A major challenge for religious institutions in the last two decades has been state support in law and public policy for changes in sexual norms. These changes conflict with the traditional Christian morality of opposite-sex monogamy. This is done in the interest of an adversary morality of autonomy, and is understood to include acceptance of abortion, non-marital intercourse, homosexuality, and recently, transgenderism.
The advent of sexual orientation and gender identity (SOGI) laws, which give civil rights status to homosexual and gender identities has been ominous, since these laws are interpreted to forbid discrimination against homosexual or transgender behavior, and thus require complicity in LGBT behavior. Less noticed, laws against marital status discrimination can be interpreted to require accommodation of cohabitation. Conscience protections exist in federal and various state laws against performing abortions, but pressure to require abortion and transgender surgeries continues.
Religious, and particularly Catholic and other Christian institutions holding the historic morality of opposite-sex monogamy are therefore at risk of being sued for discrimination or prosecuted for violation of these laws and regulations, since they continue to maintain requirements for employment and service which involve adherence to the traditional morality. Hiring and firing based on this traditional morality, housing arrangements and rules for students, conscience objection to abortion, contraception, sterilization, or transgender surgeries, and related matters are thus very fraught due to lack of respect for traditional morality in both the law and a substantial part of the public.
Behind this is the moral judgment that traditional sexual morality is outmoded and cruel. Although the atmosphere on sex-related issues has shifted in a direction favoring religious freedom in the second Trump Administration, a more hostile political and legal environment could easily return with changes in government. Also, SOGI requirements continue to present a problem in liberal/left jurisdictions. A book of four years ago, published in the thick of the pro-abortion, pro-LGBT Biden Administration, Religious Freedom after the Sexual Revolution, by Helen Alavaré, Professor Emerita of Law of the Antonin Scalia Law School at George Mason University, and a member of the Vatican’s Dicastery for Laity, Family and Life, deals head-on with these challenges, and how to respond to them.
Alvaré maintains that many Catholic institutions faced with SOGI and pro-abortion challenges have done a rather poor job defending themselves both legally and in the court of public opinion. They have appealed to religious freedom but have not been good at explaining why Catholic doctrine on sex and life is not only authentic Christian doctrine, but good for human flourishing and vital to the institution’s religious identity. To do this, the institutions must explain the basis for their rules in Scripture and tradition, show that they are supported by good scientific research and statistics (and the correspondingly poor grounding of sexual revolution claims), and show that the rules of Catholic sexual morality are applicable to the whole organization due to its organic nature as a religious institution, rather than only to certain employees and services.
While Alvaré discusses the situation and prospects for Catholic institutions in the new, hostile environment, her observations and recommendations for engagement could, for the most part, be adopted as well by other Christian service organizations (health care, educational, or charitable) that adhere to traditional sexual and sanctity of life norms as a core conviction.
The New Morality and Its Legal Environment
Alvaré referred to Canadian philosopher Charles Taylor’s observation the modern self is not “porous,” having its relationship and duty to God and other people externally determined, but “buffered,” or self-focused. “The purpose and meaning of things arise within the person.” It should be noted that her use of the term “sexual expression” refers to the contemporary legal and social tendency to hold that people should be free to express their inner, authentic selves, particularly their sexual selves, and that this is vital to human flourishing. Catholic and other traditional Christian’s institutions continue to hold the Biblical and traditional belief that only certain kinds of sexual expression, namely that of opposite-sex monogamy, are legitimate and conducive to human flourishing. Alvaré concedes that some Catholic institutions do not rigorously hold to these norms but argues that that these norms are vital to the character of a Catholic institution as being distinctively Catholic, and that Catholic institutions have a constitutional right to hold to these norms.
Supercharging this moral threat and creating the legal situation in which Catholic institutions are endangered, Alvaré observed, was a series of Supreme Court decisions reading the new morality of moral autonomy into the Constitution. The first such decision was Griswold v. Connecticut (1965), which announced a constitutional right to contraception for married couples. The court conceded that no such right was mentioned in the Constitution but inferred a “right to privacy” from the freedoms stated in several parts of the Bill of Rights. It also appealed to an inscrutable “right … older than the Bill of Rights.” From this initial announcement, the court several years later issued its most radical decision, Eisenstadt v. Baird (1972). This declared a right to contraception for unmarried people, holding that the right to privacy belongs to everyone. It was radical because for the first time, the court gave dignity and respect to non-marital intercourse, which before was considered immoral and defiling. By this decision, she noted, sex was separated from marriage and parenting, and sexual choice considered an inviolable right in itself.
Other radical decisions quickly followed. Roe v. Wade (1973) and Doe v. Bolton (1973) found a constitutional right to abortion throughout pregnancy, using the right to privacy and a criterion of “health” that could easily be interpreted as simple emotional distress at pregnancy. Casey v. Planned Parenthood (1993) upheld Roe and infamously announced a right of self-definition of oneself and of the universe (perhaps indicating a right to accommodation of one’s self-definition). Although these abortion decisions were overturned near the time of the publication of Alavaré’s book, the moral force of these decisions remains with many Americans. Several state constitutions now guarantee a right to abortion. Finally, the Bostock v. Clayton County (2020) decision extended employment nondiscrimination doctrine to transgenderism, based on a reading of the Civil Rights Act of 1964 Congress certainly did not intend.
