Last week, the Arizona Legislature passed a bill that would allow owners to refuse service to customers if their refusal is sincerely motivated by religious concerns. Religious liberty is broadly defined to include beliefs and practices and protections apply not just to churches but to individuals, secular organizations, and businesses. At issue is the problem of cooperation with evil, and here Catholic moral theology can be helpful.
The language of the bill is neutral but it, like efforts in nine other states, was crafted by conservative groups in response to growing worries about same sex marriage and it is generating controversy among Christians. Supporters often cite a New Mexico case involving a photographer who refused to document the commitment ceremony of a lesbian couple because “she did not want to tell the stories of same sex weddings.” Although the photographer is staking her claim on freedom of speech rather than freedom of religion, the fact that, so far, she lost in court has conservatives worried. The Washington Post reported that, “In ruling against Huguenin’s case, New Mexico Supreme Court Justice Richard C. Bosson wrote that while Huguenin and her husband are ‘free to think, to say, to believe, as they wish,’ the public accommodation of differing beliefs is ‘the price of citizenship.'” Governor Jan Brewer must decide this week whether to prioritize the beliefs of citizens who feel called to non-participation in actions they understand to be immoral or the rights of gays and lesbians to equal treatment.
In an article about the New Mexico case, Adam Liptak quoted a justice concurring with the majority opinion:
“The Huguenins are not trying to prohibit anyone from marrying,” he wrote. “They only want to be left alone to conduct their photography business in a manner consistent with their moral convictions.” Instead, they “are compelled by law to compromise the very religious beliefs that inspire their lives.”
“Though the rule of law requires it,” Justice Bosson wrote, “the result is sobering.”
Although both the Arizona and New Mexico cases raise important questions about how to balance conflicting rights, they may not be as troubling as they first appear. In the manuals of Catholic Moral Theology that dominated the field in the 19th and 20th centuries, questions of potential cooperation with evil in the workplace were frequently treated. On this blog, we’ve applied these concepts to issues of eating factory farmed meat and voting (here and here). I have suggested elsewhere that moral cooperation can be extended to social issues, as long as its limits are understood.
But the situations for which the Arizona bill was crafted are actually much closer to the situations that concerned the manualists (e.g., May a nurse hand instruments for an “illicit procedure” to a doctor? May a servant deliver a letter to a master’s lover? May a taxi driver take a customer to a brothel? May a printer or ink seller provide services for publishers of illicit literature?).
In each of these cases, the evil is much more “proximate” and “necessary” than it is when one eats factory farmed meat or votes for a pro-choice candidate, and that makes it more difficult to excuse. However, in most cases, the manualists did excuse cooperation, as long as the cooperator did not share the evil doer’s intentions and, if possible, made his or her objections known. The assumption was that, in the workplace, it was nearly impossible to avoid all cooperation with evil, and thus some toleration was necessary.
Contemporary discussions of cooperation move in two directions. Liberal theologians tend to emphasize the pluralistic nature of society and argue for tolerance of opposing views (e.g., in alliances between hospitals or medical groups and in voting). The U.S.C.C.B. stresses Catholic responsibility for shaping the world we live in, and calls for “prophetic witness” in the face of grave evil, while allowing that sometimes voters face difficult choices.
The wisdom of the tradition is its recognition of the tension inherent in being a Christian in the world. Consciousness of potential to cooperate with evil is a good thing. In general, we need to think more about it, not less. We should encourage florists and photographers to think about all of the ways in which they, by action or inaction, may be complicit (e.g., Do they pay their workers a just wage? Do they charge just prices? Are they critical of the wedding industry?). Academic theologians need to ask the same kinds of questions (e.g., Are we just to our students? Do our institutions truly act for the common good or do they primarily serve the wealthy?).
But, as others have suggested, it is impossible to confirm the morality of every person for whom we provide services. Singling out gay and lesbian couples as especially evil seems unwarranted. Just like the ink seller and the printer, we all have to participate in a society which will involve us in situations we would not choose. While prophetic witness may occasionally be called for in the face of grave evil, broad allowances for “religious liberty” that includes so many varying levels of cooperation are misguided.
Justice Bossom rightly calls the reality of compromise “sobering.” But given all of evil we tolerate every day, focusing so narrowly same sex couples just doesn’t make sense. In an article at The Jesuit Post, Jeremy Zipple tells of his experience after polling his fellow Jesuits about pressing problems:
Frankly, the whole thing had depressed me, and also left me feeling guilty at my ignorance. From the men I lived with, I heard anecdote after anecdote of personal and communal hardships, of Catholics navigating problems so much more pressing than those I faced, in parts of the world I’d struggle to locate on a map. What shook me again and again was how removed their concerns were from the ones I spend most of my time debating on Twitter and at the dinner table. There was not a single mention of contraception (except obliquely, in relation to the HIV/AIDS question) – nor women’s ordination, abortion, liturgical disputes, or religious liberty (a few mentions of all-out religious persecution though – of the death-threat variety.)
