Constitutional Erosion: Freedom of Religion UPDATES

Over at First Things, I’m wondering about the apparent tag-teaming of the church by legislators and courts intent on reshaping the notion of rights and entitlements until they become difficult to tell apart:

“But here is the question: if a church-based organization has—for decades—served the community through placement assistance for adoption or foster care, and if that service is now to be defined as an “entitlement,” is it one that should be lost or preserved under the constitution? The argument being made is that, since there is no such thing as a “right” to place children for adoption, then there is nothing to protect. But what about the right of a religious organization to be what it is, in its chosen service to a community?

There is no “right” to adopt, of course. For that matter, there is no such thing as a “right” to be married, whether one is hetero-or-homosexual. Yet gay marriage activists will tell you that legalizing same-sex marriage is intrinsically tied into a homosexual couple being “who they are” in society.

Well, all right. I can understand any person, or couple, wanting to be allowed to “be who they are” without government intrusion into their lives. Why, then, should a church have to surrender an activity simply because it is bound to perform it in obedience to its own strictures? Why must a constitutionally protected entity be put in a position by which it must either cease to be what it is, or recede into the background, and outside of the public realm?”

You can read the rest here

UPDATE: In case you’re unfamiliar with the difference between Freedom of “Religion” and Freedom of “Worship” — here is a handy sort of primer via Mark Canney.

UPDATE II: Note: West Point Chaplains won’t be performing same sex weddings. Like I said, this issue is raring to come to the surface.

Archbishop Dolan
announces that the USCCB is creating an ad hoc Committee for Religious Liberty
Thoughts on Sentimentalism

About Elizabeth Scalia
  • Barbara

    Read this somewhere: The rise of an aggressive hardcore evangelistic atheistic movement is a symptom of moral decline. The darker a nation gets, the more it hates the light. The more a nation throws itself into sin, the more it hates righteousness. Germany was a good example. We are seeing this more and more here in America.

    Did you know what Albert Einstein said about the power grab by national socialists, and how society reacted? He said that only the Church stood against it. His powers of observation and his intellect are not challenged, yet no on in the intelligentsia seems to want his observations on this published widely. Why would that be, do you suppose? ;-)

    “Being a lover of freedom, when the revolution came in Germany, I looked to the universities to defend it, knowing that they had always boasted of their devotion to the cause of truth; but, no, the universities immediately were silenced. Then I looked to the great editors of the newspapers whose flaming editorials in days gone by had proclaimed their love of freedom; but they, like the universities, were silenced in a few short weeks. . . .”Only the Church stood squarely across the path of Hitler’s campaign for suppressing truth. I never had any special interest in the Church before, but now I feel a great affection and admiration because the Church alone has had the courage and persistence to stand for intellectual truth and moral freedom. I am forced thus to confess that what I once despised I now praise unreservedly.” –Albert Einstein, TIME magazine, Monday, Dec. 23, 1940

    Albert Einstein​ine/article/0,9171,765103,00.h​tml#ixzz1WuDgmcVb

    Lest anyone question the accuracy or authenticity of this quote, or the sentiment behind it, here is a letter in Einstein’s hand, confirmining:

  • Rhinestone Suderman

    Yes, I do think the darkness in our society is being ramped up in the present time.

    It’s growing stronger.

  • craig

    I would be more inclined to see the bishops as a help on matters of religious liberty, if they hadn’t spent the last 40 years telling us at every possible opportunity, on every possible issue, that it was a moral imperative for us to hand ever more power to the state. We repeatedly told them this would be the result, and they repeatedly called us indifferent and uncaring.

    Catholics, enjoy your hopenchange. As a group, you voted for it.

  • kenneth

    “………..Why, then, should a church have to surrender an activity simply because it is bound to perform it in obedience to its own strictures? Why must a constitutionally protected entity be put in a position by which it must either cease to be what it is, or recede into the background, and outside of the public realm?”………………………………………………..

    Because none of our rights are absolute. They are all constrained by other considerations, including public safety and welfare and the ability to exercise other rights that are considered just as important. If Bill of Rights rights were absolute, you should be able to saw off a double-barreled shotgun, load it and tuck it into your laptop bag next time you board an airplane. If anyone is interested in free government housing for the next 60 years, give it a try.

    The only way to portray Catholic Charities turn of events as persecution (vs a sense of grievance), is to assert that freedom of religion is absolute in all cases. That means if a religious group is involved, they are immune from all other laws. If a sect decides they need to have middle aged guys marry 13-year-old girls or NAMBLA decides to organize as a church, officials can’t touch them. If a religious group says its interpretation of modesty and scripture gives them the right to board planes wearing masks and without ID, same deal, we just have to sit back and hope.

