Colorado House Bill 1080 was a two-page piece of legislation. But for Archbishop Charles Chaput, it might have led to the shutting down of the Archdiocese of Denver’s Catholic Charities.
The bill, which was pulled from consideration after a firestorm of protest in early February, would have clarified a 2007 law forbidding employment discrimination. If HB 1080 had become law, religious organizations in the state would have been restricted in their ability to fill a position on the basis of an applicant’s religion (the law would have applied to positions funded by public money).
Archbishop Chaput saw the bill as an affront to the religious liberty of the Church’s charitable agencies. A Vatican cardinal agreed with him, and media attention swelled as the controversy grew.
“We and our members have been providing services in collaboration with the government for over 275 years,” said Candy Hill, senior vice president of social policy and government affairs for Catholic Charities USA, in an interview on February 15. She said HB 1080 would have removed the protection of Title VII of the federal Civil Rights Act, which allows religious organizations to discriminate in hiring on the basis of religion. “We’re very pleased it’s been withdrawn,” she said.
Archbishop Chaput wrote a column in his archdiocesan newspaper in January saying HB 1080 would so hamper the archdiocese’s Catholic Charities from fulfilling its religious mission that he would close the agency down. He was supported by his fellow bishop in Colorado, Bishop Michael Sheridan of Colorado Springs, and by Catholic Charities of Denver and a coalition of organizations as diverse as Avista Adventist Hospital, the Denver Rescue Mission, and Focus on the Family.
Representative Alice Madden, the Boulder Democrat who introduced the measure, declined an interview with CWR but said in a statement on January 30 that HB 1080 would “clarify the relationship between anti-discrimination laws and the hiring practices of religious organizations that accept tax dollars.” She promised it would not change the “real world practices of organizations such as Catholic Charities.”
Madden, who is Colorado house majority leader, said a last-minute floor amendment to a 2007 workplace antidiscrimination bill “makes it appear as though Colorado law allows religious discrimination.”
“That needs to be fixed,” she said, adding: “If organizations were not breaking the law in 2007, they will not be breaking the law after the passage of HB 1080. I promise to work with such organizations to address their concerns.”
THE FREE EXERCISE OF RELIGION
The last-minute floor resolution to which Madden referred was introduced by Representative Rob Witwer, a Republican legislator from Jefferson County.
“All the discussion of the original bill was about sexual orientation,” he said in an interview on February 12. He noticed a clause in the bill that applied to religious organizations.
“I approached the sponsor of the bill and said, ‘We have free exercise of religion in this country,’” Witwer said. “The Church has a right to discriminate in hiring based on anything relevant to its faith.”
He cited as examples that the Catholic Church doesn’t hire women as priests, and a Jewish daycare center wouldn’t hire a Wahhabist Muslim who believes in the destruction of Israel.
Witwer said, “Imagine a scenario— someone with a website saying that Israel should be destroyed applies for a job at a synagogue that might take some public money. They might say to the person, ‘We won’t hire you because of your religious beliefs,’ and if this were the law, that person might have grounds to sue.”
Bruce DeBoskey, director of the local chapter of the Anti-Defamation League, did not return a phone call seeking comment, but he said in an earlier statement that the sole intent of HB 1080 was to “guarantee that taxpayer money is not used to discriminate in employment.”
“When the government is funding a program, there should be no religious test for employees hired to provide those services, whether the program is run by a religious organization or a secular one,” he said.
But Archbishop Chaput, who declined to be interviewed for this article, responded to such arguments in the journal First Things in February.
“The so-called ‘discrimination’ HB 1080 targets is actually the legitimate freedom of religiously affiliated nonprofits to hire employees of like faith to carry out their mission,” the archbishop wrote. Chaput added that the mission of Catholic agencies depends on “leaders who share and safeguard their religious identity.”
Had the law passed, a Catholic organization’s central positions, including the director or board members, could not be restricted to Catholics, noted Christopher Rose, president and CEO of Catholic Charities of the Archdiocese of Denver.
