Thou shalt have no other gods before ... HHS? (Updated)

St. Francis Health System / Becket Law

Should a Catholic hospital be forced to snuff out its Eucharistic candle in order to provide care to the elderly, poor, and infirm? That is precisely the position taken by the Center for Medicare and Medicaid Services (CMS), on multiple occasions, with St. Francis Hospital and Health System in Oklahoma. In order to continue to get reimbursements for care provided under CMS programs, the Catholic hospital will have to violate Catholic canons by getting rid of its Eucharistic candle, or removing its tabernacle and stop conducting Mass on site:


The federal government recently told a Catholic hospital in Oklahoma to either blow out a small candle or stop serving elderly, disabled, and low-income patients. Saint Francis Health System, the twelfth largest hospital in the nation, keeps, with many prudent safeguards, a sacred candle always lit inside its hospital chapels, in accordance with its Catholic faith.

After a hospital inspection in February, the government said a single candle was too dangerous and now threatens to strip the hospital of the ability to accept Medicare, Medicaid, or CHIP if it does not extinguish the flame. Becket sent a letter to the Biden administration reminding it that Saint Francis has the right to religious freedom and warning federal bureaucrats to leave the candle alone. …

Earlier this year, the Centers for Medicare and Medicaid Services, a federal agency under the Department of Health and Human Services (HHS), deemed one of these candles too great a threat to hospital safety. Even though the candle is encased in glass and covered on top and has been approved repeatedly by the government and the local fire marshal, Saint Francis was told to snuff it out. If it does not extinguish the flame, the government will revoke Saint Francis’ ability to see Medicare, Medicaid, and CHIP patients, cutting off critical healthcare access for thousands of people in Oklahoma. Saint Francis asked the government four separate times for a waiver, explaining that its sanctuary candle is not a danger to anyone.


This hospital has been in business for six decades with its Catholic chapel and tabernacle. Has there ever been an incident that would cause CMS to think this is a fire hazard? The candle is encased in glass — twice over —  and topped with a brass cap, firmly affixed to the wall of the chapel. (The picture above is the actual candle in question, from the response by Becket Law to CMS, to which we’ll return momentarily.) Does this look like a fire hazard to anyone — even without the knowledge that it has existed without incident at St. Francis Hospital for 60 years, or that every Catholic church and chapel have had the same candle burning 364 days a year, for about two thousand years?

The candle is a crucial form of worship in the most literal sense, too. It signifies the real presence of Christ in the transubstantiated host in the nearby tabernacle, a firm Catholic belief. It honors and worships the Lord through its continued burning. Only when the tabernacle is empty does the candle go out, and that is only during the Easter Passion prior to the Easter Vigil, when the Eucharist returns to the tabernacle.

Catholic canon law requires the candle in the sanctuary for proper worship of the presence of Christ:

Can. 940 A special lamp which indicates and honors the presence of Christ is to shine continuously before a tabernacle in which the Most Holy Eucharist is reserved.

And moreover, doctrine requires it to be a real candle, as the General Instruction of the Roman Missal dictates:


315. It is more appropriate as a sign that on an altar on which Mass is celebrated there not be a tabernacle in which the Most Holy Eucharist is reserved.[127]

Consequently, it is preferable that the tabernacle be located, according to the judgment of the Diocesan Bishop:

a) either in the sanctuary, apart from the altar of celebration, in a appropriate form and place, not excluding its being positioned on an old altar no longer used for celebration (cf. no. 303);

b) or even in some chapel suitable for the private adoration and prayer of the faithful[128] and organically connected to the church and readily noticeable by the Christian faithful.

316. In accordance with traditional custom, near the tabernacle a special lamp, fueled by oil or wax, should shine permanently to indicate the presence of Christ and honor it.[129]

It doesn’t matter that some petty bureaucrat — in this case, Scott J. Cooper of CMS — doesn’t like candles in hospitals. It doesn’t matter if others think that a battery-operated fake candle is sufficient. What matters is what Catholics believe and what their faith requires for worship and proper expression of their religious beliefs.

To demand that the hospital remove its sanctuary candle is to demand that the hospital either (a) reject the doctrine of Real Presence, or (b) force an end to Catholic worship in a hospital. Either way, it is at the least interfering with freedom of religious expression, and at worst requiring a Catholic hospital to put the government before God in order to serve its community.


