Why the U.S. Bishops Can’t Have It Both Ways

As Bondings 2.0 has reported last week, some prominent Roman Catholic bishops once again demonstrated their single-minded opposition to same-sex unions.  They launched a short-sighted attack on the constitutional principle that grounds religious freedom.  Their dioceses–where Catholic social services agencies receive federal funding–have filed a lawsuit objecting to federal requirements to accept same-sex couples as much-needed foster and adoptive parents.  The claim? That the law violates their religious freedom.

If this claim were upheld in court, it would erode the firewall intended to prevent religious institutions from controlling government, and vice versa. Church-state separation means that firstly, while the state may carve out privileges like tax-exempt status for religious groups, the state does not specially endorse or directly fund any religious organization.  Secondly, and most importantly, it means that no religious organization has privileged influence over state powers, laws, and policies.  There can be no state church.

Our religious freedom, which is a consequence of these two constitutional commitments, is an essential right that we cannot afford to endanger.  In the United States, religious freedom arising from church-state separation has typically taken two forms:  1) freedom for individuals to follow the tenets of their religions and 2) freedom for religious institutions to assemble, raise funds, and conduct themselves according to their own theological, ethical, and devotional traditions.  For instance, Quakers and others won individual religious exemptions from military service during the Viet Nam war. Likewise, despite regulations against serving alcohol to minors, the Roman Catholic Church offers the cup to children under 21 at Mass.

Unfortunately, religious freedom also protects many objectionable practices.  For instance, laws that prohibit gender non-discrimination in employment do not apply to the Roman Catholic priesthood, and laws that prohibit discrimination against LGBTQ employees do not apply to private religious schools. Still, we must defend religious freedom even in these uncomfortable cases.

To be sure, Catholics schools’ discrimination against LGBTQ employees is reprehensible. We must fight hard to end it. But this is an internal Catholic battle.  The point is that we risk everyone’s future religious freedom if we do not defend the rights of privately funded religious non-profits of all kinds to make hiring and service decisions based on their religious beliefs.

However, state-funded religious non-profits are another matter.  If religious agencies that receive state money transgress state non-discrimination law, the state is not just permitting them to engage in religiously sanctioned practices that would be illegal in any other context; it is actually directly funding and endorsing those illegal practices. In other words, the state establishes religion as an organ of the government in contradiction to our Constitution.

When states insist that religious non-profits that receive state funding comply with state anti-discrimination law, this is not an attack on religious freedom.  First, a religious non-profit that receives state funds, just like any other non-profit that receives public funds, must adhere to state non-discrimination standards in every dimension of their operations because it is agreeing to act on behalf of the state.  For instance, universities that receive federal research grants and work-study funds must adhere to federal Title IX gender non-discrimination standards. Second, a religious non-profit that has religious reasons to transgress state non-discrimination laws is free to do so, as long as it declines public funds.  Thus a privately funded, religiously affiliated refugee resettlement agency is free to focus on the needs of a particular religious group because it receives no public funds.

The complaining bishops are asking for incompatible privileges:  the benefit of state funding and exemption from state anti-discrimination law.  Perhaps without realizing it, they are arguing for a return to the medieval and early modern union of church and state that, while it may have worked out well for Rome, was not kind to Protestants, Muslims, or Jews.  They are implying, too. that  Catholics should be able to uphold their beliefs about same-sex marriage without making sacrifices.

Rev. Martin Luther King, Jr.

However, as theVatican’s International Theological Commission argued earlier this year, our “ultimate bond of conscience” is not with the state but “with the one God, Father of all.”  As a result, “living the faith” in a democratic society may indeed involve sacrifices: it “can sometimes require conscientious objection.”  If some Catholic social service agencies feel a conscience obligation to exclude same-sex foster and adoptive parents, they should sacrifice for this belief—either by refusing state funding or by willingly risking a verdict of illegal discrimination, but not by asking for an exemption. That’s just what civil rights demonstrators did in the U.S. during the 1960s, and what Christian Viet Nam War protesters did, too.  Both groups were motivated by their religious beliefs and were willing to accept the consequences of those beliefs.

It is distressing that a few bishops are so opposed to same-sex foster and adoptive couples that they are willing to overthrow both the United States Constitution’s guarantee of freedom of religion and the wise teaching of the International Theological Commission to make their point.  We hope that the courts will agree with the Congregation for the Doctrine of the Faith on this one: publicly funded religious social service agencies that run afoul of anti-discrimination law should accept the consequences as the price of their faith.

Cristina Traina,  Northwestern University, November 26, 2019

8 replies
  1. Paula Ruddy
    Paula Ruddy says:

    Thanks for thinking that through for us, Cristina. Not only do the bishops have to think through First Amendment religious freedom, they also have to think through a Gospel centered sexual morality. Big and necessary tasks for them.

  2. Don E Siegal
    Don E Siegal says:

    Bishops Can’t Have It Both Ways

    “If some Catholic social service agencies feel a conscience obligation to exclude same-sex foster and adoptive parents, they should sacrifice for this belief—either by refusing state funding or by willingly risking a verdict of illegal discrimination…”

    This writer would push back on the above statement, in that, any faith-based organization that wants to participate in the civil affairs of the state must confirm to state law and procedures in its administration of those processes even if the organization is privately funded. The sacrifice would have to be the non-participation of the organization in civil functions of the state. Be it agreed that, asking for an exemption based on religious non-discrimination reasons is not acceptable.

  3. Stephanie Jones
    Stephanie Jones says:

    I am not Catholic. But, this article expresses the same thoughts I have about the evangelical denominations who also want to have it both ways. I am a “heretical” Christian and I cherish the protections that allow me to worship as my beliefs dictate. I am watching in frustration, bordering on despair, as I see the current administration disrespect the lives of good, caring, compassionate, people, (among them me, I think I am a good person, because I am a T member of the LGBTQ community,) in order to kowtow to the beliefs of some. It is getting so very depressing.

    Thank you, Cristina Traina and New Ways Ministry for standing up for me. Well articulated thoughts like these do give me glimmer of hope.

  4. Patricia Vasilj
    Patricia Vasilj says:

    I remember when the State legislature in Springfield, Illinois denied adoptive rights to agencies that would not service same sex couples. Our former Cardinal was not a happy camper. Catholic Charities could no longer process adoptions. I acknowledge the work Catholic Charities has done in the Archdiocese. But I also am not in favor of discrimination for a loving couple to be denied the right to adopt. We can’t deny love or force people not to love, whoever that may be. And if two people decide to share that love with a child not of their own bodies, bless them. Bless you all for adopting, everyone of you. Forever is a beautiful thing.

  5. John Hilgeman
    John Hilgeman says:

    One other factor to consider is that there are not only same sex couples who are willing and well able to foster and adopt children, but there are foster and adoptive children who are LGBTQ. The children need some persons or couples to foster and adopt them who are able to provide the acceptance and nurturance they need. That doesn’t mean they necessarily need same sex individuals or couples to foster or adopt them (some straight couples and individuals can be very supportive). But that means that the individuals or couples who would foster or adopt them should not have a mindset skewed by harmful Catholic doctrines. If particular Catholic agencies are screening out prospective LGBTQ foster and adoptive parents because of doctrinal bias, how can those same agencies be trusted to do what is best for the LGBTQ children they are supposed to be serving?

  6. gaetano giannotta
    gaetano giannotta says:

    The State would be funding a service that per se is not a religious activity, so the State is not funding the Church per se.


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