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.

Tuesday, October 15, 2019

Donald Verrilli — Prophet of the Modern Age

Way back when, in April 2015, during the oral argument for Obergefell v. Hodges (transcript here; see also here) Justice Alito, probed what he thought might be the implications of the Court’s recognizing a constitutional right for same-sex couples to marry, noting that in Bob Jones University v. United States "the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating."

With this prior decision in mind, Justice Alito asked Solicitor General Donald Verrilli: "So would the same apply to a university or a college if it opposed same-sex marriage?"  Verrilli at first sought to avoid the question, but then responded with some unscripted candor: "You know, I—I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue.  I—I don't deny that.  I don't deny that, Justice Alito.  It is—it is going to be an issue."

This should have been enough to warn anyone about what was coming down the road.  Still, to be warned is one thing, but to hear one's fears confirmed in blunt terms by those seeking the nation’s highest office is something else.

At CNN's Equality Town Hall (which, showing the objectivity and neutrality of a modern American news network, CNN co-hosted with the Human Rights Campaign) on Thursday night, CNN's Don Lemon asked presidential candidate Beto O'Rouke (transcript here) "Do you think religious institutions, like colleges, churches, charities, should they lose their tax-exempt status if they oppose same-sex marriage?"

Beto O'Rouke

"Yes" said O'Rouke emphatically, without skipping a beat.  He then went on to elaborate: "There can be no reward, no benefit, no tax break for any one, any institution, any organization in America that denies the full human rights, and the full civil rights of every single one of us.  And so as president we're going to make that a priority and we are going to stop those who are infringing upon the human rights of our fellow Americans."

O’Rouke was not asked to explain, nor did he volunteer an explanation as to how it is that a church that does not recognize same-sex marriage is “infringing” upon the rights of anyone.  Isn’t it the case that the church (that does not marry same-sex couples) and the same-sex couple (who are married or seeking marriage) are each exercising their respective rights to live as they see fit?  Under O’Rouke’s bizarre understanding of “infringement” wouldn’t a newspaper editorial page “infringe” upon the rights of someone who held the opposite point-of-view by refusing to publish that person’s opinion?

This is, of course, far beyond what we were promised legal recognition of same-sex marriage was all about.  We were told that legal recognition of same-sex marriage would enshrine an ethic of tolerance and equality, a norm of live-and-let-live which would leave people free to live their own distinctive lives by embracing their different conceptions of the good.  O’Rouke’s promise to use tax policy to pick and choose among religions – favoring those that approve of same-sex marriage and disfavoring those that do not – shows that tolerance is not the end-game.  The goal is affirmation.  And those who refuse to affirm same-sex marriage as a social good will be targeted for negative treatment by the coercive power of the state.   

Unfortunately, O’Rouke was not alone in this radical approach to the use of state power to punish wrong-think and to ensure actions compliant with the new understanding of sexuality.

Cory Booker (transcript here), another Democratic presidential candidate at the Town Hall, was asked: “Do you think religious education institutions should lose their tax-exempt status if they oppose LGBTQ rights?”

Cory Booker

Booker responded: “Whether you’re a school and – or providing healthcare for folks, whether you are a – bakery, you cannot discriminate fundamentally no.” When pressed whether this meant the withdrawal of tax-exempt status Booker said: “I will press this issue and I’m not – I’m not saying because I know this is a long legal battle and I’m not dodging your question.  I’m saying that fundamentally discrimination is discrimination.  And if you are using your – your – your position to try to discriminate others, there must be consequences to that.  And I will make sure to hold them accountable using the DOJ or whatever investigatory authority.  You cannot discriminate . . . . I’m going to make sure that I hold them accountable.  And if it means losing your tax status – but I’m telling you private – private organizations that do not have tax, there has to be consequences for discrimination.”

Booker’s statements are of course overwrought, and not well thought through (which is not surprising from a politician, but which is surprising from someone we are told is an intellectual).  “Discrimination” denotes a number of different kinds of acts, some of which are benign, even laudable (such as discriminating between different wines to find the best vintage, or between different viruses to find a cure), and some of which are unjust (such as refusing to do business with a person because of his or her race).   “Discrimination” is a part of what every religion does.  There are believers and unbelievers, co-religionists and people who subscribe to another faith or no faith at all, and in various ways religions tend to treat these different people differently.  Simply put, not all acts of “discrimination” are the same.  While some are constitutionally repugnant, others are constitutionally protected.

Booker did not explain what being held “accountable” would entail, nor did he specify the “consequences” (other than to allude to tax-exempt status) that would befall religious schools that did not embrace same-sex marriage, but the threat was clear: Get in line and learn to affirm same-sex marriage or you will pay a price.

Senator Booker also responded to a question from a young woman who said she attended an all-girls Catholic high school in New Jersey where students were not allowed to form an LGBTQ club or Gay-Straight alliance.  She also noted that a neighboring Catholic high school had fired a female teacher after she married another woman.  She then asked Booker “How would you address the at times juxtaposing issues of religious freedom and LGBTQ rights?”

Booker responded as follows: “I cannot allow [sic] as a leader that people are going to use religion as a justification for discrimination.  I can respect your religious freedoms but also protect people from discrimination.”  Booker went on to say that the country needs laws like the Equality Act “which set parameters where people are not allowed to discriminate.”

Booker attributes a noxious motive to the Catholic schools involved in the question. In his mind, they are not acting in good faith in support of their sincerely held religious beliefs—a doctrine of sexual morality that the Church has professed since apostolic times. They are instead only using religion as a kind of mask behind which lurks a deplorable anti-LGBTQ animus.  

Booker apparently thinks that it is the province of government to determine what a Catholic school is “allowed” to do in living out its religious mission.  He does not think that a Catholic school is free not to hire or retain a teacher even though the teacher’s actions contradict the teaching that the school is attempting to impart to its students and proclaim to society as a whole.  According to this logic, the government could require the World Wildlife Fund to hire a job applicant even though that person, in his spare time, likes to go on safari and hunt big game in Africa.

As the U.S. Conference of Catholic Bishops has warned (here), under the Equality Act “[p]rivate schools could . . . be required to hire or retain people whose speech or conduct violates tenets of the school’s faith.  This limits the ability of a religious group to enculturate its religious views.”  The USCCB acknowledges that the “ministerial exception” may provide some protection for religious schools, but that the contours of this doctrine are “evolving.”

Don Verrilli prophesized the future, and here it is.

But it doesn't take the gift of prophecy to predict the Babylonian captivity when the Babylonians are telling you to your face that captivity awaits.


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