When it comes to Supreme Court cases involving the freedom of religion, one of the biggest cases is Bob Jones University v US from 1983. The presenting political issue was the segregationist practices of the school, but the specific legal issue before the court was the school’s tax exempt status. Congress had passed laws that cut off federal education money from any school that practiced racial discrimination, and the school tried to claim that the first amendment gave them an exemption from such laws.
SCOTUS laughed loudly. You can discriminate all you want in the way you run your school, said the justices, but you can’t expect society to subsidize it.
From the 8-1 majority opinion, with emphasis added:
Charitable exemptions are justified on the basis that the exempt entity confers a public benefit — a benefit which the society or the community may not itself choose or be able to provide, or which supplements and advances the work of public institutions already supported by tax revenues. History buttresses logic to make clear that, to warrant exemption under § 501(c)(3), an institution must fall within a category specified in that section and must demonstrably serve and be in harmony with the public interest. The institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.
Which brings us to the US Conference of Catholic Bishops.
The dismal turnout at the National Organization for Marriage rally at the US Capitol produced much mockery in the Twitterverse (my favorite comes from @bushonomics: “I’ve seen more people in a walmart on a Sunday than the #March4Marriage has on the Mall right now.”) and it displays the extent to which the US Bishops are increasingly at odds with “common community conscience” of the nation as a whole.
It was not always like this.
Once upon a time, the US Conference of Catholic Bishops worked hard for immigrant rights and protections. But in 2012 when a group supported in part by the USCCBs anti-poverty Catholic Campaign for Human Development joined in a coalition of immigrant rights groups, which then signed on to a project allied with a gay and lesbian advocacy group, the USCCB cut off their funds. Better to let the poor remain poor and the oppressed remain oppressed than to sit down at the same table with folks who sit at the same table as advocates for gays and lesbians.
Once upon a time, the US Conference of Catholic Bishops was in favor of protecting women from domestic violence. Then came the 2013 reauthorization of the Violence Against Women Act, and the bishops changed their tune.
Among our concerns are those provisions in S. 47 that refer to “sexual orientation” and “gender identity.” All persons must be protected from violence, but codifying the classifications “sexual orientation” and “gender identity” as contained in S. 47 is problematic. These two classifications are unnecessary to establish the just protections due to all persons. They undermine the meaning and importance of sexual difference. They are unjustly exploited for purposes of marriage redefinition, and marriage is the only institution that unites a man and a woman with each other and with any children born from their union.
The Senate’s decision to incorporate into S. 47 a title reauthorizing the Trafficking Victims Protection Act also raises concerns because this title omits language to protect the conscience rights of faith-based service providers to victims of human trafficking. . .
Better to let protection for women lapse than allow sexual orientation to attain any legal recognition.
And now, with the announcement of Obama’s executive order prohibiting federal contractors from practicing discrimination based on sexual orientation, the bishops are doubling down on their rhetoric. Their statement, in full, is this:
The Chairman for the Subcommittee for the Promotion and Defense of Marriage, Archbishop Salvatore Cordileone of San Francisco, the Chairman of the Committee on Domestic Justice and Human Development Archbishop Thomas Wenski, of Miami, the Chairman of the Ad Hoc Committee for Religious Liberty, Archbishop William E. Lori of Baltimore, and the, Chairman of the Committee on Doctrine, Archbishop John Nienstedt, of Minneapolis issued the following statement:
“The enduring commitment of the U.S. Conference of Catholic Bishops to uphold the dignity of each and every human person impels us to oppose unjust discrimination, to proclaim the truth about marriage, and to protect religious freedom. Therefore, we view with great concern the reported intention of the President of the United States to issue an executive order forbidding what the Administration considers “discrimination” based on “sexual orientation” and “gender identity.” Because we do not know how the executive order will define these critically important terms, or if it will provide sufficient (or any) religious freedom protection, we cannot provide substantive comment on the order. On the other hand, when the U.S. Senate recently passed legislation on the same topic, we raised detailed objections to that legislation, and we would refer interested parties to those resources to identify the applicable principles. We say again now, as we said in connection with the Senate bill and have said many times before, that we oppose any unjust discrimination against any person on any grounds. We intend to review the details of the executive order carefully once it is available, in order to assess whether it serves the dignity of the human person and the common good.”
Two words caught my attention: “unjust discrimination.” They imply — correctly — that at times discrimination is appropriate and at times it is not. Those who appreciate good food, well prepared and served, tend to discriminate against fast food operations. Those who have a love for good wine discriminate against cheaply made, ill-prepared, and poorly handled box wine. The key is when someone decides discrimination is “unjust.”
While not yet passing judgment on the whole executive order, the USCCB has made it abundantly clear that to them, it is not only appropriate but essential that they be able to exercise their religious freedom to engage in discrimination against LGBTs in employment, without jeopardizing their access to federal contracts.
The bishops of the Catholic church have been working hard to cleanse their church of LGBTs that challenge their views on marriage and also those who would speak up on their behalf. Teachers in catholic schools are being required to sign purity and loyalty oaths related to the official teachings with regard to LGBTs, for example. Here in KC, a married lesbian was removed from her position as head of a parish food pantry when her married status came to the attention of the local bishop. An ugly — and incomplete — list of similar cases can be found here.
Which brings us back to Bob Jones University.
Make no mistake — the Catholic church is engaged in serious discrimination against LGBTs. They are free to do that as an expression of their religious beliefs. But they cannot demand that what they might label “just discrimination” be subsidized and supported by the tax dollars of the rest of society. As I’ve noted repeatedly here, the USCCB has been singing this song for quite a while, and singing louder isn’t going to change the fact that they are off-key and out of step with everyone else.
The conversation between the bishops and their lawyers will probably be very interesting, as the lawyers bring up the Bob Jones case. “Your Eminences, Your Graces, and Your Excellencies, you have a choice. You can choose to conform with these civil laws and regulations even as you preach against what lies behind them, or you can choose to accept the consequences for non-conformity. Bob Jones is clear: ‘The institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred’ by granting exemptions from federal laws and regulations. Your purpose, when we talk about marriage, is increasingly at odds with the community conscience. Judge after judge after judge is saying so. Political pollsters are saying so. Increasingly large numbers of your own church, in the responses to the survey being taken at the pope’s instigation, are saying so. You may not want to admit it, but you are walking the path of Bob Jones University, and just to remind you — they lost. Badly.”
My prediction: That will not go down well, and the bishops will keep walking that path, singing more loudly and more off-key than ever.
Photo of Roger Williams statue by California Cthulhu under Creative Commons license. Williams, a Baptist, was kicked out of the Puritan colony of Massachusetts Bay, and founded the religiously tolerant colony of Rhode Island.