This writer would add to Alavaré’s cultural and legal analysis that civil rights legislation and adjudication is intensely moral, it says that part of what was considered righteous in the past is in fact unrighteous. It further says by its existence that a large part of the public, perhaps a majority, is morally wrong about the things with which civil rights law is concerned. In this respect it is practically saying that democracy and public opinion need correction. Religious beliefs are among popular opinions; nothing in the Constitution allows their correction. Yet part of the public, including particularly part of the educated public do think that religious ideas need correction in the interests of liberty and equality, and engineer legislation and adjudication that threatens the ability of Catholic organizations to be Catholic other than in name.
The Religious Nature of Catholic Institutions
The central contention of Alavaré’s book is that Catholic institutions are essentially religious communities, which must be able to control their “services, operations, and personnel” by religious standards. For instance, health care institutions are governed by The Ethical and Religious Directives for Catholic Health Care Services (ERDs), issued by the United States Conference of Catholic Bishiops (USCCB), which apply the Catholic faith to health care. They prohibit the abortion, contraception, sterilization, or transgender surgeries, except where a different needed procedure has the same incidental result (the double effect principle).
Alvaré presents three models of Catholic community (Called to Unity by Christ, Community Displaying the Inbreaking of the Kingdom, and the Presence of the Living Christ). In the first model, people are saved and made holy in community, rather than as individuals. In the second, these communities represent a new way of living, the advance of a new creation begun at Christ’s death and resurrection. In the third, the community represents Christ to others (perhaps an especially appropriate model for charitable or health care institutions). Regarding this last model she quoted Heb. 12:14 “Strive for peace with everyone, and that holiness without which no one will see the Lord” (her emphasis).
These models require a considerable amount of autonomy for the institution. Since Catholic institutions are essentially an extension of the church in realizing the Kingdom of God, Alvaré proposes that the church autonomy doctrine apply to them. This legal doctrine allows churches to determine their own doctrine, how it is applied, their own organizational structure, leadership, and membership according to their own standards. It should give Catholic institutions freedom from the SOGI regime, as well as freedom to provide instruction, medical, or charitable services according to religious standards. There ought to be a spiritual unity in Catholic institutions, which would be unsettled by state interference, particularly state interference advancing an adversary doctrine individual autonomy.
The Ethic of Love vs. Individual Self-Determination
Individual autonomy, self-focused as it is, cannot be subject to Christ’s lordship. Alvaré presents instead Catholic sexual expression norms of love of God and neighbor. The “Christian” and “loving” aspect of Catholic norms are “increasingly denied,” but the traditional Christian standard of opposite-sex monogamy is still very evident from Scripture and well-supported by empirical evidence today of the consequences of departures from it (which Alvaré reviews, as will be noted subsequently). The Christian love of God, she observes, is expressed in the Bible in familial imagery. In both testaments of the Bible it is described in imagery of the bride-bridegroom relationship (with God or Christ as the bridegroom, his people as the bride), and the parent-child relationship (with God as the parent and his people as the children). Love of neighbor is to then be the selfless love of bridegroom to the bride, a parent to a child. Those people most directly recipients of our love, she notes, will be our family members, as we have the greatest interaction with them. We may have occasion to directly assist others, but more likely through support for religious or other social services.
The radical love of early Christians, grounded in a transcendent God was strikingly different from the earlier moralities in the Greco-Roman world, which, while polytheistic, at least at the popular level were specific to people and place. The Christian morality of love mandated outreach to the poor, which not coincidentally occurred along with total renunciation of sexual activity by many. Women, the poor, and slaves had been the victims in the earlier sexual free-for-alls of the Greco-Roman world. For those who continued to be sexually active, this “reaching out” was reflected in the single sexual standard of opposite-sex monogamy for both men and women (in contrast to the double standard of the pagan world, prescribing chastity for women only). Quoting New Testament scholar Richard Hays (before his late turn to revisionism) Alvaré said, “love must involve a going-out from oneself to another; neither sex can be sufficient unto itself.” Homosexual activity, by contrast, was seen by the early Christians as a turning against the divine design of complementary male and female human beings and its ethic of reaching out to the other.
Christianity demands a radical ethic of love, Alvaré said, and in this ethic, God has the priority over all other loyalties (including loyalty to the state or the neighbor). She quoted Christ in Lk. 14:26 “if anyone comes to me without hating his father and mother, wife and children, brothers and sisters, and even his own life, he cannot be my disciple.” It should be added that relevant as well is Jesus’s command against cooperation in sin in Matt. 18:7-9 “Woe to the world because of its stumbling blocks! For it is inevitable that stumbling blocks come, but woe to that man through whom the stumbling block comes! If you hand or your foot causes you to stumble, cut it off and throw it from you; it is better for you to enter life crippled or lame, than to have two hands or two feet and be cast into the eternal fire. If your eye causes you to stumble, pluck it out and throw it from you. It is better for you to enter life with one eye, than to have two eyes and be cast into the fiery hell.” (NASB)
This necessarily means that for either an individual or an institution, obedience to God must be superior to obedience to the state. It also means that the Scriptural mandate for opposite-sex monogamy, which precludes sexual activity outside this relationship, is to be obeyed above one’s own sexual desires, however intense they might be. A loyalty for which the martyrs of the past died is certainly not to be given up for the sake of the desires of the flesh, or social or legal pressure.
