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, December 2, 2009

A few thoughts on Prof. Kaveny's "Clashes of Conscience"

Thanks to Michael P. for linking to my Notre Dame colleague Cathy Kaveny's timely and thought-provoking Washington Post op-ed.  

I am not entirely sure what I think about Cathy's observation that "you don't win the minds and hearts of ordinary Americans by holding the food, shelter and medical care of needy people hostage to moral principle."  Descriptively, this seems right.  But, I'd want to hold on to a distinction between holding these things "hostage to moral principle" and insisting, even when it's costly, on the need and right to act with integrity.  How that distinction -- assuming there's something to it -- "maps" onto the two debates that Cathy discusses (abortion funding in the healthcare-funding proposals and same-sex-spousal benefits by religious social-welfare organizations that cooperate with government) is a tricky question.

I disagree, I think, with Cathy's suggestion that "in the enforcement of anti-discrimination law in Washington, D.C gay rights activists are in exactly the same position as the bishops are with respect to abortion."  I guess I think the merits do matter, as does the "framing" of the issue.  To say this is not to say that "error has no rights," and Cathy is, obviously, correct to note that history tells "many tales of the majority being mistaken on matters such as slavery, religious liberty, and the rights of aboriginal peoples."  But, it is a deep injustice -- wholly apart from tricky questions about taxpayers' culpability for the wrongs done by their governments -- for a political community to permit, let alone to fund, abortions, because abortion is a grave wrong.  (The problem is not, in other words, that Catholics are being made to pay for a practice they oppose; it is that the political community is funding and facilitating abortions, thereby helping to entrench the unjust exclusion of unborn children from the law's protections.)  On the other hand, it is not a deep injustice for religious institutions to take religious teachings -- including religious teachings on sexual morality -- into account when hiring and firing.  (To be clear:  to say this is not to deny that it would be wrong for the government to take religious teachings on sexual morality into account when hiring and firing.)

Of course, a lot depends on how one "frames" or describes what it is that is being funded:  I think that what the District funds when it cooperates with Catholic Charities (say) in the provision of social-welfare services is, well, "social welfare services", or even "social-welfare services by an organization that serves all comers but hires and fires in accord with its animating principles."  It is, I think, wrong for governments to discriminate, but it is not (I think) wrongful discrimination for a religious institution to hire and fire in accord with religion -- even when that institution is cooperating with the government to provide social-welfare services.  But, a health-funding proposal that says "public funds will be used to pay for abortions" is, it seems to me, harder to re-frame.

In any event, Cathy is entirely right to remind everyone that "[t]here is no easy way to resolve the theoretical tension between respect for moral truth and respect for consciences which disagree with the majority's best assessment of truth."  This -- stated at a general level -- is a vexing question, as anyone who thinks about conscience, religious liberty, and politics knows.


Garnett, Rick | Permalink

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