Catholic Charities’ Religious Freedom and its Conflicts with Gay Marriage - A Rebuttal
Cornerstone Policy Research, the same organization that published fraudulent poll statistics about New Hampshire residents' views on same-sex marriage, recently posted a link to a Boston Globe article entitled Kids Take Back Seat to Gay Agenda by Jeff Jacoby. The article surrounds the decision Boston Catholic Charities made earlier this month to stop providing adoption services rather than comply with state law requiring the placement of children with same-sex families. Because Mr. Jacoby's version of the events omits several key facts, allow me to share the tale.
Boston Catholic Charities is an organization that provides, among many other services, adoption of children in need of a permanent home. Despite a unanimous vote by the charity's board to continue providing adoption services to same-sex couples, and the charity's role in placing 13 children in gay households, four Roman Catholic bishops sought to bar the practice and obtain an exemption from the state's nondiscrimination laws. Eight board members resigned in frustration over the Vatican's position. Boston Catholic Charities also feared the loss of its largest private donor, The United Way of Massachusetts Bay, if it were forced to adopt the Vatican's discriminatory position.
Jacoby wrongly frames the conflict as follows:
Caught between the rock of Catholic teaching, which regards such adoptions as "gravely immoral," and Massachusetts regulations, which bar adoption agencies from discriminating on the basis of sexual orientation, the Boston Archdiocese [. . .] was left with no option but to end a ministry it had been performing for a century.
But that is not the case. The conflict was between Boston Catholic Charities and the Vatican, not between the charity and state law. Had "religious freedom" not intervened, Boston Catholic Charities could have happily continued providing adoptions to gay and lesbian parents. Instead, the specter of religion stepped in and created a conflict where previously none had existed. Jacoby continues:
So important is that agenda [to normalize homosexual adoption] that they will allow nothing to stand in its way — not even the well-being of children in dire need of safe and loving families [. . . . ] The Human Rights Campaign and its friends would rather see this invaluable work come to an end than allow Catholic Charities to decline gay adoptions.
The church's request for a [religious exemption] should have been unobjectionable, at least to anyone whose priority is rescuing kids from foster care
However, requests for religious exemptions are not 'unobjectionable', Mr. Jacoby. For the same reason that Protestants cannot seek a religious exemption to exclude Catholics from employment, adoption providers may not evoke religion to discriminate against a protected class. This is not the case of a church simply asking to be left alone in its policies, but rather an agent of the state seeking to break the law. Because, according to tax reports, Catholic Charities received $1 million of state funds to provide adoption services, its actions are subject to state scrutiny in ways that churches' typically are not. The state is not paying the charity to espouse its religious beliefs, but to offer adoption services consistent with its laws. Any organization accepting taxpayer money with the mistaken assumption that it can later deny services to those same taxpayers is immediately suspect.
Naturally, Mr. Jacoby must end his article with familiar fear-mongering, the-sky-is-falling tactics to fulfill his agenda against marriage equality. To do so, he quotes a 2004 article that made predictions following Massachusetts's ruling to legalize same-sex marriage:
[T]he experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles.
But, Mr. Jacoby, the irony of citing such an article is that it emphasizes that those 2004 doomsday predictions never panned out, just as these rehashed 2009 predictions will not either. The only "ax that fell" was that organizations continued to be required to comply with the laws of the states that fund them. This has nothing to do with gay marriage, but rather the dreadfully — according to Mr. Jacoby — proliferating belief that gay and lesbian citizens are equal and deserving of a life free from discrimination and intolerance.
Thirty years ago today, the White Night rioters fought to oppose a justice system and a police department that woefully failed them. It condoned the arresting, beating, and murdering of individuals for nothing more than their sexuality or their acceptance of gays and lesbians. The world we live in is a different one now, and it is no longer acceptable to use your personal beliefs as an excuse for looking down on your fellow man and for breaking the law.
Gay rights advocates have no interest in eroding religious freedoms. It is only because organizations have attempted to use religious freedom as a shield for their discrimination that the issue has even come up. It is not we, Mr. Jacoby, who are "allowing nothing to stand in our way," but you, who would rather see adoption providers close than place children in gay and lesbian households, and would rather the children of millions of same-sex couples be raised by unmarried parents than let gays and lesbians wed.
Misleading anecdotes, invested statistics, and twisted facts are all that support the five-year-old silly and incorrect predictions of Massachusetts downfall. And five years from now, when even more states have enacted laws respecting the equality of marriage inclusion, today's predictions will be just as silly and incorrect. Gay marriage is no threat to religious freedom, and those who espouse this belief perpetuate a mistaken fallacy at best and malfeasant lie at worst.
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Other recent rebuttals from Brian Cavner include: Moral Absolutism and why Sexual Behavior is Irrelevant to Marriage and "With Gay Marriage Comes Gay Divorce".
Have any insight on this topic? Want to ask a question or make a suggestion? Click here to leave a comment.
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- Moral Absolutism and why Sexual Behavior is Irrelevant to Marriage - A Rebuttal
Discussion
Hi Michael,
Great questions, and I wish I had good answers. This is an area where reasonable minds can disagree. I will give my thoughts, though.
