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It turns out that Catholic Answers Apologist Joe Heschmeyer is also a lawyer, so we asked him about the recent Supreme Court decision that allowed a Catholic social service agency to continue refusing to place foster children in the custody of gay couples. Is this discrimination? And what does this ruling suggest about the future of religious freedom?
Cy Kellett:
Is the Supreme Court letting Catholics get away with discrimination? Joe Heschmeyer, next. Hello and welcome to Focus, the Catholic Answers podcast, for living understanding and defending your Catholic faith. I’m Cy Kellett, your host. And our guest is Catholic Answers apologist, Joe Heschmeyer, the author of Pope Peter and a bunch of other books. And one of the things about Joe is he’s a Catholic apologist, seminary trained, married, father of at least one that I know of, but he’s also a lawyer.
And so, this week was a good week to have a talk with Joe. Because the United States Supreme Court in a decision called Fulton versus City of Philadelphia.
In a nine to nothing decision, which was actually kind of a surprise, I think to almost everyone on earth, in a unanimous decision, said that the city of Philadelphia could not, at least under the current conditions, tell Catholic Social Services that they were out of the foster care business because Catholic Social Services would not place children with gay couples. So, we asked Joe to give us a both legal and a moral analysis of that decision and of our current situation. Here’s what Joe had to say.
Catholic Answers apologist, Joe Heschmeyer, thank you for being with us.
Joe Heschmeyer:
My pleasure.
Cy Kellett:
People may not know this about you, but you’re also a lawyer.
Joe Heschmeyer:
Yeah, although not practicing. I’m more spiritual than lawyer. No, you said it not practicing, so it means something very different.
Cy Kellett:
Spiritual, religious, in your case, more spiritual than lawyer. Okay, fair enough. But I feel like this is something we’re going to take advantage of now that you are our colleague here at Catholic Answers. Because there are issues where having the skills of an apologist and former seminarian, who’s also a lawyer, comes in handy.
And today’s topic, and we have this decision from the United States Supreme Court, a unanimous decision, allowing Catholic Social Services of Pennsylvania to discriminate against gay couples, or at least that’s the way it’s being, the first line and many stories around the country. I noticed NBC … A lot of them took that tack, like what Supreme Court allows discrimination. Is that what happened here?
Joe Heschmeyer:
That’s not what happened here. The Supreme Court actually stopped a little bit of discrimination from happening, although unfortunately, it gives a little bit of a roadmap for how states can discriminate better.
Cy Kellett:
Okay, so we do have two competing narratives here, and so, two kind of different ways of, I suppose, saying who in fact is being discriminated against. And the truth is, Joe, just as a basic philosophical point, you can’t have an entirely undiscriminating society, a society does have to make choices, would you say that’s fair?
Joe Heschmeyer:
Not only is that fair, Former Attorney General John Ashcroft, when accused of legislating morality, once said that literally everything you legislate is morality because the only alternative is to legislate immorality. His point was that every policy, even seemingly banal ones, is reflecting a series of value judgments you’re making about the world. And those are going to be morally informed.
There’s no getting around that problem, even something like, oh, should the speed limit in this area be 75 or 35. That’s going to reflect something about public safety and about transportation. We’re making judgments about freedom and about safety and about all of those things. And then, we saw this stuff with like the mask mandate. We saw this stuff with all sorts of things. We’re constantly being asked to weigh competing goods. We’re constantly being asked to make discriminations and judgments about things.
And so, anyone pretending that we can just not legislate that way doesn’t understand at a basic level the way all legislation is, to some extent, one group imposing their morality on another. Because if everyone agreed that X was a good idea, you wouldn’t actually need to make X a law because no one’s going to violate it.
Cy Kellett:
Right, okay. Fair enough. So, here we come to a choice then between narratives about who’s being discriminated in this sense that I do think that a lot of advocates of gay marriage, a lot of people who embrace gay marriage, and are generally accepting of the whole movement towards … It’s pride month now here in the United States and this whole movement towards a kind of acceptance that says, love is love as applied in a pride way, in a gay pride way.
Okay, so, I do feel like many, many people feel like, well, that’s done, that work is done. And so, they are actually shocked when they find out there’s people who are like, “We didn’t fully actually buy on to that just because there was the Obergefell decision. It didn’t end our moral objection to same-sex marriage.” And so, I do think that people, and maybe fairly so because the media acts as if we’ve all moved on, but literally half of the country has not moved on and did not agree to any of this.
Joe Heschmeyer:
Yeah. It is one of those things where there is sort of a declaration from a high through the Supreme Court. It’s striking that this wasn’t something where people took to the ballot box and they voted for this and this is what they decided on. This was legislated from on high by unelected judges. So, that’s one of the ways of understanding kind of the way this whole conversation is playing out, is that the court actually has a hand in creating some of the problems because they’re not letting this workout kind of in a democratic way.
They’re not letting like the populace figure out what they understand marriage and their own society to be. They need these unelected judges who don’t have much necessarily philosophy to make these real philosophical and moral claims on behalf of the country and impose them on everyone.
Anthony Kennedy just declaring that basically, there’s no rational reason. Someone could be against same sex marriage is almost a joke when you look at the whole span of human history.
Cy Kellett:
No, no.
Joe Heschmeyer:
Where until very, very recently, almost everyone viewed it as not even a possibility.
Cy Kellett:
Right. But Anthony Kennedy, also famous for what’s called the sweet-mystery-of-life passage in another … He tended to be more poetic than philosophical, I think, as a judge. But what I’m trying to get at here is that I do think there is a part of the population that because media went along, because the other universities went along, because public schools went along, and so, all of the things that they see as the institutions of society said, “Yes, we’re fully on board, this is done,” they are actually shocked to find out that there’s a whole Catholic population and a wider Christian population, and actually many other people as well, who didn’t go along with this.
