“Hands-Off” Judicial Approach on LGBTQ Discrimination Offers Catholic Inflection Point

Patrick Hornbeck

The U.S. judicial system’s recent hands-off approach towards religious liberty could be an opportunity for churches to discern matters of inclusion and justice within their own communities, writes Patrick Hornbeck.

In recent years, U.S. justices have made several decisions that allow religious organizations, including the Catholic Church, to discriminate against certain communities, such as LGBTQ people. Hornbeck, a theology professor at Fordham University, observes in the National Catholic Reporter:

“First, in 2018 the justices decided Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, dismissing a civil rights complaint against a Colorado baker who refused to make a custom cake for a same-sex couple celebrating their marriage. The court’s reasoning, 7-2, was that the state civil rights commissioners who originally heard the case had been hostile to the baker’s beliefs.

“In Our Lady of Guadalupe School v. Morrissey-Berru, the court found that two grade-school teachers were ‘ministers,’ and therefore, under the First Amendment, the government could not enforce antidiscrimination laws because to do so would interfere with the church’s right to choose who teaches the faith.

“And then two weeks ago, as it neared the completion of its annual term, the court unanimously concluded that the city of Philadelphia could not require Catholic Social Services to place foster children with same-sex couples. In a narrow opinion, Chief Justice John Roberts wrote that because the Philadelphia law at issue allowed case-by-case exemptions, the city had to grant exemptions for religious reasons too.”

Hornbeck argues that it is important “for advocates and legal scholars to attempt to persuade judges that the Constitution does not mandate a laissez-faire approach whenever a case has even a modest whiff of theological significance.” These cases represent “a worrisome trend within some corners of the U.S. judiciary” and set precedents which mean “that changes in legal doctrine will be slow in coming.”

However, because of these precedents and the recent appointment of like-minded justices, a simple legal approach “will likely not be enough.”

Hornbeck states that instead of focusing on a legal approach to issues of discrimination by religious actors against LGBTQ people and individuals who disagree with the church, religious progressives should focus on a “more productive way to respond to some courts’ hands-off approach.”

Hornbeck suggests focusing on internal discernment within church communities through the application of Catholic Social Teaching. He writes:

“By stepping back from many disputes involving religion, courts have opened space for religious believers and institutions to decide for themselves what is ethical and just.”

The church, writes Hornbeck, should begin asking itself certain questions, such as:

“Should Catholic businesspeople and professionals serve all the customers and clients that seek them out? What are the circumstances when doing so would entail unacceptable complicity with a customer’s or client’s actions?

“Should church institutions adopt nondiscrimination policies in employment? Should those policies be different with regard to different identities, say, race as opposed to sexual orientation or gender identity?” 

Hornbeck offers a reflection for how to begin the work of aligning Catholic teaching with just organizational practices:

“To take just one example, discrimination in employment, the analysis might start from the principle that the church must manage its internal affairs justly. In 1971, the Synod of Bishops wrote in its powerful document ‘Justice in the World’ that ‘[n]o one should be deprived of his ordinary rights because he is associated with the Church in one way or another’ (Paragraph 41). There may be room for reasonable people to disagree about what baseline qualifications, religious or otherwise, the church should require of its employees. But the synod’s document simply does not authorize, as the editor of America put it last year, an ‘indiscriminate purging of church employees simply because they hold unorthodox views or have made life choices that do not accord with Catholic teaching.’

“This kind of analysis — a dialogue of parrhesia, as Pope Francis might put it — belongs and should be cultivated in church spaces of all kinds. Where members of the hierarchy are unwilling or unable to lead these conversations, it belongs to all God’s people ‘to hear, distinguish and interpret the many voices of our age, and to judge them in the light of the divine word’ (Gaudium et Spes, 44).”

Hornbeck’s insightful analysis reminds Catholics that despite the fact that courts may legalize religious discrimination against the LGBTQ community, the church does not have to choose to discriminate. The Catholic Church has long held that what is legal is not necessarily right. The church should carefully reflect and choose to do the right thing according to theological, moral, and social principles. Catholic Social Teaching can help the church decide that regardless of the courts’ hands-off approach, the inclusion and protection of LGBTQ persons is still an important aspect of true justice.

Madeline Foley, New Ways Ministry, July 27, 2021

1 reply
    DON E SIEGAL says:

    Hands-Off Judicial Approach on LGBTQ Discrimination

    “Hornbeck’s insightful analysis reminds Catholics that despite the fact that courts may legalize religious discrimination against the LGBTQ community, the church does not have to choose to discriminate.”

    Unfortunately, the Church does not have a good track record on choosing not to discriminate. This is in spite of the Church’s own teachings on social justice.


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