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.

Thursday, July 10, 2008

Archbishop Chaput on faith-based programs and "discrimination"

I think we posted on Archbishop Chaput's anaylsis of faith-based programs and and state "anti-discriminition" laws before.  But, in light of the current debate surrounding Obama's plan, it might be worth remembering his words:

On January 30, a coalition of social service providers gathered on the steps of the Colorado State Capitol. Ranging from Avista Adventist Hospital and the Denver Rescue Mission, which helps the homeless, to the Handprints Early Education Centers and Focus on the Family, the group had one thing in common. All of them were religiously based nonprofits offering some form of service to the general public. Among them was Catholic Charities of the Archdiocese of Denver, the largest nongovernment provider of social services in the Rocky Mountain region. And the source of their concern was a seemingly modest piece of state legislation, House Bill (HB) 1080.

Colorado HB 1080, pushed by the Anti-Defamation League after failing in a similar attempt last year, presents itself as an effort to bar discrimination. But the so-called “discrimination” HB 1080 targets is actually the legitimate freedom of religiously affiliated nonprofits to hire employees of like faith to carry out their mission. In practice, HB 1080 would strike down the freedom of Catholic Charities to preferentially hire Catholics for its leadership jobs if it takes state funds.

Of course, Catholic Charities can always decline public funds and continue its core mission with private money. In the Archdiocese of Denver, we’re ready to do exactly that. But the issues involved in HB 1080, and the troubling agenda behind it, are worth some hard reflection.

Religious groups have been delivering services to the poor a great deal longer than the government. The government uses religious social service agencies precisely because they’re good at it and typically more cost-effective in their work than the government could be. In fact, groups like Catholic Charities often lose money on government contracts, and the government knows it. Religious agencies frequently accept these losses as part of their mission to the general public. But their mission depends, of course, on leaders who share and safeguard their religious identity.

Bills like HB 1080 proceed from the assumption that public money, in passing through religious agencies to the poor, somehow miraculously commingles Church and state and violates the Constitution’s establishment clause.

This view is peculiar on at least two levels. First, accepting public money to perform a government-desired service does not make a private agency part of the government. Nor does it transform the government into a catechism class. But insofar as any “debt” exists in a government and religious agency relationship, it’s the government that owes the service provider, not the other way around. Obviously, if the government wants to carry the social burden it currently asks religious-affiliated groups to carry, that’s the government’s business—and so are the costs and problems that go along with it.

But if religious groups do help bear the burden, often at a financial loss to themselves, then they can reasonably insist on the right to protect their own mission. The privilege of helping the government is pretty thin soup if the cost involves compromising one’s religious identity.

The second and more dangerous problem with bills like HB 1080 is that they aggressively advance a secularist interpretation of the “separation of Church and state.” Whether they do it consciously or not, groups like the Anti-Defamation League seem to argue from the presumption that any public money passing through religious agency hands is somehow rendered “baptized” and therefore unable to serve the common good. Aside from being enormously offensive to religious believers, this view is also alien to American history, which is filled with examples of government and private religious cooperation to achieve common public goals.

It’s certainly reasonable for government to require that religious service agencies refrain from using public funds to proselytize. But Catholic Charities doesn’t do that anyway; that’s not its purpose. In fact, the overwhelming majority of the six hundred jobs at Catholic Charities in the Archdiocese of Denver are already open to anyone of goodwill and competence, regardless of religious background. The relatively few positions that do require a faithful, practicing Catholic are exactly the ones that help guarantee Charities’ “Catholic” identity and its grounding in the social ministry of the Church.

It’s unreasonable—in fact, it shows a peculiar hostility toward religion—to claim that religious organizations will compromise the public good if they remain true to their religious identity while serving the poor with public funds. That’s just a new form of prejudice, using the “separation of Church and state” as an alibi.

Bills like HB 1080 are now occurring all over the country. The lesson here for American Catholics is this: For more than forty years, we’ve worked to integrate, accommodate, and assimilate to American society in the belief that a truly diverse public square would have room for authentically Catholic life and faith. We need to revisit that assumption. It turns out that nobody gets anything for free. If we want to influence, or even have room to breathe in the American environment of coming generations, we’ll need to work for it and fight for it—always in a spirit of justice and charity, but also vigorously and without apology. Anyone who still has an easy confidence about the Catholic “place” in American life had better wake up.

