Each person living within both the state and the church is faced with daily questions that test his or her loyalty. The state and the church can be complementary, provided that they stay within their respective spheres. The church cannot and should not dictate all the intricacies of government. The state cannot satisfy the deepest longings or the religious needs of man.
This complementarity is rarely spoken of today. Antagonism and suspicion run deep in the American mind, whether that mind is secular or religious. Yet, as the state and religious communities face new challenges, it is important to highlight the ways in which these two divergent realities can complement each other.
In confronting the scourge of human trafficking, for example, this complementarity can be clearly seen. All those concerned for the common good ought to know how state and church can cooperate and be aware of the forces that currently tear at that cooperation.
The United Nations and the Vatican
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Joy Ngozi Ezeilo, the Special Rapporteur on Human Trafficking at the United Nations, recently praised Pope Francis for his work as a spiritual leader combating the “modern slavery of human trafficking.” The UN and the Catholic Church have a history of cooperation, even if their more recent encounters have been confrontational. After all, the church gave the UN a conception of human dignity and human rights, which was incorporated into the Universal Declaration of Human Rights.
Ezeilo has insisted that sex trafficking should not be addressed from a “crime control perspective” but rather from a “human rights” perspective. Pope Francis, for his part, has called human trafficking “slavery” that undermines the “dignity of persons.” This agreement on human rights allows the Catholic Church and the United Nations to mutually recognize the problem of human trafficking, yet their differences allow them to contribute different balms for healing. We may say, for the sake of simplicity, that the state is primarily concerned with bodily things and the church with spiritual things. Yet even this understanding does not capture the unique and intermingled contributions of each.
It is worth examining a recent case highlighted by Pope Francis. In this particular case, the authorities of the United Kingdom and nuns of the Catholic Church became an unlikely (yet effective) duo in the fight against human trafficking:
In a press conference held in the Vatican newsroom after today’s meeting, London’s Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, explained that with all the religious orders it has across the world—in countries at the start and end of human trafficking routes—the Catholic Church “has a vast network to work with.” . . . Cardinal Nichols proudly recalled the example set by British police, who are working alongside nuns to put an end to prostitution.
Detective Inspector Kevin Hyland of Scotland Yard’s trafficking and organised crime unit explained in his talk on Wednesday how, when the police conduct raids on suspected brothels and potential crime scenes, they have a group of nuns speak with the women found inside because the women often don’t want to talk to the police, but they do open up to the sisters. The sisters pass on to police additional testimony they receive from the women while they are living under the sisters’ care. Disclosures of rape and other crimes “led to immediate arrests” and the identification of perpetrators as well as brought down a major trafficking ring, he said.
Clarifying the unique contributions of both civil authority and the church, Pope Francis said:
Our meeting today includes law enforcement authorities, who are primarily responsible for combating this tragic reality by a vigorous application of the law. It also includes humanitarian and social workers, whose task it is to provide victims with welcome, human warmth and the possibility of building a new life. These are two different approaches, but they can and must go together.
The gentleness and compassion of the sisters have their place alongside the firmness of the UK police. The victims must be cared for in the warmest and most loving manner possible, and the perpetrators, on account of the grisly nature of their trade, must be pursued and punished with force.
It is not the gift of all to be warm and loving enough to earn the trust of these victims. Nor is it the gift of all to have the strength and the resilience to confront the perpetrators. Both extremes are required because both extremes are present. The extreme of total devastation needs to be covered in total mercy, as frostbite needs a total, and gradual, thaw. The extreme of total aggression and lust needs to be extinguished in total justice, as a bonfire needs to be doused in gallons of water.
Here, the Catholic Church and the United Kingdom are reaching out to each other, each realizing the other’s unique and essential role in combating human trafficking. The Church cannot search boats or conduct raids or impose legal restrictions on certain nations or groups, nor can the United Kingdom create a network of compassionate people dedicated to serving others who will love, cherish, and rehabilitate the victims. The Church has no army (save the Swiss Guard) and the United Kingdom has no consecrated religious (save the Anglican Communion) .
Threats to Mutual Cooperation
Although Ezeilo and others hope that the Catholic Church and the UN can expand and replicate the teamwork that takes place in the UK, two things prevent this cooperation from becoming an international norm: the United Nations and the United States.
