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.
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