Charles J. Chaput, O.F.M. Cap., is archbishop of Denver.

Wednesday, July 9, 2008

More on faith-based programs and "discrimination"

Here is an essay, by Keith Pavlischek, which sets out well (I think) the concerns that one might have -- concerns that, contra E.J. Dionne, do not make one a culture-warrior or narrow ideologue -- about Sen. Obama's proposed changes to the faith-based-initiative.  A taste:

. . .  The hiring issue became a problem only when the cultural warriors of the Left saw Bush's faith-based initiative as a threat to their political strength and sought to deny Bush a political victory. Even John DiIulio, Bush's first head of the Faith-Based initiative gets this wrong. As Joseph Knippenberg shows in a review of DiIulio's Godly Republic: A Centrist Blueprint for America's Faith-Based Future, he mistakenly states that the Charitable Choice legislation signed by President Clinton and the Civil Right Act does not contain such a robust hiring protection.

Regardless, it is still hard to see the objection to maintaining these protections. It is a matter of simple justice. If a nonprofit center provided counseling to drug addicts based on some secular (say, Freudian) theory of counseling, they should not be required to hire, as a condition of government funding, Christian counselors (or anti-Freudian secularists for that matter) who take a different approach. And vice versa. Gay-friendly counseling centers should not be required, as a condition of funding, to hire fundamentalists or Roman Catholics who have profound moral objections to homosexual activity. And vice versa. . . .

A religious-freedom conference of possible interest

I received this notice from a religious-freedom scholar / friend of mine.  Should be of interest to many:

What are the primary legal challenges confronting pre-K to 12 and post-secondary religious schools?  What is the best way for religious institutions to implement codes of conduct for faculty and administrators?  How may religious institutions (except churches) navigate the new Form 990?  What distinguishes faith-based healthcare providers?  How may religious institutions minimize their tax liability?  May religious hospitals enforce beginning-of-life and end-of-life ethical and religious directives?  These are some of the questions that the Religious Institutions Conference sponsored by Holland & Knight LLP and

Palm Beach

Atlantic

University

will address on September 12, 2008 on the beautiful campus of

Palm Beach

Atlantic

University

in

West Palm Beach

,

Florida

.  The morning (beginning at 8:30 a.m.) will focus on religious educational institutions and the afternoon (beginning at 1:15 p.m.) on religious healthcare providers, but there will be plenty on the program of relevance to all Religious Institutions.  The conference including lunch and materials is $15.  You must register to attend.  To RSVP or to request more information, please contact Sheila Stoudt at [email protected] or 850-425-5603.

"An Outdated Muddle"?

The Economist reports, in the current issue's cover story, that "global institutions are an outdated muddle."  What does this observation mean or suggest for the Church -- I suppose the original, and still important, "global institution" -- and, more specifically, for the "Catholic Legal Theory" project?

Tuesday, July 8, 2008

Original Sin and Politics

Alan Jacobs, who teaches English at Wheaton College, is a wonderful writer who can be found in the pages of First Things and sometimes at The American Scene (and who wrote a great biography of C.S. Lewis).  Now he has a new book called Original Sin: A Cultural History, which came in my mail today.  Maybe you'll be enticed by the review of the book in Christianity Today, which emphasizes how Jacobs

uses literary and historical examples to show what the doctrine means. It is not simply a description of a quaint story about a garden with an apple. It is an expression of what's wrong with all of us, an attempt to answer the question, Whence all this evil?

The range of culture that Jacobs engages runs from Augustine and Origen to "the Hellboy films and George Thorogood's 'Bad to the Bone.'"  I'm particularly interested in the political implications that Jacobs draws from the fact of our common flawed nature.  As the reviewer, Jason Byassee, summarizes:

Original sin is a good word to the poor, bad news to tyrants, and a prescription for a politics more radical than any we've seen: a genuinely Christian democracy, inclusive of all the living and the dead, each equally bound up in a plight we cannot solve ourselves.