    If you’re not asserting an absolutist interpretation of all rights, what other possible constitutional test would you propose for saying that CC had a right to be in the adoption business on its own terms? You can’t create a favored status just for the Catholic Church or other “established” churches.
    You could say “c’mmon, we all know what a REAL religion is.” But the government cannot get into the business of judging religious validity. The only determination they can do to determine a “bona fide” religion is to ask if it looks and acts like a religion. If they can articulate a theology that tries to answers ultimate questions and they have some system of services and teaching and perhaps clergy, they’re a religion under U.S. law. On their face, the Branch Davidians are entitled to as much consideration as the RCC.

    The suggestion has also been put forward that the church’s historical involvement in the adoption business somehow itself creates a right by precedence. We could try to draw the line by saying that all longstanding religious-related activities enjoy absolute protection from government interference. Congratulations, you’ve now just legalized slavery, child marriage, prostitution, female circumcision and human sacrifice.

    The right to be Catholic (or any other religion) does not entitle one to demand a status above all law “legibus solutus.”

  • kenneth

    “…………….Why, then, should a church have to surrender an activity simply because it is bound to perform it in obedience to its own strictures?”……………………………………

    This sentence bears closer examination for another reason. While the church may be bound to perform adoptions in obedience to its own strictures, they are not bound to perform it in the first place.

    Running an adoption agency for a government paycheck is in no way shape or form an integral or indispensable part of Catholicism. It is not a sacrament, an obligatory rite like Mass or a holy obligation like the Muslim imperative to go on Haj once in their lifetime. One can be a very active and very devout Catholic (indeed a pope or a saint) without ever once having placed a child for adoption. The decision to enter that business as a ministry was by choice, not obligation.

    Even if we construe it as a very broad mandate to help the underserved and parent-less, this decision does not preclude CC’s meaningful ministry in any way. There are many ways to help children, and adoptive couples, besides placing children in homes for a government check.

    IF the Catholic Church had been founded upon a primary mandate to adopt lost children or if CC limited its involvment to placing Catholic orphans in Catholic homes according to some particular religious traditions, that would be a different matter for courts to consider. The fact that a religious entity chooses to enter a business does not magically convert that activity to a religious expression activity. If it did, Catholic hospitals could assert that their doctors aren’t subject to state licensure requirements or that they are immune from the onerous record keeping related to controlled substances and hospital waste. They can’t do that, of course, and nor should they be able to.

  • craig

    An imam may attempt to board an airplane while chanting “death to the infidels”. The rights question is whether the airline must be compelled to admit him. At present the airlines are not so compelled; we still honor pilots’ safety judgments.

    Likewise, homosexual couples may attempt to adopt through Catholic Charities. The rights question is whether CC must be compelled to place children with same-sex couples even though they believe the child’s needs require both a mother and a father, married to one another, for a suitable developmental environment.

    Nobody is arguing that the placement of children in traditional families is harmful or unsuitable for the children involved. Even if other agencies’ policies were to place children with same-sex couples, CC’s own placements would still be a public good.

    The conflict is solely over the fact that this agency refuses to treat same-sex couples as equally good. It is equivalent to the state decreeing that if a pilot will not admit hostile imams, nobody gets to fly.

  • kenneth

    The (main) problem with your analogy is that Catholic Charities is playing the role of the radical imam in this case. They are the ones asserting an absolute interpretation of religious freedom to the exclusion above all other considerations. Not only are they demanding the right to “board the plane” figuratively speaking, but they are asserting a right to have the government comp the price of their ticket as they spit in the eye of regulations governing the activity. The only ones being denied a seat on the plane, so to speak, is CC. Traditional hetero couples have always and will continue to be the bulk of adoptive parents and will continue to adopt kids with or without CC’s involvement. Nor is anyone telling the Church or CC what they must believe or think about gay adoption. They’re letting a government contract with certain terms. Those terms are that you’re getting paid to carry out the government’s regulations, not yours, and you either take the cash or don’t accordingly.

  • Rhinestone Suderman

    No, Kenneth, basically they’re telling the CC that they can’t practice their Catholicism, in their daily business, which means if you’re a Catholic organization, you can’t be, well—Catholic; the government will not approve.

    Turning that around—no one is telling gays, or unmarried heterosexual couples that they can’t adopt using a secular, non-Catholic adoption service; why the determination to force the CC to tow the government line—or else? By the way, religious people pay taxes, too—taxes which are often used to support causes they don’t approve of. What is the problem with having an adoption service that caters to Catholics, and those who believe in traditional marriage?

    Given that most evidence shows that children do best in a stable home, with a married mother and father, why isn’t the government supporting adoption by married couples? Why this drive to place chldren in unstable homes where they might not receive proper care? Is this arrangement supposed to benefit the kids, or the adults, involved? Becoming a parent, with the government’s help, isn’t an entitlement.

