On June 26, 2015, a U.S. Supreme Court ruling legalized same-sex marriage throughout the nation. Same-sex marriage was already legal in a number of individual states before that ruling, and a similar move toward equality is found in the proposed Employment Non-Discrimination Act, federal legislation that prohibits employment discrimination on the basis of sexual orientation and gender identity. More recently, in 2015, the Equality Act was introduced by two members of Congress. If passed, it would provide comprehensive legal protection for members of the LGBT community by extending the prohibition of discrimination to include housing, public accommodations, public education, federal funding, credit and serving on juries.
Meanwhile, this spring, three Southern states have been embroiled in controversy over legislation involving the rights of lesbian, gay, transgender and bisexual people. On March 23, North Carolina Gov. Pat McCrory signed a law barring local governments from passing anti-discrimination measures intended to protect LGBT people. Lawmakers in Georgia and Mississippi passed legislation allowing discrimination against LGBT people on the basis of religious beliefs; Gov. Nathan Deal vetoed Georgia's bill on March 28, while Gov. Phil Bryant signed Mississippi's bill into law on April 5. Similar legislation in Missouri passed out of committee April 12, setting the stage for floor votes in late April.
Despite such state legislative moves, a 2015 poll by the Public Religion Research Institute reveals overwhelming support for laws that would protect LGBT people against discrimination -- 71 percent of all Americans and 73 percent of U.S. Catholics.
Many states have passed nondiscrimination laws, but there is a growing resistance from Catholic bishops who believe those laws are a violation of religious freedom.
In April 2015, the Nebraska Catholic Conference sent out an urgent communication to all parents with children enrolled in Catholic schools throughout the state regarding a legislative bill prohibiting all discrimination on the basis of sexual orientation and gender identity.
Among other things, the state's Catholic conference warned that the bill "would prevent a Catholic school from reprimanding a transgender male coach who insists on using the girls' shower and restroom facilities" and "would require employers, including Catholic schools, to engage in employment practices that would affirm sexual behavior contrary to Church teaching."
These statements are drawn from the U.S. Conference of Catholic Bishops' backgrounder, "Questions and Answers about the Employment Non-Discrimination Act," which argues against that federal legislation, though the bishops have not yet issued a formal statement on the more recent Equality Act.
The bishops' backgrounder gives a brief nod to the Catholic teaching that all people "possess an innate human dignity that must be acknowledged and respected by other persons and by the law." But this is quickly qualified by fearmongering language that claims nondiscrimination legislation protecting LGBT people promotes immoral sexual behavior, endangers our children, and threatens religious liberty.
The fundamental question surrounding religious freedom and nondiscrimination legislation, which we explore in this essay, is how to balance one's civil right to religious freedom with the civil rights of others when the two rights conflict. The U.S. bishops' claims for religious freedom have evolved from seeking to protect the ad intra practice of religious institutions to seeking to protect also its ad extra practice in a pluralist society.
The bishops also seek to protect public and private employers who have moral objections to specific types of sexual behavior and seek to move beyond a religious exemption from a just law to advocate for the prevention or repeal of nondiscrimination law they regard as unjust. How did we get to this point?
In April 2012, the bishops' Ad Hoc Committee for Religious Liberty issued a statement on religious freedom, "Our First, Most Cherished Liberty," which contains alarmist language that "religious liberty is under attack."
There are three issues in the statement that have a bearing on the bishops' stance against the Employment Non-Discrimination Act:
- Reductive secularism and relativism;
- The common good;
- Just and unjust laws.
We consider each in turn and conclude that legislation protecting LGBT people from discrimination is a civil rights imperative that the Catholic church is obligated to support in a pluralist society.
Secularism and relativism
Although secularism receives only a brief mention in "Our First, Most Cherished Liberty," concern about it is the basis for both the bishops' claims that religious freedom is under attack and for their resistance to the Employment Non-Discrimination Act.
