Mirror of Justice

Catholic Charities D.C. and same sex marriage

The Catholic Archdiocese of Washington D.C. is threatening that Catholic Charities will  withdraw from city contracts that fund services to homeless and other poor people in the dead of winter if D.C. approves same sex marriages. http://www.washingtonpost.com/wp-dyn/content/article/2009/11/11/AR2009111116943.html The bill would not require that the Church marry same sex couples or make space for such marriages, but D.C. law requires that recipients of funds not discriminate on the basis of sexual orientation. “Fearful that they could be forced, among other things, to extend employee benefits to same-sex married couples, church officials said they would have no choice but to abandon their contracts with the city.” Id.

Although I do not agree with the leadership of the Church on same sex marriage, that is not my point. I am puzzled about Catholic Charities' policies. Does Catholic Charities currently hire gays and lesbians, but wants to draw the line against married gays and lesbians? Why is that the place to draw the line? Does Catholic Charities hire Catholics who are divorced and remarried? If so, why are same sex couples different under Catholic theology?

"If the city requires this, we can't do it," Susan Gibbs, spokeswoman for the archdiocese, said Wednesday. "The city is saying in order to provide social services, you need to be secular. For us, that's really a problem." Is that really what the problem is? Catholic Charities is the recipient of federal funds all over the country. For years (much to the chagrin of Rick Garnett and others) they have been required not to discriminate on the basis of religion with respect to their employees (the Directors are either a formal or informal exception to this) and Catholic Charities has complied. If the concern is secularity, Catholic Charities succumbed to that a long time ago. One columnist charges that the Church is using the poor as a political tool to stop gay marriage.http://www.washingtonpost.com/wp-dyn/content/article/2009/11/12/AR2009111210561_2.html?sub=AR

Maybe that is what is going on. If so, the Church has lost its grip on the gospel. But I do not know what is going on. I am mystified.

For other criticism, see Eduardo’s post on this. http://www.commonwealmagazine.org/blog/?p=5377. For a defence of the Church in this matter, see http://www.examiner.com/examiner/x-9452-DC-Catholic-Living-Examiner~y2009m11d12-Samesex-marriage-law-forces-Washington-Archdiocese-to-reconsider-city-social-service-partnerships.For the language of the religious exemption, see http://www.washingtoncitypaper.com/blogs/sexist/2009/11/11/dc-marriage-bills-religious-exemption-finalized/

 

 

Hans Kung and the Vatican

One of my favorite theologians, Hans Kung, has criticized the Pope on the Anglican issue, See http://www.catholicreview.org/subpages/storyworldnew-new.aspx?action=7087, and the Vatican has fired back. See http://blog.beliefnet.com/news/2009/11/vatican-newspaper-denounces-sw.php. Although I ordinarily think that claims of Catholic bias and Catholic victimization are exaggerated (and the rhetoric of victimization is similarly used by many religious groups without sturdy foundation (as my colleague Mike Dorf has recently observed)- I think some of the nonetheless interesting work of Stephen Carter falls into the category of exaggerating victimization), some of the comments defending Kung at beliefnet are way over the top and give me pause.

Further Response to Rob

I, of course, agree with Rob regarding the executioner, but not with the Massachusetts justice of the peace. The justice of the peace can perform most marriages and sufficient alternatives exist for the remaining marriages.  It is distinguishable from the executioner.  I do not think the conscientious JP should be paid for work not performed and I think that the result should probably be different if the JP could as a matter of conscience perform only a minority of marriages.

Unconstitutional condition

For what it's worth, in my view the statute described by Rob should be declared unconstitutional as applied to those whose freedom of conscience would be impaired. In the language of one line of cases, it should be regarded as imposing an unconstitutional condition: you can not be a justice of the peace unless you are prepared to waive your freedom of conscience in pursuing on the job activities.

Conscience, Justices of the Peace, and Associational Hiring

For what it is worth, I think justices of the peace should be able to refuse to marry individuals if their consciences would be violated even if a justice holds the view with respect to interracial couples. (As described, the JP in Louisiana has not put forward a reason grounded in moral obligation). In my view, the Smith case elevates considerations of judicial administration over freedom of conscience. I do not think freedom of conscience should always prevail (e.g., human sacrifice), but, to my mind, as a normative matter the justice of the peace cases are easy even though I think in the case of race and sexual orientation that the posited justices have ill-formed consciences. Freedom of conscience should be protected whether or not the conscience has arrived at the right moral conclusion.

