Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, July 8, 2008

Berg's Response to Kaveny on Funding and Religious Hiring

Since I'm not down the hall from Cathy in South Bend, I'll respond at greater length to her arguments for excluding from funding private programs that consider religion in hiring.

Among her key premises is that allowing religion-based hiring serves only the purpose of "mak[ing] religious groups flourish," whereas the purpose of funding is "to partner with them in enacting limited purpose programs demonstrated to make the community as a whole flourish."  But the argument for religious-hiring rights in funding includes a significant component of institutional pluralism.  Allowing funding recipients flexibility in this matter would serve the community by allowing a broader range of organizations, bringing a broader range of community contacts and strategies for addressing needs, to partner with the government.  Obama's speech appeals to institutional pluralism, asserting the need to have "all hands on deck" in attacking social problems through a "bottom up" approach.  But because of the hiring-rights issue, his proposal is likely to drive away the majority of evangelical hands, as the negative reaction of the very moderate evangelical leader Rich Cizik in last week's Times suggests.  And his proposal is top-down to the extent that it supports only one model of religious engagement in social services -- the ecumenical one where, in Cathy's terms, religion is not "relevant to the job" of working in the soup kitchen.

Once it's clear that both community service and religious freedom are at issue, it's quite rational to say that funding recipients should serve clients of all faiths but may consider religion in deciding who will provide the services.  Cathy thinks I have to treat the two decisions the same because my only concern is the organizations' religious freedom.  But if the government wants both client service and religious freedom, then it's perfectly rational to use a rule to ensure that clients receive the services easily (without the possibility of rejection by some providers), yet also avoid intruding further into an organization's decisions about the beliefs of those it chooses to deliver the services.  (I personally would also make some room for organizations that make some religious demands of clients too, but that is not logically compelled just because I support religious hiring rights.)

Cathy argues that "the job itself is a substantial benefit–-it confers participation and status in the community."  But to use her own words, the purpose here is to partner with organizations to help the needy, not to provide government jobs.

Cathy says that the analogy to Planned Parenhood or environmental groups actually supports a division between providing secular services and a religious motivation for doing so, since these groups don't care about "the underlying philosophy or worldview," religious or secular, of why one supports abortion rights or enviromentalism.  But these groups mostly don't care about the underlying worldview for leaders either -- their leaders include both religious and nonreligious people -- whereas Cathy acknowledges that leaders of a religious charity can legitimately be required to adhere to its ultimate beliefs.  That proves my point.  For some religious soup kitchens, the mission is "feeding the hungry from religious faith," not simply "feeding the hungry," and they want all employees to share that mission, just as Planned Parenthood can want all employees to share its (more expansively defined) mission of promoting abortion rights.  An organization whose mission combines abortion rights with religion -- say, the Religious Coalition for Abortion Rights -- should be able, if it wants, to require that all staffers are religious as well as pro-choice, and preserve that ability if it receives government funding.

I share Rick's doubts about the reference to Monica Goodling and other DOJ hiring scandals.  Given what we know, it appears that people engaged in religious favoritism in an improper context.  But we should also note that they used government's distinctive power (that of hiring for law-enforcement jobs) to engage in favoritism.  By contrast, preserving religious hiring rights in the funding context allows private groups with different views of religious mission and motivation to cooperate with government without facing government favoritism.  But under Obama's proposal, government's power of the purse will be used to disfavor organizations with certain models of religious mission and motivation regardless of whether they provide quality services.


Berg, Thomas | Permalink

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