We Shall All Be Healed (part five)
Concluding the series on Catholic Charities v. Whitmer
Part One
Part Two
Part Three
Part Four
Part Five (you are here)
“In Catholic Charities v. Whitmer, Becket represents counselors who are challenging a new Michigan law that bans counselors from helping children talk through the underlying causes of their gender confusion, and instead requires counselors to assist children with a “gender transition”—a regime of puberty blocking drugs, cross-sex hormones, and surgeries designed to make their bodies resemble the opposite sex. Recent years have seen an explosion in the number of children identifying as transgender. Many of these children have been encouraged to try to change their bodies by receiving drugs, hormones, and surgeries that have no proven benefits and serious, demonstrated harms—such as increased risk of cancer, loss of bone density, sexual dysfunction, and permanent sterilization. The harms are so significant that 25 states have banned or strictly limited gender transitions for children, recommending instead that children receive compassionate counseling to help address the underlying causes of their distress. Unfortunately, a new law in Michigan now bans this compassionate approach, forcing therapists to turn away children and families or risk losing their licenses and suffering hundreds of thousands of dollars in fines.”
That’s part of the July press release on the Catholic Charities v. Whitmer case from the attorneys representing both plaintiffs. There’s a lot going on in the above paragraph: HB 4616 actually doesn’t force anyone “to assist children with a gender transition” and to suggest so is to willfully misread the law, the “explosion in the number of children identifying as transgender” phrase is misleading, and the idea of the plaintiffs having to turn away scads of clients because of HB 4616 is inconsistent with how they’ve been presenting their businesses. The press release is from the Becket Fund for Religious Liberty, f/k/a the Becket Fund for Religious Freedom, d/b/a Becket. Becket has been around for thirty years, and was founded by Kevin “Seamus (?)” Hasson, an attorney from Reagan’s Department of Justice who holds two degrees from Notre Dame, which is disgusting, the maximum number of acceptable Notre Dame degrees is one AND EVEN THEN.
As you’d expect from someone who worked closely with Samuel Alito in the 1980s, Hasson - now President Emeritus of Becket - and his attorneys pursue political goals with which I disagree. Becket’s most famous Supreme Court case is probably Burwell v. Hobby Lobby, the 2014 case in which the Court ruled that the religious organization Hobby Lobby was exempt from the Affordable Care Act mandate to pay for birth control coverage in employee health insurance plans, on religious freedom grounds. You may argue that Hobby Lobby is not a religious organization; they certainly seem like less of a religious organization than, say, Catholic Charities, and perhaps Hobby Lobby can be more accurately thought of as a closely-held retail company or a trafficking hub for artifacts looted from the Middle East. But that was not the approach taken by the Becket lawyers. They're movement attorneys, which exist on both ends of the political spectrum. They take up cases with the intention of getting them high up the appellate chain and permanently reshaping federal case law. They did it to gut the ACA contraceptive mandate (Hobby Lobby, Little Sisters of the Poor v. Burwell), and they did it in other cases to gut non-discrimination law in the name of “ministerial exceptions”, (Hosanna-Tabor v. EEOC) and they did it in other cases to shape the definition of the First Amendment's Free Exercise clause and help religious organizations get around public regulations (Fulton v. City of Philadelphia). They took on Catholic Charities v. Whitmer because they have opinions on whether mental and public health code regulations should apply to religious practitioners, and they would love to have that opinion written into case law.
Now, if my earlier joke about Hobby Lobby smuggling looted artifacts sounds familiar, it’s because I already made it four and a half years ago, because I already wrote about Becket celebrating the specific Hobby Lobby case at their annual black tie fundraiser “Canterbury Gala”. Neil Gorsuch, as an appellate judge, had heard the Hobby Lobby case in earlier stages, Becket loved the guy, and now he had just been elevated to the Supreme Court. Becket’s keynote speaker at the Canterbury Gala that year was former G.O.T.H.S. subject Leonard Leo, Federalist Society co-chair and the guy who had shepherded Gorsuch onto the court. Leo is also on the board of directors for Becket, Leo and Hasson are longtime friends - which Leo acknowledged in his speech - and they clearly share views on what fighting for religious freedom means in the legal arena. From Leo’s speech, which begins with an unbelievably on-the-nose definition of the projects of both FedSoc and Becket:
“Seamus1, I still fondly remember our first meeting together. Lunch at La Chaumiere in Georgetown. It was my first encounter with your plan to help our side weaponize litigation in pursuit of justice. You were visionary…It is no coincidence that, here at home, so many threats to freedom of religion are rooted in a decision to cast aside the concept of limited, constitutional government. Becket is at the forefront of litigating such cases. The contraception mandate that beset the Little Sisters of the Poor is, ultimately, the progeny of a statute that has no warrant under the limited, enumerated powers of Congress under Article One of the Constitution…If principles of federalism held sway and Congress refrained from improper delegation of its lawmaking power to a seemingly boundless Administrative State, there likely would have been no need for Becket to come to the rescue of an Indian Tribe that was the subject of an illegal undercover raid to confiscate fallen Eagle feathers used in its religious ceremonies.”
