Reflections from Italy on Law, Faith, and Morality

My family and I spent three days in Florence and four in Rome last week. The sights were spectacular, the food stupendous, and the people more than wonderful. My wife and I also met a close social media friend in person for the first time, and we all had a wonderful time.

We also visited too many magnificent churches and places of worship to count, including, of course, the Vatican. So I had a fair amount of time to reflect on law, religion, history, and morality.

Many years ago, I litigated a major parochial school aid case while at the George H. Bush DOJ, and I have written and spoken about the religion clauses throughout my career. I have what some would consider unorthodox views on the subject, but thought I might share some of them here.

First, as I tweeted in what might be (no promises) my last controversial tweet ever, I said this:

Leaving Rome in the morning and can’t help thinking, hopefully causing no offense, that if all the money and labor that went into the magnificent places of worship, across the world not just here, had gone to food, housing, and health care, the world would be a much better place.

I haven’t been tweeting much since the election, and this reminded me why. The trolls did their thing.

I will say Harvard Law Professor Adrian Vermeule, of the common good constitutionalism school, replied relevantly and politely twice--once by forwarding a tweet about all the food, clothing, and medical care the Catholic Church provides and has provided for many centuries.

This was my response:

Fair, and no question that is a major part of the mission. I respect that. And for millennia we have slaves and the destitute and the hungry and the unhoused and the sick without doctors and just wondering if the priorities are right. Not taking a position. Wondering.

I believe this is an interesting question and its fast dismissal among many was disappointing.

When we toured the Vatican, I was struck by the age, grandeur, art, and just plain force, power, and authority that is wielded by the smallest country in the world.

Now imagine the Pope, and other similarly situated religious leaders of faiths that treat women differently than men---like Orthodox Jews, Southern Baptists, and many strands of Islam---issuing a big announcement that of course women can be priests, cardinals, popes, rabbis, ministers, imans, etc., because, despite real physical and biological differences, women can do any job men can do and should have the same opportunities. 

The announcements would change the world for the better so fast.

Why not, then?

And no women-on-pedestal arguments will be considered. They are misogynistic.

I am not suggesting, in fact I’m explicitly denying, that this change should come about through law. I fully believe that the government should generally not impose secular moral considerations on the internal processes of faith and worship absent the most compelling of interests.

But giving women equality is just the right and moral thing to do. I can’t think of a valid reason to disqualify women from these important faith positions.

Can you?

While I was sitting in the incredible 70,000 person Roman Colosseum, built eons ago, I contemplated why extremely advanced people (at the time) killed people for sport (or bread or circus), and it occurred to me that hate, discrimination, and violence often stem directly from fear.

The Romans were afraid of popular revolts, so they gave people food and lurid, bloody entertainment to make them less likely to engage in violence against the state.

The great Andrew Young told me in 1983 that to understand the KKK, you must start with their fear. I get it, and think there is a lot of fear in 2025 America, and we must understand it better.

Finally, here in the United States, we have people who do not want to open their businesses to others because they oppose behavior, or couplings, or labels, on account of religious conscience. Bakers, web designers, wedding planners, and others have all refused to offer their secular services to same-sex couples.

In most states, I am legally allowed to turn away Celtics fans, redheads, and movie critics from my private business if I want to. It’s my business and absent a state or federal law to the contrary, I may serve who I wish. 

The decisions I make about whom to serve are therefore generally mine to make, but that doesn’t mean they are just and moral decisions simply because the law allows me to make them.

If your faith condemns certain behavior, and you think you will be judged negatively by your deity for offering a person who engages in that behavior your services, I truly understand.

But also understand this: no matter who you are, including priests, ministers, rabbis, and clerics of all faiths, when you judge people for behavior your faith condemns, please remember that none of you follow your faith to the letter. None. That is an absolute empty set. You always draw lines and make exceptions to rigid gospel. 

That’s partly because human beings are fallible and flawed and partly because drawing lines is simply inevitable, given the age and complexity of traditional faiths.

So why draw a line at excluding good, decent, law abiding people from your business?

Really, why?

That’s what I was thinking in the magnificent churches and historic buildings of Florence and Rome. Why not just accept people for who and what they are when they mean you no harm? Why is someone being different than you scary if they don’t mean to hurt you?

I hope everyone had a happy new year and here’s a toast to accepting people not like ourselves, whether or not the law or your faith requires it.

It is just the right thing to do.