Catholic Charities Issue

[Newsom Michael]

Ed, we are largely together here.  We need to understand, however, what
"within the confines of those organizations" means.  But that, in turn,
invites an inquiry more generally into the reach or ambit of religious
associational autonomy and privacy.  The difficulty largely concerns
activities conducted by religious organizations that, to use Noonan and
Gaffney's felicitous term, do double duty, that is, serve both religious
and secular purposes.  The Court has indicated some unwillingness, at
least in Title VII cases, to probe too deeply into the boundary, if any,
that might exist between the religious and the secular.  See Amos.  But
it would be difficult to argue that the courts should never consider the
boundary question, regardless of circumstances.

 

It would be fair to consider, given the history of oppression, whether a
claim that an activity is "religious" might merely in reality be a sham,
a cover for continued oppression.  Oppression should never qualify as
"religious."

 

We won't get neat and tidy results, using such and approach, but we
stand a good chance of getting fair and defensible results if we do. 

 

  _____  

From: Ed Brayton [mailto:stcynic at crystalauto.com] 
Sent: Wednesday, March 22, 2006 6:41 PM
To: Law & Religion issues for Law Academics
Subject: Re: Catholic Charities Issue

 

Newsom Michael wrote: 

I am not sure that we have a mirror here.  Gay people are trying to get
out from under an oppressive regime the likes of which conservative
believers have not had to endure - nor are likely to.

While I agree with this, I don't think it really cuts against Doug's
argument. And I say this as a very vocal proponent of gay rights. I
absolutely agree that gay people have lived under an oppressive system
for far too long and I strongly support gay marriage, gay adoptions and
a myriad of other correctives. But I don't think that gay liberation
requires forcing churches and religious organizations to change either
their personal beliefs or their actions *within the confines of those
organizations*. In fact, I think it is dangerous for gay rights
proponents to push for policies that would place such a requirement
because it undermines our own arguments in favor of self-determination
and freedom of association. It's not just a bad idea as a practical
matter, it's unprincipled as well. We certainly want to prevent such
people from imposing their beliefs on the private behavior of gays (and
the rest of us, in a wide range of other ways as well); but we undermine
our principled position if we then seek to have government impose
restrictions on their private behavior (as opposed to the laws they
advocate).

Ed Brayton

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