... this one--Cathy Kaveny--well known to many MOJers, has just published something of interest to MOJers, namely, the following op-ed.  (Cathy was a student in a course I co-taught with Robin Lovin at the University of Chicago Divinity School back in my Chicago days.  Cathy then headed off to Yale, where she received her JD and PhD, and then to a clerkship with John Noonan, who, despite his critique of the magisterial position on contraception, Robby probably wouldn't want to trade.)  Cathy is the John P. Murphy Foundation Professor of Law and Professor of Theology at the University of Notre Dame, where she studies the relationship of law, religion, and morality.

The Washington Post
December 1, 2009

Clashes of conscience

Should American lawmakers refuse to give government funding to those who object to the current moral consensus on controversial issues, or should they be generous in making allowances for conscience?

In recent weeks the U.S. Catholic bishops have been on both sides of this question, as they have dealt with the thorny issues of abortion, on the one hand, and gay rights on the other. Nationally, they don't want health care reform dollars to subsidize abortion, and in the District of Columbia, they don't want to lose public funding for Catholic Charities because they conscientiously object to providing equal benefits to gay couples.

Ironically, abortion and discrimination against gays with respect to employment benefits have roughly the same moral status in American life. Both practices are legal, but widely disapproved. Many people, nationally or locally, don't want tax dollars to go to organizations that practice or promote them. At the same time, significant - although often different - minorities think they have a moral right to seek or provide an abortion, or to treat heterosexual couples more favorably than homosexual couples.

The Catholic bishops have opposed any health reform package which would allow tax dollars to be used to support a policy a health plan that covers abortion. It does not matter how small the government subsidy is compared to the personal contribution, or how low a percent of the premium cost actually goes to abortion coverage. It is not merely the money, it is the principle at stake. In response to the claims of Planned Parenthood and NOW that the conscience of the policyholder ought to be respected, the bishops reply, "we are not prohibiting people from getting abortions entirely with their own money. But we, the majority of Americans, do not want our tax dollars used to support practices or organizations that contravene our basic values." If push comes to shove, some bishops would let health care reform go and leave millions without necessary medical treatment, rather than subsidize abortion, however tenuously.

But 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--and the Catholic bishops are making the pro-choice argument, so to speak. Gay rights activists maintain that no public funds whatsoever ought to go to an organization that practices or promotes discrimination against gay people. In response to the claim of Catholic Charities that the conscience of the service provider ought to be respected, the activists argue, "we are not prohibiting people from establishing programs that discriminate against gay people using only their own money. But we, the majority of citizens in Washington, D.C., do not want our tax dollars used to support practices or organizations that contravene our basic values." If push comes to shove, some gay rights activists would let Catholic Charities go and leave thousands in Washington, D.C. homeless and hungry, rather than subsidize discrimination against same sex couples, however indirectly.

Very different groups in our pluralist democracy try to "enforce morality" -- or at least to encourage it -- by using public funds as an incentive. In this respect, the bishops on abortion are no different from the gay rights activists on employment discrimination. But when they are in the minority, these groups all want space to act according to their consciences without sacrificing participation in public programs. Pro-choice activists don't want some benefit plans to be excluded from all public support because they cover abortion, and bishops don't want Catholic Charities to be excluded from all public support because they practice discrimination against gay couples in granting employment benefits.

There 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. A crude moral relativism that allows everyone to do their thing is no answer. If most abortions are unjust killing, then those who support it are perpetuating a real injustice. If discrimination against same sex couples is irrational, those who promote it are trading in harmful prejudice. But a moral majoritarianism that proclaims error has no rights isn't the solution either. History tells too many tales of the majority being mistaken on matters such as slavery, religious liberty, and the rights of aboriginal peoples. Furthermore no one group of people, religious or secular, has been exempt from making mistakes.

But practically, here and now, all parties have strong reason to work out a compromise that respects the integrity of everyone involved. Such a compromise was worked out in San Francisco with respect to providing employment benefits; the Archdiocese provided benefits to households, including but not limited to same-sex partners.

The Catholic bishops, on the one hand, and pro-choice and gay rights activists, on the other, all need to the win minds and hearts of ordinary Americans before they can accomplish their very different goals of social reform. And 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.

At least not in the holiday season.