, Wisconsin, and Indiana.  The main practical effect of the high Court’s action was to kick into effect the lower appeals courts’ rulings that same-sex couples must be permitted to marry according to civil law.  Within 48 hours, Notre Dame announced that it would extend spousal benefits to spouses in same-sex unions recognized under Indiana law as marriages.

The question is why, since nothing in the Supreme Court decision or in the relevant lower appellate ruling required Notre Dame—or any other Catholic institution—to conform its own understanding and treatment of marriage to that of public authorities.  The question is more puzzling, in that Notre Dame continues to challenge in the federal courts a government rule—the HHS “contraception” mandate—which unquestionably applies directly to Notre Dame, claiming that religious liberty protections in our law mean that this direct rule cannot lawfully be applied to Notre Dame.  Why did not Notre Dame seek similar legal protection against having to betray the truth about marriage?

The answer is that Notre Dame did not want to.

A Human Resources email making this announcement to all benefit-eligible faculty and staff read:

“On Monday, the U.S. Supreme Court declined to hear appeals from decisions striking down bans on same-sex marriage in several states, including Indiana. This means that the law in Indiana now recognizes same-sex marriages, and the University will extend benefits to all legally married spouses, including same-sex spouses.

“Notre Dame is a Catholic university and endorses a Catholic view of marriage. However, it will follow the relevant civil law and begin to implement this change immediately.”

In response to Rover inquiries pertaining to the language of this announcement and whether or not the university was coerced or elected to extend benefits, Paul Browne, Vice President for Public Affairs and Communications, confirmed that, “The language, ‘relevant civil law,’ referred to the fact that when the Supreme Court declined to hear appeals from decisions striking down bans on same-sex marriage in several states, including Indiana, such unions were now legally recognized there. As to your other inquiries I refer you to the statement … that Fr. Jenkins made in response to a column by Bishop Rhoades on the subject.”

In response to the question of why the university acted so quickly to announce this change, Father William Lies, CSC, Vice President for Mission Engagement and Church Affairs, told the Rover that he would be “remiss to offer … any more or less than that which Father John put out in response to Bishop Rhoades’ article.”

The Rover inquired of President Father John Jenkins, CSC, whether the university’s decision is consistent with Church teaching on marriage. Father Jenkins had written to the student group Students for Child-Oriented Policy in May that, “I believe the University has taken a clear stand on the definition of marriage … I will continue to reflect on the best steps we can take to support a true understanding of marriage.” Father Jenkins had not responded as of the writing of this article.

Bishop Rhoades’ statement, referenced by Browne and Fr. Lies, was published in Today’s Catholic, a publication of the Diocese of Fort Wayne-South Bend, on October 14. The bishop emphasized that he “would like to see further study of what the law requires as well as what religious liberty protections Notre Dame and our other Catholic institutions have so as not to be compelled to cooperate in the application of the law redefining marriage …

“As a Catholic university, it is important that Notre Dame continues to affirm its fidelity to Catholic teaching on the true nature of marriage as a union of one man and one woman. I have communicated to Notre Dame my conviction that this affirmation should also include efforts to defend the religious liberty of our religious institutions that is threatened in potentially numerous ways by the legal redefinition of marriage, including the government forcing our Catholic institutions to extend any special benefits we afford to actual marriage to same-sex ‘marriage’ as well.”

On October 16, Fr. Jenkins released a statement intended as a response to Bishop Rhoades’ column as well as an explanation of Notre Dame’s decision. The statement explains that Fr. Jenkins was in conversation with Bishop Rhoades before and after the decision, and thanks Bishop Rhoades for “his pastoral concern, his forthrightness in proclaiming Catholic teaching and for the friendship he has shown Notre Dame.”

After noting his concern about the trend of recent government actions, Fr. Jenkins writes, “Apart from these questions and any legal obligations, however, we recognize an urgent call to welcome, support and cherish gay and lesbian brothers and sisters, who have been too often marginalized and even ostracized, and many of whom bear the scars of such treatment … The institutional challenge before us is to witness to the truth of all our convictions in a society in which they are frequently opposed, misunderstood and even ridiculed by those from across the political spectrum … Our abiding goal … is to build a less imperfect community of love.”  Notre Dame took the Supreme Court action on October 6 as the occasion to announce a radical change in University policy, rather than as a cause of it.

Father Jenkins also noted the many “initiatives to provide support and welcome gay and lesbian members of our community” that the university is engaged in and declared: “These efforts must not and will not flag.”