In the 2012 statement, the bishops encourage laity to confront "the dominant culture" and to have "the courage to counter a reductive secularism which would delegitimize the Church's participation in public debate."
This reductive secularism has a clear relationship to Popes John Paul II and Benedict XVI's concerns with a "dictatorship of relativism." The end of secularism is the removal of Christianity from American culture, and relativism serves as a means to this end by denying objective, universal moral truth and affirming that all moral views are equally good and true.
Throughout their pontificates, John Paul and Benedict raised concerns about this relativism, which fundamentally threatens the human search for truth. Against this relativism, the Catholic magisterium insists that there is objective, universal, moral truth that is the foundation for absolute norms that assert that certain acts, like abortion, artificial contraception, and homosexual acts, are intrinsically evil. A just and moral society must adhere to these norms to protect the common good of its citizens.
Concern about relativism is undoubtedly warranted in the 21st century, but the magisterium fails to discern the difference between relativism, which rejects objective, universal moral truth, and what we shall call perspectivism, which acknowledges objective, universal moral truth, but also insists that truth is partial and always in need of further clarification.
Strangely, the magisterium also ignores legitimate theological pluralism, which its own International Theological Commission's Theology Today advances as an essential reality of truly Catholic theology.
Disagreements about moral issues are chronic in the nation, not only between Catholic leaders and the broader society but also between them and Catholic citizens. Sociological studies reveal a growing disconnect between what the Catholic faithful believe about sexual morality and official Catholic moral teaching.
We have already noted that 73 percent of the Catholic population disagrees with the bishops on the legitimacy of discrimination, and a 2015 Pew survey shows that fewer than half of the Catholics surveyed believe that homosexual and contraceptive acts are sinful. What relation do these statistics have to accusations of relativism?
The first thing to note is that, as representative surveys of the Catholic population, these surveys make an important contribution to our knowledge of Catholic belief about morality.
Second, what is often dismissed as a manifestation of relativism is more accurately ascribed to differing perspectives with respect to the definition of human dignity and to what norms facilitate or frustrate its attainment.
Third, the data of the surveys give us insight into the sensus fidelium, that "spiritual instinct that enables the believer to judge spontaneously whether a particular teaching or practice is or is not in conformity with the Gospel and with apostolic faith," in the words of the International Theological Commission.
It has become common for bishops to dismiss the data from surveys as sociological and not theological facts. That is obviously true as a descriptive of the origin of the data, but it is obviously false if it means that there is no correlation whatever between the sociological and theological facts.
Sociological data correlate to the sensus fidelium, and the sensus fidelium, in turn, correlates to the more universal sensus fidei ecclesiae, the sense of faith of the communion church. The data reveal a real moral theological pluralism in Catholic beliefs about sexual morality, and this pluralism has implications for claims of religious freedom from nondiscrimination legislation.
To present official Catholic teaching on sexual ethical issues as if it were the only morally legitimate perspective, to use that teaching to claim violation of religious liberty if and when legislation conflicts with it, and to discount those Catholic perspectives that disagree with official teaching as manifestations of relativism discount also the rich diversity of the Catholic tradition and the contemporary sensus fidelium.
The manifest divide between the teaching of the magisterium and the beliefs of Catholics, we suggest, undermines the claims to ad extra religious exemption from nondiscrimination legislation.
It also threatens the maintenance of both ecclesial and societal peace, a long-standing Catholic component of the common good. Both St. Augustine and St. Thomas Aquinas argued against the banning of "harlotry" because if it were banned "the world will be convulsed with lust."
The common good
The U.S. bishops' religious freedom statement proclaims: "What is at stake is whether America will continue to have a free, creative, and robust civil society -- or whether the state alone will determine who gets to contribute to the common good, and how they get to do it."
This claim, of course, requires that we define the common good, the role of the church in relation to the common good, and whether and how nondiscrimination legislation threatens the common good.
The Second Vatican Council describes the common good as "the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment." What facilitates this social and personal fulfillment is good, moral and to be supported; what frustrates it is evil, immoral and to be opposed.