And so, to them, it seems quite clear. There was this great progress in civil rights happened. And then there’s these regressives why is the Supreme Court taking the side of these reactionary and regressive people?
Joe Heschmeyer:
Yeah, I like that you mentioned the sweet-mystery-of-life passage because I think it actually comes in to one of the differences in how religion is conceptualized where there is a view that you’ll find including by some members of the court that religion is basically something that you privately hold, like it’s a set of interior beliefs.
Cy Kellett:
Right.
Joe Heschmeyer:
But it doesn’t have to impact anything exterior. It doesn’t have to impact the way you live or the way you behave. And so, the idea that something could be an imposition on your religion and the whole notion of free exercise religion becomes very confusing if your understanding of religion was that it’s a bunch of basically superstitions that you privately have, but don’t live by.
Cy Kellett:
Right.
Joe Heschmeyer:
Justice Scalia famously argued that the other side on this question treated religion the way people treated pornography. It’s like something that could be shamefully indulgent and private, but wasn’t something-
Cy Kellett:
But don’t bring it over here.
Joe Heschmeyer:
Yeah, exactly, don’t do it in public.
Cy Kellett:
Yeah, right, reverse those things, I think, as a matter of fact. But, okay, so that’s the one side of this. The other side, the one that I have to admit I belong to. I don’t want to pretend some false neutrality here. So, says, “Wait a second, even if the society decides, well, we’re going to have gay marriage, that’s the law,” and it does seem in many ways that with a general acquiescence that fight in any real sense is over.
Okay, so, but even if we agree to that, people, like myself will say, well, that does not mean that everyone has to abandon their long held moral convictions in order to make that as convenient and as unquestioned as possible. Like you still get to say, “I don’t believe in gay marriage.” You still get to say, “I’m not going to officiate at a gay marriage. I’m not going to bake the cake for the gay marriage. I’m not going to assist in this couple adopting children.”
And that is not, at least in my view, that’s not just a kind of regressive refusal to give a bigotry, but it’s just saying, “Well, no, I don’t have the power to do anything about this. I’m just not involved. I don’t want to be involved in it, leave me out of it. And I’d like to do what I’m doing as a Catholic without being required to participate or affirm what I don’t participate in or affirm.”
Joe Heschmeyer:
Well, and that was kind of the way this whole thing was sold at the outset. [crosstalk 00:10:04].
Cy Kellett:
Yeah.
Joe Heschmeyer:
Yeah. There’s that bumper sticker pretty famously in the lead up to all this it said, “Don’t like gay marriage, don’t have one.”
Cy Kellett:
Yeah.
Joe Heschmeyer:
And it seems like if you were going to do an updated version of that bumper sticker would be like, “Don’t like gay marriage, don’t have a job.”
Cy Kellett:
Yeah, right.
Joe Heschmeyer:
You can’t do anything.
Cy Kellett:
Yeah, don’t participate in civic life.
Joe Heschmeyer:
Exactly.
Cy Kellett:
Yeah.
Joe Heschmeyer:
And that’s the thing that’s so … In this case that we’re looking at today, Fulton v. Pennsylvania, or excuse me, Fulton v. Philadelphia, there wasn’t even a same-sex couple that had approached Catholic Charities. It was just the idea that if one did, they would have said no. That was enough for the city to refuse to do business with Catholic Charities. So, there are a bunch of kids who aren’t going to get placed in foster homes or won’t be placed as efficiently or as effectively. They’ll be left in the foster system longer.
Because hypothetically, a couple might have been discriminated against by one of the numerous agencies in the city, even though it’s the one that anyone who seriously is wanting to adopt isn’t going to be going to Catholic Charities, if they’re in a gay union, you’re not going to go into that one.
And so, it’s pretty incredible I think, given that. The state where we’re at is no longer … This is a minority group whose rights were really interested in trying to protect, much more as imposing that on everyone around them. Now, there’s an important, I think, backdrop here in terms of civil rights, and especially the history of interracial discrimination, like with Jim Crow laws.
Between Jim Crow laws and private racist businesses, it was often very difficult to get public accommodations as an African American living or traveling through the south. So, finding a hotel you could stay at, finding a restaurant you could eat at was incredibly difficult.
And so, one of the things that comes up in these cases is what’s called public accommodations. That basically, if you’re a member of the public, there needs to be somewhere where you can sleep at night. There needs to somewhere where you can eat. And so, someone discriminating against you in those kind of basic ways is doing something pretty grotesque. Even though they’re a private business there, we do take a tougher stance.
We’re trying to make sense that you can’t just say, well, they’re a private business, therefore, they can do whatever they want.
Cy Kellett:
No.
Joe Heschmeyer:
If 100% of the people in a particular community are going to do that in a racist way, that means some portion of the population won’t be served.
Cy Kellett:
May I add one thing to that, Joe?
Joe Heschmeyer:
Yeah.
Cy Kellett:
Also, race and sexual behavior are not analogous to one another. And race has a particularly pernicious history in the United States. So, that the analogy of, well, black people were treated this way, therefore, and then you pick some other group, like people that want to wear tutus or … Therefore, the analogy … Well, actually, that is not an analogy because what happened to African people being brought to the United States and enslaved in hundreds of years, that’s not analogous to anything else. So, the remedies for that are actually going to be different than every other remedy, get over it.
