He who pays the piper …

… is perfectly justified in telling a big government contractor such as Catholic Charities to treat gay people decently.

If Catholic Charities wants to exercise its First Amendment rights to be mean to gay people, then perhaps it should stop getting almost two-thirds of its budget from tax dollars.

And speaking of “conscience clauses”: what happens to a physician or nurse in a Catholic hospital whose conscience dictates giving a rape or incest victim full information about options, including Plan B?  Right: that physician or nurse can take her conscience to a new employer. The Catholic hierarchy has never favored any freedoms but its own, and its time to stop letting sectarian doctrine dictate the use of public money.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

37 thoughts on “He who pays the piper …”

  1. Just a quick note on the First Amendment. The Catholic Church can exercise its First Amendment rights to refuse government money, but the First Amendment does not require a religious exemption. A “neutral law of general applicability” does not violate the Free Exercise. The decision that established this rule, Employment Division v. Smith, was written by — Justice Scalia, joined by Rehnquist, White, Stevens, and Kennedy. Blackmun’s dissent was joined by Brennan and Marshall. Strange bedfellows, as they say. Or probably Nino and his (mostly) conservative majority just thought the new rule would be used against “bad” religions.

    1. Scalia and Thomas have been on a crusade to make freedom of religion on par with free speech.

      This was done in order to in order to deny the State the ability to use the establishment clause as an excuse to censor religious speech…like when voluntary bible studies or any other religious-oriented groups were banned by public schools while secular groups were not. Obviously the censors in these cases have been lefties so Antonin Thomas has been sympathetic. These days, almost all seemingly free-exercise claims get funneled to the free-speech clause.

      But this also works in reverse. Your beliefs don’t get special treatment just b/c they happen to be religious. Ergo, Scalia and Thomas have all but killed the Warren Court’s Sherbet test…which would’ve made the Catholic Church’s claim more plausible.

      1. Agreed on all counts. It would essentially make Smith a dead letter, though, to argue that the refusal to serve gays is a SPEECH claim. On that basis, every free exercise claim could be a free speech claim. I wouldn’t be surprised, though, if Scalia and Thomas do that in order to protect the speech that they like.

        1. Well, freedom of association exists under free speech, so I would think this clause would still be the Church’s best bet. Remember, this is how the boy scouts won the right to discriminate. What would happen is every expressive organization with a business or service, religious or secular, would then have an end-run around title VII.

          That still leaves the funding hurdle. Just to play devil’s advocate, I suppose they could try to use art funding precedents. IIRC, Rudy Giuliani tried to deny funding to artists with anti-religious views…only tto meet the wrath of the first amendment.

          I’m not a lawyer and I haven’t thought this issue out yet. So I’m probably missing some obvious difference between boy scouts and art funding on the one side, and adoption services on the other. But I do see a slight opening for the Catholic Church to weezel a free speech claim through.

          1. I don’t have any problem with the idea that the RC church shouldn’t take public money and then discriminate, but I also don’t see a problem with the work-around they had (in the article) of sending unmarried and gay people to another agency. (Though, who decides which kid goes where, I wonder? Just curious.)

            Do people think this is terrible? Should I be outraged by it? Sometimes I have blind spots.

          2. So I’m probably missing some obvious difference between boy scouts and art funding on the one side, and adoption services on the other.

            Arts funding is pretty easy: you can’t have a “neutral law of general applicability” that restricts funding from going to art you don’t like. By its very nature, that impinges directly upon the right to free speech. In the case of running a hospital or adoption service, that’s not the case. In fact, it’s just about the opposite. Here, the government is saying that you provide the service to everyone regardless of their sexuality or political beliefs, and it is the provider that is saying, “But we don’t want to serve *these* people.”

          3. Replying to J. Michael Neal, below:

            Just to be precise, I don’t think the church is necessarily saying they don’t want to serve “these” people. They don’t want to place children with people who live in a way they find immoral (ie, unmarried straight cohabitation or sexually active gay coupledom).

            And I do think they’re wrong to exclude gay people from adopting, just for the record.

            The unmarried straight people thing is a little tougher. Not on the subject though I guess.

          4. NCG: That’s a distinction without a difference, no? When whites objected to blacks marrying other whites it wasn’t based on their blackness per se. It was their conviction that blacks were inferior to whites (lower moral standards etc.)

          5. The wonderful fact that many people are able to eventually realize that the Bible is not to be taken literally doesn’t take away from their initial sincerity, imho. The difference matters. It’s a cheap shot to just assume other people are racist, homophobic, etc. I mean, at some point, yes, it’s hard not to conclude that, but, not impossible. And if you don’t understand your opponent, it’s harder to debate with them.

  2. What gets me is that this isn’t one of those things that liberals get all worked up over and demand that their representatives address it……kind of the way conservatives get all worked up over some small little thing here or there (arts funding, for instance) and use it as a spark. Do the libs out there really even think about things like this?