The sociological surveys reveal a pluralism within the church with respect to human sexuality and, therefore, human sexual dignity, and this pluralism has implications for first defining and then realizing the common good.
How are we to realize the common good in the public realm, given pluralism within and without the church? What is the church's proper role for engaging with the public realm to promote its vision of the common good?
On the one hand, the bishops' conference emphasizes that every person's human rights must be protected. On the other hand, this "should be done without sacrificing the bedrock of society that is marriage and the family and without violating the religious liberty of persons and institutions," in the words of the U.S. bishops' 2009 pastoral letter "Marriage: Love and Life in the Divine Plan."
The Employment Non-Discrimination Act presents a conflict of values between protecting human rights and protecting religious freedom, marriage and family as these are defined by the bishops. In a March 5, 2012, article in America magazine, Jesuit Fr. David Hollenbach and Tom Shannon raise the question: "When and how is civil legislation an appropriate means for the promotion of the moral norms taught by the church's magisterium?"
They respond by arguing correctly that there needs to be a re-evaluation of the church's role in defining and realizing the common good and how this should impact the church's involvement in the political realm.
The church considers the primary purpose of law and politics to be the promotion of the common good, but realizing it in a pluralistic society is a hugely complex endeavor, and navigating the normative and legal implications of the common good often provokes conflict.
The ongoing debate between the U.S. bishops' conference and the Obama administration's Affordable Care Act is such a conflict. On the one hand, the common good demands universal health care as a fundamental human right; on the other hand, the church teaches absolute norms against artificial contraception. Universal health care and sexual norms are both part of Catholic teaching, but they come into conflict, the bishops argue, in the Affordable Care Act.
Which should take priority as the higher value, universal health care or preventing access to contraceptives? Which is a higher value, respecting human dignity and ensuring nondiscrimination based on sexual orientation and gender identity, or attempting to block or repeal legislation that might allow homosexual actions the church deems immoral?
There is an ongoing debate in the church whether the moral issues surrounding homosexuality and gender are public or private morality. If they are about private morality, the church can both teach the possibility of just discrimination based on homosexual orientation and gender identity and can also support laws that prevent discrimination on the basis of homosexual orientation and gender identity.
If they are about public morality, the church needs to balance its sexual teachings with teachings on nondiscrimination, and grasp the impact of pluralism on definitions of public morality.
The Supreme Court's decision to legalize same-sex marriage in every state is a good example of how those definitions have changed. What was once considered public morality, and was legislated against in laws prohibiting sodomy, is now considered private morality. What was once illegal, same-sex marriage, is now legal. With these shifts in the social and legal definition of morally and legally acceptable relationships, there needs to be a corresponding shift in the perception of religious freedom in relation to this evolution.
Just and unjust law
With its opposition to the Employment Non-Discrimination Act, the bishops' conference has shifted its religious liberty claims from exemptions from a just law on the basis of conscience to prevention or repeal of an unjust law. The bishops explain in "Our First, Most Cherished Belief": "An unjust law is 'no law at all.' It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal."
The Employment Non-Discrimination Act, the bishops maintain, would be an unjust law and should be blocked. The justification for the bishops' claim is an inadequate "treatment" of sexual orientation and gender identity.
The U.S. bishops' conference critique of the nondiscrimination act in the backgrounder focuses on its definition of sexual orientation and problems that definition poses. The legislation fails, the bishops argue, to distinguish between "sexual inclination" and "sexual conduct," and since that distinction has not been made, "courts have construed a term such as 'homosexuality' to protect both same-sex attraction and same-sex conduct."
Catholic teaching distinguishes between homosexual acts, judged to be intrinsically immoral, and homosexual inclination, judged to be "objectively disordered" but not immoral. Since the Employment Non-Discrimination Act makes no distinction between sexual inclination and sexual conduct, and it might happen that homosexuals will engage in homosexual acts (though many are celibate), it is just and moral to discriminate against them since the church "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."