I also agree with Rick that associations should be able to condition membership or employment or religious grounds (whether we call it discrimination or “hiring to mission”).   But I do not think it helpful to describe associations as having a conscience. The source of right here would be religious autonomy. At the same time, I think hiring on religious grounds should count against an association in receiving public funds. As John DiIulio puts it, the difference between a faith based and a faith saturated organization is important. No public agency hires on religious grounds, and government can reasonably require that private agencies receiving public funds not employ religious conditions for their clients or their employees. On the other hand, although I think that establishment clause considerations should lead us away from subsidizing such organizations, I think those considerations should not be dispositive in all cases. Vouchers to religious schools should be permissible in some limited circumstances if appropriate criteria are met. For discussion, see Chapters 5 and 6 of (hot off the press), Shiffrin, The Religious Left and Church-State Relations, http://press.princeton.edu/titles/9088.html.

Hiring to Mission

Catholic Charities “hires to mission.” It does not and need not require that employees or volunteers be Catholics to further its mission. If it did so require, it would be discriminating on the basis of religion. When it requires that its directors be Catholics, it discriminates on the basis of religion, but that discrimination is necessary to further its mission. Faith-based social service organizations that do not proselytize, generally, can hire without regard to religion in furthering their mission.

Hiring Discrimination in Faith-Based Programs

It is possible to exaggerate the need for faith-based organizations to discriminate in the provision of social services. Catholic Charities, Lutheran Social Services, and many Jewish welfare organizations have received very substantial federal funds for more than half a century and they have not discriminated on the basis of religion with regard to staff or clients. If you think about a soup kitchen, you can see why the mission can be accomplished without discrimination. To be sure, Catholic Charities and related organizations require that their national and local leaders be Catholic (or of the organization's faith), but I know of no serious opposition to funding for Catholic Charities or similar organizations.

The fighting issue is about evangelical groups who want to discriminate and use federal funds in order to proselytize (under federal law they can engage in religious hiring if they do not use federal funds). Here the real issue is not about discrimination, but about proselytizing. The question is whether federal funds should be used to help religious groups proselytize. President George W. Bush did not think so. Nor did John DiIulio (an inspirational Catholic Democrat who headed the first faith-based office). Al Gore, Hilary Clinton, and Barack Obama each have favored faith-based programs, but opposed federal money for proselytizing. On the one hand, this vindicates establishment clause values. On the other hand, it favors Catholic, Lutherans, and Jews over some religious groups.

Even this issue is not as significant on the ground as it might appear. Many evangelical groups refuse federal money on principle. Many do not require volunteers and most staff to meet faith requirements. And many believe that proselytizing is most effective after strong friendship connections have been formed. 

Sleeping Through the Night

Cardinal George’s rant about lawyers is obvious hyperbole (though we have in some areas an excessively litigious society). It is just false to say that if you are not a lawyer, you are on the outside. Most Americans live most of their lives with almost no contact with lawyers. But society needs law and some of that law needs to be intrusive in the business world. It is important that such laws be just. Honest and intelligent people disagree about what justice and fairness entail. It is not folly to worry about how law should regulate the power arrangements of a society. One can engage in those worries while regretting the excessive power of lawyers in some areas.

New book by Cardinal George

Cardinal George has a new book "The Difference God Makes" He is interviewed about it in the National Catholic Reporter. A portion of the interview:

You wade back into a debate you set off in 1998, when you defined liberal Catholicism as an “exhausted project.” Among other things, you write that while liberals and conservatives often see themselves as opposites, both share an implied ecclesiology that comes from St. Robert Bellarmine, defining the church as a visible society. Can you explain that?

For both of them, bishops take on an importance that’s disproportionate. Liberals and conservatives both define themselves vis-à-vis authority.

Broadly speaking, liberals want you to have less of it, and conservatives want you to use it more.

Liberals are critical of [authority], although they’ll use it when they’re in power. Conservatives would tend to be less critical, but equally dependent upon it.

Consequently, when you get into the church, you get the conservatives unhappy because bishops aren’t using power the way they’re supposed to, the way they want them to. You get liberals who are unhappy because [the bishops] have any power at all. Both of them are defining themselves vis-à-vis the bishops rather than vis-à-vis Christ, who uses the bishops to govern the church. It’s not a Christ-centered church, as it’s supposed to be, it’s a bishop-centered church."

This sounds right to me and he has other interesting things to say.See http://ncronline.org/news/people/cardinal-georges-plan-evangelize-america

Teaching Terror as a Moral Obligation and the First Amendment

I think the question whether teaching that the practice of terror is a moral obligation is constitutionally protected primarily raises free speech issues (not freedom of religion issues), and under current law, the rules dictate that the facts are important. E.g., Yates, Brandenburg, Scales, Noto.   If the method of teaching is not constitutionally protected under the speech clause, it is not constitutionally protected under the free exercise clause, and government can subsidize protected speech while refusing to subsidize unprotected speech without establishment clause difficulties. Many argue that the free speech regime is too speech protective in this context, and whether they are right or wrong, it seems to me that they are focusing on the key issue. It does not matter whether the speakers are religious or not in this context.