Contra USCCB on LGBT Non-Discrimination

by Michael Sean Winters

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Last week, I twice considered the issue of the Church’s stance on issues relating to same-sex marriage, first about the forthcoming non-discrimination rule coming from the White House and, second, about Archbishop Salvatore Cordileone’s appearance at a rally organized by the thoroughly partisan, thoroughly pernicious National Organization for Marriage. For those uninterested in this issue, I beg your pardon for returning to it today, but given the statement released by four USCCB chairmen on Friday, it is important to consider this again.

My fundamental question throughout is this: Why do we need to have this fight? Yes, I think the government should, as a matter of principle and in order to create the conditions for a flourishing civil society, include generous, robust religious exemptions in almost all legislation. The Civil Rights Act of 1964 had such exemptions and still accomplished its goal. But, whatever the government does, we have to ask ourselves, why do the leaders of the Church want to have this fight, on this issue?

The bishops’ statement says, in part, “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.” As you can see, the adjective “unjust” is made to carry a lot of water in that statement. I also think the verb “to protect” warrants a look.

The bishops’ statement includes link to a background F-A-Q the USCCB has compiled on the issue of the Employment Non-Discrimination Act (ENDA), a proposed law that passed the Senate and which touches on the same issues. The F-A-Qs makes for some interesting reading. Here is Item # 4.

4. Does ENDA apply to employee fringe benefits?

Yes. ENDA would regulate decisions not only over whether to hire or fire, but also over compensation, terms, conditions, and privileges of employment. Therefore, ENDA would likely require an employer to provide health coverage to the employee’s same-sex “spouse,” and other fringe benefits, on the same basis as the employer provides spousal benefits to other legally married employees—even if the employer regarded all or some of these actions as facilitating or cooperating with same-sex sexual relationships contrary to the employer’s religious or moral convictions.

Health coverage is not properly termed a “fringe benefit” by leaders of a Church that has repeatedly taught that access to health care is a basic human right. Our nation has a particularly quirky way of delivering health care coverage, through employers. It makes no sense, to be sure, but it is what it is. But, it is not clear to me how the providing of such benefits can be seen as “facilitating or cooperating with same-sex sexual relationships.” The employee engaged in a same sex relationship is not looking for approval or permission from his employer. He or she is looking for health care benefits from the employer. If there is a heterosexual, married couple, they may, on their free time, be engaged in any manner of activities that the Church would not endorse, but we do not investigate that.

The USCCB F-A-Qs looks at the issue from a different angle, noting that ENDA fails to distinguish between homosexual inclinations and homosexual activity. Here is Item # 6:

6. Why is the absence of a distinction between same-sex sexual conduct and same-sex attraction in ENDA problematic?

While the Church is opposed to unjust discrimination on any grounds, including those related to same-sex attraction, she teaches that all sexual acts outside of the marriage of one man and one woman are morally wrong and do not serve the good of the person or society. Same-sex sexual conduct, moreover, is categorically closed to the transmission of life and does not reflect or respect the sexual difference and complementarity of man and woman. Therefore, opposition to same-sex sexual conduct by the Church (and others) is not unjust discrimination and should not be treated as such by the law. In contrast to sexual conduct between a man and woman in marriage, sexual conduct outside of marriage, including same-sex sexual conduct, has no claim to any special protection by the state. Therefore, although ENDA may forbid some unjust discrimination, it would also forbid as discrimination what is legitimate, moral disapproval of same-sex conduct.

I am wondering what the “legitimate, moral disapproval of same-sex conduct” has to do with a workplace? Now, if the Church hires someone who routinely denigrates the Church’s teaching, they should be fired for that denigration, just as the Republican Party is under no special obligation to hire a socialist and the Tango Society is under no obligation to hire a strict Baptist. But, I do not see how hiring someone who is a good teacher or a good counselor or a good cook, and who keeps their private life private, requires us to sniff around their bedrooms.

Yes, marriage is a public, not a private, act. But, by conferring health care benefits on a same-sex partner, are we “recognizing” that relationship in such a way as we could be seen as conferring endorsement? When Pope John Paul II first visited Poland, he met with its communist leaders. Was that a “recognition” of their power? Obviously yes. Was it an endorsement of their legitimacy? No. If our Church’s ministries provide same-sex partner benefits, how is that different?

Twelve or even ten years ago, if the leadership of the USCCB had followed the +Levada model, in which the then-Archbishop of San Francisco worked out an arrangement with city officials on the exact same issue, I suspect we would be in a better place, the culture wars would be diminished, and the Church would not have the aggressively litigious face it wears today. But, we did not follow that example and that ship has now sailed. The culture warriors in the conference decided that instead of trying to balance the dignity and legitimate interests of gay people in gaining access to benefits, we were going to dig in, to fight, draw a line in the sand.

The sands have shifted. If the bishops doubt this, I encourage them to go to any place that young people hang out and ask them their thoughts on same sex relationships. Those young people do not feel threatened by gay people. Those young people will not discourse on the threats to religious liberty. Those young people will ask simple, and better, questions such as: “Why not help people gain access to health care?” That is a question the USCCB has failed to ask, let alone answer, in this situation. If the conference did ask that question, they would be less likely to take to the barricades.

If the conference is smart, they will contact the administration and cut a deal. Provided there is nothing in the administration’s forthcoming rule that goes beyond the Supreme Court’s ruling in Hosanna-Tabor, the bishops agree not to fight the rule in exchange for the administration’s agreement not to change the Department of Justice rule that allows us to give preferential hiring treatment to co-religionists at our Catholic institutions. Adelle Banks, at RNS, reports on efforts to convince the Obama administration to overturn the Bush-era rule that permits such preferential hiring. I would note that there are religious groups, which view the religious liberty issue differently from the way the USCCB does, urging the administration to rescind the rule. This is a far more important issue for the future of our Catholic institutions than the LGBT-non-discrimination rule. You can’t have a Catholic hospital or a Catholic university without a critical mass of Catholics. That is a deal worth pursuing.

If, God forbid, someday a government of the United States insisted that our clergy perform same-sex marriage ceremonies, I am prepared to be sent to the flames to defend our Church’s right not to perform that rite. But, to fail to see the difference between that and a non-discrimination rule is a large failing. Again, I pose the question: Why do we need this fight?

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