For people of faith, and everyone else, there is plenty of evil to be concerned about. We need not worry so much about the small stuff.
Thanks for this post and I have been thinking myself how much this feels like stepping back into the days of the moral manuals. And one of the elements that I think is important here is that we moved away from the moral manuals and towards a moral theology that focused on the dignity of the person. I want to push even further – it isn’t even simply a matter of perspective — we have much bigger issues to worry about – but that actually seeking to codify and interpret religious liberty as a right to refuse to engage anyone whose lifestyle one believes is immoral (citing religion) is itself injustice. MSW @ NCR has an excellent piece up arguing that as it stands – the Arizona law – the Selma analogy seems quite apt. (http://ncronline.org/blogs/distinctly-catholic/arizonas-sb-1062 ).
As the post notes, there is often room for prudential judgment about when to participate in it a certain immoral action within the workplace, and when to take a stand and decline to do this. Given this room for prudential judgment, it might make sense to leave citizens a wide latitude to decline service to customers–not because this is exactly the prudential judgment I would make, but because different people may feel called to take a stand on different issues. This will inevitably cause some tension, but could be matched with actions and policies that unambiguously affirm the dignity of all people.
Maybe the ideal will be the day when a gay couple and a conservative Christian and can both say–I respect your views, I believe you have thought long and hard about them, I will share my views with you on occasion, but I don’t want to ask you to do something that violates your own deeply-held convictions, if there is a way around it. This seems like a possible basis for mutual respect and social solidarity.
We agree on the difficulties of overly broad interpretations of religious liberty.
However, although the moral manuals have their problems, in this case I actually think they provide helpful guidance. In many cases involving the workplace, the manuals allowed for material cooperation with evil.
We should sometimes feel”stained” or compromised by cooperation with others who are, in our view, acting immorally, but we can also recognize that living in the world will inevitably involve contact with people who think differently than we do. Sometimes we will have to opt out, but at other times, going forward with intellectual humility and grace will be the wiser choice.
At a more fundamental level, Catholic moral theology has some helpful insights into the morality of participating in same sex marriages – that of the moral object chosen.
The moral object chosen in participation in a same sex marriage is a public commitment of love and fidelity between the spouses. That is a good and holy thing and ought to be welcomed and celebrated.
There is nothing in a state same sex marriage ceremony which is contrary to Christian morals, indeed the love expressed is central to the Christian proclamation.
Therefore, there is simply no Christian basis for objecting to participation in such ceremonies.
One doesn’t even get to apply material cooperation with evil because there is no evil involved.
We ought to instead focus on the real evils around us – poverty, low wages, lack of housing, oppressive and exploitative working conditions, violence and war.
I think there is an important distinction between gay people and homosexual marriages that is being overlooked here. Who is “singling out gay and lesbian couples” or “refusing to engage anyone whose lifestyle one believes is immoral”? All I’ve about is people declining to participate in homosexual weddings. It’s a bit of a technical point, but I think it’s safe to say the objectors would be just as sure to decline if the two men getting married were straight. And I don’t think anyone is trying to with hold birthday cakes or Valentines Day flowers from gay couples. But when a person’s faith instructs him that certain ceremonies or rituals are religiously forbidden, then allowing him to decline to personally participate in those ceremonies and rituals seems to me the first essential requirement of anything called “religious freedom.” Now if someone wanted to refuse to sell some item off the shelf – a bottle of wine or a tuxedo – because he knew it would be used in an illicit wedding ceremony, that might rightly be criticized for being puritanical. But refusing to attend and commemorate a gay wedding as a photographer seems in principle to be analogous to refusing to do the same for a Black Mass. People are free to celebrate Black Masses, but not to compel me to help them do so.
I agree the manuals had a function and I certainly think the theology of cooperation with evil is crucial because sometimes we do have to opt out. I am just concerned when the persons involved seem to be missed –
Julie– I am so glad you are doing work on this topic, and these kinds of distinctions – while subject to abuse, like any distinctions (i.e. the primacy of the person, which Meg cites, is often used by anti-environmentalists) – are very helpful. You outline the situation well here. I wondered whether this discussion also turns on a couple other things: 1. Given our shared concern about things like factory-farmed meat and sweatshop clothing, I imagine we are taking a considerably stricter line than trhe manualists would have, especially since we are not (for example) working for the offending company. This is presumably because we take structures of sin more seriously, and are more concerned about using this distinction as an excuse to tolerate what should in face be opposed/refused. How do we control the “strictness/laxity” of the application? (Prudence, yes, but is there more to say?) 2. Wouldn’t the concern about the gravity of evil be an issue here? As the commenter above indicates, if one doesn’t see same-sex marriage as wrong, then there is no issue in the first place! But if the legal debate is about respecting consciences, then wouldn’t the gravity of the evil exercise significant control over how one judged this situation?
