How Nondiscrimination Becomes Discrimination

BY Gerald J. Russello

May 4-10, 2008 Issue | Posted 4/29/08 at 2:34 PM

The traditional understanding of religious liberty protected free exercise; that is, religious institutions could freely act on their beliefs and the state would not interfere.

That central understanding of the American constitutional system no longer holds.

A recent state statute proposed in Colorado strikes directly at the heart of the free exercise of religion. The statute, called House Bill (HB) 1080, would prohibit “discrimination” in employment in institutions that receive government funding, and explicitly includes religious charities that receive government funds.

That means that the state may now require Catholic institutions to cease preferring hiring Catholics for roles concerning its mission, or any other function.

The Colorado statute is only one of numerous similar laws being considered across the nation, and they follow closely on the heels of other laws passed in states such as California and New York under the guise of “equality.”

These laws — which have been upheld by the courts — required religious institutions such as hospitals to provide contraceptives as part of their health insurance, unless these institutions could show that all of their employees and patients were of the same faith — an impossibility, given Catholic institutions’ mission to serve the entire community.

The Colorado law goes one step farther, and reaches inside the institution itself. As Archbishop Charles Chaput of Denver put it, the law has two problems.

First, the mere transfer of money from government to these charities does not violate the Constitution’s Establishment Clause. This reasoning in fact confuses an institution’s receipt of government funds with being a part of government itself. As Archbishop Chaput notes, government gives money to religious charities precisely because they perform functions better and more efficiently than the government can; if the government now wants to perform these services itself, it had better be able to bear the costs and burdens associated with them.

Secondly, HB 1080 is contrary to American historical practice. Government money often flowed to religious institutions without any concern for improper proselytization and partnerships between government and religious groups was (and is) common.

The false presumption behind laws such as HB 1080 that religious groups need to be carefully regulated for fear they will harm the common good is “enormously offensive to religious believers.”

It is hard to underestimate the threat these laws pose to religious freedom. They not only silence unique voices religious institutions bring to public debate, but they also impermissibly interfere in the internal workings and governance of religious communities. These laws privilege one value — “nondiscrimination” — over religious freedom.

But in this context, nondiscrimination loses much of its value because it ultimately will mean whatever shifting coalitions of legislators want it to mean. Further, these laws deprive religious institutions of the clear constitutional guarantee of religious freedom. They in effect discriminate against religion.

Catholics especially should be concerned. As the religious denomination with the largest network of hospitals, schools, charities, and other entities, these laws clearly target the Church and will have the result — intentionally or not — of reducing the Church’s mission and the reach of its charitable efforts.

Already, in places like Massachusetts, Catholic Charities has had to stop placing children for adoption in light of a law requiring agencies to consider same-sex couples.

Should laws like HB 1080 be allowed to stand, Catholic institutions such as those in Denver will be forced to renounce government funding — and thus reduce their effectiveness — or compromise their beliefs. This will harm not only those who rely on the Church’s assistance, but the cause of religious liberty itself.

Gerald J. Russello is a fellow of the Chesterton Institute

at Seton Hall University.

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