A Bad Faith Decision

By Nathan J. Diament

Published March 19, 2004, issue of March 19, 2004.
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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.

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