Good to have you contributing to the list again MAG, but I think you read Mark Scarberry's post as being more one sided than it is.
The issue of traditional religious functions doesn't have to be an either/or proposition. Both government and religion have important roles to play in many social service areas. These are concurrent powers. Recognizing the state's role doesn't preclude recognizing the role of religion or vice versa. Mark recognizes that in most cases when a religious organization receives government funding as a conduit for the provision of public services, it surrenders some of its autonomy. It has to because it is a conduit. The purpose of the grant is not to benefit the religious provider -- it is to help the ultimate beneficiaries of the program the government supports. There may be some constitutional principle that limits government's ability to impose conditions on how its money is used in funding cases, but it is a very narrow one. But that does not mean that government SHOULD use the full extent of its constitutional authority when it is subsidizing religious NGO's and entirely ignore the impact of its rules on the autonomy of religious providers. Religious liberty is an important value that should be considered in developing state policy -- even when the state is not constitutionally required to do so. Moreover, there are political and strategic reasons for exempting religious organizations from some requirements that reflect the state's moral judgments but are offensive to some religious organization's religious beliefs. For some moral disagreements, the best way to achieve cultural peace is to recognize that the state does not necessarily endorse what it allows. Some religious people oppose same-sex marriage because they believe it means that the state is endorsing immorality. Some proponents of gay rights oppose Catholic Charities discriminating against gay couples adopting children because they consider such discrimination immoral. But the real question should be whether we can structure a funding program that allows Catholic Charities to be faithful to the dictates of its faith without interfering with the ability of gay couples to adopt children or delaying any child's opportunity to be adopted. If we can do that, we ought to be willing to allow Catholic Charities to participate in the state's adoption program notwithstanding our disagreement with its moral position. And religious groups should stop opposing same sex marriage solely because it allegedly sends a message of state approval of a relationship they consider immoral. Alan Brownstein -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber Sent: Monday, March 13, 2006 8:30 AM To: religionlaw@lists.ucla.edu Subject: RE: Catholic Charities Issue Maybe government should get out of the adoption business. Maybe it should get out of the marriage business (would solve a lot of problems), but at the end of the day, government in the United States has always played a role in the health, safety, and morals of the citizenry (police powers any one). And it has always regulated. Sometimes the regulations grossly violated our sense of the religion clause (an amazing amount of explicit favoring some religions over others), but such regulations hardly justify similar practice today. If we start regarding welfare as a traditional religious function (rather than as something many religious people felt a religious obligation to do), we are going to dramatically curtail not simply the New Deal state, but a good deal of the Guilded Age state. MAG >>> [EMAIL PROTECTED] 3/13/2006 11:20:21 AM >>> Mark Graber and Steve Jamar both seem to be arguing that certain activities, including provision of adoption services, are secular activities that the state should be free to regulate in any reasonable manner, even if the regulation prevents a religious organization from providing the services. Steve adds that provision of medical services is also a secular activity. One problem I have with this approach is that the state has expanded its activities into areas that traditionally were performed mostly by religious groups, and now some of us (including it seems Mark and Steve) claim it has a broad right to preempt those religious groups from providing the services unless they do it under the state's rules. Religious groups were providing social services long before the state got into the act, and they were doing so as a part of their religious calling. Consider, for example, that James (in the New Testament) says that the religion that is acceptable to God involves "look[ing] after widows and orphans in their distress." James 1:27. Separation of church and state (a term I don't mind using, even though I'm not a strict separationist) was supposed to provide independence each from the other. When the state begins to say that churches cannot perform traditional religious functions -- and even, perhaps, to tie this in with an earlier thread, cannot even choose its clergy free of state regulation -- then separation of church and state has become subordination of church to state. As Michael McConnell has pointed out, nonestablishment carried the day in large part because it was thought that religion could only flourish if it stood on its own; he points out that David Hume (not a friend of organized religion) wanted the state to pay ministers because that would make them less zealous. Separation was not meant to cause subordination. I don't think Massachusetts yet is saying that the Catholic Church can't assist with adoptions unless it does so in ways that violate its beliefs. But Mark and Steve seem to think that would be fine. It's certainly one thing to say that if the church wants the government's money then it must follow the govt.'s rules (which seems to be all that has happened in Massachusetts), but one of the reasons for nonestablishment (as Judge McConnell again has pointed out) was to free the churches from having to do things the government's way; as Michael has pointed out, people understood in the late 1700s and early 1800s that he who pays the piper gets to call the tune. So if the church is willing to pay its own way, state regulation of its traditionally religious activities should be kept to a minimum. There must be some limits even on the "he who pays the piper" principle, in a nation in which the government has taken more and more of our resources, thus requiring us to come to the govt. to beg to get back some of what has been taken from us so that we can have the resources to act privately. (Thus the controversy over vouchers and charitable choice.) I think this is a key justification for deductibility of contributions to religious organizations, and for being slow to condition such deductibility on the religious organization doing things the state's way. Mark Scarberry Pepperdine -----Original Message----- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: 3/13/2006 7:02 AM Subject: RE: Catholic Charities Issue I guess I get more confused by this debate as it goes on. 1. Part of my confusion is on the debate over the status of gay abortions in the Catholic Church. I'm not sure why we are debating the issue. Presumably if the Catholic Bishops of Boston claim to have religious reasons for not engaging in that practice, that ought to be good enough for the rest of us. Maybe a debate on that ought to go on within the Catholic Church, but most of us have no say in that debate. 2. I'm also confused why it is anti-religious to insist that all institutions that arrange for adoptions not discriminate against gay and lesbian couples. It may be wrong as a matter of public policy, but it is not anti-religious per se. Some religions believe that homosexuality is immoral (or something to that effect). My temple takes the position that discrimination against homosexuals is immoral and inconsistent with basic precepts of Judaism (other tempes disagree). We might imagine that the state might require particular parenting standards that differ from those imposed by some religions. Again, whether those parenting standards are desirable is independent of whether they are consistent with any religion. 3. In short, Massachusetts seems to believe that discrimination against same sex couples in the adoption process is (almost) as inconsistent with state values as discrimination against different race couples. I think that is correct. Rick Duncan thinks that is wrong. But our fight is on the merits of that proposition, because if I am right on the moral proposition, the religious argument seems to fall. Mark A. Graber _______________________________________________ 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 members can (rightly or wrongly) forward the messages to others. _______________________________________________ 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 members can (rightly or wrongly) forward the messages to others. _______________________________________________ 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 members can (rightly or wrongly) forward the messages to others. _______________________________________________ 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 members can (rightly or wrongly) forward the messages to others.
