Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Is the Common Good Rainbow-Striped?
September 12, 2008
It is odd: Our society is increasingly filled with different faiths, contrasting and clashing moral communities. And yet powerful forces increasingly demand public conformity. Religious people may believe what they must, and can practice their quaint beliefs in private, but in public life a single standard of nondiscrimination rules. No opposition to sex outside of marriage, no protection for traditional religious convictions, is acceptable. Government must compel conformity, a uniform public moral code.
The California Supreme Court recently ruled against Christian doctors who, on grounds of conscience, would not perform a certain infertility procedure for an unmarried woman. The woman, a lesbian, successfully sued, relying on the state law that forbids businesses from discrimination in services. No matter that the doctors had religious scruples or that they helped the woman to get the procedure elsewhere. No matter that sexual orientation was not a protected category when the doctors said no. The California courts have decided to forbid even behavior not labeled discriminatory in the law. As one commentator admiringly observed, the state has even prohibited a car wash from lowering prices for women on Ladies Day.
Note, too, an idea floating around in law journals. By making private donations to charities tax-deductible, the government supposedly is subsidizing the nonprofit organizations and it must ensure that they serve the common good. Surely it can’t be in the common good for a faith-based organization to discriminate in hiring based on religion or sexual orientation. Gays and lesbians and people of all faiths are subsidizing the charity through the tax deduction and yet they cannot even get hired by it! So-called discriminatory charities should lose the tax benefit.
Similar is the notion that a faith-based organization, if it receives government funds to provide social services, must be stripped of its freedom to take account of religion in hiring staff. It is, the critics say, immoral for the government to support such discrimination. Surely the organization has become an arm of the government by taking the funds to perform a service specified by government. It violates the common good for an organization subsidized by all the taxpayers to refuse to hire some of those taxpayers merely because they have the wrong religion.
The view seems to be that in public life we are essentially identical and must be treated the same. No business may refuse to serve us. And since government must serve all equally, private groups supported by government also must serve everyone equally.
But this public conformity concept of the common good is unsustainable. It is a new secular theocracy. Against it there is a strong commandment. The commandment is the First Amendment of the Constitution, which protects religion from government imposition—protects not only religious belief but also religious exercise. It protects doctors whose conscience forbids certain procedures and it protects religious charities when they insist that only applicants who share their convictions can join their staffs.
When government honors religious exercise in this way, some citizens will have to go to another doctor’s office instead of this one, and some citizens will find they cannot get jobs with some nonprofits. Not being welcomed everywhere seems an intolerable imposition to the proponents of uniformity. But it is the real consequence of protecting religious freedom. There would be no need for the constitutional protection if religious freedom did not sometimes require some people to give way.
We must face the reality. America is home to several moral communities. The government should not be used to enforce a single code of behavior that denies the deep religious convictions of many people and institutions of faith. The common good that the government must foster and protect is not homogeneous but includes diverse contributions from a diverse civil society. The common good is comprised of multiple colors.
Director of Faith-Based Policy Studies
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”