Wednesday, December 28, 2011
The New York Times has an article on the Church's resistance to laws forcing Catholic Charities to place children with same-sex couples for foster care and adoption. Most of the article's analysis is yesterday's news to regular MoJ readers, but this quote caught my attention:
When the contracts [in Illinois] came up for renewal in June, the state attorney general, along with the legal staff in the governor’s office and the Department of Children and Family Services, decided that the religious providers on state contracts would no longer be able to reject same-sex couples, said Kendall Marlowe, a spokesman for the department.
The Catholic providers offered to refer same-sex couples to other agencies (as they had been doing for unmarried couples), but that was not acceptable to the state, Mr. Marlowe said. “Separate but equal was not a sufficient solution on other civil rights issues in the past either,” he said.
The tension between religious liberty and gay rights is a thorny problem that will continue to crop up in our policy debates for the foreseeable future. Dismissing religious liberty concerns as the progeny of a "separate but equal" mindset does not bode well for the future course of those debates. As I've written elsewhere, trying to force every civil rights issue into the template provided by the Jim Crow south is unhealthy and unnecessary. If our focus is -- as I think it should be -- on ensuring access to goods and services deemed essential by the political community, there is no reason to force every religious child welfare agency to include same-sex couples in its pool of prospective foster care and adoptive parents. The dignity-based harm that discrimination causes -- and if there is no real threat to access, that is what we're talking about -- is a dangerous foundation for the state's intrusion into religious associations. If government funding is enough to merit such intrusion, then we should be prepared, for example, to force Christian colleges that rely on federal financial aid programs to provide married student housing for same-sex couples. In some fields, government funding is a prerequisite to meaningful market participation. The government should have some say when taxpayer funds are involved, but it's a lot more complicated than the "separate but equal" rhetoric suggests.