Joe Heschmeyer:
Yeah, exactly. There are all sorts of basic principles. As a general rule, the right to refuse service is something that we’ve tended to affirm and support for private business. And this one narrow category of cases where it’s been abused in this pretty horrific, but like you said singular way, it made sense that the government responded with federal authority, like sending in troops into the south.
This is a very unique set of circumstances. To turn that into a general principle that a cake maker should have to make whatever cake you want, even if it’s something that’s super offensive and goes against everything they believe in, that’s just not a valid way of drawing out that.
And we see this all the time. And I’m glad you’re saying this because this idea that GLBTQ et cetera is the new civil rights is a really popular kind of mantra, and it’s really historically ignorant. There just is not an analogous set of circumstances, nor are like you said, sexual orientation and sexual practice aren’t the same things as race.
The idea that someone can’t go anywhere, do anything without being discriminated against based on their skin color, if something visible from the outside is automatically a very different kind of circumstance, then this person thinks what I’m doing is immoral. Well, okay, people are free to think what you’re doing is immoral.
Cy Kellett:
Right. And especially when those judgments about what’s moral or immoral have a grounding in probably the most ancient kinds of philosophical arguments. I mean, you go back to Aristotle, and the same arguments would be made. I cannot imagine that Aristotle would be in favor of gay marriage for example.
Well, okay, he’s old and we don’t trust the ancient people. But they were very comfortable with homosexual behavior in Ancient Athens. But that doesn’t mean Aristotle would have reasoned his way to gay marriage. So, what I’m trying to say is you have moral arguments of an ancient and noble provenance. And they’re to be not accepted because they make somebody have to go to a different cake shop.
Joe Heschmeyer:
Yeah, it is a pretty remarkable kind of … Let’s just point this out, even if they weren’t of a noble and ancient provenance, even if it was just something much more like trendy and new, if I ran a vegan restaurant and I refuse to serve non vegans, that should be totally legal. Because a nonvegan can go to any other restaurant, anywhere in the city and get service. They’re not going to go hungry that night. This isn’t like Jim Crow.
Cy Kellett:
Do you mean refuse to serve non-vegan food or refuse to serve vegan-
Joe Heschmeyer:
Just if they wanted to say if you are morally okay with eating animal flesh-
Cy Kellett:
I don’t want you here.
Joe Heschmeyer:
… we won’t serve you in this restaurant. Yeah. That might be against the way we currently impose discrimination law, right. But it seems to me that there’s no reason not to allow someone that kind of framework.
Cy Kellett:
Well, I remember when a prominent member of the Trump administration tried to eat in a restaurant in Washington, DC, and they refused her service because she was a member of the Trump administration. I actually don’t think that was immoral on their part, if they actually think Trump is a Nazi, I think you get to say, No, we don’t serve Nazis here. You might be right. You might be wrong in your estimation. But I think that to me, perhaps I’m wrong about that, Joe.
Joe Heschmeyer:
No. So, I at least agree with you. But the reason we don’t do that in this country now, even though it would seem based on all the principles we hold up, the reason we don’t do that is largely because of this kind of holdover from the civil rights movement, where we saw people abuse it in this one category and we got kind of skittish about it.
Cy Kellett:
Yeah. Okay. Fair enough. So, what’s the kind of background for this particular case? I mean, is this a broad decision or a narrow decision? Does it affect this earlier decision or not affect that? Some people are saying the Supreme Court’s playing a kind of game. We should point out it was a unanimous decision. I mean, this was not apparently a tough one for the Supreme Court. So, give us the background.
Joe Heschmeyer:
Yeah, so the case is called Fulton v. Philadelphia. And Fulton there is Sharon L. Fulton. She’s a Philadelphia foster mom that has fostered more than 40 kids over the course of 25 years. And she fosters kids through Catholic Social Services. And so, Catholic Social Services gets a portion of their money from the city. The way Philadelphia does foster care is a combination of public and private, which is I think the way almost everyone, if not everyone, handles things like foster care. You don’t want the state directly handling all of this. The people who run the DMV shouldn’t be in charge of taking care of kids, their own or others. So, they give money to-
Cy Kellett:
Come on, now, Joe.
Joe Heschmeyer:
Just kidding. Anyone listening at the DMV probably you should get back to work.
Cy Kellett:
Oh, my gosh.
Joe Heschmeyer:
Just kidding, just kidding.
Cy Kellett:
Moving on, moving on.
Joe Heschmeyer:
I know one guy who works for the Postal Service who listens to this. So, I didn’t pick up on the Postal Service. But really, the point is that the city is working with these private groups, some of which are faith based, but this isn’t the city doing a favor for the Catholic church. It’s the other way around. I mean, it’s the Catholic Church taking care of the poor and needy, and in this case, taking care of the orphans, which is a part of our religion. It’s a part of what we believe in, and in conjunction with this public service of trying to do the same thing.
That’s where all of this kind of like the connection between the city and Catholic Social Services comes in. The problem is the city hearing the representative for Catholic Social Services or else for the archdiocese, I don’t remember which, basically saying that in a hypothetical situation, they wouldn’t be able to place a child with a same sex couple.
Cy Kellett:
Yeah.
Joe Heschmeyer:
Philadelphia responded by basically making that illegal and saying you’re not going to get any state funds if you do that. But there’s a twist where they had an exemption clause in the sole discretion of the commissioner. Basically, they have a general kind of blanket thing saying anyone who works with the city and its foster care has to be willing to certify and potentially place kids with same-sex couples.
But because they knew that this could be really hard, it’s like a universally applied rule, they had this exemption clause where the commissioner could relax that in particular cases. It was entirely discretionary. That is going to be a really important point for the majority for reasons we’ll get into. But that’s kind of what’s going on here. That the city is trying to force Catholic Social Services to either place with same-sex couples or go out of business or just stop doing work with the city.
