Right Argument Wins the Day for British Catholics
BY Gerald J. Russello
April 25-May 8, 2010 Issue | Posted 4/20/10 at 11:00 AM
Perhaps U.S. Catholics should take a lesson in religious liberty from our friends across the pond.
On St. Patrick’s Day, British newspapers reported that the U.K. Supreme Court in London had ordered the Charity Commission, along with the commission governing equality and human rights, to reconsider its ruling to force Catholic Care — an adoption agency sponsored by the Dioceses of Leeds, Iddleborough and Hallam — to place children with same-sex couples.
This is a victory for religious freedom, but also a stark object lesson for what is at stake for the Church in such controversies.
Under Britain’s 2006 Equality Act, it is unlawful to discriminate on the ground of sexual orientation in the provision of goods or services to the public. This law has a seemingly admirable aim. No one is in favor of public discrimination, and the provision of public services should be open to all.
But, in practice, these laws extend the notion of public services to anything that mimics what the state can provide. Those arguing on behalf of such laws use an abstract notion of “equality” to trump other long-standing privileges, such as religious freedom, which are far more rooted in the Anglo-American tradition. This is true even in Britain, which lacks the protection the First Amendment provides in the States.
After the adoption of the Equality Act, Catholic charities argued that there was an explicit exemption for religious institutions under the act. In particular, Regulation 18 provided that “Nothing in these regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if (a) he acts in pursuance of a charitable instrument, and (b) the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument.”
Remarkably, the Charity Commission stated that this exemption did not apply to religious institutions like Catholic Care. Instead, the British government gave Catholic charities a little less than two years to change their policies and “secularize” — in effect abandoning Church teaching — or close their doors. It is a sign of the effectiveness of the secular state’s power, and perhaps of the confusion among Catholic charities, that most of the Catholic charities operating in Britain did in fact close or cede their Catholic identity.
The three dioceses supporting Catholic Care, however, resolved to fight for their interpretation of the Equality Act and the exemption under the regulation. Fortunately for Catholic Care, the high court judge disagreed with the Charity Commission.
He found that the commission should reconsider the good Catholic Care has done for children. He further found that the Charity Commission can apply the exemption in Regulation 18 to any charity, including religious charities, so long as the charity is acting “in the public interest.”
While the full opinion will not be available for some time, according to news reports, the lawyers for the two commissions made a deceptively simple argument. It was “unfair,” they said, for Catholic Care to pick and choose among types of couples with which it should place children.
The “equality” assumed by the act is one of uniformity, where all entities are subject to the dictates of a secular bureaucracy — and one not friendly to the thought of people of faith acting on that faith, as they have for centuries, through institutions such as Catholic Care.
While not quite as drastic as the Equality Act, similar laws are being proposed all over the United States. Some, in the area of health care, for example, have already passed in numerous states. Such laws represent a fundamental shift in an understanding of the relationship between the state and religious organizations.
In the coming years, the Church and its organizations will face similar challenges to their mission. The Catholic Care decision across the Atlantic provides a couple of valuable lessons for Catholic institutions in this country.
First, secular bureaucracies can be relied on to interpret rules to favor their own mission, rather than respect the rights of religious institutions. The Charity Commission could have exempted religious institutions from the Equality Act, but doing so would have permitted them to operate according to their own beliefs, rather than according to the dictates of the commission’s own interpretation of “equality.” It still may determine that, despite more than a century of providing homes for children, its religiously based action is not “in the public interest.”
Second, at least in some instances, the presence of an independent judiciary, when presented with the right arguments, can preserve the freedom of religious institutions to act according to their beliefs. That independence has been less evident among some American judges, who have sometimes been too easy in accepting an argument based on a specious notion of equality or rights. This Catholic Care decision, however, may provide some additional support for those arguing for religious freedom here as well.
Gerald J. Russello is a fellow of the Chesterton Institute at Seton Hall University.
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