Mirror of Justice

I was disappointed by this comment by Martha Nussbaum in an interview with the Boston Review. A few editorial remarks below:

DJ: You argue that Catholic universities that restrict their presidencies to priests (i.e., males) should lose their tax-exempt status, because there is a compelling state interest to open such positions to both sexes. But isn’t that a slippery slope? Don’t most religions have objectionable views about sexual equality?

MN: I was making a specific point about the logic of the Bob Jones v. U.S. case, which dealt with that university’s policy banning interracial dating. The Supreme Court held that to withdraw the university’s tax exemption did indeed impose a “substantial burden” on the group’s free exercise of religion, but was justified by a “compelling state interest” in not cooperating with and strengthening racism. The government was in effect giving Bob Jones a massive gift of money. The same is true today of Catholic universities, all of which (excepting Georgetown, which now has a lay president) have statutory prohibitions against a female candidate for president. By giving them a large gift, the government is cooperating with sexism. I think that refusing to give someone a gift is quite different from making their activities illegal, and nobody was proposing to do that in either case. Moreover, these were not just tendencies or social facts—after all, lots people of all religions prefer to date only people of the same race, as many studies show— we are talking in both cases about mandatory rules, official university policies. I think it’s fine to refuse to give someone a huge gift when they have such mandatory policies, so what I was saying was that if a case parallel to Bob Jones were brought concerning the Catholic universities and their presidencies, it ought to come out the same way. Or rather, it ought to have come out the same say—since of course the legal standard under which we currently operate is a slightly different and weaker one than the one that prevailed when Bob Jones was decided, so we don’t know how either case would come out today.

First, there's a misstatement or overstatement of fact. By my count, over 100 of the 240-some Catholic colleges and universities in the US were founded by and, in most cases, still have a governing relationship with communities of religious women, so not only didn't they have a "statutory prohibition[] against a female candidate for president," they prohibited male presidents for most of their history. Indeed, as I was thinking about the Catholic schools just in the immediate area near me in Philadelphia, Immaculata University, Chestnut Hill College, Rosemont College, Neumann University, and Cabrini College all have women presidents--five Catholic schools in a 20-mile radius.

I also disagree that the tax exemption for Catholic institutions is a "large gift" from the government. There's a thorny debate, of course, about how one should understand the effect of tax exemptions, but Walz v. Tax Commission, 397 U.S. 644, 675-76 (1970), suggests that tax exempt status shouldn't readily be considered a grant from the government:

The grant of a tax exemption is not sponsorship, since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees "on the public payroll." There is no genuine nexus between tax exemption and establishment of religion....The exemption creates only a minimal and remote involvement between church and state, and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation insulating each from the other.

Finally, the most important point is that Catholic colleges and universities are, at their core, religious institutions that should have the freedom to select their leadership based on religious considerations, including, for example, a preference for members of the sponsoring religious order--an aspect of religious freedom that is especially clear in light of Hosanna-Tabor v. EEOC. There may be good reasons for reconsidering that preference (and some schools already have), but such decisions should be made by Catholic institutions free from coercion by the hegemonic liberal state. Indeed, some of Professor Nussbaum's own work, including passages from this article defending Rawlsian political liberalism against perfectionist liberalism and from her 2008 book Liberty of Conscience, seems to acknowledge the importance of such liberal tolerance for institutional religious freedom.