Beyond Moralism: A Critique and a Proposal for Catholic Institutional Religious Freedom

In order to propose a more positive, appealing, and theologically accurate account of Catholic institutions’ case for religious freedom in the context of current sexual expression laws, this article will proceed as follows: Part I will discuss the sexual expression laws commonly triggering free exercise defenses by Catholic institutions, the defenses themselves, and the negative reactions they provoke. Part II will treat Catholic theology about the necessity of mutual witness within a community for sustaining and transmitting the Catholic faith. Part III will discuss the relationship between Catholic teachings on sex, marriage and parenting, and forming and transmitting Catholic faith. It will note that these teachings are only one part of Catholic community life and identity, but that they require special attention today in light of the frequency with which the state is intruding into Catholic communities on the basis of claimed sexual expression rights. Part IV will suggest how each type of free exercise defense commonly used by Catholic institutions in sexual expression lawsuits, might be strengthened if framed according to my proposal. These defenses would better conform to Catholic theology, allow for positive expression, appeal to common sense, and more fully satisfy both the spirit and the letter of the law of free exercise. A brief conclusion will reassert the necessity for Catholic institutions’ authority over employment and operations, and address a few collateral questions concerning implications for state funding, and fears about too broad a scope of institutional freedom.