Although sexual hedonism was given up (indeed, not legal for anyone after a Christian government was in place), the early Christians, Alvaré said, following truth revealed in Scripture, held that the human body is sacred. Christ’s incarnation, suffering, death, resurrection, and ascension, and his status now as God-man seated in heaven indicated the sacredness of the body, as did the earlier Old Testament doctrine of man made in the image of God. This sacredness is violated both by abortion, which kills another human being, and by sexual immorality, which degrades the body by misuse (as in promiscuity, which cheapens the body by intimacy without commitment), in use contrary to obvious intention (as in homosexuality or bestiality), or in mutilation (as happens today in “transgenderism”).
The Christian doctrine of love, a most basic doctrine, since “God is love” (I Jn. 4:7-12), is thus indivisible. The modern attempt to separate the love of God from the sexual morality of opposite-sex monogamy is fundamentally incompatible with Christian love.
The Religious Purpose of Catholic Institutions
Catholic institutions are similar to secular educational, charitable, and health care institutions in much of their work, but exist for a religious purpose and thus must be governed by religious precepts. Otherwise, they are “Catholic” and “Christian” in name only. The three models of Catholic community given by Alvaré (a community existing in unity in Christ, a community showing the inbreaking of the Kingdom, and a community providing the presence of the living Christ) explain why Catholic institutions must be governed by Catholic precepts, and particularly why it is not about only portions of staff at a Catholic institution which must be protected from antidiscrimination laws.
Alvaré referred particularly Benedict XVI’s 2012 Motu Proprio (order based on papal authority) which says that a Catholic institution’s “practical activity” must “visibly express a love for man, a love nourished by an encounter with Christ,” that “at all levels it should avoid the risk of becoming just another form of organized assistance,” and that it should “exert a valuable educational function” directing people “to appreciate the importance of sharing, respect and love to the spirit of the Gospel of Christ.” She notes that the Motu Proprio said that “operations must both be ‘in conformity with the demands of the Church’s teachings and the intentions of the faithful’ and ‘likewise respect the legitimate norms laid down by civil authorities.’ Contributions should not be accepted from sources whose means or ends ‘are not in conformity with the Church’s teaching.’ Even salaries and operational expenses should testify to ‘Christian simplicity of life.’” A Catholic (charitable, educational, or medical) organization’s “activities and management of those activities” must conform to the “norms of the Church’s universal and particular law.” If this ceases to be the case, “the bishop is obliged to inform the faithful and prohibit the organization from using the name ‘Catholic.’”
The Life and Witness of Catholic Institutions and the Need for Church Autonomy
The Motu Proprio goes on to say that personnel at a Catholic institution must “be an example of Christian life and witness” which “testifies to faith working through charity.” Alvaré said, “we come to what is most crucially important to us about another person not by way of information given, but by encounter.” She also observed that Catholic laity also have a duty for evangelism (understood as not merely conveyance of information, but also personal encounter in healing and counseling), and perhaps even general encounter in life. The Catechism of the Catholic Church says that lay duties are “the more pressing when it is only through them that humanity can come to know Christ.” Alvaré thus said that “in light of this imperative of witnessing to Jesus Christ, Catholic institutions can insist upon their authority to make decisions about services, operations, and personnel … This includes not only personnel who undertake obviously theological tasks – liturgies, prayer, retreats, religious education – but all personnel who interact regularly with others in community.” And so “when the state interferes with personnel choices, therefore, it is striking directly at the religious character of the institution.”
“It is difficult to understand how judges or the public could doubt a religious institution’s need to have the final say over the personnel comprising and personifying the institution. Virtually everyone would agree that a political party or nonprofit or business needs employees who support its mission in order for the institution to be what it is and to be that well” Alvaré said. Additionally, a secular organization is not a religious organization on a religious mission. Catholic schools, hospitals, and charities are such organizations.
Alvaré noted the common observation today that personnel is policy. Since the high goal of a Catholic ministry, whether charitable, educational, or medical is to “to show a new model of human community that provides the world a glimpse of the inbreaking of the Kingdom of God,” proper determination of the staff of such an organization is crucial. To be a public witness, the whole organization must be conformed to its mission. Given that majorities in American society now oppose the traditional morality of opposite-sex monogamy and given the human tendency to go along with majority opinion, it is more vital than ever that Catholic institutions be able to control hiring and firing. This is certainly true in an educational institution, where impressionable young people are being taught norms rejected by the wider society, but also in a health institution, which must persevere, perhaps in court, against demands to perform abortions or transgender surgeries. It might also be true for a charitable organization, which has to resist state pressure to put men in a shelter for abused women.
Further considerations of the difference between religious and secular service organizations, and evidence supporting Catholic sexual expression norms will be reviewed in a subsequent article.
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