“How many positions we require to be Catholic or Christian is our prerogative, not the government’s,” he said. “Who else does a corporation act through but its employees? To ensure that the direction of the agency is consistent in implementing the Church’s social teachings, the bishops have chosen to require the captain of the ship to be Catholic.”
Gerard Bradley, law professor at Notre Dame, dismissed the constitutional arguments for the bill. “The establishment clause claim is ridiculous,” he told CWR. “There is no doubt that under current constitutional doctrine entities receiving state funds may hire for mission.”
“Every religious college in the country receives some federal and state support,” Bradley explained. “Though most should hire on mission more than they do, all do some of it, and many do a lot of it. Consider, for example, Brigham Young University.”
“People introducing bills and making court decisions argue that they’re upholding the First Amendment but in fact are impinging on the free exercise clause,” said Kevin Schmiesing, a historian with the Acton Institute for the Study of Religion and Liberty. He traces the distortion of legitimate church-state jurisprudence to the 1947 US Supreme Court case Everson v. Board of Education, which first spoke of a “high wall of separation” between the church and the state.
Threats to the religious liberty of Catholic agencies have come in several forms in recent years, the most prominent being laws requiring the agencies to violate Catholic moral teaching. But dictating hiring decisions appears to represent a new threat to Catholic agencies’ religious freedom.
“We haven’t faced anything quite like that, although there are constant threats to religious freedom lately,” said Dennis Poust, spokesman for the New York State Catholic Conference. “The Spitzer abortion bill is our big example now.”
That bill, Catholics and others in New York warn, would force Catholic hospitals to allow abortions to be performed on their premises. The fear of that happening has been constantly in the background ever since states began requiring insurance plans, even those which Catholic organizations provide for their employees, to cover prescription contraceptives and sterilizations. Catholic Charities of Sacramento, California, was unsuccessful in a court challenge to California’s requirement to do so.
The curtailing by the state of religious freedom has already resulted in one major defeat: Catholic Charities in Boston, which opted to cease its longrunning adoption agency after the state forced it to place children in same-sex households.
The Colorado attempt to dictate hiring policies for faith-based agencies is “the first case I’m aware of that’s this specific,” Schmiesing told CWR. “But in light of the way things have been going, I’m not surprised. It’s been building up for a long time. Some charities are deeply involved in government programs, accept government funding, and there’s a certain amount of mingling. Once the government environment becomes hostile toward certain religious expressions, you’ve got a confrontation.”
Cardinal Paul Cordes, president of the Vatican charitable agency Cor Unum, addressed the controversy in Denver during a press conference in Rome on January 29. John Allen of the National Catholic Reporter reported that the cardinal expressed support for Archbishop Chaput, saying, “This bishop is doing the right thing.”
Cardinal Cordes said the debate reflects a growing concern on the part of the Church, namely, how to maintain the purely religious character of faithengendered charity, even while accepting funds from donors who are not religious and may object to certain tenets of the religious agency.
“Theologically, charitable activity and the good deeds of the faithful are always connected to the proclamation of the Word,” the cardinal said. “Jesus performed his works because he was moved by mercy, but also to proclaim the Gospel. Service is always tied to testimony to the Word of God, and no one must break this connection.”
He said: “Catholic agencies have to be very careful not to lose their liberty, taking money from donors who later try to introduce a mentality that does not correspond to ecclesiastical objectives.”
He said Cor Unum will sponsor a retreat in June in Guadalajara, Mexico, for directors of Catholic charitable agencies in the Americas. The retreat, he said, is in response to the threat of secularization.
Asked about the prospects that Representative Madden may reintroduce her bill, Colorado legislator Witwer mused: “There’s no way to draft this bill where it wouldn’t hurt a religious organization. You can’t ask a religious organization to break themselves up into religious and non-religious parts. For the Catholic Church, doing public service is an expression of their faith. It’s rooted in the Scripture.”
“Nowhere in the First Amendment does it say your free exercise of religion is dependent on whether or not you receive tax dollars,” he said. “It’s a core right Americans have.”
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