RE: Catholic Charities Issue

[Newsom Michael]

With respect, I think that you overreach.  It is true that there is a battle for the moral high ground, for the right to parade around saying that “my” morality is the controlling of legally sanctioned morality and “yours” is not.   (We experienced precisely this phenomenon in that great disaster known as National Prohibition. But this is hardly the stuff of persecution.  See Joseph Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement (1963).  Gusfield’s thesis overlooks other critical factors that were at play in the drive to National Prohibition.  But there is no doubt that National Prohibition was, at least in part, a moral crusade, i.e., many Drys had no great interest in strict enforcement of the Volstead Act.  It was enough for them that Dry morality had prevailed over Wet morality.  Of course the whole thing collapsed, largely for moral reasons, by the way.)   But it is a stretch to suppose that one side’s gaining the moral high ground and will lead to the religious persecution of the losers.  What is most striking about all of this, at the level of social realism, is that the only persecuting going on is visited by the Right on the Left, not the other way around.   Being “marginalized” and called a “homophobe” is not quite the same thing as having your brains beat in because you are gay.  To suppose that the two are morally equivalent is to make, with respect, a categorical error.   It is important to be very clear as to what the real stakes are in this particular culture war.  If the Religious Right wins, there is every reason to believe that gays will be subjected to an oppressive regime, with the imposition of a great deal of legal and extralegal force and violence – the lot of gay people throughout most of the nation’s history.  If the Left wins, the Religious Right simply loses bragging rights.  Not much else.  Note that Massachusetts is not forcing Catholic Charities to arrange for adoptions by gay parents.      Of course, if you mean by religious liberty the right to impose force and violence on gays, then, I suppose, you are right.  But the loss of that “liberty” offends me not at all.   I think the real issue has nothing to do with religious liberty, but rather the fear that a lot of people have that their children will be “converted” to homosexuality.  That fear is rooted in, I suspect, a correct perception that parenting in this country is in sad shape.  It really does no good to mischaracterize a problem of parenting as a problem of religious liberty, or to blame gay people for the evident failure of American parenting.          From: Rick Duncan [mailto:[EMAIL PROTECTED]] Sent: Sunday, March 12, 2006 12:53 AM To: Law & Religion issues for Law Academics Subject: RE: Catholic Charities Issue   The strong religious freedom protections Doug mentions simply don't exist under constitutional law or under presently-enacted antidiscrimination laws.   If gay rights laws are enacted, religious persecution follows inexorably. Moreover, religious dissenters in states like Massachusetts are marginalized and stigmatized as "homophobes" and as outlaws (even law school casebooks are beginning to jump on this bandwagon). Public school curricula soon reflect the change in the law, and our children are made a captive audience for learning the new social understanding of marriage and family and of unlawful discrimination. In Europe, even religious speech about homosexuality can be gagged under "hate speech" laws. Even in the states, the free speech/equal access rights of groups like the CLS  are taken away on college and law school campuses unless they are willing to sign a nondiscrimination loyalty oath.   We see the same thing in the area of abortion and contraceptives. Turn these once unlawful behaviors into "fundamental rights" and soon Catholic hospitals are expected to provide these services, religious employers are expected to include them in health care benefits, pharmacists must dispense them notwithstanding religious objections, and private professional schools must teach them or risk losing accreditation. And the beat goes on.   In contemprary America, the greatest threat to religious liberty is the gay rights/gay marriage movement (or, more broadly, the enactment of the sexual revolution as a protected right that others must accommodate). Who else has a political agenda that targets the ordinary activities (such as adoption ministries and health benefits) of mainstream religious institutions and turns these ministries into unlawful acts.   Rick Duncan       Douglas Laycock <[EMAIL PROTECTED]> wrote: It is not at all impossible to have both gay rights and religious liberty.  It is just that the gay rights activists mostly refuse to recognize religious liberty (at least if any gay rights issue is in anyway implicated), and the more conservative religious liberty activists mostly refuse to recognize gay rights.  Both sides want the symbolic victory of having the state declare the other side wrong, and both sides want to be assured they will never have to litigate a case at the boundary between the two freedoms.   ! Alan Brownstein sketched a perfectly sensible way to resolve the Massachusetts dispute in a way that protects both sides -- gay parents would be free to adopt through other state-funded agencies, and Catholic Charities would be free not to place children with gay parents.  More generally, strong gay rights legislation with strong religious liberty exceptions would protect both sides.    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 Rick Duncan Sent: Sat 3/11/2006 8:22 PM To: Law & Religion issues for Law Academics Subject: Re: Catholic Charities Issue I think Marci and Doug are spot on. The state, as in Rust,  says "this is our program, take it or leave it." CC says, "okay, we'll leave it."  CC loses a part of its ministry, the state loses one of its best adoption-service providers, and the kids stay in state custody longer (and, for some, perhaps permanently, since CC was extra good at placing hard-to-place children).   This is why some of us fight so hard against gay rights and gay marriage--gay rights/marriage are incompatible (at least in certain situations) with religious liberty. As in Massachusetts, the state has to choose between religious liberty and gay rights.   Some states choose gay rights. I choose religious liberty. I was born and raised in Massachusetts, but I couldn't live there now (and I don't think I even care to visit--not even if I had Monster seats at fenway).   Cheers, Rick Duncan   [EMAIL PROTECTED] wrote: What this dispute re: Catholic Charities illustrates is the danger of any religious institution in relying upon government funding for its programs.  Government funding always comes with strings.  In general, Catholic Charities gets 86% of its funding from government sources, 14% from private, with the vast majority of that coming from charities like United Way.  A tiny portion is paid by Catholics.  I would assume that on its own dime, CC can facilitate adoptions, but feel free to correct that assumption.    The question is whether it is going to accept the condition placed on it by the government's money. &! nbsp;CC is not required to take the government's money, right?  This is the Solomon Amendment -- private institution that has become dependent on government largesse insists that it is entitled to that largesse and that the government should have no power to place strings on the money.  There is no First Amendment problem and certainly no "substantial burden" under RFRA.  If "substantial burden" means that religious entities can force the government to give them money on their own terms, we are quite literally on the other side of Alice's looking glass.   Marci       Rick Duncan Welpton Profe! ssor 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 Yahoo! Mail Bring photos to life! New PhotoMail makes sharing a breeze. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list me! mbers can (rightly or wrongly) forward the messages to others. 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 Yahoo! Mail Bring photos to life! New PhotoMail makes sharing a breeze.

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