And this is not the first time this has happened. Washington, DC while I was living there, passed a really similar rule. And the cardinal went to them and said, “If you do this, we’ll have to stop placing kids.” And they said, “Yeah, that’s the point.” There was pretty much targeted and directly was meaning to get the Catholic church out of this.
Cy Kellett:
So, in a certain way, does the brazenness of it by the city of Philadelphia kind of let the Supreme Court off the hook of having to decide a deeper issue because they can just say, “Look, this is obvious animus against Catholics, fix it.”
Joe Heschmeyer:
Yeah, there’s a saying in law that bad cases make bad law.
Cy Kellett:
Yeah.
Joe Heschmeyer:
And there’s a few ways that that can happen. One is that sometimes, if a particular set of facts tugs at your heartstrings, you’ll bend the law to try to make it work, and that can be really dangerous. But the other way bad cases make bad law is sometimes the case is just so extreme, that everyone can see, no, obviously, this doesn’t work. But they don’t necessarily get into the issues they need to and make the kind of principled distinctions.
This is that second category. This is a case where what they did was so flagrantly unconstitutional, that you can’t just say, “We don’t like you. We’re not going to do business with you because we disagree with your religious views.” That’s not going to be good enough.
Cy Kellett:
No.
Joe Heschmeyer:
But there’s a big question based on what’s called the Smith case, or Employment Division v. Smith, that the court has for today, kind of skated around, but I think we’ve got the lineup ready to see what that next case might look like.
Cy Kellett:
Okay, so, the employment division case written by notorious liberal jurist, Antonin Scalia, a lot of people who would be great admirers of Antonin Scalia would say, now, he got that one wrong. And so, that’s really underneath all of this is this question of, is Scalia’s argument in that case reasonable? Will that allow for a proper respect of the First Amendment and of the religion’s place in society or will it not it? Am I basically right about what’s at issue here?
Joe Heschmeyer:
Yeah. So, I might give you a little bit of background on that case, just to get how we ended up in this situation. That was back in the ’90s. There was a drug rehab counselor in Oregon, ironically, who was in trouble for using peyote, and his name was I think, Al Smith. And he was a member of the Native American church. And they claimed it was basically sacramental use of peyote.
And so, there was a kind of a weird set of situation, weird set of circumstances. It wasn’t something that was a widespread religious belief at the time in the ’90s. And so, it was viewed as this kind of like weird fringe thing.
And so, then the question became, well, can they impose this general rule against drug use, even on religious groups that are okay, not just okay with drug use, but actually make certain hallucinogenic or atherogenic drugs, a part of the religious ceremonies? So, that was the situation kind of facing the court. We could imagine in even more extreme situation facing the court. So, imagine Ancient Aztec religion where they did human sacrifice.
Cy Kellett:
Right.
Joe Heschmeyer:
Could you have a law forbidding all murder or you have to include, unless it’s for human sacrifice a clause?
Cy Kellett:
Right.
Joe Heschmeyer:
That’s what courts kind of worried about like. And so, in the case, Scalia says to make an individual’s obligation to obey such a law, contingent upon the laws coincides with his religious belief, except for the state’s interest is compelling, permitting him by virtue of his belief to become a law unto himself contradicts both constitutional tradition and common sense. To adopt a true compelling interest requirement for laws that affect religious practice would lead to anarchy.
So, it’s a pretty fascinating kind of decision. Because at the time, that’s a five-four decision, effectively. It’s technically, I think it’s six-three, there’s a concurrence with O’Connor. But it ends up being either a five-four or six-three, where the liberals who are in dissent saying, “You’re not giving enough room to religious freedom here.” So, it’s a fascinating kind of shift in the way like the courts jurisprudence has gone in the last 30 years.
And in response to Employment Division v. Smith, Congress was kind of shocked saying, “This is too far.” And so, they pass RFRA, the Religious Freedom Restoration Act. And they passed it in I think, like 97-3 or something.
Cy Kellett:
Yes, I remember.
Joe Heschmeyer:
It’s not unanimous, [crosstalk 00:24:53]. Because it was like, obviously Smith is a bad case. That was kind of the approach. In other words, we’re at this place where what Scalia was worried about is real.
Cy Kellett:
Yeah.
Joe Heschmeyer:
Okay. Someone could just say, “I’m religiously opposed to this.” That’s actually a kind of a troubling thing. But on the other hand, the conclusion he comes up with, which is to say a neutral law of general applicability, it can pass pretty easily, it has a much lower standard of scrutiny., that doesn’t seem like the right answer to that problem.
Cy Kellett:
No.
Joe Heschmeyer:
So, that’s kind of where we are. He’s recognizing-
Cy Kellett:
Well, we get to problem-
Joe Heschmeyer:
Yeah.
Cy Kellett:
If we go back to the basic premise we started with, that law is about morality, there’s no such thing as a neutral law in that sense. I mean, they’re all going to assert some moral position. And so, you’re kind of, well, what does neutral mean in that sense? Neutral just means-
Joe Heschmeyer:
Ah yes.
Cy Kellett:
… it’s supposed to apply to everybody. But that’s what general applicability means. So, why say neutral?
Joe Heschmeyer:
True. It’s meant to be something that isn’t targeted with an anti-religious enemies.
Cy Kellett:
[crosstalk 00:25:58] neutral as to religion? Yeah.