  3. For decades and decades, Catholic-sponsored nonprofits have done yeoman’s work placing orphans (literal or legal) with loving new families, helping the needy, providing housing for the mentally ill, etc., etc., etc. My own neck of the woods in rural Northern California would be a far meaner place without the efforts of the local Catholic charities, which they don’t provide because the government contracts are lucrative but because they believe in the mission.

    In brief, liberals, these people are on your side and are making the world a better place. You might think that on this issue the Church is retrograde. I happen to agree. But casually calling for the rupture of very successful social-service models over today’s culture-war flame-up does not seem like the kind of attitude likely to best serve the welfare of children who need parents.

    1. You may be right, Bruce, but right now Catholic Charities is effectively crowding out any opportunities for non-bigoted social services organizations to grow and develop.

      North Carolina may be a less mean place than it might otherwise be due to CC, but it might also be a meaner place (especially for gays) due to CC sucking up those dollars and keeping similar secular and non-discriminatory agencies small or non-existent.

      1. And even more to the point, they are not Catholic, but catholic-sponsored, which allows for a modicum of oversight. And yes, I have direct knowledge of the adoption process in NoCal. It isn’t and wasn’t, pretty. Or very effective at doing some kind of important things, like allowing non-traditional couples to adopt.
        But they do help.

      2. Two very obvious cases. One involved a nun who was an in-hospital adviser on ethical issues and she permitted an abortion in a particularly egregious case (mother’s life and all that). The bishop, under whose purview the hospital was located, went apoplectic, firing everyone involved in the case and imposing an absolute prohibition on the procedure irrespectively of medical necessity. Someone should have aborted him a long time ago–even if it were to be a retroactive abortion.

        The second case involved Maryland foster placement agencies that only have loose government supervision. However, in one case, government moved to remove certification from a group that prevented couples that did not meet their religious test from serving as foster families. They did not just redirect the couples to other agencies–they effectively barred them from participation (I believe the actual court case came out of their claim that prohibiting pork-eating at the house was tantamount to child abuse).

        Neither of these cases has anything to do with free exercise of religion–it is the opposite. It is imposition of one’s woowoo-inspired superstition on everyone else. Everyone is entitled to the exercise of his own deeply felt religious convictions–no matter how ridiculous they may be–but no one is entitled to impose these convictions on others. (Except in very narrow circumstances–such as imposition of views on the clerical hierarchy.)

        As for Catholic Charities being involved in foster placement and adoption placement long before government streamlined the process for everyone, I am not entirely convinced that was a good thing overall either. Catholic adoption “agencies” also ran orphanages and it is these organization that have been most heavily cited in physical and sexual abuse of their charges (Canada, Ireland, Belgium, Australia and some African cases are the most glaring), not to mention generations-old policy of forcibly removing indigenous children from their families in order to indoctrinate them (the policy that has brought much disrepute on Australia, although not all the damage here had been done by Catholic clergy). Of course, all this was being done in the name of Western Civilization and The Greater Good. The world would be a much better place today if faith-based–and particularly Catholic–charities and benevolent societies had been replaced by secular ones–or, at the very least, had they received a bit more real scrutiny. People with the impulse to do good by others would do so irrespectively of whether it was done in the name of a deity or not. And the issue is not of people of particular religions being pedophiles or abusers–that’s not the accusation that Church has been facing at all. The issue is institutional control and cover-up, as well as some specific institutional policies that are conducive to abuse.

        1. I had several relatives who were in Catholic orphanages in the LA area in the 1900s. They seem to have been well-run and no one came out damaged, as far as I know. They seem to have been a blessing.

          It’s not like people speak of foster care as a paradise either. I’d love to see our system give more autonomy and control to the actual children, if there were some way it could be done.

          But your point about institutional control is important. I don’t know if these were diocesan orphanages or independent ones, both of which could have downsides. I went to an independent Catholic high school, run by some lefty nuns (except for on abortion). It had many excellent qualities.

          I agree that almost everything comes down to the individuals involved. Even now you can find parishes that aren’t gay-hating. They do I think have to not be too loud about it though, which is a real shame.

          1. I might have been a bit overexuberant in my earlier post, but I stand by most of the principle. Catholic organization all over the world–mostly outside of the “Western Civ” countries (Europe, US–but even Australia and Canada are not exempt)–have been responsible for some of the most outrageous abuses, both individual and institutional. Catholics are not the only ones responsible, of course, but the latest rumors suggest that now that the transfer of pedophile priests is no longer possible within US, Canada, Europe and the Commonwealth, the transfers are not made to African and Asian diocese–unless prosecution is inevitable. But what I said about Australia is most troubling to me–and, the same seems to have applied to some orphanages in Canada (mostly pre-WWII).

