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

51 Pages Posted: 19 Mar 2020 Last revised: 14 May 2020

See all articles by Helen M. Alvare

Helen M. Alvare

George Mason University - Antonin Scalia Law School, Faculty

Date Written: March 17, 2020


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.

Keywords: Catholic theology, Catholic employment, Catholic schools, Catholic organizations, Catholic institutions, religious freedom, free exercise defense, free exercise rights, nondiscrimination laws, sexual expression lawsuits, sexual expression laws, sex discrimination, Barrett, Hosanna-Tabor

JEL Classification: K31, K36

Suggested Citation

Alvare, Helen M., Beyond Moralism: A Critique and a Proposal for Catholic Institutional Religious Freedom (March 17, 2020). Connecticut Public Interest Law Journal, Vol. 19, No. 1, 2019, George Mason Legal Studies Research Paper No. LS 20-04, Available at SSRN: or

Helen M. Alvare (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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