In itself, selling flowers or wedding cakes is morally neutral. I don’t see how the seller is morally responsible for how the buyer is going to use them.
And even if participating in a state same sex marriage was morally wrong (which it isn’t), then what if the cake/flowers were simply a gift to the person and not even intended by the buyer as an endorsement of the marriage ?
Trying to judge the motives of others is an extremely dicey business. I’m reminded of the Irish pharmacist who once refused to sell condoms to a man who wanted to use them to keep the rain off his motorcycle spark plus !
Are we going to have a law allowing someone to refuse to sell if it’s for a 2nd marriage where the first marriage still exists, or for some other legal marriage which they didn’t approve of ?
Conscience also needs to respect the rights of others with different views in civil society.
It would be a different case if the matter under consider was a grave evil such as abortion, paying unjust wages, or participation in an unjust war and the participation was direct enough to contribute to serious harm done.
Thanks for these helpful comments. I was happy to see that Governor Brewer vetoed the bill yesterday, but these issues will continue to arise.
I do see the problem of losing the focus on the dignity of the person. The manuals simply assumed the evil in question and were most concerned with determining the sinfulness of individuals rather than encouraging just relationships.
I still think the manuals are helpful because it seems to me that people are worrying too much about being “stained” by the actions of others. If someone believes same sex marriage is immoral, then perhaps they should work for legal changes, but not worry so much about selling flowers or cakes to gay people. The key issue in this bill was the right to deny services to persons and the key ethical framework should be one of just and equal treatment under the law for everyone.
However, David is right about my desire to extend cooperation to social issues in ways the manualists would not recognize. Here, while the gravity of evil is important, so, too, is what Kaveny calls “aggregated agency” or the way my actions added to those of others contribute to the maintenance of evil social structures such as factory farms and sweatshops. Putting same sex weddings in that category seems a stretch, even for those who argue that these loving relationships are less than ideal.
Very interesting post. I sense some of the differences in the responses depend on whether the respondent thinks gay marriage is morally problematic. And I don’t think one can separate the correct answer from that judgment …
Even accepting/assuming that gay marriage is problematic in Catholic faith, I don’t really think this issue is that of cooperation. Being a photographer is not somehow assisting the “wrongdoing” in going on. Say the photographer agrees to do it and then doesn’t show. The wedding still goes on. Officiating or renting the hall, yes for cooperation. Photographer, no cooperation.
Rather, the issue is the classic but under discussed category of scandal. The photographer does not want to participate not because they “allow” it to happen but becasue the photographer thinks that by participating he/she would be by his/her actions saying this is ok, and might lead others thereby to think it is ok even though it is not. And if the wedding is a serious sin, then scandal is a serious sin.
Back to my first point, this is why one’s view of its rightness or wrongness is central. If it is seriously wrong, then it comes under the “millstone” passage in Matthew’s gospel, or if less serious then perhaps “pay the tax with the coin from the fish’s mouth” passage from Matthew. If on the other hand it is good, then it comes under the Magdalene’s foot washing with the expensive ointment, or even perhaps the whitewashed sepalchre condemnation passage.
So if there’s a manualist category at work here, I think it is scandal, not cooperation …
On a different but related note, I might add that the situation is rather different here in Canada, with gay marriage legal and regularly celebrated for many years now. Now it is not about public acceptance of it, it is now dealing with when your four or six year old son or daughter (who talk about who they are going to marry all the time) comes home and asks you if boys can marry boys, or only girls …
Thanks for weighing in. Scandal is an intriguing possibility! It’s difficult to separate from cooperation, because in the manualist tradition, scandal is definitely a part of the analysis of cooperation, which is why they sometimes stress making clear one’s opposition to the action in question. I might grant that scandal is a better category for the photographer, but I think one could also argue that flowers, photos, and cake are remotely necessary parts of a wedding celebration, which is precisely why some are (in my view wrongly) uncomfortable providing them for same sex weddings. Similarly, many examples from the manuals are of remotely necessary forms of cooperation in an action (e.g., ink for printing a program for an illicit show, the show could go on without the program) but still potentially problematic because they contribute to wrongdoing.
So I’m sticking with cooperation for now!
I also question whether one’s moral evaluation of same sex unions necessarily settles the issue. Many people from different political parties and perspectives lined up to oppose this legislation. I would argue that the consensus stemmed from a shared sense that the actions in question were instances of very remote cooperation and an understanding that being a citizen in a pluralistic society requires equal treatment of all persons. If we think of selling flowers first of all as a marketplace exchange between persons, it counts as “small stuff” regardless of what the flowers are for.