            This is not to say that some organizations and individuals have done a world of good. I am just not sure that the trade-off is worthwhile. Personally, I am absolutely repulsed by demagoguery of Mother Theresa because her charity came at a very high price–not to the beneficiaries, necessarily, but to the members of her order and to those who could not accept the conditions she imposed on her charity. And for a group that is most obsessed with “perversion”, what can be more perverse than “vows of chastity”??

    2. This liberal would say that public services should be provided *to* all or not *at* all. Unless you can provide a non-religious reason why a certain group should not have access to a service (such as not allowing pedophiles to adopt, to think of an extreme instance), then you must provide it for them. If not, then you don’t get any government money.

      If that means that no one provides a certain service, then that’s the way it needs to be. It means that society simply doesn’t value that service very highly. In the case of adoption services, for instance, I suspect that, with government funds available, someone would step in and we’d have at least the same bad level provided.

      1. And if real children are harmed while society waits for the non-religious adoption agencies that you “suspect” will “step in” in the absence of a Catholic Charities then well, so be it. A few years of bouncing around foster homes is a small price to pay for punishing groups who have the “wrong” attitudes about sexuality.

        1. Of course, the church could have decided to comply with the existing rules while at the same time lobbying to get them changed. But they know what’s more important for the children don’t they?

        2. If you bothered to read the linked article you would find out that Catholic Charities is spinning off these agencies and their staffs to secular non profits that will be eligible for the funding. Sounds like no gap in service to me.

        3. Mark: “And speaking of “conscience clauses”: what happens to a physician or nurse in a Catholic hospital whose conscience dictates giving a rape or incest victim full information about options, including Plan B? ”

          Can this now be litigated? Or do the various ‘conscience clause’ laws manage to thread that needle?

        4. Can it really be called punishment? Discriminating against a select group of public clients is a failure to provide contracted services. Failure to fulfill a contract is self disqualification.

          It seems a loss to eliminate an up and running operation that has a motivated, trained staff but yes, qualified people will come out of the woodwork to fill the gap. Crashing state budgets are pulling the plug on human services jobs in a massive way so there is lots of availabe man-power to fill the breach.

          Catholic Charities doe great work in many areas (housing families in trouble, administering heating assistance, emergency food, …) but if they choose to discriminate against qualified members of the public then the public can’t reasonably continue to fund that part of their mission.

          1. OOPS!
            ****This post was intended as a reply to the above post by sd.****
            I don’t know how I stuck it in here.

        5. Yes, even if some children are harmed. Fairness towards its citizens is a fundamental responsibility of government, and denying it constitutes a harm in and of itself.

  4. For the record, to any and all who might want to defend the churches here, let me remind you that for a principled stand, you must be prepared to make quite an ugly stand. Because the rights violation here being proposed – sexual bigotry – is no lesser an evil than racial bigotry. Are you then prepared to excuse that too in the name of “tolerance”? You might argue that it isn’t sexual bigotry, or homophobia, and that it is merely holy writ. However, this too becomes a deepening hole of flawed logic, as we then begin to offer up even more wretched examples of holy writ; surely stoning a woman is wrong, no matter what book it is written in. So as long as tax dollars don’t follow the church of those who would practice racial bigotry (regardless of their justification), neither should tax dollars follow those who would practice sexual bigotry.

  5. It’s quite a bit more than two-thirds. Calculations like this always count direct payments, like contracts, but never count the tax deduction for charitable gifts. If the average donor itemizes and is in a 20% bracket, that’s 7% more government money, and any buildings CC owns are exempt (in most states) from property tax. If you don’t think that’s a subsidy, note that while everyone else has to pay for national defense, EPA protection from poisonous air, fire and police protection, and all other government services by paying taxes, charitable organizations get them free.

  6. Mike, the average person who pays 20 percent in taxes by no means itemizes. It’s mostly the upper-middle-class and above that does (i.e. most people whom we are likely to commiserate with during tax season, but not most people).

    But the larger point is well taken. The charitable deduction is a huge government program, to a great extent an unjustifiable one (i.e. a massive transfer from people to pay the payroll tax to people who attend operas), and one that is understudied–except by Rob Reich at Stanford, who has done some excellent work on this.

    1. “The charitable deduction is a huge government program, to a great extent an unjustifiable one (i.e. a massive transfer from people to pay the payroll tax to people who attend operas),…”

      Sort of like Social Security and Medicare.

        1. Security and Medicare is a transgenerational wealth transfer from workers—many of which are low wage earners who need every nickel they’ve given up a piece of their lives for—to the wealthiest demographic in the country.

  7. Maybe the conscience of a religious organization, as an institutionalized consciense, is more important than the conscience of an individual. Actually, I don’t really beievee that.
    Anyway, there is no doubt that the Catholic hierarchy has made some VERY BAD decisions even if those bad decisions have been exaggerated in certain sections of the culture.

Comments are closed.