Religious Liberty vs. Civil UnionsRICHARD A. EPSTEIN
Why is Illinois preventing the Catholic Church from doing charitable work?
The Church initiated the lawsuit after the Office of Illinois Attorney General Lisa Madigan sent a letter to the Catholic Charities Diocese of Springfield on March 8, 2011. The letter insisted that Catholic Charities would no longer be able to participate in the state's foster care and adoption program so long as its conduct continued to violate the state's anti-discrimination law by drawing distinctions on the basis of either sexual orientation or marital status.
There is, of course, an evident tension between the new Illinois law and the current lawsuit – a tension between religious liberty and civil unions. Even the law's title – the Religious Freedom Protection and Civil Union Act – indicates that its drafters had to strike a delicate balance in order to secure its passage. The purpose of the statute is to confer equal dignity and parity under state law to both same-sex and opposite-sex couples in a civil union. The Act contains 27 different subparts dealing with everything from property and probate, to name changes, to surrogate decisions, taxation, welfare benefits, employment regulations, the protection against violence, and much more.
The passage of the civil union portion of the statute hinged, however, on the inclusion of its religious freedom provision to protect those religious organizations that refuse to participate in or recognize unmarried unions between either gay, lesbian, or heterosexual couples. The Act thus states:
Nothing in this Act shall be construed to interfere with or regulate religious practice of the many faiths in Illinois that grant the status, sacrament, and blessing of marriage under wholly separate religious rules, practices, or traditions of such faiths.
The question is how to weave together a concern for religious liberty with the prohibition against discrimination. In order to do so, we must take a step back and ask this question: how do these two statutes interact with the fundamental principle of freedom of association as applied to intimate personal relationships? On this matter, the only acceptable starting point is the libertarian insight that people should be able to choose how to organize their intimate personal relationships just as they should be allowed to organize their business affairs. In this context, the troublesome word in the phrase "marriage license," is not the word "marriage," as it is in public debates, but the word "license."
Why and how does the state acquire the right to regulate any marriage in the first place? The only answer is that it needs this power in order to make sure that certain abuses do not take place, as could easily happen with forced marriages of underage children, or insane persons, or others with diminished mental capacity. In this regard, the marriage contract can be treated as one with the rest of contract law that protects all persons whose infancy, insanity, or incompetence makes it difficult or impossible for them to protect themselves.
Yet at the same time, the licensing power of the state, in marriage as in other domains, is fraught with abuse insofar as the state now assumes a monopoly position. If left unchecked, that monopoly position would allow it to determine who is eligible to get married for all sorts of reasons unrelated to its capacity to make contracts. Neither anti-miscegenation laws, nor anti-polygamy laws, nor anti-gay and lesbian marriage laws relate to the capability of individuals to make their own choices about their own lives. The ability to selectively grant or deny the privileges of marriage has fallen with special hardship on gay and lesbian couples. For many years, they were denied the benefits of that relationship for reasons that had nothing to do with their mental competence or the protection of their children. The civil union statute thus advances the political ideal of freedom of association, while stopping short of calling these unions actual "marriages."
The Illinois Attorney General's attack on the right of Catholic Charities to receive state funds to support its adoption and foster care services highlights the incompleteness of Illinois' statutory treatment of civil unions and religious liberty. The question of whether Catholic Charities can continue to participate in providing adoption and foster care services is not covered by either part of the statute. In sending its notice to the Catholic Church, Illinois does not force the Catholic Church to participate in programs that promote values in which it does not believe. So the statutory caveat protecting religious liberty could well prove beside the point. But arguably that caveat still allows the state to deny Catholic Charities state funds that would let the organization participate in government programs on a par with other groups that are willing, indeed eager, to comply with the nondiscrimination norm in Illinois law. The question here is whether the Catholic Charities is entitled to a place at the table on its own terms.
In dealing with this issue, a strong division of opinion has emerged. Speaking on behalf of the Catholic Charities, Tom Brejcha of the Thomas More Society put it this way: "Religious and faith-based entities need not check their beliefs at the door when providing vital social services for the benefit of needy and vulnerable children and families in Illinois," even when state funds are involved. Taking the opposite position, Ben Wolf and John Knight of the American Civil Liberties Union, wrote: "Catholic Charities is free to practice in accordance with its religious teachings. But if it chooses to accept tax dollars to perform the state's job of finding families for children in state custody, it may not use religious criteria – as opposed to child welfare criteria – in choosing families for them."
