Friday, December 30, 2011

Doug Mataconis on the Bishops, Religious Freedom, and Living in a Civil Society

Over at Outside the Beltway, Doug Mataconis offers the following well-reasoned response to the U.S. Roman Catholic bishops' claim that compliance to non-discrimination laws is a threat to their religious freedom. Mataconis includes in his piece an excerpt from Laurie Goodstein's December 28 New York Times article, "Bishops Say Rules on Gay Parents Limit Freedom of Religion."


The Catholic Church has basically taken itself out of the adoption and foster care business in Illinois rather than comply with new rules that require adoption agencies to treat gay couples equally when making placement decisions:

Roman Catholic bishops in Illinois have shuttered most of the Catholic Charities affiliates in the state rather than comply with a new requirement that says they must consider same-sex couples as potential foster-care and adoptive parents if they want to receive state money. The charities have served for more than 40 years as a major link in the state’s social service network for poor and neglected children.

The bishops have followed colleagues in Washington, D.C., and Massachusetts who had jettisoned their adoption services rather than comply with nondiscrimination laws.

For the nation’s Catholic bishops, the Illinois requirement is a prime example of what they see as an escalating campaign by the government to trample on their religious freedom while expanding the rights of gay people. The idea that religious Americans are the victims of government-backed persecution is now a frequent theme not just for Catholic bishops, but also for Republican presidential candidates and conservative evangelicals.

“In the name of tolerance, we’re not being tolerated,” said Bishop Thomas J. Paprocki of the Diocese of Springfield, Ill., a civil and canon lawyer who helped drive the church’s losing battle to retain its state contracts for foster care and adoption services.

The Illinois experience indicates that the bishops face formidable opponents who also claim to have justice and the Constitution on their side. They include not only gay rights advocates, but also many religious believers and churches that support gay equality (some Catholic legislators among them). They frame the issue as a matter of civil rights, saying that Catholic Charities was using taxpayer money to discriminate against same-sex couples.

Tim Kee, a teacher in Marion, Ill., who was turned away by Catholic Charities three years ago when he and his longtime partner, Rick Wade, tried to adopt a child, said: “We’re both Catholic, we love our church, but Catholic Charities closed the door to us. To add insult to injury, my tax dollars went to provide discrimination against me.”

The bishops are engaged in the religious liberty battle on several fronts. They have asked the Obama administration to lift a new requirement that Catholic and other religiously affiliated hospitals, universities and charity groups cover contraception in their employees’ health plans. A decision has been expected for weeks now.

At the same time, the bishops are protesting the recent denial of a federal contract to provide care for victims of sex trafficking, saying the decision was anti-Catholic. An official with the Department of Health and Human Services recently told a hearing on Capitol Hill that the bishops’ program was rejected because it did not provide the survivors of sex trafficking, some of whom are rape victims, with referrals for abortions or contraceptives.

Critics of the church argue that no group has a constitutional right to a government contract, especially if it refuses to provide required services.

But Anthony R. Picarello Jr., general counsel and associate general secretary of the United States Conference of Catholic Bishops, disagreed. “It’s true that the church doesn’t have a First Amendment right to have a government contract,” he said, “but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.”

The reality, of course, is that the Church is not being discriminated against because of its religious beliefs, it is being denied state funds and a government contract because of its refusal to comply with the laws and regulations of the government entity with which it would contract. Should Northrup-Grumman be permitted to build a fighter jet if it refused to comply with the design specifications of the Pentagon? The answer to that question, of course, is obviously no, but the situation is complicated to some degree by the fact that it is impossible for any private entity to engage in adoption or foster care services without being involved with the state in some manner. Even if there were no state funding involved as there is in Illinois, an entity that places children will still be licensed by the state. If all that were involved were a state license, would that permit the state to require the Church to comply with anti-discrimination laws? Or, to turn the tables, should a licensed private adoption agency be free to discriminate for racial reasons if it chose to?

It’s a close issue, and Jonathan Turley does raise some interesting points in the Church’s defense. However, I think it’s fairly clear that requiring the Church to comply with the law is not an infringement on their religious liberty. As mistermix notes, Catholic Charities does so much great work, for which I commend them, but if they are going to enter into contracts with the government and take money from taxpayers, then they should be required to comply with the same laws that every other government contractor has to comply with. If their distaste for homosexuals is stronger than their desire to see children placed in loving homes, then they must make the appropriate choice. It would be the wrong one, in my opinion, and it would harm the children, but they are certainly free to make it.

The most important point, though, is that religious liberty does not mean the right to take public money without having to comply with the law because the teachings of your faith tell you those laws are wrong. That’s not how you live in a civil society, and if the Church cannot comply with that simple rule then it needs to rethink its priorities.

– Doug Mataconis
"Catholic Bishops Claim Laws Allowing Gay Adoption
Violate Religious Liberty
Outside the Beltway
December 29, 2011

For comments from Outside the Beltway readers to Mataconis' article, click here.

See also the previous Wild Reed posts:
Responding to Whiny Catholic Bishops Who Cry Victim
Persecuted "Enemies of the State"? Or Just Sore Losers?
Joseph Palacios: "The Church is Not the Victim"

Recommended Off-site Links:
Bishops Say Rules on Gay Parents Limit Freedom of Religion – Laurie Goodstein (New York Times, December 28, 2011).
Catholic Bishops Use Freedom of Religion to Justify Homophobia Eideard (December 29, 2011).
Religious Persecution? – Bob Felton (Civil Commotion, December 29, 2011).
The Catholic Hierarchy: "Suffer the Little Children" – D Gregory Smith (From Eternity to Here, December 29, 2011).
Laurie Goodstein on Catholic Bishops' Religious Freedom Rhetoric and Gay Parents – William D. Lindsey (Bilgrimage, December 29, 2011).


Paula said...

What is the irrefutable argument to this claim by the bishops? I've been trying to formulate it. Would it go something like this: Religions are presumed to favor the equal treatment of persons similarly situated. Fundamental fairness requires it and religions are presumed to favor fundamental fairness. If the civil law, therefore, requires equal treatment of persons similarly situated, what justification can a religion have for objection? Can a religion justify tenants that deny the dignity and equality of human persons? Does enforcement of the civil law requiring fair treatment of each person be a restriction of religious liberty? You can see I am having a problem zeroing in on the precise argument. Can anyone help?

Tom said...

There are two approaches here . . . one is the irrefutable argument you seek. The other is to recognize that the argument theology is beside the point--the bishops simply don't want to acknowledge the possibility that same sex attraction being legitimate and a means of grace. That would through their whole belief system into unimaginable chaos.

The irrefutable argument to the bishops was made by a catholic theologian, John Courtney Murray in the 1950s and 60s. He was addressing whether the Catholic Church should teach that non-Catholic religions deserve equal civil treatment as the Catholic religion.

Since the 4th centuty the catholic argument was that since non-Catholic religions are untrue, in error (sin), they had no right to exist, and the state/church alignment enforced that position.

In this view the state exists to support truth and human flourishing, not falsehood.

Murray's argument was that while that position was justified in an ideal civil society and would prevail in God's heaven, no civil society on earth is ideal or can fully know God's truth.

Therefore as a practical matter it is just and legitimate to allow non-Catholic religions and views to exist without legal disabilities.

In the case of gays, the Catholic church teaches that same sex attraction is in itself not sinful, but that it is contrary to God's created order. For this reason, the bishops argue that condoning same sex genital activity in any way is an error (sin)-- but taking Murray's argument, we can say "yes, that may be what we believe it will be like in God's heaven, but in the this world, it is not legitimate to impose this standard on civil society.