March 23, 2004
The Downsides of Relying on Government Aid for the Provision of Social Services
I agree strongly with Rick that the participation of Catholic and other religious organizations in programs like Charitable Choice and school vouchers raise troubling issues for the religious participant. As the Virginia Association of Baptists wrote in 1776, "those whom the State employs in its Service, it has a Right to regulate and dictate to." I think precisely these dangers are present when the government funds social and educational institutions today. Already, we have seen strings attached to the vouchers programs upheld by the U.S. Supreme Court in Zelman v. Simmons-Harris and by the Wisconsin Supreme Court a few years earlier in Jackson v. Benson. The program in Zelman requires participating schools to "agree not to discriminate on the basis of race, religion, or ethnic background, or 'to advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin or religion.'" Such restrictions could be liberally construed to bar a Catholic school that approves of Operation Rescue or a fundamentalist Christian school that teaches that Satan is at work within Islam. The program in Jackson v. Benson required participating schools to permit voucher students to opt out of religious activities if their parents request. In the social services area, too, one can expect that the more governments privatize the provision of social services, the more they will seek to regulate the "private" sector they are funding. Indeed, a number of scholars are already advocating such regulation as a means of shaping deviant religious groups according to majoritarian "public values."
I have never written on vouchers or funding for faith-based social services programs because I cannot yet figure out how to address these problems adequately. On the one hand, if governments continue to move in the direction of privatizing social and educational functions and religious organizations do not or cannot participate, the resulting services will be skewed strongly in a secularist direction. Such skewing would be unfair and damaging to religion. But if religious organizations do participate, will they risk becoming part of a "private" sector heavily regulated by the government? Indeed, a sector that may take on more of the features of government bureaucracy as time goes on?
March 22, 2004
Another Angle on Catholic Social Thought and Lawyering on Behalf of Catholic Institutions
Here is a different angle on the importance of integrating Catholic Social Thought principles into lawyering on behalf of Catholic institutions. In a recent article addressing the application of mandatory collective bargaining regimes to religious institutions, I argue that the National Labor Relations Act and state labor laws that resemble the federal statute are incompatible with the Church's vision for labor-management relations. While secular regimes presuppose and entrench an adversarial relationship between management and labor, the Church envisions a cooperative relationship based upon mutual concern and the common good. Lower courts addressing the application of these laws to religious institutions have, with only a handful of exceptions, found no burden on religious belief or practice, and in cases involving Catholic institutions, a number of courts have pointed to the Church's support for unions and labor rights. I have found no case where the Church's lawyers made the kind of theological argument that I suggest, and I believe that they have missed one of the Church's strongest arguments in a series of cases that, in my view, merit litigation. (I recognize that there are Catholics and Catholic scholars--indeed, Catholic legal scholars--who believe that Church institutions should be required to bargain under secular labor regimes. I agree that Catholic institutions have an ethical obligation rooted in the Church's social teaching to bargain with employees who so desire. However, this bargaining relationship should be defined by the Church's social teaching, not by a secular regime that cannot be expected to mirror the richness of the Catholic tradition). One of the lessons I draw from this is the importance of understanding and integrating the Catholic Social Thought into the legal defense of Church institutions when such defense is appropriate.
Along these lines, as I read the recent California Supreme Court decision in Catholic Charities of Sacramento v. Superior Court (March 1, 2004), I wondered why church lawyers so readily admitted that Catholic Charities was not involved in the "direct inculcation of religious values" and, thus, failed the first of the four necessary criteria for exemption as a religious employer under the state's Women's Contraception Equity Act. Catholic social teaching does not draw a sharp distinction between evangelization and serving the poor and needy. Church institutions that serve those in need are a model and witness of God's love manifest on the Cross and at work in the world. Through the Church's social mission, those who assist those in need proclaim the Gospel message as much as do preachers from the pulpit. Serving those in need IS the Christian message in deed. It IS the inculcation of religious values, and Catholic Charities recognizes as much when it seeks to promote a "just, compassionate society" that supports human dignity. So, why did the Church's lawyers buy into a distinction that is rooted in the California statute and not in the Church's social tradition? To be sure, insisting that Catholic social services agencies are involved in the direct inculcation of religious values may send off red flags for government funding vis-a-vis the Establishment Clause, but why insist that the opposite is true?