I was embarrassed to read this morning how poor is the grasp of no less a person than the general counsel and associate general secretary of the US Conference of Catholic Bishops of the most basic legal principles. Anthony R. Picarello Jr., former Vice President and General Counsel, The Becket Fund for Religious Liberty. (Incidentally, Picarello also studied under David Tracy, SJ, who also sat on my doctoral committee at Chicago.)
When asked about federal contracts with religious institutions, here is what Picarello had to say: “It’s true that the church doesn’t have a First Amendment right to have a government contract, but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.”
It is the second clause that is troubling. Catholic Charities is opposed, on religious grounds, to contraception. They are also opposed, again on religious grounds, to the right of marriage to members of the GLBTQ community.
(The Roman Catholic Church holds to the ancient pagan belief that the soul of a zygote is contained in the male fluid and therefore that contraception prevents a soul achieving its telos, a concept that the Church takes from Aristotle, another pagan philosopher. Aristotle is also the source of Roman Catholic opposition to GLBTQ marriage since it is contrary to the telos of men and women—although Aristotle did not go this far. Oddly, conservative protestants now champion this pagan understanding of reproduction and marriage as biblical. Go figure.)
But this is not at all what DHHS has ruled, which suggests that Picarello is either stupid or mean. What DHHS has ruled and what the DOJ has upheld in all cases, religious or otherwise, is that institutions that receive taxpayer money must adhere to the standards of the class, which, in this case, are the Citizens of the United States of America. When Catholic Charities discriminates against members of the GLBTQ community they are discriminating against a member of this class, whose members enjoy the same rights and liberties as all other members of this class. Similarly, when Catholic Charities fails to inform the victims of prostitution about safe-sex practices, such as using condoms, they are failing to comply with a condition of federal funding.
DHHS is not imposing a rule upon Catholic Charities that it is not imposing on any other recipient of federal funding. Picarello is a smart man. The University of Virginia School of Law and the University of Chicago are good institutions. So, what must we conclude?
That Picarello is mean? Perhaps. However, it may be that he is simply immoral, bending his legal arguments to fit a cultural and historical moment when he can assume that those before whom he argues will be far more ignorant than he is and will therefore be susceptible to arguments that he knows lack legal foundation.
No one is discriminating against Catholics or Evangelicals or anyone else. Rather, the Roman Catholic Church is joining cause with conservative Protestants to chip away at the nation’s legal foundations.
A public instructed in the basic principles of citizenship would quickly see through this ruse and file it accordingly. Unfortunately, our institutions of learning, public and private, primary and secondary, long ago gave up on this basic instructional goal, choosing instead to be simply a sounding board for whatever resonates with the members of the local school board.