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Answering a question of the sort posed by this case is not a matter of simply arguing for some correct balance between individual civil rights and institutional authority of a religious sort. What is at issue here involves broader notions of institutions generally, of nursing homes as particular kinds of communal institutions, and the special nature of religious institutions and their claims.

A broad, sociological definition of institutions would see them as both a source and a product of a common life. In that sense, they are inevitably political as well as ethical--driven in some manner by conceptions of the Good and duties of right and wrong. The character and identity of an institution, therefore, is dependent on the character and the social activity of all constituents who participate in it, just as they are defined in part by the institutions in which they participate. Religious institutions in particular represent highly identifiable forms of workship--and to some extent, moral behavior--are simply not participating in the truths that define a community as a religious community, even though they may maintain an ethnic or racial identity. Certainly, churches, synagogues, and mosques are examples of concrete institutional locations: they are centers of communal conviction and expression. There is, therefore, a sanctity to their boundaries that ought to be respected.

A nursing home too may be religious in that it serves a religiously motivated mission or purpose. It may also be religious in the kind of special services it provides, such as worship services of a particular kind within its walls. Religion may also be present in the moral codes that affect its residents, and this is the central issue of this case.

But although a particular nursing home may conceive of itself as a religious institution, it is of a unique kind. It is not characterized primarily as a center of worship for its residents or for the surrounding community; nor is it a center for proselytizing. Instead, a nursing home is a community of residents who live together because they require a certain kind of specialized care. Yet, the nursing home is not only that; in an important sense, it is the home--often the final home--for its residents. Several factors play a role in what the constituency of a nursing home will look like, many of which are often beyond the realm of personal choice of the potential resident. This would certainly be relevant to decisions regarding this case. One feature of nursing homes, however, is especially morally significant: as a home, it has a certain sanctity for the individual resident as well.

An institution, regardless of its administration or the religiomoral mission behind it, will be defined by the members that constitute it. Because fully 90 percent of the resident population in this home does not observe Orthodox Jewish practices, it would be inaccurate to describe this facility as a Jewish facility in the same sense as one would describe a synagogue and its constitutive community. Furthermore, the nursing home exists within a larger matrix of institutions--both religious and nonreligious--that are represented by its residents. Thus, the question at issue draws on not only the moral resources of Orthodox Judaism, but also the civil rights language of the larger moral context and the religious features of other traditions represented in the home.

The nursing home is both a home and a community. As a community and institution, it is defined by its members and their convictions and practices. In respect of this, the administration of this home should be motivated at least in part by the good that is common to all residents. Certainly an institution must have its moral boundaries. But this would include giving each resident a private, "noninstitutional" space within which individual lives can be pursued in a personal manner, under common moral limits but not an external religious mandate. A respectful dialogue between residents and authorities would recognize the multifariousness of the instituion's identity and would likely allow the nursing home to maintain a sense of its religious identity and mission in its public space, while also permitting certain spaces within the home to contain nonkosher food. This would recognize the unique and often problematic features of nursing homes as communities of care, without allowing precedent for a broader erosion of either the sanctity of the personal home or of primary religious institutions within a pluralistic context.
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Title Annotation:religious tolerance in nursing home policies; Please Pass the Butter Cookies
Author:Hanson, Mark J.
Publication:The Hastings Center Report
Date:May 1, 1993
Previous Article:Commentary.
Next Article:Hedging their bets.

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