RE: Catholic Charities Issue

[Douglas Laycock]

If this is a government funded program, the broad reading of Locke v. Davey implies that the government is free to give the money, withhold the money, give the money with strings, or discriminate against religion in the allocation of funds.  The narrow reading is that this unlimited power applies only funding the training of clergy.  But even before Davey, Rust v. Sullivan and similar cases from which Davey is derived give government broad power to define the service it wants funded. 

 

Massachusetts law might turn out to be different, but if Catholic Charities was looking at these federal precedents and quite possibly an absence of state precedents on the conditional funding questions, it is easy to see why they didn't sue. 

 

The government's power to define the programs it wants to fund need not lead to the untrammeled government power arguably approved in Davey.  But even without Davey, and on a highly protective view of free exercise, there is probably government power to prohibit discrimination among beneficiaries of government spending programs.  If that is right, the only question would be whether the adoptive parents are beneficiaries, or only the children.  My intuiton is that both are beneficiaries.

 

Douglas Laycock

University of Texas Law School

727 E. Dean Keeton St.

Austin, TX  78705

   512-232-1341 (phone)

   512-471-6988 (fax)

 

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From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Saturday, March 11, 2006 5:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Catholic Charities Issue

Marty, I could be wrong about this because I am relying on my recollection of news reports, but I think the problem is that CC's entire adoption program concerns finding homes for hard-to-adopt children in state custody. The state pays CC a grant to find homes for children in state custody, subject to the non-discrimination requirement. Thus, the state controls the kids and the money.

 

Please correct me if I'm wrong.

 

Rick

Marty Lederman <[EMAIL PROTECTED]> wrote:

Uh, that would be "genuinely curious."  Sorry

----- Original Message -----

From: Marty Lederman

To: Law & Religion issues for Law Academics

Sent: Saturday, March 11, 2006 5:33 PM

Subject: Re: Catholic Charities Issue

I didn't mean to question the sincere religious motivation of Catholic Charities (or the Bishops whose decree it is following).  I was simply curious what it is, exactly, that Massachusetts prevents CC from doing, and whether and how that particular legal restriction imposes a substantial burden on the religious ex! ercise of the Church or of those involved in CC.  Presumably, as Alan suggests, the Church remains free to faciliate adoptions among Church adherents, right? 

 

I'm asking this not to make a point, but because I'm genuining curious about what state law prohibits and how that restriction impinges on religious liberty.

 

----- Original Message -----

From: "Douglas Laycock" <[EMAIL PROTECTED]>

To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>

Sent: Saturday, March 11, 2006 2:57 PM

Subject: RE: Catholic Charities Issue

It may be a business to the state, although even the state recognizes that it's not for profit.  I assume it's a corporal work of mercy to the church.  Recharacterizing religious activities as businesses, because it costs money to sustain them or because other groups engage in similar activities for secular reasons, is not in my view a legitimate means of escaping religious liberty guarantees.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: [EMAIL PROTECTED] on behalf of Marty Lederman
Sent: Sat 3/11/2006 1:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Doug, under Massachusetts law would CC's inability to engage in "adoption services" (which I assume means being in the business of arranging adoptions) result in a substantial burden on its religious exercise?
 
 
----- Original Message -----
From: "Douglas Laycock" <[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> >
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu <mailto:religionlaw@lists.ucla.edu> >
Sent: Saturday, March 11, 2006 2:09 PM
Subject: RE: Catholic Charities Issue


Application of this law to Catholic Charities should have raised a quite plausible claim under the Massachusetts Free Exercise Clause.  See the Society of Jesus case about 1990, and a mid-90s case on marital status discrimination by landlords, the name of which I am forgetting. 
 
So why did Catholic Charities surrender rather than litigate?  Maybe they figured they would just make bad law with that claim in the court that found a constitutional right to gay marriage.  If that's the reason, that sort of restraint in the choice of what claims to file should be practiced a lot more widely.  If that just didn't think about the state law, that's much less admirable.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]>  on behalf of Will Esser
Sent: Sat 3/11/2006 12:35 PM
To: Law & Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Paul,
 
Your comparison doesn't fit and doesn't reveal any inconsistency on the part of the Church.  Catholic Charities withdrew from the adoption arena, because the state mandate would require it to actively participate in the actual act with which it disagreed (i.e. placing children for adoption wi! th gay couples).  In your example, there is no conflict for the Church in ministering to the souls of those in the prison system.  Such action is not in any sense active participation in capital punishment. 
 
I'm entirely with Rick in saluting Catholic Charities for its decision.  People may disagree with the rationale for the decision, but the decision is ultimately an act of a religious organization placing its religious values first.
 
Will

Paul Finkelman <[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> > wrote:

I wonder if the Catholic Church should withdraw all support for the prison system because the Church opposes Capital punishment?  It would be a shame for those on death! row not to get last rites, or those in prison not to be able to talk to a priest, but at least the Church would be consistent.

Paul Finkelman

Rick Duncan wrote:


The Boston Globe has two good articles today on the decision by the Archdiocese to end its adoption services rather than submit to the government's antidiscrimination rules requiring the Church to place children with homosexual couples despite its sincerely held religious belief that ''allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be ! used to place them in an environment that is not conducive to their full human development."

Here <http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/ <http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/> >  and here <http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/ <http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/> > .




Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902


"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
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Parker Poe Adams & Bernstein
Charlotte, No! rth Carolina

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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902

 

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner

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