    Also, when did the government get into the adoption business at all? Isn’t this something better left to charitable organizations? Look at the mess government’s made of foster care.

  • Rhinestone Suderman

    Kenneth, why should it be obligatory for an adoption agency—any adoption agency—to allow the children in its care to be adopted into families it believes are unfit, or not in the best interests of the child?

    Adoption agencies aren’t like pet stores, where you can just waltz in and pick up a cute puppy or kitten if you feel like it, and have the cash; parenthood isn’t an entitlement. You can live your life however you like; however, the life you lead might not be one suitable for raising a child. Having a kid is not a right.

    If the government begins throwing its weight around in order to push its own (highly dubious) social agenda, what comes next? Are adoption agencies going to become so intimidted, and so fearful of the government coming after them, that they’ll stop screening parents at all? Will they be afraid to say anything about any prospective parent, be they alcoholic, drug abusers, criminals, etc., because they might be breaking a law, if they do? Is this really the best thing for children, or is it just a very unwise attempt to make adults feel better about their chosen lifestyles?

    (Myself, I think it would be better if government got out of the charity, social work business altogether, but that’s another topic, for another time.)

  • Rhinestone Suderman

    It used to be that even married, heterosexual couples could be rejected for adoption, if they didn’t meet certain standards. Now, adoption—apparently with the government’s enthusiastic support—is more interested in making prospective parents happy, and not guilty about their lifestyle, than it is about what is about what’s actually good for the kiids. And they’re eliminating any competition, by trying to shut down organizations like the CC.

  • kenneth

    “Kenneth, why should it be obligatory for an adoption agency—any adoption agency—to allow the children in its care to be adopted into families it believes are unfit, or not in the best interests of the child?”………………………..

    It’s not obligatory at all. The deal is that the state hires agencies to conduct adoptions according to IT’s concepts of who is a fit parent or not. They’re not hiring CC or anyone else to inject their own moral reasoning into the mix.

    There’s no intimidation whatsoever. The government changed the terms of the job description under which it employs agencies. CC can’t, in good conscience, carry out the job as spelled out. The decision to allow gay couples to be considered for adoption has nothing to do with indulging gay’s sense of self esteem. It is based on scientific consensus which has determined that being gay, in and of itself, does not make people unfit parents.

    If the Church and its organizations really wanted to live by their principals above all else, they wouldn’t make themselves beholden to government money and interests. The early Christians understood and kept their hands, and themselves, out of Caesar’s pocket.

  • craig

    No, Kenneth, Catholic Charities is in the role of service provider, not service user. Christian churches were placing children for adoption long before the state ever took an interest in it. The state’s interest is to route everything through itself using its powers of taxation and regulation, and in so doing coerce everyone into substituting the state’s will for their own. Call it what you want, but that’s not a free society.

  • craig

    “It is based on scientific consensus which has determined that being gay, in and of itself, does not make people unfit parents.”

    Hah! There is virtually no empirical data upon which to base the claim. The history of same-sex couples raising children is so recent that the results are not yet ‘in’, and the sample size is tiny. This ‘consensus’ is nothing more than politics.

    And while the early Christians kept their distance from Caesar, somehow Caesar never let them alone in return. It’s always the same: ‘Everything within the state, nothing outside the state, nothing against the state.’

  • kenneth

    Actually Craig, the “scientific evidence” presented in opposition to gay adoption is less than pathetic. Remember that state laws barring gays from adoption were struck down most notably in recent years in Arkansas and Florida, hardly bastions of liberal sentiment.

    In each of these cases, the state’ star witness as a “scientist” offering evidence that gay adoption was harmful was a man named George Alan Rekers. In both cases, four years apart, the judges who rule against gay adoption bans were highly critical of the quality of his testimony. In the 2004 Arkansas case, the trial judge, Pulaski County Circuit Court judge Timothy Fox, was on record as calling Reker’s testimony “extremely suspect”, and said that Rekers “was there primarily to promote his own personal ideology.

    The Florida judge Miami-Dade Circuit Court Judge Cindy Lederman, had similar high praise for Rekers.

    In her decision, she said “Dr. Rekers’ testimony was far from a neutral and unbiased recitation of the relevant scientific evidence. Dr. Rekers’ beliefs are motivated by his strong ideological and theological convictions that are not consistent with the science. Based on his testimony and demeanor at trial, the court cannot consider his testimony to be credible nor worthy of forming the basis of public policy.”

    Rekers, who was apparently considered to be the most qualified expert the state attorney general could muster, has since fallen into scandal over a European trip he made in the company of a supple young lad hired through a service called “rentboy.”

    So that’s about the state of the art where scientific “evidence” against gay parenting is concerned.

