The Plot Thickens: Cathleen Kaveny Responds to Tom Berg and Rick Garnett on Obama's Faith-Based Initiative Proposal

[I lifted this from dotCommonweal.]

1. Posted by Cathleen Kaveny
   on July 7th, 2008 at 9:46 am

Rick and Tom, I obviously don’t agree with you on the inappropriateness of a non-discrimination clause in hiring for faith-based /community partnerships of the sort contemplated here.

Preliminary Matters

First, the question of what counts as unacceptable “discrimination” is key, as several commentators have already pointed out. If what is at stake is articulating the message of the religious group, describing the intersection of the faith and the soup kitchen, that’s one thing –it’s relevant to the job. If it’s actually working in the soup kitchen, that’s something else. Am willing to give religious organizations carte blanche in determining when and where faith is relevant–no, not if they receive public funds.

Second, I think it needs to be emphasized that however they are interpreted, the non-discrimination requirements only apply to this program=—not to all aspects of a church’s life.. Ideally, the program could be incorporated separately as a 501(c)(3); I suppose it need not be if the accountants can keep the financial lines sufficiently distinct.

Third, I think it’s important to keep in mind that the purpose of this particular program is not primarily to make religious groups flourish, but to partner with them in enacting limited purpose programs demonstrated to make the community as a whole flourish –it’s a secular purpose, with secular understood not as “anti-religious” but as not encompassing other-worldly goals, means, or objectives.

Fourth, to the extent that it’s relevant, I think the analogy to Planned Parenthood and environmental groups points against employment discrimination, rather than justifying it. Planned Parenthood cares that you support abortion rights; it doesn’t care about the underlying philosophy or worldview that leads you to support abortion rights. Anti-animal cruelty groups care that you don’t support cruelty to animals; they don’t care whether you think animals matter because they think, or because they feel, or because they are made in the image and likeness of God. Environmental groups care that you care about the environment, they don’t generally care whether it’s because you think the world will go to hell in a handbasket if we don’t care about it, or whether it’s because you think the environment is the world spirit. And so a publicly sponsored Soup Kitchen centrally ought to care that its workers believed the hungry should be fed, and not worry so much about whether it is because of God’s command, the requirements of natural law, or the demands of religious brotherhood.

Broader Context

It’s interesting to me that the debate is focused only on religious discrimination in hiring–that’s where people like Rick and Tom see the insult to religious groups. In fact, however, if you actually commit yourself to the perspective of particular religions, discrimination in services, as well as proselytizing, will likely be justified as well, and possibly be seen as more justified than discrimination on the basis of hiring.

Many religious groups believe that they have an obligation to give preference to the members of their faith in performing works of charity. Friends of mine who are scholars in Islam say, for example, that the Muslim brotherhood takes priority in extending help to the needy. One has a religiously based obligation to help one’s brothers and sisters in the faith before one helps others. Moreover, there is a strong strand in Thomistic thought about the appropriate priority in alms-giving; it was used and can easily still be used, to justify giving to other Catholics who are needy before giving to non-Catholics.

Moreover, it’s extremely consonant with the Christian tradition to hold that the only way that one can improve one’s life is to be struck by the grace of God. Proselytizing, in this view, is a way of preparing the way for God’s grace, without which no one can hope to turn one’s life around. In Thomistic thought, prayer is the highest form of secondary causality. From a Catholic theological world view, a monastery dedicated to praying for peace and justice may very well be the most effective way to achieve peace and justice.

In contrast, the religious affiliation of those who cooperate in the corporal works of mercy may be relatively unimportant to the mission. One does not need to be a believer to distribute food, clothing, and blankets to the needy. Rich religious believers –of all stripes-regularly had their slaves and servants perform the actual physical labor. In theological terms, one could see the ability to perform the services involved in the corporal works of mercy are likely “graces freely given,” not the graces that make us pleasing to God, following St. Paul and St. Thomas.

Am I saying, then, that religious groups ought to be able evangelize or to discriminate on the basis of services? Absolutely not. I am saying however, that distinguishing between hiring to perform services, on the one hand, and proselyting and distributing services, on the other, may not make a whole lot of sense from many theological perspectives. So merely keeping the focus on justifying discrimination in hiring does not, in my view, constitute taking the religious perspective seriously on its own terms.

As I said however, these are secular programs–they are designed to advance well-being on this earth, not in the next realm. /e are conscripting people’s money ==the money of taxpayers of all faiths and none — in order to fund these programs and partnerships. What can they legitimately expect? I think they –we–have an interest in insuring our funds are used both effectively (in a measurable way) and consonantly with our values. Here, the no proselytizing and no discrimination in provision of services rules become important. But in my view, so does the no discrimination in hiring rule as well, for two reasons. First, it has an impact on the efficient delivery of benefits. Why should a taxpayer want to support a less qualified job counselor than a more qualified job counselor, merely on the basis of religious belief? Clearly, hostility to the beliefs of one’s clients would be a legitimate factor in hiring. But does sharing those beliefs, in and of itself, count as a qualification? Maybe it does. But I want to hear the argument–. If it does, then religion is a BFOQ. Second, the job itself is a substantial benefit–it confers participation and status in the community. In many programs, much of the taxpayer generated money may be dedicated to hiring personnel. So distributing jobs has to be done in a way that’s consonant with the broader secular (again, not anti-religious) thrust of the program.

Needless to say, and to say again, we need to define impermissible discrimination carefully, to take into account cases where religious belief is relevant as a bona fide job qualification. But I do not think a blanket exception to the rule of anti-discrimination is either required or a good idea here.

Part of this is a prudential judgment about where the dangers to the common good are. The recent history of the faith based programs under President Bush does not make religious believers as a class come out looking as if they are the best judges of when and how religious belief ought to be relevant. Another is the scandal–and I think that word is not too strong –of evangelicals and conservative Catholics too(?) — in the Justice Department considering faith as a job qualification when it was clearly illegal to do so. Monica Gooding’s story is relevant, here I think.

So too, Rick, is the saga of Esther Slater MacDonald, an alumna of Notre Dame Law School, who mixed religion and conservative politics at the Justice Department. http://tpmmuckraker.talkingpointsmemo.com/2008/06/who_is_esther_slater_mcdonald.php

This recent history of religiously committed actors in the Bush administration suggests that there is in fact, a very good reason to be as worried about religious overreaching as secular overreaching in the public square. We need to choose a judicious middle path.

So I think it is reasonable, particularly in light of these clear abuses, for Americans to demand more accountability from religious groups participating in faith based partnerships. I am, because of them, far more comfortable going back to the pre-Bush regulations than I would have been had they not occurred.