Furthermore, why is CMS even making these determinations? Fire safety in buildings are the responsibility of local fire marshals, whom I can assure you from personal experience are not cream puffs. My favorite joke from my burg-fire alarm career attests to this:

Q: What’s the difference between God and a fire marshal?

A: God doesn’t think he’s a fire marshal.

The local fire marshal has no issue with this, nor with the same setup in every Catholic church and chapel in his jurisdiction, and for good reason: it doesn’t present a risk. Furthermore, hospitals not only are staffed 24/7, they have very expensive and sophisticated fire-suppression systems in the historically singular hypothetical that the candle could start a fire. The only risk this presents is to expose the idiotic hostility toward religious expression at CMS and its parent Health and Human Services, and to the hubris of petty bureaucrats seeking dominion over God.

Just how petty did this get? Becket Law’s pre-litigation letter details it:

The chapel’s living flame—never a problem in decades’ worth of prior accreditation surveys—is the only reason the Joint Commission would deny accreditation of the hospital. The government’s idea of the “corrective action” requires that Saint Francis extinguish the sanctuary lamp. If Saint Francis fails to take that “corrective action,” it will lose its Medicare and Medicaid eligibility and its ability to serve elderly, disabled, and low-income patients in Tulsa.

Since the inspection and citation, Saint Francis has repeatedly explained to CMS and its accrediting agency why the eternal flame is safe and why Saint Francis’ faith requires the living and eternal flame in order for Saint Francis to suitably honor and proclaim the living presence of Christ. Saint Francis has asked for a waiver four separate times. But CMS and its accrediting agency have refused to budge. The surveyor stated: “During the building tour of the Chapel, there was a lit candle with an open flame burning unattended 24/7.” But when Saint Francis explained that the sanctuary candle is not an open flame but is enclosed, one representative asked how that flame was lit.

Saint Francis’s answer? A lighter. Now it appears that this lighter’s (fleeting) flame, not the sanctuary lamp’s (eternal) flame, is the open flame that violates the National Fire Protection Association Codes and Standards adopted by CMS. Call it Maslow’s open flame.


In other words, to paraphrase from Steve Garman’s 1984 winning entry of the Bulwer-Lytton Atrocious Fiction Contest: Flick that Bic, crisp that wick, and you’ll feel our power through your next Holy Hour. 

In today’s The Ed Morrissey Show podcast, Becket Law VP and senior counsel Lori Windham discusses the outrageous conduct of CMS. “What we said to HHS,” Lori says, “is this is not Mrs. O’Leary’s barn. This is not some sort of major danger here.” More to the point, however, is that this is a gross violation of the First Amendment that wouldn’t even stand up under a rational-basis test, let alone the strict scrutiny that such infringements would have to clear.

Be sure to watch it all — Lori and I had a lot of fun — but here are a few highlights:

  • “Now, what I see is just one more time a refusal to take these religious concerns seriously. This has been raised with them, this has been explained to them, and yet they still are just going to hold firm to this rule that isn’t really even a rule and not hear the religious concerns.”
  • “And just as you said, you know, we have a long history with HHS and Becket. We litigated the Hobby Lobby case all the way to the Supreme Court over the Obamacare mandate. We won that we litigated the little sister’s case all the way to the Supreme Court over the Obamacare mandate. We won that twice.”
  • “If there’s anything the last ten years have taught us, it’s that Health and Human Services really should not be in charge of religious doctrine. They do not need to be the ones deciding what is okay and what is not okay for Catholic Mass and the adoration of the Blessed Sacrament.”
  • “If we don’t hear something from them very soon, we are going to take this to court. We’re quite confident that if we go to court, we’ll win. We said that to them in the letter. We’ve got a long track record with HHS to back that up.”

The Ed Morrissey Show is now a fully downloadable and streamable show at  SpotifyApple Podcaststhe TEMS Podcast YouTube channel, and on Rumble and our own in-house portal at the #TEMS page!


Update, 5/5: It’s over — for now. Becket Law and Lori Windham forced HHS into retreat:

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John Stossel 5:30 PM | July 13, 2024