  • Greta

    Maybe the question is why is the government involved in adoption in the first place? Maybe it should be charities which operate with funds from private donations. When you let the camel in the tent, you get everything that goes with the camel.

    The growth of the federal and state governments and their associated courts tied to judges who legislate from the bench have created these no win arguments. If we reduced the government down to the basics, and in every area that the government has been allowed to operate it do so with maximum efficiency, there would be a huge surplus of cash retained by the people.

    If only folks could see what the founders originally created before it was bastardized by the courts and political hacks, we would find an amazing and worthwhile system of government and a much stronger country.

    This issue for example would not be relevent becuse first the courts would not have dramatically changed the meaning of the freedom of religion into separation nor would they have discovered they could use an amendment for freed black slaves protection to find special rights for gays. If we had the Catholic Charities operating without funds from the government and on donations like all other adoption agencies, we would have them protected by the religious clause, able to turn down homosexual behavior as viable to raise children, and free of any other mandates by the government based on funding.

    That camel is going to be very hard to get out of the tent, but until it is removed, expect to have your liberties spit on frequently.

  • Doc

    Aren’t there cases in Europe of married couples being rejected by State adoption bureaucracies because the mother and father are “too religious”? I can see our government moving in that direction if the militant secularists continue to have their way.

  • Rhinestone Suderman

    Kenneth, because this Dr. Rekers was wrong, doesn’t mean that adoption by gay parents (or heterosexual, unmarried couples) is automatically okay. Opposition to adoption by gay parents doesn’t boil down to one man.

    Are there other studies you can link to, other than the career of the notorious Dr. Rekers, to prove your point?

    As craig points out, the idea that gay couples should be allowed to raise children is so recent, there really isn’t any data to go by yet. Basically, adoption agencies are being asked to indulge in a widescale social experiment, the end results of which, nobody can really know.

    It has been shown, by many studies, that children do better in a family with a mother and father, where both parents are married. And, yet, we’re supposed to ignore these studies, and support adoption by families that won’t provide this sort of home for children.

    As for Catholic services, it was providing a service for the government; as craig points out, the government takes over, making itself the router of all services—then cuts off those groups that won’t go along with its agenda.

    Yes, I’m actually in favor of geting government out of this stuff—but is there any way to get Caeser out, and keep him out, these days?

  • kenneth

    No, it’s true that Mr. Rekers personal situation does not, in and of itself, decide the issue. However, his work is entirely typical of the quality of “scholarship” mustered by those who advocate a blanket ban on gay adoption. They are, to a man, ideological hacks whose work has been discredited by statisticians, epidemiologists and psychologists. None of their “findings” have been or could be accepted for publication by any mainstream peer-reviewed journals in their respective disciplines. Their work really is that shoddy.

    Nor do I buy the conspiratorial notion that no good scientists come forward because of some gay liberal mafia in the establishment that intimidates them. There are plenty of contrarian voices in every field of medicine and science. Flouting conventional wisdom is the way young scholars make a name for themselves. At the other end of the spectrum are older and well-established (or even retired) scholars who have the protection of tenure or otherwise have nothing to lose by unpopularity. If any of them truly had solid data behind them, they would bring it forth. Their silence speaks volumes.

  • kenneth

    Gay people raising kids is not a recent invention. It’s been going on forever. It is true that gay marriage and open living is a relatively recent development, but even there we have a few decades under our belts. The evidence which has been amassed indicates that gay people are no more inherently fit or unfit to parent than anyone else. As with hetero parents, the same considerations of stable lifestyle, finances and responsibility need to be taken into account.

    As I’ve noted, two of the lankmark court cases in this area came out of the Bible Belt states of Arkansas and Florida. Not exactly the sort of places where courts carry out whimsical social experiments or liberal social engineering. Those judges were not easy sells. They ruled as they did because the best evidence at hand told them there was no rational basis to bar gay people from adopting as a matter of course. The evidence from the other side was pseudoscience and ideological dissembling. If there really had been better scientists and science to discredit the idea of gay adoption, the state attorney generals would have produced them. Florida in particular set aside a ton of money for expert witnesses and searched high and low. Their mountain of money produced Rekers and got them laughed out of court.

    As to your last sentence, I think you may be onto something. I don’t see government “getting out” of the adoption business, nor do I think they should. It’s really not something that ought to be an unsupervised cottage industry. The results of an unregulated private orphan industry is amply documented by the Ryan report in Ireland.

    That said, there may be some ways for groups like CC to offer their services their way on the up and up, Constitutionally speaking. I’m not an expert in this kind of law, but my gut tells me that simply not taking the government’s cash and doing it with internal funding may get them over that hump. If that is not enough, I think that if they focused their services on Catholic adopting families only, that would probably pass legal muster.