The Non-Discrimination Rule Cometh

by Michael Sean Winters

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The Obama administration appears ready to wade into the murky waters of anti-discrimination policy. They are set to announce a new rule that would bar federal contracts from b e awarded to companies that do not have a non-discrimination policy for gays and lesbians. On this, the administration is likely to get the rule wrong. The more important issue, whether religious institutions can practice affirmative discrimination on behalf of co-religionists, has been under the radar screen but, apparently, the administration has gotten this one right.

First, the issue of LGBT non-discrimination. The Senate has already passed a version of the Employment Non-Discrimination Act, or ENDA, but the House is unlikely to take action on the bill (or on any other bill for that matter). So, Obama has decided to do what he can by executive fiat. Certainly, the issue works for him politically. Gay campaign donors and voters, and young people who seem not to know what all the fuss is about, will be energized to donate, organize and vote in November. I do not fault the president or any politician for taking actions that play well politically, especially, as in this case, where there is little doubt the president actually thinks discrimination against gays is a bad thing.

If the new rule tracks with ENDA, there should be no worries. There is nothing in ENDA that violates Church teaching. The key question will be how robust the religious exemptions to the rule are. We tend to forget that the 1964 Civil Rights Act included robust exemptions for religious organizations out of deference to First Amendment concerns. But, you can bet this administration is unlikely to recognize the value of such robust exemptions. On this issue, the Obama administration embraces the libertarianism of the left, a glorification of individual choice and expression at the expense of civil society actors, like churches, to organize themselves as they see fit. The soundest objection to the HHS contraception mandate was on this ground: The government should not tell the Archdiocese of Washington or the University of Notre Dame how to govern themselves. Worse than the mandate was the administration’s legal brief in the Hosanna-Tabor case which sought to overturn the “ministerial exemption” in employment law. The Obama administration’s arguments were, literally, laughed out of court in an 8-0 decision.

The administration, like the rest of us, is waiting for the Supreme Court’s decision in the Hobby Lobby cases. Any order that lacks robust exemptions could be invalid on its face within weeks depending on how the court rules. The executive branch should, but won’t, under this or any other administration, be alert to the fact that litigation is expensive. While all of us fund the lawyers at the Department of Justice with our tax dollars, those who draft regulations should be cognizant of the fact that religious organization should not have to shell out tons of money to their lawyers to defend what has been common practice in federal policy, the enactment of generous exemptions out of deference to the vital role religious organizations play in our society.

Of course, the Church has to ask itself a different question. No matter what the government says, why and how should the Church discriminate? It is clear to me that teachers fall under the ministerial exemption: The passing on of the faith is about as essential a task as any religion has. I do not see any reason why a janitor’s sexual orientation matters one whit to anyone. And, while I prefer a “live and let live” approach to gay employees at our Catholic institutions, it is far from clear that gay rights advocates will accept such an approach. And, if a Catholic school has an employee who trumpets their deviation from Church teaching, on this or any issue, the pastor or principal should be concerned.

This concern has been met in recent months by the addition of clauses to teacher contracts at Catholic schools in Oakland, California and Cincinnati, Ohio. I do not object to such clauses per se but I do wonder why they are so heavily focused on sexual issues, on violations of the sixth and ninth commandments. One wag, commenting on these contracts, and knowing how devoted I am to my dogs, wondered if these contract clauses should take account of what Cardinal Bergoglio said before his election in an interview:

One interesting fact about this paganism….. the amount spent on non-necessities worldwide. Let’s put aside spending on necessary things such as food and medicine. Of those things that are not necessities, or superfluous things, the greatest amount is spent on pets. The most unnecessary spending is made on pets. Pets are idolized. And there’s the idolatry to buy, to rent, to have a feeling to give as I want, where I want, without needing a response, isn’t that true? It’s all a caricature of love. And the second largest amount of money is spent on cosmetology. Cosmetics. I don’t remember exactly the amounts worldwide, but there are millions and millions spent on these two things. Meanwhile the Pope is talking about children who are dying of hunger in underdeveloped continents like Africa, Asia and America. First come pets. And then if there is something left we throw it to the children…..