A religious exception to a law is one of the things that a state may give, but does not have to give. For instance, prohibition laws and communion tradition were at odds in the early 1900s, and many states opted to enact an exception for sacramental wine. In contrast, no exception is given for Native American use of peyote in religious rituals — at least in Oregon — even though both sacramental wine and peyote are used in substantially the same way and both violated the law.
The reason I bring that up is to emphasize that there is no Constitutional issue at play when it comes to religious exemptions to nondiscrimination or marriage laws. Rather, it is merely a policy decision the state gets to make.
I explored some of the policy considerations previously in another article, but the crux of my argument is that an exception in a case like this fosters two ills: First, it favors religious organizations over secular organizations (a secular adoption agency, for instance, could not similarly discriminate against gay people) and favors mainstream religions over smaller ones (resulting in the disparate outcome with peyote); and second, it seems to imply that other forms of permissible discrimination by churches (such as refusing to marry a Jew and gentile) now need a codified law. On this latter point, religious exemptions actually weaken religious freedom.
These are the reasons I am not in favor of exemptions in gay marriage laws like those that are being debated in New Hampshire. The strategic advantages and goodwill benefits notwithstanding, I see neither good legal nor good policy reasons for giving religious organizations exceptions to laws.
I know I have changed your question somewhat, but I do not frame the issue as a balancing of burdens as you have. Though if we were to do this, I must agree with you. I, personally, feel that it is better for gays and lesbians to seek the services of those who support their interests, rather than attempting to force by law those who disagree to cater to us.
Thanks again for your questions. I hope I have addressed them adequately. I would be interested in hearing your thoughts as well.
- Brian Cavner, 05/21/09 at 5:33 pmThank you for your insightful reply. I must correct my mistake - Dale Carpenter thinks (http://volokh.com/posts/1241641694.shtml) that where other adoption agencies are readily available to same-sex couples, the state could not show, with respect to its anti-discrimination law, that it had narrowly tailored its compelling interest to Catholic Charities in a hypothetical lawsuit.
Art. 5 of the New Hampshire Constitution clearly implicates a state constitutional right to free exercise of religion. So I don't think that I understand your claim that exempting religious discrimination involves a policy issue only, and not a fundamentally constitutional issue also.
When state supreme courts apply strict scrutiny to claims of a constitutional right to religious exercise, unintended consequences of the kind you identify can work in both directions. Sometimes majority religions may appear to be favored, but sometimes minority religions may appear to be as well. I am not convinced that the overall tendency will tilt towards favoring majority religions over minority religions, but more evidence may support your point. Even then, I may be prepared to say that is the price of defending religious liberty.
Some religious organizations, and individuals who sell wedding services, are afraid that they will be liable for violating state anti-discrimination laws if they withhold wedding services from same-sex couples. Reasonable people can disagree about whether their fear is justified - Dale Carpenter doesn't think that it is, but other law professors do. Accommodating the fear with some level of exemption strikes even Mary Bonauto as "not a big deal." (http://www.nytimes.com/2009/05/15/us/15marriage.html?_r=1&partner=rssnyt&emc=rss ) At any rate, if these organizations and individuals feared that their right to religious exercise did not protect them from other forms of religious discrimination, such as refusing marriage of Christians and Jews, they would seek the relevant exemptions. In that instance, careful analysis would likely show that their fear was (much more clearly) unjustified - that their state-constitutional right to religious freedom provides more than ample protection of these other forms of religious discrimination. So I don't see a slippery slope of the kind that appears to worry you and Geoffrey Stone.
Of course, I agree that "it is better for gays and lesbians to seek the services of those who support their interests, rather than attempting to force by law those who disagree to cater to us." That kind of flexibility advances the interests of all, and I believe that most gays and lesbians would rather not engage an avoidable conflict that will appear to legitimize the fears of religious opponents of same-sex marriage.
- Michael Ginsborg, 05/21/09 at 7:06 pmCORRECTION: On whether a constitutional issue has been "implicated," I meant to reference the Massachusetts Constitution, Art. II. I have not checked, but I believe that every state constitution has a religious-exercise clause.
- Michael Ginsborg, 05/22/09 at 12:25 pmHave a question or comment about this article? Leave me a message.
Law professor Dale Carpenter, who supports same-sex marriage, believes that the state's anti-discrimination law may need amendment to provide an exemption for organizations like Catholic Charities. [Link] (He also appears to think that a strict scrutiny test might otherwise favor the state's compelling interest in preventing orientation-discrimination.) Other law professors who support same-sex marriage agree that Catholic Charities, and other comparable religious service-providers, deserve exemption from state anti-discrimination laws, even if they think that same-sex marriage laws should provide the exemption. [Link].
Do you think that the burden on same-sex couples with respect to adoption clearly outweighs the burden on Catholic Charities in a way that clearly favors same-sex couples, especially if other, equally effective adoption agencies are available to them? If you can't clearly show that same-sex couples would bear the disproportionate burden from this limited, religious form of discrimination, why not exempt organizations like Catholic Charities until such time as religious discrimination no longer has widespread popular support? I ask these questions not because I know the answers. I don't. But your response would be welcome.
- Michael Ginsborg, 05/21/09 at 4:42 pm