Jacobs thinks original sin does this leveling work in a way that other points of Christian anthropology do not. God's good Creation, humanity's crafting in the image of God, the charge to tend the Garden and to multiply: such prelapsarian pronouncements don't lift the luggage politically. They "should do so, but usually" do not, he writes. Somehow it works better for us to "condescend" than to try and lift up others to our level.

This all speaks powerfully to me.  But I'm a Protestant.  What do Catholics think about the idea that equality and democracy rest more securely in the recognition of universal human flaws than universal human possibilities?

Whose Judgment Sucks?

It's one thing to say something to this effect:  "I disagree with you; here's why I stand where I do on the issue, rather than where you stand."

It's another thing to say something to this effect:  "I disagree with you; moreover, your judgment sucks:  No faithful Catholic in his or her right mind could agree with you." 

As I read it, Hadley Arkes's statement falls into the latter category, not the former.  (Arkes says of Kmiec and Kaveny that they have "a scheme of judgment with no sense of moral weighting or discrimination.")

Arkes seems to me to discount the complexity of the issue--the issue being, what public policy regarding abortion is optimal for us in the United States, at this time, all things considered.  (I agree with Rick that this should be a question for state legislatures, not for the U.S. Supreme Court.)  It is, alas, a too familiar phenomenon:  one's intellectual and moral self-confidence preventing one from seeing the complexity of a moral, including a political-moral, issue.  Who among us has not been there?  As a Minnesota poet has written (and sung):  "I was so much older then; I'm younger than that now."

Hadley Arkes on Obama, Catholics, Kmiec, and Caveny

At "The Catholic Thing," Hadley Arkes posted his column, "Political Distraction Among Catholics."  It is well worth reading the whole thing.  He expresses, much more eloquently than I could, my thoughts on the subject.   Here is a bit: 

Is it a certain madness, a certain distraction of mind, induced by the sudden onset of summer heat? The polls in early June find Barack Obama notably behind among Evangelicals and whites, but--wonder of wonders--actually holding a slight edge, of a point or two, among Catholics.

Some of our readers know that I was associated with the drafting of the “most modest first step of all on abortion,” the bill to preserve the life of the child who survived an abortion. It was called, in that awful legislative style, the Born-Alive Infants’ Protection Act. When it finally passed the Congress in 2002, not a single Democrat in Congress voted in opposition. But Barack Obama, as a Senator in Illinois, actually led the opposition to the comparable measure in that state, and as the chairman of a legislative committee managed to kill it. How does one explain then this close division among Catholics, with a tilt actually in his favor? And what is the worse account: that most Catholics in the country simply do not know about his radical, pro-abortion position, or that American Catholics by now have heard about Obama’s position, and they don’t especially care?

The latter account would surely mark the graver state of affairs. And the signs seem to be pointing in that direction, as seen in the positions reported recently for two prominent Catholic academics, both thoughtful, sensible people, moving in those circles I move in myself. Douglas Kmiec, a good friend, had been Dean of the Law School at Catholic University and Cathleen Kaveny, is a professor of law at Notre Dame. Kmiec joined a meeting of Catholics with Obama and pronounced him a “natural for the Catholic vote.” Kmiec became persuaded that Obama, radically pro-choice, would nevertheless be open to serious measures for “reducing the number of abortions.” Kaveny could hardly be unaware of Obama’s position on abortion, and yet she thinks that other parts of Obama’s program would fit a Catholic vision--most notably, "ending the unjust war in Iraq, providing decent jobs, ensuring affordable health care for all, and working for comprehensive immigration reform."

On the matter of reducing the number of abortions, …

As for the matter of “balancing” abortion with other issues, …

* * *

To put things on the same plane, in that way is to betray a scheme of judgment with no sense of moral weighting or discrimination. Doug Kmiec and Cathy Kaveny share the vocation of teaching, but from either angle they would teach their fellow Catholics now that the central concern for the taking of innocent life is no longer, in the scale of things, that much more important than anything else. Even the most thoughtful among us may not always get things right, and at those times the office of friendship may be to call our friends to their better judgment.