Setting aside the fact that the soon-to-be Holy Father has never met Bernie, Clementine and Ambrose, and that most bishops are on the road so much they do not know the joy that dogs bring into one’s life, are we to expect new contract clauses that include the following:

By way of example of a possible violation, we cite the serious issue of the 'idolatry of pets', which Pope Francis highlighted before becoming pope. This is in keeping with the Catechism of the Catholic Church which clearly states that it is “...unworthy to spend money on them [animals] that should as a priority go to the relief of human misery. One can love animals; one should not direct to them the affection due only to persons. ( CCC 2418). For this reason all employees will need to complete a form that indicates the number of pets in their home, their annual budget of caring for them and receipts of donations to feed human beings. Judgments on possible violations will be made on a case by case basis.

Obviously, I could not sign such a contract.

The real concern at the USCCB is not the content of ENDA or a proposed new rule so much as it is that any diminution of religious exemptions will serve as a precedent, permitting, even encouraging, further government encroachments into civil society. This is not a negligible concern, but we should recall that slippery slope arguments, though appealing to lawyers, cut both ways. Minority populations are right to be afraid of any laws that single them out, that this can be the first step towards ostracizing them. The Nuremberg laws deadened the conscience of a country and made the Shoah possible. Anyone who thinks gays are being fussy in insisting on being treated equally should be made to stand before the uniforms worn by the inmates at Auschwitz, the ones with the pink triangles, and reflect on what happens when gays are treated as different.

Last week, the bishops heard from sociologist Bradley Wilcox who called their attention to the necessity of a robust civil society in combating poverty and other social ills. Robert Putnam’s forthcoming book, like his previous ones, will amply demonstrate the need for civil society actors, perhaps especially churches, if those towns and neighborhoods blighted by the erosion of social capital are to be saved. It would be nice if the Obama administration stopped listening to people like Valerie Jarrett who seems to think that getting the Catholic Church out of the social services arena would be a fine thing. It would be nice if abstract legal arguments did not win the day over dense, convincing sociological data. I am not holding my breath.

On the other hand, Mark Silk at CNS is reporting that the Obama administration is not, as promised, going to take action against a Bush administration rule that permitted the preferential hiring of co-religionists at religious institutions. The case for this rule is a simple one, and was ably argued by James Tunstead Burtchaell in his magnum opus “The Dying of the Light”: You can’t have a Catholic, or a Methodist, university or hospital without Catholics, or Methodists. Again, there is a need to weigh competing values: Shame on any college or hospital administrator who hires an incompetent Catholic over a competent non-believer. But, if a school has two candidates of equal merit, and one is a co-religionist, that school should be able to put a thumb on the scale and hire the co-religionist. In reaching this decision, the Obama administration rightly concludes that the same court that ruled against it in Hosanna-Tabor is unlikely to endorse a DOJ rule that insists on denomination-neutral hiring practices at denominational schools.

In all this discussion, the one issue that is rarely mentioned is the one that matters the most to me. I worry about discrimination and I worry about civil society but I also worry about the homogenization of our society, the equation of equal opportunity with societal sameness. Separate but equal has rightly been tossed on the ash heap of history, but why should this require a commitment to sameness, an intolerance of people who, for whatever reasons, are a little quirky, maybe even bigoted. They should not be able to cause harm to others, but the government should let them alone to a certain degree. There is a continuum here. I do not believe that a lack of robust religious exemptions to whatever anti-discrimination rule the administration announces means that re-education camps are a logical next step, just as I believe a Catholic school’s reluctance to hire an openly gay advocate as a teacher is a necessary first step towards the gas chambers. I worry about government encroachment into civil society even while I recognize that, without government power, separate but equal might have remained the law of the land and the norm of society.

So, deep breaths all around. I hope that the USCCB will not denounce the new rule in a fit of pique. I hope that gay rights advocates will not denounce whatever religious exemptions the rule contains. I hope that calm, if not reason, will prevail. And, I really, really hope that neither NCR nor Catholic University ever expects me to sign a contract clause regarding the treatment of my pets! 

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