Leo and Hasson, and the people who work for them, work to dismantle the administrative state, the social safety net, from federal health care requirements al the way down to state-level public health boards. That's what they do when they “help our side weaponize litigation”. They both have shitloads of money and friends who also have shitloads of money. They both have very specific views of what a Catholic world would look like and friends who also have very specific views of what a Catholic world would look like (I would not assume that it is a world with a lot of room for trans people to receive affirming health care). The smaller the government gets, at every level, the easier it is to hold on to shitloads of money, and to bring about a world more in line with your specific Catholic views. If you think gay and trans people are icky, but the state health board says you have to treat them with respect, how can you get a judge to say you don’t have to listen to the state health board? For Leo, this meant years of work developing a talent pipeline for the federal judiciary. For Hasson, it meant years of litigating religious freedom cases in court, many of which happen to weaken the powers of the government. According to their own audits, Becket was able to fundraise over thirteen million dollars in their fiscal 2023, growing donations by over 27% from the prior year. Becket’s net income after expenses for the year came out to about 6.6 million dollars, which, to give you an idea of scale, is over twice the total net income of the entire Archdiocese of Chicago (who can raise more money but also has far more expenses). Becket and their allies are well-resourced, efficient, and very committed to building this world, and part of the cost of that world, beyond millions and millions of dollars, is, perhaps, parents getting to shove children and teens into harmful conversion therapy if they don’t like their child’s sexual orientation or gender presentation.
The legal arguments in Catholic Charities v. Whitmer had already been addressed at the federal level in 2013 and waved off. The 2013 case was appealed up to the Supreme Court, who wasn’t interested in hearing it. Leonard Leo’s team has built a federal judiciary and Supreme Court that might be more interested in hearing this case and reversing the original result; our current Supreme Court has already started to suggest that in other opinions. Kevin Seamus Hasson’s team would be more than happy to bring this case to them.
“This is a lawsuit about helping children who experience distress over their biological sex.” I’m starting to think it’s not about that, folks. I’m starting to think it’s just part of the same conservative political project that’s been going on since before I was born, to choke out the administrative state, to cut the social safety net to ribbons, to just finally get to a point where anyone who’s not already rich and perfect can just die off already. It has been a pretty successful project so far, at least at the level of federal law. And it’s appalling how empty this project is. McJones and CCJLH don’t strike me as especially impressive plaintiffs, or even especially interested in the stated cause for which they’re fighting. The legal arguments feel lazy, just as lazy as they felt when attorneys made them eleven years ago. The part of the administrative state being targeted for gutting is not even that big, compared to something like the ACA and EEOC. But rich and powerful people are going after it anyways because they can, and they’ll probably win because of the money and time they've spent, and this is just how a lot of American politics works. And it’s being done in the name of our church, as though Becket and similar organizations were what “our church” just is now. Financially speaking, they kind of are. Here’s CTU professor Steven P. Millies writing for NCR back in June about Becket and similar organizations:
“The overall picture is familiar and alarming. We know that the church in the U.S. is shrinking, parishes are merging, and ministries are closing. What is remarkable is to hold that fact next to the explosive growth in fundraising among Catholic groups like [these]. What seems clear is that at least some of the money Catholics once gave to parishes and dioceses now is being directed toward these other groups…Some of these groups are promoting an evangelizing or spiritual message. Some others have plainly partisan goals. In some cases that line is blurry. But in all cases, these groups are penetrating the consciousnesses of U.S. Catholics with much greater effectiveness than any bishop who is burdened not just by declining collections but also who must support ministries of care that do not trouble any of these groups. While bishops and pastors struggle to sustain schools and soup kitchens — indeed, while the U.S. bishops contemplate shuttering the Catholic Campaign for Human Development — Catholics contribute hundreds of millions of dollars each year to these (and many other) activist and social communication organizations that have redefined the Catholic "brand" in the United States. Often, that brand identity reflects cultural anger.”
Do the bishops approve of this case, this broader rebranding, this overall political project? Does Catholic Charities? I honestly don’t think the bishops are smart enough to understand mostly anything, and most Catholic Charities organizations probably have too much going on to pay close attention to stuff like “litigation concerning a state licensure regulation”. The people with money and power know how to press the “trans panic” and “religious freedom language” buttons to get our church institutions to just kind of be cool with it, and it’s a tragedy, and it’s wrong. It's wrong because it gets us here.
That’s really what I want to say, if only to articulate it to myself: this is wrong. It’s wrong when Catholic Charities sues the state to do this. It’s wrong when the Vatican makes an incoherent condemnation of “gender ideology”. It’s wrong when Word On Fire sells children’s books to “combat confusing gender ideology”. It’s wrong when Catholic schools and workplaces ban trans people from existing there. And when I say this is wrong, I’m not just saying that as a Dumb Guy Trying to be Moral. I’m saying it as a Catholic. I’m saying it as a Catholic who actually looked up whether conversion therapy was good for minors, and who was taught by his church that his faith cannot be opposed to science. I’m saying it as a Catholic who is appalled by how hard his church works to hurt vulnerable people, in ways that are measurable and fatal. I’m saying it as a Catholic who read the legal complaint and knows that it doesn’t make any sense. I'm saying that as a Catholic who wants to live in community with others and am thus opposed to the people trying to strip our communities as bare as possible. I’m saying that as a Catholic who cares about institutions, and laments that right-wing legal funds can essentially replace parishes in the social fabric of the church. This is wrong, and I can say it’s wrong and still be Catholic. I’ve shown my work, and my relationship to my faith will not keep me up at night.
If you get frustrated by Catholic leaders and organizations acting like this, you may be tempted to think “well, they've got the pointy hats and I'm Just Some Guy, maybe I'm wrong”. They actually may be wrong, and not just “they chose to emphasize a different verse in the Bible than I did” wrong, but “on paper, peer reviewed studies, conciliar documents, existing case law, each piece of it available online for free in ten seconds” wrong. You, believe it or not, just may be right. And you definitely are not alone.
Thank you for reading this series; writing it felt like writing the early super-long tangent-filled G.O.T.H.S. essays from five years ago. I do not plan to ever ask for money for G.O.T.H.S., but if you’re some sort of sicko who would pay to read blog posts, you can instead throw a few bucks at either The Trevor Project or Trans Lifeline, two respected organizations doing important work to protect queer and trans children in America.
Why Seamus? How is Seamus short for Kevin? Some questions remain unanswered by this series.