Joe Heschmeyer:
Yes, yes, yes. So, for instance, there were the Santeria kind of religion does weird animal sacrifices. And so, there was a locality that had actually passed a law forbidding it. I think it was the killing of chickens, except for use in food. They were very clearly targeting, even though it was generally applicable to everyone other than food producers, it was not neutral in the sense that they were targeting Santeria and saying, “Well, we think what you’re doing is gross and shouldn’t be legal.”
Cy Kellett:
Yeah.
Joe Heschmeyer:
That is directly against the First Amendment. That one’s not going to pass constitutional muster. When you’re just saying, “Stop your religion,” that’s not going to work.
Cy Kellett:
Right.
Joe Heschmeyer:
So, that’s another one of those … That law didn’t take long to knock down.
Cy Kellett:
Yeah, because everyone else has the right to kill a chicken. Then the only person who doesn’t is Santeria guy.
Joe Heschmeyer:
Right, right. And the fact that you can kill the chicken for food but not for religion means that you’re not treating them neutrally. You’re not treating them equally. Even though you’re not specifying Santeria in the law, we can tell from both the context in which the law was passed and the fact that you’ve got two sets of standards, one for food producers, one for religious practitioners, and you’re holding them to different rules.
Cy Kellett:
Okay. So, in this case, however, the Religious Freedom Restoration Act was not invoked. They just argued that on First Amendment Grounds, this was unacceptable. And Philadelphia, by being excessive, made that an easy argument. It would appear because nine justices agreed.
Joe Heschmeyer:
Actually in some ways, they weren’t excessive enough. By that, I mean, remember earlier, when I mentioned the exemption clause that at the sole discretion of the commissioner, he could not apply the nondiscrimination provisions, that made it like the Santeria case, where the groups the commissioner likes are held to one standard.
Cy Kellett:
Oh, right.
Joe Heschmeyer:
And the commissioner doesn’t like are held to a different standard.
Cy Kellett:
Oh, I see.
Joe Heschmeyer:
And he doesn’t like Catholic Charities, and he doesn’t like them for nakedly religious reasons. That made it a really easy case of obviously imposing something, where this is not a neutral of general applicability. And we know it’s not of general applicability, because the nondiscrimination provision is explicitly not generally applicable. That makes it a targeted anti-religious law, which means you have a much higher standard you’d have to meet to be able to pass constitutional muster.
Cy Kellett:
Well, could a municipality say, for example, we just think the reasoning behind your religious belief is flawed. And you can’t justify that reasoning, so we don’t accept your … Can society just say, “Well, we don’t accept your reasoning, therefore, you can’t follow through on that religious belief.” Would that be-
Joe Heschmeyer:
Not constitution. I mean, well, so there’s three different standards. So, you’d have the highest standard of legal scrutiny. It’s called strict scrutiny. And it’s very hard to pass strict scrutiny. So, if something is directly regulating the religion, you could get into strict scrutiny territory, but I don’t actually know offhand at least of any situations that would pass that kind of muster.
Cy Kellett:
I bring that up in part, Joe, because, and I want to play a little audio for you, that the media seems very focused on, well, this is just an unreasonable Catholic belief. It’s internally inconsistent, therefore, you shouldn’t be allowed to have it. And I’m going to play you some audio from Steve Inskeep, who’s the reporter on … He is a reporter, I can assure you he’s a reporter on National Public Radio Morning Edition.
And he asked six questions of the Becket Fund lawyer, six questions about this case. Three of them were about, isn’t Catholic belief stupid, essentially is what he’s asking. Just play the audio and we’ll see, I’ll see if you got the same impression I did about these.
Steve Inskeep:
Now, we should be clear, Ms. Windham, we’re discussing constitutional rights, legal rights here and not necessarily the underlying beliefs, which people have every right to have. But I do want to address the substance, the underlying belief here. You should know that I’m an adoptee. I’m an adoptive parent. I’m very familiar with same-sex adoptive parents, who I would regard as excellent parents. And I’m just reporting here. I’m a reporter. I’m reporting what I’ve witnessed. If Catholic Social Services looks at a same-sex couple who are willing to serve as foster parents, what makes Catholic Social Services conclude they would not be suitable parents?
Steve Inskeep:
Although I’m trying to understand why they wouldn’t work with that couple. As I understand it, the agency says it would be okay with a single foster parent who might very well be gay or lesbian. What changes when there happen to be two parents in the household? So, it’s not actually about protecting the kids then. It’s about the social worker from the Catholic agency who might feel uncomfortable.
Cy Kellett:
Okay, so what I’m trying to get at in this line of questioning, this persistent line of questioning, and I have to admit, I do laud Steven Inskeep for saying that he is in favor of gay couples adopting. So, I do think it’s actually healthy when reporters tell you their bias. Hiding bias is the problem. But he’s pressing her, this lawyer on, essentially trying to justify Catholic belief. But in constitutional law, do we have to justify the belief or do we have to say, this is our belief and we can’t do that and that’s enough?
Joe Heschmeyer:
So, I think the answer is there’s going to be one answer on paper and one answer in practice. Meaning on paper, it shouldn’t matter. Something like Jewish kosher laws are one of the issues that came up in this case. Could you have a regulation that requires pork to be in food and then not include an exception for juice? According to Smith, the answer to that would be yes. That’s a pretty bad outcome, which is one of the things that one of the concurrences points out.
Joe Heschmeyer:
But notice that in that, you don’t have to say, “Oh, yeah, the kosher laws make sense.” You can just say, obviously, this is a sincerely held belief that many … This would actually violate a lot of people’s religious freedom, even if I don’t agree with the whole theology behind kosher laws or whatever. The court doesn’t have to get into, does this law makes sense to us, and they shouldn’t.