On this basis, all employers, religious and nonreligious alike, can exercise their religious freedom by claiming an exemption from an already approved law or by preventing the federal act or repealing it if it becomes law.
There are several possible responses to the bishops' argument. First, the backgrounder on the act assumes and asserts the Catholic teaching that all sexual acts outside of heterosexual marriage and all sexual acts within marriage not open to procreation are morally evil. A religious exemption from the Employment Non-Discrimination Act, an exemption that would permit discrimination against LGBT persons, is based in part on the concern that the failure to distinguish between sexual orientation and conduct would force employers to promote immoral sexual activity.
If this is really the argument of the bishops' conference, it should also argue that there should be a religious exemption allowing discrimination against married heterosexuals who might use artificial contraceptives or have oral or anal sex, and against unmarried heterosexuals who also might engage in these activities. Heterosexuals might engage in immoral sexual acts that would "not serve the good of the person or society" any more than would homosexual acts.
The conference has not made this logical argument, which would indicate that its objection is not to immoral sexual acts but simply to homosexual orientation.
By rejecting the federal nondiscrimination legislation, the bishops' conference is violating the common good, the protection of individual human dignity, on the basis of a generalization that homosexuals might engage in immoral sexual activity, and it is promoting unjust discrimination against even celibate homosexuals performing no homosexual acts.
Two long-standing Catholic moral principles are relevant here.
The first is that a perceived moral end does not justify immoral means: The moral ends of promoting "the good of the person or society" and protecting religious freedom do not justify the immoral means of discrimination against accepted human rights.
The second is the double-effect principle that distinguishes between the direct and indirect consequences of an act. The direct consequence of the federal legislation is the protection of LGBT individuals against discrimination because of their sexual orientation or gender identity. An indirect consequence is that homosexual persons might engage in what the bishops deem immoral homosexual acts.
Both of these moral principles support the Employment Non-Discrimination Act.
There is a more fundamental response to the bishops' concern with homosexual activity, one that challenges the very claim that homosexual activity is intrinsically immoral and destructive of human dignity.
The church has consistently taught that homosexual acts are intrinsically immoral, but that teaching and its theological bases are now seriously challenged and many surveys show that the majority of contemporary Catholics do not accept that teaching.
The same is true, with a much higher percentage, for contraception. The fact that the majority of Catholic faithful do not accept Catholic teaching on the immorality of homosexual acts or contraception is not an argument for their morality, which is not determined by majority consensus. The burden of proof, however, is on the church to make a compelling argument that convinces Catholic and non-Catholic citizens that the teachings are true.
Hollenbach and Shannon advise, and we agree, that "the church should not ask the state to do what it has not been able to convince its own members to do."
It should not ask the state to enforce a teaching against homosexual acts that it cannot convince the majority of its own members to accept. The burden of proof is on the church to demonstrate that homosexual acts are destructive of human dignity and cannot serve "the good of the person or society." So far, it has not offered a compelling argument. An unproven assertion should not be advanced as the basis for an abusive use of religious freedom aimed at preventing or repealing nondiscrimination legislation and imposing the church's morally questionable doctrine on the broader society.
The bishops have every right to advocate for their moral position and to protect religious institutions from participating in what they perceive as immoral activity, but they do not have the right to impose their moral teachings legislatively in a pluralistic society. That, we conclude, would be the very worst kind of proselytism.
One final comment on the bishops' 2012 statement on religious freedom: The bishops should be ashamed of themselves for citing Martin Luther King Jr., the genuine and undisputed "conscience of the state" for civil rights, to trample on the equal civil rights of homosexual, bisexual and transgender citizens.
[Michael G. Lawler is the emeritus Amelia and Emil Graff Professor of Catholic Theology at Creighton University. Todd A. Salzman is the current Amelia and Emil Graff Professor. They are the authors of The Sexual Person (Georgetown University Press).]
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