Notre Dame’s efforts to “support and welcome” must remain faithful to the teaching of the Catholic Church and the local Bishop. A Statement of the Catholic Bishops of Indiana dated April 18 states that, “With deep respect for all our brothers and sisters, we nevertheless see no basis in law or in nature for any definition of marriage that seeks to expand it beyond that of a covenant between one man and one woman.” In his column, Bishop Rhoades writes that, “The Church continues to oppose the redefinition of marriage to include two persons of the same sex since such redefinition denies the truth and reality of what marriage is: the lifelong partnership between one man and one woman ordered toward the good of the spouses and the procreation and education of children … Not allowing two persons of the same sex to marry is not unjust discrimination. The ‘right to marry’ is the right to enter into a relationship that is unique and rooted in a nature that includes sexual differences.”

In 2003, the Congregation for the Doctrine of the Faith, under the leadership of Joseph Cardinal Ratzinger and with the express approval of Pope Saint John Paul II, issued a document concerning proposals to give legal recognition to unions between homosexual persons. The document states that, “In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.”

This is not the first time that the actions of the university have caused conflict between the local Bishop and the university’s administration. It does call into question the nature of the relationship between diocesan bishops and Catholic universities.

The relevant canon outlining this relationship is canon 810.2: “The conferences of bishops and diocesan bishops concerned have the duty and right of being watchful so that the principles of Catholic doctrine are observed faithfully in these same universities.” Pope Saint John Paul II’s Apostolic constitution, Ex Corde Ecclesiae, reads, “Each Bishop has a responsibility to promote the welfare of the Catholic Universities in his diocese and has the right and duty to watch over the preservation and strengthening of their Catholic character. If problems should arise concerning this Catholic character, the local Bishop is to take the initiatives necessary to resolve the matter, working with the competent university authorities in accordance with established procedures and, if necessary, with the help of the Holy See.”

Very Reverend Mark Gurtner, JCL, Judicial Vicar for the Diocese of Fort Wayne-South Bend, elaborated on this relationship for the Rover:

“First and foremost, I would say that the relationship between the diocesan Bishop and a Catholic University is meant to be one of cooperation and dialogue with the Catholic University respecting the office and role of the diocesan Bishop.  At the same time, history has shown that Catholic universities must be able to work freely, safe from undue control by a diocesan Bishop. Thus, I believe that the law of the Church is trying to maintain this balance.

“With this in mind, it must be said that the diocesan Bishop has no direct role in the governance of a Catholic University.  He does have the power of persuasion which is backed by the authority of his office.  In extreme situations, he would have the right to approach the Holy See concerning a problem with the Catholic character of a University, and in most extreme circumstances, the diocesan Bishop could take the title ‘Catholic’ away from a University (see canon 808).  However, this is really the nuclear option, if you will, and would only be considered by a diocesan Bishop in the most extreme of situations and as an absolute last resort.

“An area in which the diocesan Bishop has a more specific role regards pastoral ministry to students.  Both canon law (canon 813) and the Apostolic constitution, Ex Corde Ecclesiae (number 41) speak to this.”

Gerard Bradley, Professor Law and former President of the Fellowship of Catholic Scholars added that “it is nonetheless critical to stress what is perhaps implicit in the Vicar’s remarks but explicit in Church teaching and law: the local Bishop is the authoritative teacher of the faith in this Diocese.  All the priests, religious, lay catechists, and laborers in Catholic apostolates such as Notre Dame are assistants to the Bishop, who alone bears the responsibility —and thus possesses the authority—to safeguard the faith and to protect souls from peril in this place.  And it is this responsibility, and not a more specific share in internal University governance, which establishes Bishop Rhoades competence—indeed, his duty—to admonish and correct Notre Dame where the integrity of the faith or the welfare of souls requires it.”

While Notre Dame chose to extend spousal benefits, other local Catholic colleges have not made the same decision.

Brother John Paige, CSC, President of Holy Cross College, told the Rover that, “Holy Cross College is seeking further study of what the law requires as well as what religious liberty protections Holy Cross and/or other Catholic institutions may have so as not to be compelled to cooperate in the application of the law redefining marriage. Among other entities, the Indiana Catholic Conference is studying these issues locally.”

Teresa Sordalet, Vice President for Administration at the University of Saint Francis in Fort Wayne, informed the Rover that, “After reviewing with legal counsel the recent ruling of the Supreme Court regarding same sex marriages in the State of Indiana and its impact on the university’s benefits programs, counsel has determined that university can define marriage as a union between members of the opposite sex. Therefore, our healthcare and dental/vision plans have been amended to align accordingly.”