HT:  Bill Saunders

Hitchens, waterboarding, and torture

So, as any consumer -- whatever his or her views -- of social and political commentary knows, Christopher Hitchens can be very frustrating.  He can be (I think) right on, he can be horribly, horribly wrong.  Here, at First Things, Ryan Anderson has posted an excerpt from Hitchens's recent essay waterboarding, specifically, his own experience of being waterboarded.

I've expressed, on this and other blogs, both my unreserved assent to the proposition that "torture" is immoral, and my frustration with what I see as the tendency, in some quarters, to skate too quickly past (what seems to me to be) the hard issue of identifying what, exactly, we are talking about.  That said, Hitchens is confident, anyway, that we *are* talking about waterboarding.  He states fairly the other view:

The team who agreed to give me a hard time in the woods of North Carolina belong to a highly honorable group. This group regards itself as out on the front line in defense of a society that is too spoiled and too ungrateful to appreciate those solid, underpaid volunteers who guard us while we sleep. These heroes stay on the ramparts at all hours and in all weather, and if they make a mistake they may be arraigned in order to scratch some domestic political itch. Faced with appalling enemies who make horror videos of torture and beheadings, they feel that they are the ones who confront denunciation in our press, and possible prosecution. As they have just tried to demonstrate to me, a man who has been waterboarded may well emerge from the experience a bit shaky, but he is in a mood to surrender the relevant information and is unmarked and undamaged and indeed ready for another bout in quite a short time. When contrasted to actual torture, waterboarding is more like foreplay. No thumbscrew, no pincers, no electrodes, no rack. Can one say this of those who have been captured by the tormentors and murderers of (say) Daniel Pearl? On this analysis, any call to indict the United States for torture is therefore a lame and diseased attempt to arrive at a moral equivalence between those who defend civilization and those who exploit its freedoms to hollow it out, and ultimately to bring it down. I myself do not trust anybody who does not clearly understand this viewpoint.

Still, he concludes:

I apply the Abraham Lincoln test for moral casuistry: “If slavery is not wrong, nothing is wrong.” Well, then, if waterboarding does not constitute torture, then there is no such thing as torture.

Worth a read, I think.  (Even if he is way-wrong when it comes to Mother Teresa, God, and the like.)

Berg's Response to Kaveny on Funding and Religious Hiring

Since I'm not down the hall from Cathy in South Bend, I'll respond at greater length to her arguments for excluding from funding private programs that consider religion in hiring.

Among her key premises is that allowing religion-based hiring serves only the purpose of "mak[ing] religious groups flourish," whereas the purpose of funding is "to partner with them in enacting limited purpose programs demonstrated to make the community as a whole flourish."  But the argument for religious-hiring rights in funding includes a significant component of institutional pluralism.  Allowing funding recipients flexibility in this matter would serve the community by allowing a broader range of organizations, bringing a broader range of community contacts and strategies for addressing needs, to partner with the government.  Obama's speech appeals to institutional pluralism, asserting the need to have "all hands on deck" in attacking social problems through a "bottom up" approach.  But because of the hiring-rights issue, his proposal is likely to drive away the majority of evangelical hands, as the negative reaction of the very moderate evangelical leader Rich Cizik in last week's Times suggests.  And his proposal is top-down to the extent that it supports only one model of religious engagement in social services -- the ecumenical one where, in Cathy's terms, religion is not "relevant to the job" of working in the soup kitchen.

Continue reading

Monday, July 7, 2008

More on Obama's proposal . . .

Well, like Cathy says, we disagree.  Because we have the luxury of being able to hash things like this out in real space — i.e., lovely South Bend — I’ll just say that (a) I don’t see the relevance of the Goodling / DOJ-hiring business to the question whether religious freedom is well served by requiring religious social-welfare organizations that receive some public funds to comply with non-discrimination laws (certainly, no one, in any Administration, should break the laws that govern the filling of non-political DOJ jobs), and (b) I don’t see why the fact that, for some religious organizations, the no-discrimination-in-services rule would be burdensome lessens the threat posed to religious freedom by the proposed no-discrimination-in-hiring rule.