But having said that, so that’s on paper, it shouldn’t matter on paper. But in practice, the judges are human, the justices are human. Everyone evaluating these is looking at whether they can understand how the other side is able to get to that conclusion. And if they can’t, if it doesn’t make any sense to them, then their tendency is to think that, okay, this must just be a mask for discrimination.
In other words, I can’t see any way a logical person would believe in these things, so you must not really believe in them. You must be just telling me these so you can justify discriminating against someone.
Cy Kellett:
Yeah.
Joe Heschmeyer:
And the same way that if you found out like Smith didn’t really believe his religion, he just really liked doing peyote, that’s going to make it harder for him to win that case. We do look at that, whether we should or shouldn’t.
And so, in that sense, I think one of the mistakes we made on the Catholic side was when the whole gay marriage fight came out, we largely argued on religious freedom grounds. Or the contraceptive like the HHS mandate, we largely argued on religious freedom grounds that like, well, we shouldn’t be forced to impose … You shouldn’t impose on us this requirement to provide contraception or to help set someone up with contraception, because it’s against our religion.
And we probably should have been doing a better job then of making the actual case against contraception. So, it didn’t seem like just this weird arbitrary thing that we have. The word “taboo” comes from this whole system of Hawaiian like moral norms in indigenous Hawaiian society, where it was just like, there were all sorts of things where men and women couldn’t sit at the same table together, but they could engage in all sorts of what we would describe as in moral sexual practices, they just couldn’t eat together afterwards.
Cy Kellett:
Right. And the woman couldn’t eat pork, it’s the most unfair … But okay, go ahead. Yeah.
Joe Heschmeyer:
Yeah, yeah. I mean, we’ve got a new Hawaiian restaurant a few blocks from here. It’s amazing. And so, yeah, to deny them that pork. Anyway, the idea was like, these were just irrational rules that everyone held to because they were just like the system that the society held to, that once upon a time, they may have made sense. But once no one could articulate the reason behind them, they just became these arbitrary rules.
And so, when the king eventually just got rid of the taboo system, there wasn’t a major outcry because no one really knew why they were doing it.
Cy Kellett:
Right.
Joe Heschmeyer:
I think that’s the situation which a lot of people outside the church view the church as teaching on marriage, on contraception, on a host of other issues that if we’re just saying, “Well, this is just not for me, we need to be doing something better for legal reasons as well as kind of evangelical reasons.”
Cy Kellett:
Okay. All right. So, what do you see coming … Because I do feel that in a great part of Catholic media, if you watched Catholic television news or listened to many Catholic podcasts, and include us in this on many occasions, there is a growing anxiety about, well, religious freedom is going away. All the signs point in the wrong direction.
Well, the New York Times reported this as this is another case where the court always sides with religion. So, the other side doesn’t see it that way. How do you see this as a … Is there any value as a harbinger in this case? Or how do you see this as part of a longer kind of trying to work this out as a society?
Joe Heschmeyer:
Yeah, I think there’s a few things going on. One is for the reasons we talked about, the kind of impasse we find ourselves in with the Smith case, that seems to be going by the wayside. So, in the case before us today, you have three opinions that were written. So, you get the majority opinion and then you have two concurrences.
Now, a concurring opinion agrees with the outcome, but often uses a different line of reasoning to get there or sometimes will want to make some other kind of point that isn’t directly before the court. So, that’s one of the ways that the justices kind of show their cards a little bit and maybe point to the direction the law might be going.
So, in this case, you have a majority opinion, that Roberts Breyer, Sotomayor, Kagan, Kavanaugh and Amy Coney Barrett signed on to. But you also have these two concurrences. And one of the concurrences, Barrett and Kavanaugh, and, in part, Breyer, argue basically, yeah, there’s some real problems with Smith. But if we don’t really know what to replace it with yet, but it seems like something needs to happen.
So, at one point, they say, “What should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise.” But she says, “I’m skeptical about swapping Smith’s categorical anti-discrimination approach for an equally categorical one,” basically, in the other direction. So, that’s one concurrence. So, if you’re doing just the head counts, you’ve got three people who are right there saying, something’s wrong with Smith, but we’re a little uneasy about the switch as well.
The other concurrence by Alito, Thomas and Gorsuch, is much more strong in just being like stridently like Smith is a bad case, it leads to bad conclusions, we need to get rid of Smith. But the RFRA also isn’t really the fix. So, they’re also kind of pointing to like a direction we need to go.
One of the things we can take from that is that it looks just by counting heads that there’s at least five or six of them who are saying, okay, Smith is done, Smith is a bad case. We’re just not quite ready because only three of us are ready to pull the trigger now. Three more saying we know it’s a bad case, we’re not ready to pull the trigger now. That means in other words, that the signal they’re sending to lawyers and to scholars is basically come up with a good argument about what could replace it. And if you can convince enough of us, we’re-
Cy Kellett:
That would be the law, yeah.
Joe Heschmeyer:
Right, right, right. I mean, it’s almost like they’re saying, “I don’t like the person I’m dating now, but I’m not quite ready to date somebody else.” Like they’re sending that kind of a signal.
Cy Kellett:
Convince me, yeah, right.
Joe Heschmeyer:
Exactly, exactly. Talk me out of this because this feels like an unhealthy relationship we’ve got with Smith. That’s one of the places that we’re going. So, what does that mean in practice? Well, it means in practice that we could be getting to a place with greater protection, probably for explicitly religious groups like Catholic Charities.
Cy Kellett:
Yeah.
Joe Heschmeyer:
They’re kind of moving in one direction in a largely healthy direction. I’m more worried about groups like Hobby Lobby, which seemed to be moving in the other direction of having fewer and fewer.
