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March 22, 2004
A Bad Faith Decision
By NATHAN J. DIAMENT
As published in The Forward, March 19, 2004
Your local Jewish federation's social welfare agency whether
providing counseling to battered women, vocational training to the
disabled, care and comfort to the
elderly or a host of other noble and needed services is not, as
a matter of law, a Jewish organization. At least, this is
now the law in the state of California,
whose Supreme Court issued a ruling earlier this month
that may well serve as a precedent throughout the nation.
The case was not directly about a Jewish agency, but it might as
well have been. It is Catholic Charities
the social welfare arm of the Catholic Church
that the court ruled is not a religious organization. In
rendering this ruling, the court
accepted the most extreme views set forth over the past three
years by critics, including some Jewish
community leaders, of President Bush's
"faith-based initiative." Through its authority over America's
most populous state, the court threatens
to undermine both religious liberty as well as a
central pillar of this nation's social welfare system.
The case arose because, at the urging of women's rights advocates,
California enacted a law to compel employers who provide health
insurance to their employees to include
women's contraceptives within the services
covered. At the urging of Catholic leaders in California,
the legislature included a provision
within the law permitting religious employers not to offer
their employees "contraceptive methods... contrary to the
religious employer's religious tenets."
Now, a reasonable person would expect that Catholic Charities of
California, which, although separately incorporated, defines
itself as "operated in connection with the... Catholic Bishop of
Sacramento" and as an "organ of the
Roman Catholic Church," would be covered by the religious
employers' exemption of the statute and not have to provide
contraceptive methods to its employees
in light of the church's well-known objection to this
practice. A reasonable person, however, would be wrong.
The California statute defined "religious employer" so narrowly as
to exclude Catholic Charities. For an
entity to qualify, it must be a non-profit corporation
that has the inculcation of religious values as its
purpose, primarily employs only people of the entity's faith and
serves primarily people of the entity's
faith. In other words, Catholic Charities in its homeless
shelters, job training programs, soup kitchens, AIDS hospices,
child care centers and countless other
agencies must employ only Catholics to serve Catholics and seek to
convert its non-Catholic beneficiaries into Catholics in order to
qualify for the religious
employers' exemption.
Rather than striking down the statute's narrow definition of a
religious employer as an improper infringement upon Catholic
Charities' free exercise of religion, California's Supreme Court
upheld the law's wording. In a fit of
political and legal hypocrisy, this result was urged upon the
court in legal briefs by some of the
Jewish community's leading organizations,
including the Anti-Defamation League and American Jewish
Committee, and others who have railed
against President Bush's faith-based initiative
on the grounds that it would support faith-based social
service organizations which would choose
to employ and serve only those of their own faith. These
critics of the president's initiative would often cite
Catholic Charities, with its inclusive
employment and service practices, as the proper paradigm for a
faith-related agency that was already successfully
utilizing government grant funds for
social welfare programs. Now, in order to conform to the
California Supreme Court's mandate
and not violate its principles, Catholic Charities
has little choice but to behave in ways these liberal
groups have been decrying.
Aside from undermining the religious liberty of Catholic Charities
and similar institutions of other
faiths, the California ruling threatens America's social
safety net. Nationally, Catholic Charities alone spends
more than $2.5 billion per year serving
Americans in need two-thirds of which comes from federal,
state and local grants and contracts. Add to this equation
the multi-billion-dollar annual activities of the Jewish
federation system, Lutheran Social
Services and hundreds of other faith-based social welfare
agencies, and you now have a substantial
percentage of America's social welfare
providers faced with the impossible
choice having to triage their religious beliefs.
While Jewish federation agencies might not be conflicted
like the
Catholics over providing employees with contraceptive coverage,
each
faith group, in its own way, may be forced to choose between
fulfilling one religious imperative to
serve those in need and violating another. This is an
impossible choice that must be remedied either by
legislative action or by the federal courts.
Decades of U.S. Supreme Court precedents grounded in the First
Amendment's religion clauses argue for granting religious
institutions the right to remain true to
their faith's teachings, and this principle should not be
altered for those that engage in social service ministries,
even with government support. The Jewish
community should be the first to defend the
religious autonomy for all faith communities, even those
whose beliefs and practices might place
them at odds with the prevailing political correctness
of a given moment.
Finally, for those who wonder whether President Bush's efforts to
protect faith-based organizations'
religious rights were necessary, the California
Supreme Court has confirmed that they are indeed. Being
both faithful to God and serving your
fellow man just don't seem to get the same respect
they once did, at least not in California.
Nathan J. Diament is the director of public policy for the
Orthodox Union.
From the Forward Forum
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