First, there is the obvious antagonism between the Committee on the Rights of the Child and The Holy See. The former’s report from earlier this year was a hostile and unprecedented attack on the sovereignty of the latter. Calls to “reform Canon Law” to allow for abortion and same-sex marriage betray an appalling lack of understanding of and respect for the Catholic Church and its teaching authority.
Second, the US has shown itself to be hostile to the sort of complementarity seen in Britain. When it was attempted here, the effort was crushed beneath the gavel of a district judge. In 2000, the United States Congress passed the Trafficking Victims Protection Act (TVPA) “to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.”
This law included a provision directing the Secretary of Health and Human Services (HHS) to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.” HHS saw fit to do this by “making grants to nonprofit organizations that worked directly with trafficking victims.” Only two such organizations qualified for the original contract: the Salvation Army and the United States Conference of Catholic Bishops (USCCB).
The USCCB, Aid for Victims of Sex Trafficking, and the Common Good
After reviewing submitted proposals, HHS awarded the grant to the USCCB on April 11, 2006. The contract was originally for a one-year period, with the possibility of up to four annual renewals. HHS exercised all of the possible renewals and even extended the contract with the USCCB by way of a “Task Order.” During the five and a half years of working with HHS to implement TVPA, the USCCB entered into contracts with over 100 service providers, many of which were not Catholic.
HHS provided the USCCB with millions of dollars to carry out the work of combating sex trafficking and healing its victims. Thirteen million dollars were given as part of the original contract, with $2.9 million more as part of the Task Order. Yet, in the midst of this ongoing contract, HHS was sued by the American Civil Liberties Union of Massachusetts for “[having] violated and [continuing] to violate the Establishment Clause of the First Amendment by permitting [the] USCCB to impose a religiously based restriction on the use of taxpayer funds.”
The issue arises from a disclaimer included in the USCCB proposal:
. . . as we are a Catholic organization, we need to ensure that our victims services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs. . . . Specifically, subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.
As was noted in the case before the District Court of Massachusetts: “The TVPA does not require the provision of abortion or contraceptive services. It permits it, but it doesn’t require it.” Yet, the ACLU insisted that because the USCCB’s refusal to provide abortion and contraception arose from a religious principle (as opposed to health concerns or some other reason), it violated the First Amendment by imposing a religious rule on the use of taxpayer funds.
The judge in the case enumerated his understanding of the “wall” between the state and religion thus: “The Constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths.”
Despite the good work the Church has done in combating sex trafficking and despite the long-standing relationship between the USCCB and the HHS in this endeavor, the judge ruled: “The government defendants violated the Establishment Clause of the First Amendment to the United States Constitution” and “impliedly endorsed the religious beliefs of the USCCB and the Catholic Church.” As far as the jurisdiction of the District Court of Massachusetts is concerned, in the field of fighting sex trafficking, Catholics need not apply.
But this gets our Constitution and our system of government wrong. The First Amendment was intended to prevent an established national church and to prevent one sect from receiving special treatment over another. It was never intended to make sects pass a test of reasonable secularization before receiving government support. Professor Gerard Bradley explains how the Supreme Court shifted from a correct, non-preferential relationship between church and state to the modern “wall” understanding captured in Sebelius. Professor Bradley is joined by Justices Scalia and Rehnquist in defending this view, which recent Supreme Court cases have vindicated.
The court decided wrongly in Sebelius because all charitable organizations were given a chance to apply for the grant (the USCCB had the highest score based on HHS’s own standards), and the victims of trafficking were given help regardless of their religious views.
Back at the United Nations, Professor Teresa Collett highlighted ACLU Massachusetts v. Sebelius to a panel of federal judges at the fifty-eighth Commission on the Status of Women. After a minute of confused silence, the Chairman, Libran Cabactulan, finally responded, “It does not stand to reason that the Catholic Church would be excluded from this area where they have served for so long.”
For the common good, lawyers, politicians, and the educated public must remember the ways in which church and state can mutually benefit each other. They must also watch for the times and ways in which the state (here the District Court of Massachusetts) threatens that relationship. Human trafficking is but one of the many blights facing mankind in this century. It will require both spheres of man’s allegiance to craft a response, for we live at the point where temporality meets eternity.