Cy Kellett:
Right.
Joe Heschmeyer:
So, we seem to be moving into this weird kind of two-tiered system.
Cy Kellett:
Yeah.
Joe Heschmeyer:
We’re a group that is explicitly religious by its constitution is given a lot of wiggle room to exercise, but a group that is just run by individual Christians or individual believers of whatever religion is held to a much different and worse standard because on paper, the company is not a religious, but basically, individual rights kind of go down in that system, while organizational rights go up.
Cy Kellett:
Well, let me just ask you this as a Catholic person, as a person who has thought about this both legally and morally. Is there a way forward for a society, this fractured on such fundamental issues as life and marriage and death, and these are really intoxicants, such basic questions that we really do not have and really seem incapable at the moment of having any kind of consensus on.
I mean, I suppose there are many conservative people who will say, “Well, the answer is federalism. Let the states decide. Don’t stop federalizing all these issues.” That might be good in theory, but if people won’t accept that as an answer, then that’s clearly not the answer. Because in a democracy, you got to get people to accept the answer. So, is there a way forward? For example, let’s just narrow it back down to this case.
In the city of Philadelphia, if Christian people say, “Look, we don’t believe that gay marriage is marriage because these are the things we believe about marriage, and we’re never going to believe that. And we don’t believe that children being adopted by a gay couple is the moral equivalent of children being adopted by a heterosexual couple.
And this I think was also in this case, we don’t believe that a non-married heterosexual couple is the moral equivalent of a married heterosexual couple. And we’re not going to get there. You’re not going to eventually wear us down. We’re not going to get there. But we also know we can’t change those laws. Is there a way that we can all participate together in civic life? Or is culture war and civic strife just our fate now?” We’re stuck with it.
Joe Heschmeyer:
Yeah, okay. So, I want to … Two prefaces, one is you caught me at a bad day on this because-
Cy Kellett:
You’re thinking, no, it’s all hopeless.
Joe Heschmeyer:
Yeah, I’m thinking, this morning, I was reading Charles Sumner ‘s famous speech crime against Kansas. So, tomorrow, we’re recording this on the 18th, tomorrow with Juneteenth, the anniversary of emancipation. And so, I’ve written a little bit about the history of kind of Kansas’ involvement and Kansas was supposed to be a free state, and slave owners actually got the federal law changed to try to make it come in as slave.
Cy Kellett:
Right.
Joe Heschmeyer:
And at one point, so Charles Sumner then gives up and gives a five-hour speech just like lambasting them in response to which one of the other senators gets up and beats him to within an inch of his life with a cane [crosstalk 00:42:25]. Yeah.
Cy Kellett:
Right. I forgot that.
Joe Heschmeyer:
In his speech, he says, “The contest, which, beginning in Kansas, has reached us, will soon be transferred from Congress to a broader stage, where every citizen will be not only spectator, but actor.”
Cy Kellett:
That’s so frightening.
Joe Heschmeyer:
And so, he was kind of like … It was foreboding. He realized, they won’t stop. He said, “It wasn’t enough basically, that they have slavery in the states they have. They were worried about being outvoted in Congress. So, they were trying to force slavery on to free areas.” And so, he points, it’s like, they can’t just be privately immoral. They’re basically evangelists for this so-called peculiar institution, like the slave owners were arguing we should invade Cuba, we should have in Central America to bring in more, basically territory in the country that could become slave states.
In other words, we often remember this as a fight over states rights. They were not actually in favor of states like Kansas and Nebraska coming in according to what they had agreed on in 1830. Everything kind of went out the door. All of the kind of logical principles by which the country seemingly could have moved forward fell by the wayside and it responded with this kind of oppressive violence.
Cy Kellett:
Yeah, yeah.
Joe Heschmeyer:
So, that’s why I mentioned one of the prefaces. Yeah, we’ve seen ourselves in one work spot before. But there’s some echoes, shall we say?
Cy Kellett:
Right, right, and relentless drive for conformity on this is not going to end well.
Joe Heschmeyer:
Exactly, exactly. So, that’s the other thing. The second is you know that famous monkey trap where the monkey puts his hand in the coconut and grabs the nuts, but-
Cy Kellett:
But he can’t get out.
Joe Heschmeyer:
Yeah, all he has to do is let go and then he can get his hand free. But he can’t let go of it because he wants it too much. We could easily discuss, what would it look like to peacefully coexist? It looked like you’re not forcing Catholic Charities to place with same-sex couples. The Catholic Church isn’t like-
Cy Kellett:
Yeah, that is actually [crosstalk 00:44:23]. Right, you still have 40 other agencies that are doing it. That does seem like a reasonable compromise, but they will not accept that as a compromise, the advocates on the other side.
Joe Heschmeyer:
The expert, that’s the analogy I’m drawing to, kind of the way that it wasn’t enough for the slave owners to be told, “Okay, well, you do this in your own state.” That they really were kind of the aggressors in trying to push this, long before the abolitionist movement really got aggressive in kind of pushing back in the other direction.
Cy Kellett:
Yeah. I did hear a man defending the position of the people who want Catholic Charities or Catholic Social Services to provide this service to gay couples, okay? And he said, “Well, why doesn’t the church just focus on the welfare of children and get out of this business of same-sex marriage?” And I thought, that’s what they want to do. He doesn’t see that he’s not letting them do that. I mean, he’s got the nut and he won’t let go of it. He won’t take … They literally just want to focus on the welfare of children and they don’t want to participate in the gay marriage thing. Just leave him alone, and that’s what will happen.