The ACLU is wrong on this one. The Civil Union Act's protection of religious liberties should be read, if need be on constitutional grounds, to embrace the position of Catholic Charities here. The ACLU recognizes rightly the position of religious autonomy for private institutions, but does not think that the autonomy principle extends to any situation were tax benefits are involved. The mistake in this view is the implicit assumption that the tax revenues in question come only from those individuals who, like the ACLU, are opposed to the position of the Catholic Charities – so that these taxpayers can now say that it is "their" money that is being put to uses that they do not agree with. That argument would be certainly correct if the ACLU decided to make its own (non-tax deductible) grants to various institutions for adoption and childcare. In that scenario, the ACLU should be allowed to attach, as a private agency, whatever terms and conditions it chooses on those institutions that accept the grants. Catholic Charities could do the same with its own money, if that money had been received from nondeductible gifts.
But once there are tax dollars involved, the situation changes. As a matter of first principle, there is always a strong case to be made for the proposition that all charitable work should be free of state subsidy, at which point the Catholic Charities problem disappears. But that solution is not in the cards today since aid to the poor is generally regarded as a legitimate state function. So then we must determine how to impose a system of subsidies that is as immune from political intrigue as is humanly possible. By that standard, the decision of the Illinois Attorney General is not correct. As she envisions the world, we have the odd situation where the Catholic voices that have free rein in the private, unsubsidized market are shut out, so that their political opponents now call the shots with respect to all monies transferred to adoption and foster care by state power. At this point any political majority, however small, is in a position to commandeer resources derived from their political opponents in order to serve their own agenda. For the ACLU, the proper position would be even more one-sided, for it would insist, rightly in my view, that it was an establishment of religion if the Illinois state legislature declared for religious reasons that tax dollars could not support adoptions or foster care through organizations that served unmarried or same-sex couples.
As a matter of public policy, the key lesson that we should learn from this example is that the use of the state taxing power should not be allowed to shift, either way, the balance of power that would otherwise exist in a nontax world in which different charities with different beliefs administered their own resources in the manners they saw fit. That is the standard test that is used to evaluate the tax consequences of any other tax measure. To be sure, it is difficult to figure out exactly what that distribution would be, but in a highly diverse society the one solution that is manifestly wrong is zero participation from the Catholic Church that now supplies about 21 percent of these childcare services. In principle, therefore, the role of state involvement in this area should be to increase the total fraction of social resources that are devoted to this unquestioned social end, without seeking to alter the balance between the various groups that supply those services. That position is maintained today as individuals who make contributions to either religious or secular adoption and foster care agencies are entitled to tax deductions for the money so contributed. That same principle should apply when the state substitutes direct grants for tax deductions.
For the Illinois Attorney General to insist that those who do not like the conditions can opt out of the charity program does not meet the challenge, because it is painfully clear that the supporters of Catholic Charities cannot "opt out" of paying taxes to fund programs in which their Church is not allowed to participate. Tom Brejcha has a real point when he says that in modern times the ancient principle of religious toleration requires all groups that receive state funding to accept the basic tenet that state funds will also be distributed to groups with whom they have deep and irreconcilable differences. In effect, competition among a greater diversity of institutions should strengthen the overall level of needed child support.
One key element of this political truce between wary opponents is to find some way to stabilize the relationships between them, so that this same battle of who is in or out does not come whenever any new government program is put on the table. That result is obtainable only by constitutional means, which in this instance has to deal with the twin guarantees of the free exercise of religion and the prohibition against the establishment of religion. As a general matter, the provision of government benefits through tax dollars is governed by the so-called doctrine of "unconstitutional conditions," which limits the kinds of conditions that a state can attach to a given grant. It is perfectly acceptable to attach conditions that improve the efficiency of programs, like standard anti-fraud and reporting requirements. But it is unconstitutional to attach conditions to programs that work an implicit wealth transfer between rival adoption and foster care groups, which is what happens when the one side is taxed for programs from which its members receive no benefits.
We have witnessed this clash between state anti-discrimination laws and constitutional protections in other cases dealing with such questions as to whether public universities can grant support to secular newspapers while denying similar support to religious ones. There is no time here to deal with the real confusions that can creep into this area of law. Suffice it to say that in principle no sound body of constitutional law can subject systems of direct state regulation to serious scrutiny while leaving the provision of state benefits of resources derived from taxation free from any constitutional oversight at all.
Taxes are forced exactions, and the purposes for which they are made and the manner in which they are administered are central constitutional questions in any nation that believes in limited government and freedom of association., as ours does, and should.
Richard A. Epstein. "Religious Liberty vs. Civil Unions." Defining Ideas (June 14, 2011).
Reprinted with permission of Defining Ideas and Hoover Institution Press.
Defining Ideas is an online journal, the result of the Hoover Institute's concerted effort to be part of America's most important conversations, conveying to the public and to lawmakers an in-depth understanding of key public policy issues. Crucial to this effort is a commitment to develop enduring solutions for the challenges that face our nation and our world – in effect, to advance ideas defining a free society.
Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).
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