Gregg Chenoweth, President of Bethel College (a Christian liberal arts college located in Mishawaka, Indiana), explained to the Rover that, “Bethel currently has no policy to address same-sex benefits specifically.  As we assess recent developments in the courts, we value not only current Civil Rights law protections based upon race, color, age, gender, and national origin, but also the wonderful privilege afforded us in religious exemptions since 1964 (Title VII, Sec. 702-703).  We are grateful to live in a nation dedicated to true religious pluralism, not secularism.  And by that provision, we long for a mood in the citizenry and courts to sustain the long precedent for religious institutions to exercise their conscience. Just as Notre Dame sought exemption from new mandates to supply birth control, but seeks no exemptions on same-sex benefits, we might discover the free exercise of religion on hiring and benefits matters at Bethel produces different results than other religiously defined Colleges.” The trustees of Bethel College recently began a process to examine this issue in more depth.

Jodi Beyeler, Assistant Director of Communications and Marketing at Goshen College, told the Rover that, “Goshen College is part of Mennonite Church USA and currently asks all employees to follow a Commitment to Community Standards. At their recent meeting, the Board of Directors took up the question of GC’s hiring practices regarding legally married individuals in same-sex relationships, but postponed a final decision. The board believes that the core of who Goshen College has always been—offering a top-tier education from a Christ-centered, Anabaptist perspective—would not change, no matter the decision. Whatever the final decision, the board hopes that—even in expected disagreement—conversations will continue in a Christ-centered spirit of openness, honesty, mutual respect and love.”

These statements from other local religiously-affiliated colleges and universities make clear that the decision of the Supreme Court to decline review of lower court rulings, which necessitated the recognition of same-sex unions as marriages under Indiana law, does not compel all religiously-affiliated institutions to compromise their sincerely held religious beliefs and cooperate in the redefinition of marriage. The University of Saint Francis has determined that it is not compelled to act as Notre Dame did. Holy Cross College is relying on the guidance and advice of Bishop Rhoades and the Indiana Catholic Conference in hopes that the College will not be forced to cooperate with this law.

The University of Saint Francis indicated that its benefit plans have been “amended” to align with its determination that it is free to define marriage the union of one man and one woman, indicating one option available to Catholic universities is to alter the language of their benefit plans such that benefits are not dependent on the legal status of marriage in the state of Indiana.

The statement of Bethel College highlights the distinction between the situation faced by such religiously-affiliated schools with respect to the HHS mandate and with respect to the application of the recognition of same-sex unions as marriages. Richard Garnett, Professor of Law at Notre Dame, has written at Mirror of Justice that, while he does not possess full knowledge of Notre Dame’s particular situation, with respect to Catholic universities, “It is true, certainly, that in both cases, there is the possibility of causing scandal and demoralization to those who care (as we all should) about Catholic institutions’ (and especially Notre Dame’s) authentic Catholic character and mission. And, in both cases, the relevant ‘civil law’—the HHS mandate, or the Seventh Circuit’s decision invalidating Indiana’s marriage law—is vulnerable to criticism as being unsound.”

Professor Bradley told the Rover that Notre Dame’s recent decision to extend benefits to same-sex couples legally married is not only scandalous.  “The University’s decision is morally wrong in itself, because it represents formal cooperation in sinful sexual relationships.  And that is absolutely excluded by sound morality.  It must not be done.”

Last year Pope Francis told the Notre Dame delegation in Rome that a commitment to “missionary discipleship” is central to the mission of any Catholic university. “Essential in this regard is the uncompromising witness of Catholic universities to the Church’s moral teachings, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors. It is my hope that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts, from whatever quarter, to dilute that indispensable witness.”

Father Jenkins, in defense of Notre Dame’s decision to extend benefits to all legally married spouses, emphasized that, “The institutional challenge before us it to witness to the truth of all our convictions in a society in which they are frequently opposed, misunderstood and even ridiculed by those from across the political spectrum.”

In announcing its extension of benefits to all legally married spouses, the administration added, “Notre Dame is a Catholic university and endorses a Catholic view of marriage.” Bishop Rhoades wrote in his column, “[I] am glad that Notre Dame affirmed that as a Catholic university, it ‘endorses a Catholic view of marriage,’ though I would say that Catholic teaching on the heterosexual nature of marriage is more than ‘a view.’ The heterosexual nature of marriage is an objective truth known by (right) reason and revelation.”

Contact Tim Bradley at