Catholics for discrimination?

If any Supreme Court case promises to be a blockbuster, it is Students for Fair Admission v. Harvard, one of two challenges to affirmative action in higher education argued on Oct. 31. The case drew dozens of amicus briefs from across the ideological spectrum, with a large variety of groups making their views known to the Court.

Among the briefs filed with the Court is one submitted on behalf of 56 Catholic colleges and universities, led by Georgetown University. Cosigners included the University of Notre Dame, College of Holy Cross, DePaul University, Villanova University, and a number of other schools you may know only for their basketball programs.

In the brief, the Catholic colleges argue that the First Amendment’s Free Exercise Clause protects the colleges’ right to discriminate in admissions on the basis of race. Now, I for one am thrilled to see these colleges take a stand for an expansive, capacious, even aggressive interpretation of the Free Exercise Clause. I hope as a matter of intellectual consistency that they continue their vigorous advocacy for their religious freedom when the issue is government mandates on contraception or pronoun policies.

But I wish they’d chosen a different issue on which to push their First Amendment rights. As people of faith, we should consistently insist that every human being “is unique and unrepeatable,” as in the words of one Catholic school curriculum. Pope John Paul II taught in Centisimus Annus that “it is not possible to understand man on the basis of economics alone, nor to define him simply on the basis of class membership.” For the same reason, man cannot be defined simply on the basis of his race. Paul memorably tells us that in Christ there is “neither Jew nor Greek, neither slave nor free, neither male nor female” (Galatians 3:28).

Thus, the Catechism of the Catholic Church rightly teaches, “The equality of men rests essentially on their dignity as persons.” As a result, all “social or cultural discrimination in fundamental personal rights on the grounds of sex, race, color, social conditions, language, or religion must be curbed and eradicated as incompatible with God’s design.”

Affirmative action violates that fundamental principle against racial discrimination because affirmative action is just a form of racial discrimination. Affirmative action policies treat people differently based on race. It is not packaged as negative racial discrimination, barring people from opportunities because of their race. Rather, it is presented as positive racial discrimination, granting a special benefit to someone because of race. Calling it positive discrimination is not my label, by the way, but that of the late Justice Ruth Bader Ginsburg, relaying in a speech her understanding that “positive discrimination” is the European term for what we Americans call “affirmative action.”

Justice Clarence Thomas has the right rejoinder to such a concept as “positive” or “benign discrimination,” writing of one affirmative-action policy: “As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution.”

At the end of the day, these Catholic colleges are pressured to embrace the woke ideology that dominates higher education, and the affirmative-action mentality that characterizes their field. Rather than make a counter-cultural testimony to the inherent equality of all of us as children of God regardless of race, they are choosing the need for prestige and conformity within their industry.

That is unfortunate. In an encyclical discussing racial discrimination, Pope Paul VI wrote in 1971, “Within a country which belongs to each one, all should be equal before the law, find equal admittance to economic, cultural, civic and social life and benefit from a fair sharing of the nation’s riches.” This case asks the Supreme Court to ensure that all are equal before the law. It is a shame that these Catholic colleges are unwilling to grant equal admission to their schools regardless of race in the first place.