At CNN’s town hall with Democratic presidential candidates earlier this month, Don Lemon asked whether religious institutions should lose their tax-exempt status if they oppose same-sex marriage. Beto O’Rourke said yes. Pete Buttigieg and Elizabeth Warren have said no. Social conservatives, religious-freedom advocates, and free-speech advocates object to O’Rourke’s answer, but they’ve heard it before, from others, and are likely to hear it more often as public opinion settles on the assumption that same-sex marriage and interracial marriage are analogous.
During oral arguments in Obergefell v. Hodges (2015), Justice Samuel Alito noted Bob Jones University v. United States (1983). The university excluded blacks from attending until 1971, when it decided to admit them but only if they were married. In 1975, it reinforced its ban on interracial marriage and dating. Meanwhile, the IRS had announced, in 1970, that it would no longer grant tax-exempt status to private schools that practiced racial discrimination. BJU maintained that it was entitled to a religious exemption from the new rules, arguing that its policies were based on its interpretation of scripture. The Supreme Court ruled that the IRS was correct to revoke BJU’s tax-exempt status and that the government’s interest in eradicating racial discrimination outweighed the burden that the removal of the tax benefit placed on the ability of the school to exercise its religious beliefs.
Bob Jones University lost its tax exemption for its policies, not its doctrine. Eugene Volokh and others explain that the free-speech clause of the First Amendment protects the right to teach against same-sex marriage but that schools can still be found to violate anti-discrimination laws if their admissions and hiring policies reflect that teaching. Last week the Supreme Court heard two cases in which the plaintiffs say that they were fired for being gay. They argue that the term “sex” in Title VII of the Civil Rights Act of 1964 (“it shall be unlawful“ for an employer to discriminate against “any individual because of his race, color, religion, sex, or national origin”) refers to a person’s sexual orientation as well as to his or her biological sex.
In recent years, in some high-profile cases, Catholic schools have fired teachers for marrying a person of the same sex. The headlines typically feature the phrase “fires gay teacher” (or some variation thereof), leading readers to assume that in the eyes of the Church the teacher’s offense is his or her sexual orientation. It’s not. The following explanation will cause some eyes to roll and heads to shake. Here I’ll refrain from trying (or from trying very hard) to persuade you of the merits of Catholic sexual morality. I only want to lay out briefly what it is. Most traditional churches and Christian denominations agree with it in spirit if not in every detail.
“Chastity” is one of those words, like “decade” and “assumption” and “extraordinary,” that in Catholic usage sometimes means something different from what it means in common parlance. The Church requires its members to be chaste according to their state in life. Chastity in the everyday sense, of abstention from sexual activity, is the default setting for Catholics unless they marry. If they do, they are chaste insofar as they abstain from sex with anyone except their spouse, who is necessarily of the opposite sex, given the Church’s premise that the telos of sexual union is procreation. Naturally, artificial contraception is forbidden. Compared with the norms of the modern secular West, all that sounds exacting and strict, but approximations of it are mainstream in other organized religions. It’s remarkably close, for example, to what the Dalai Lama has described as the sexual morality that Buddhists should observe.
When two persons of the same sex present their relationship as a marriage, a formally recognized union, presumably sexual, they contradict Church teaching on chastity. Moreover, they contradict the teaching publicly, given the public nature of marriage. So it becomes difficult to distinguish between the right of a Catholic school — or of any school, or of any employer — to teach what it believes and its right to act on its belief. “Preach always, and use words when necessary,” Saint Francis of Assisi advised, according to pious tradition. If our aim is to see religious schools endorse same-sex marriage, we don’t need to make them say anything different from what they say now. We need only to insist that they hire, or not fire, faculty or staff who are living contradictions of what the schools teach on paper.
Given trends in public opinion, schools will eventually lose their argument for a religious exemption from anti-discrimination legislation, unless they do a better job of making a positive case for their beliefs. Their reasoning is especially opaque to Americans younger than 40. While the full package of traditional sexual morality would be an even harder sell, it might, if expounded clearly enough, lead skeptics to be at least a little more forgiving of the particular teaching about same-sex marriage and homosexuality in general. It needs to be made clearer that the teaching is but one component of a rather sweeping but coherent philosophy. In an essay that some readers found edgy at the time, 1975, the philosopher G. E. M. Anscombe argued that a relaxation of the taboo, if you will, against contraception entailed a concomitant relaxation of taboos against all forms of non-procreative sex. They’re of a piece.
The institutional Church, having met with overwhelming resistance to its teaching against artificial contraception, retains the doctrine but has tended not to press it. To the extent that no one understands very well its reasoning on that subject anymore, no one understands its reasoning on homosexuality. And no one will understand its reasoning on artificial contraception without appreciating the underlying belief, in Anscombe’s words (though here she doesn’t claim to speak for the Church), that
there just is no such thing as a casual, non-significant sex act. This in turn arises from the fact that sex concerns the transmission of human life. . . .
Sexual acts are not sacred actions. But the perception of the dishonour done to the body in treating them as the casual satisfaction of desire is certainly a mystical perception. I don’t mean, in calling it a mystical perception, that it’s out of the ordinary. It’s as ordinary as the feeling for the respect due to a man’s dead body: the knowledge that a dead body isn’t something to be put out for the collectors of refuse to pick up. This, too, is mystical; though it’s as common as humanity.
Joseph Bottum, a Catholic author and editor who had on occasion written in opposition to the movement for same-sex marriage, broke ranks in 2013 and argued, at considerable length, that the Church should let go of the issue. He went so far as to suggest that Catholics could find in the practice certain virtues that were consonant with the faith. You don’t have to follow him that far to value his insight:
Once the sexual revolution brought the Enlightenment to sex, demythologizing and disenchanting the Western understanding of sexual intercourse, the legal principles of equality and fairness were bound to win, as they have over the last decade: the only principles the culture has left with which to discuss topics such as marriage.
And so, I argue, a concern about the government’s recognizing of same-sex marriage ought to come low on the list of priorities as the church pursues the evangelizing of the culture [and] . . . the long hard work of restoring cultural sensitivity to the metaphysical meanings reflected in all of reality.
Through the clerical sex-abuse crisis of last century and the bishops’ ongoing failures to bring transparency to it, the Catholic Church has torpedoed its authority to speak on sexual morality, and that the preponderance of the abuse was of males makes the official Catholic rejection of gay sex and gay marriage doubly embarrassing. On that question, let me give the last word to Graham Greene. In his introduction to The Power and the Glory, whose protagonist and, as becomes evident on the last page, hero of sorts is a “whiskey priest,” weak and contemptible in so many respects, Greene writes:
I had always, even when I was a schoolboy, listened with impatience to the scandalous stories of tourists concerning the priests they had encountered in remote Latin villages (this priest had a mistress, another was constantly drunk), for I had been adequately taught in my Protestant history books what Catholics believed; I could distinguish even then between the man and his office. Now, many years later, as a Catholic in Mexico, I read and listened to stories of corruption which were said to have justified the persecution of the Church under Presidents Calles and Cárdenas, but I had also observed for myself how courage and the sense of responsibility had revived with persecution — I had seen the devotion of peasants praying in the priestless churches and I had attended Mass in upper rooms where the Sanctus bell could not sound for fear of the police. I had not found the integrity of the lieutenant among the police and pistoleros I had encountered. I had to invent him as a counter to the failed priest: the idealistic police officer who stifled life from the best possible motives, the drunken priest who continued to pass life on.