Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, October 14, 2009

The New York Times and Discrimination


Today’s The New York Times has a brief but interesting editorial entitled “Faith-Based Discrimination.” [HERE] The editorial begins by mentioning a parallel between Presidents George W. Bush and Barack Obama: the promise to maintain a faith-based initiative designed to assist social service programs operated by religious organizations to obtain federal monies and contracts. The Times concludes the parallel between the two presidents at the end of the first sentence of this editorial. It then, in encouraging fashion, applauds President Obama’s vow to ensure “anti-discrimination” by prohibiting these organizations from hiring on the basis of religion. In support of its position, the Times argues a dual objective: anti-discrimination and separation of church-and-state. It would appear that the Times is wrong on both counts.

First of all, the “anti-discrimination” objective proposed by the Times would, in fact, discriminate against religious organizations—especially the Catholic Church’s social service programs. The Times is joined in this crusade by an umbrella group of almost sixty organizations (none of which are considered friends of the Church, e.g., the ACLU, American Humanist Association, Americans United for Separation of Church and State, Lamda Legal, National Center for Lesbian Rights, NOW, Rainbow PUSH Coalition, Religious Coalition for Reproductive Choice, and the Unitarian Universalist Association) which calls itself the Coalition Against Religious Discrimination. But civil rights laws and regulations currently permit religious organizations to take account of religious affiliation where there is a bona fide occupational qualification (BFOQ). While lawyers and courts disagree on how to interpret the BFOQ, it exists and it is legally protected. I would advance the position that a bona fide qualification for many of these positions within the Church’s social service organizations would mandate that the employee personally identify with the Church’s teachings. Otherwise, the direction in which the Catholic social service operates could easily be compromised. The Times fails to take account of this. Yet other groups that are involved with social service programs that may also be recipients of Federal monies and contracts and who may hire on the basis of other “protected” categories would not be affected by the Times’ crusade.

Second, the church-state separation issue is a red herring when one looks at the nature of the Times’ argument. The journal asserts that “Effective social service organizations should not be ineligible for federal dollars just because they have a religious affiliation.” But the clincher is that in order for the religious entity to enjoy Federal support, it cannot “discriminate.” The Church maintains a substantive distinction between “discrimination” and “unjust discrimination.” In essence, hiring qualifications “discriminate” but they are not unjust. When the Church deems it essential to her mission to hire those who are sympathetic with or join in its mission, it is not “unjustly discriminating” even though it discriminatingly chooses whom she will hire and whom she will not. When we select health care providers, restaurants, schools for our children, movies, etc., we discriminate, but our discrimination is not unjust. However, it appears that if you do not agree with the social and political agenda sponsored by the Times, you may very well “unjustly discriminate” as the Times understands it. And when The New York Times encourages the Federal Government to adopt its standard, this would indeed be a church-state separation problem because the Federal Government, by adopting the Times’ position, would in fact dictate to the religious institution that has a different view than the Times that it must abandon its beliefs to get financial support. However, if the religious institution agrees with the Times, then financial support is on its way. Now that would be unjust discrimination, and, furthermore, it would be a breach of “the wall of separation.”


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Araujo, Robert | Permalink

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