Joe Heschmeyer:
Exactly. I mean, this was again, I want to really stress this. This was entirely hypothetical.
Cy Kellett:
Yeah, right.
Joe Heschmeyer:
Philadelphia was worried.
Cy Kellett:
There were no actual cases.
Joe Heschmeyer:
Hypothetically, someone could be discriminated against. And so, we’re going to stop this really helpful work. No one is complaining like, oh, Catholic Charities isn’t placing kids with families. If apparently by all accounts, they’re doing a good job, they’ve been working in Philadelphia for 200 years and they’re being told, “No, you’ve got to stop. Because in theory, you might not basically go with the new flow of the new morality.”
Cy Kellett:
Right.
Joe Heschmeyer:
That is an incredible kind of dogmatism, quite frankly. That’s just saying, in the same way that if the catholic church were saying, “Hey, this agency over here doesn’t believe all Catholic principles, so even though it hasn’t ever come up, we want them stopped.” No one would doubt like, “Whoa, you’re being really kind of oppressive in the way you’re approaching your religious beliefs and practices.”
Cy Kellett:
Yeah.
Joe Heschmeyer:
We’ve got the same thing on the other side, but because they don’t know that they’re religious, they aren’t aware of kind of how fanatically devoted to their religious system and their moral system they are. Because this is, I mean, in fairness to the other side, they’re acting on principles. They’re not being malicious. They’re being fanatically principled.
Cy Kellett:
Yeah, right, right. Fair enough. Yeah. It’s not anti-Catholic. They would accept us as Catholics if we would just say, we accept this one thing. It’s not a general.
Joe Heschmeyer:
Well, it’s like, yeah, if we weren’t Catholic, they’d be fine with us. But yeah.
Cy Kellett:
Okay, fine. All right. Fair enough. Thank you, Joe Heschmeyer, Catholic Answers apologist.
Joe Heschmeyer:
My pleasure.
Cy Kellett:
I’m so glad we had Joe to have these discussions with and while we focused primarily on the legal and to some degree, philosophical and historical issues here, at the root of this, there’s a fundamental moral disagreement going on. And that also needs its time. And I have to say, we do that in lots of places on our website catholic.com and in the way we answer questions on the air, and even here, in episodes of Catholic Answers Focus.
I don’t want to neglect to say that that’s important, that the moral issues underneath all of this are the ultimate cause of the energy around this. That there’s one side saying morality looks like this and another side saying morality looks like this. And they are exclusive to one another. And so, this is going to require a great deal of listening, dialogue, conversation, in order to move forward. I hope we can have all that listening, dialogue and conversation.
And more than anything, to do so in a way that is charitable to one another. So, I hope that nothing here sounded uncharitable while we tried to work out things that are really on a lesser level, on a shallow level legal kind of and historical questions. Because at the depth of it, we’re all God’s children. He wants us to have the fullness of his love. And he wants us to love one another with fullness. So, let’s just leave with that. Thanks very much to Joe Heschmeyer.
Hey, if you want to support us here at Catholic Answers Focus, we do need your support to keep doing what we’re doing. And you can support us by going to givecatholic.com and maybe leave a little note that says this donation is for Catholic Answers Focus. If you’re listening on a podcast service right now, Apple, Spotify, Stitcher, something like that, please subscribe. That way, you’ll be notified when new episodes are available. And if you watch us on YouTube, man, we’re growing on YouTube and we want to keep growing on YouTube. You liking and subscribing right down here is one of the ways that that growth happens.
Once again, I’m Cy Kellett, your host, always grateful when you join us. We’ll see you next time, God willing, right here on Catholic Answers Focus.
Cy Kellett:
I’m really happy that we have Juneteenth as a holiday now. I think it’s great.
Joe Heschmeyer:
I am, too. I think people are knocking … I actually grew up … So, the neighborhood I grew up in was about 50% white, 50% black. So, I grew up aware of Juneteenth. It didn’t really kind of get what it was, but I knew people had a big party. And once you hear what it is, you’re like, “Oh, this is cool. Everyone should celebrate this.”
Cy Kellett:
Yeah.
Joe Heschmeyer:
And the same way that, you don’t have to live in Europe to celebrate VE Day. You don’t have to live in the places that are liberated to still be like, “Well, I’m glad it happened.”
Cy Kellett:
Yeah.
Joe Heschmeyer:
So, too, even if you’re not a descendant of slaves, it’s still a good thing that we don’t have slavery anymore.
Cy Kellett:
It’s a great thing and it doesn’t have anything to do with our current arguments over whatever we’re arguing over. It’s just a great thing to celebrate. And I have to admit, it’s another summer holiday. Just get over it, people. All right, well, fair enough. I’m going to tell you one other thing too about bloody Kansas that you may not know this. This is something that I know that I find many people don’t know.
Quantrill, the guy, the racists SOB, who went around killing people in Kansas and Missouri, if they were union people, a murderer, a torturer, a killer. Do you know that he got wounded? He was shot, I think, in Tennessee, at the end of the war, was being cared for in a military hospital. A Catholic priest came up and talked to him about the Catholic faith and he converted to Catholicism and was baptized before he died.
Joe Heschmeyer:
Beautiful.
Cy Kellett:
Did you know that?
Joe Heschmeyer:
I did not know. I did not know.
Cy Kellett:
Like maybe the worst man in American history, and nobody knows this, he repented and died a Catholic.
Joe Heschmeyer:
That’s beautiful. I’m glad to hear he repented, too.
Cy Kellett:
Well, that’s part of it. You have to do in order to receive baptism. So, peace, Joe.
Joe Heschmeyer:
Thanks a lot.
Cy Kellett:
Right, bye.