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December 28, 2011

"Separate but equal"

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. 

Posted by Rob Vischer on December 28, 2011 at 11:13 PM in Vischer, Rob | Permalink

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Rob Vischer,

You say: " 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."

I don't see why this should be so. The taxpayer dollars that go to Catholic Charities *directly fund* the very service that the Church wants to deny to same-sex couples. This is not a case of government saying that if an organization gets government funds in one area, it cannot discriminate against same-sex couples in another. This is a case of the state of Illinois saying it won't award contracts for adoptions services to people who won't provide those services as the state wants them provided.

Bishop Paprocki is quoted as saying, “In the name of tolerance, we’re not being tolerated.” It is one thing for the state to *tolerate* discrimination. It is another thing to *fund* it.

Maybe the idea that "separate is not equal" doesn't apply here, but there are certainly *some* parallels and similarities between the civil rights movement and the gay rights movement, and between discrimination based on race and discrimination based on sexual orientation.

Bishop Paprocki is also quoted as saying, “It’s true that the church doesn’t have a First Amendment right to have a government contract, but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.” If those arguing for gay rights go too far by invoking "separate is not equal," Bishop Paprocki goes too far in claiming (it seems to me) that whatever is religiously motivated should be accepted. Many defended racial segregation (and, in fact, slavery) on religious grounds, and they were not given religious exemptions to continue practicing it when it was legally abolished.

Posted by: David Nickol | Dec 29, 2011 7:03:50 AM

At the end of The Day, regardless of race or ethnicity, it is a self-evident truth that not every couple can live in relationship as husband and wife. For this reason, the fact that fathers and daughters, mothers and sons, brothers and sisters, children, two men, two women, one man and two women, one woman and two men, cannot be married to each other, is not discrimination to begin with.

Forcing the condoning of any act, including any sexual act or sexual relationship that demeans the inherent Dignity of the human person, is in direct conflict with our inherent Right to discriminate between inappropriate behavior that does not respect our inherent
Dignity, and appropriate behavior that is grounded in authentic Love.

Posted by: Nancy D. | Dec 29, 2011 9:33:56 AM

David, my focus is, as you note, on the work that the "separate but equal" accusation can and should do in these debates. (I don't think it should do a whole lot.) I recognize that reasonable folks can disagree about the merits of the underlying adoption/foster care issue, and I agree that the presence of direct government funding makes it a trickier call than cases of indirect funding (e.g. vouchers). I do believe, though, that the expansion of nondiscrimination laws to include Christian adoption / foster care agencies and same-sex couples carries a primarily dignity-based benefit (given the access already afforded by other agencies and the likelihood that still more agencies will extend their pools to same-sex couples in light of changing social norms) but a very tangible cost in terms of religious liberty.

Posted by: rob vischer | Dec 29, 2011 9:43:29 AM

Rob,

So how do you draw the line between (government-funded) discrimination based on religious beliefs that you would protect for the cause of religious liberty and those you would not?

The implicit answer of several authors on this blog to this question seems to be that they would draw the line between conservative Catholic or conservative Christian beliefs on the one hand (i.e., their own beliefs) and other religious beliefs on the other. What is your position?

And let me give a concrete example. Some religious folks believe that same-sex marriages are condoned by God and adoptions by same-sex couples are perfectly acceptable. If a state's legal regime forbade adoption by same-sex couples, would you argue that religious liberty obligated that state to fund this religion's facilitation of adoption by same-sex couples? If not, how is your opposition to the situation in Illinois principled?

Posted by: brennan | Dec 29, 2011 10:24:32 AM

Yes, how is this difficult line drawn?

While we await an answer, I cannot help but think of George Washington’s argument that “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.” I understand that Washington was a Masonic whose thought here contradicts much of Catholic Legal Theory. Nevertheless, I think what Washington is speaking of here provides us an insight in understanding what he thought of the Constitution he took part in creating, which was namely a limited Leviathan. The sooner we Catholics understand that this federal government no longer, if it ever did, provides ordinances of reason, the sooner we can understand the imprudence of institutions like Catholic Charities in relying on public funds. At this point, no amount of reason or eloquence will work in evading the new American marital norms while accepting public funds. As Mark Shea quips, “tolerance is not enough, you must approve.”

The sad thing is that these Catholic institutions have become convinced that they cannot operate without public funds, in part, because so many American Catholics today ignore their duty to support the Church through tithing (time, talent and treasure).

Posted by: CK | Dec 29, 2011 11:23:45 AM

C.K., Why should Catholic Institutions be discriminated against in regards to receiving public funds when Catholics are people and part of the community as well?

Posted by: Nancy D. | Dec 29, 2011 2:39:56 PM

"How is this difficult line drawn?"

There is no religious belief that supports same-sex marriage, because the concept of same-sex marriage does not come from God, nor is same-sex marriage condoned by God, thus religious liberty could not obligate any state to recognize same-sex marriage,

Posted by: Nancy D. | Dec 29, 2011 6:33:22 PM

"Why should Catholic Institutions be discriminated against in regards to receiving public funds when Catholics are people and part of the community as well?"

Why should Fundamentalist Mormons (polygamists) be descriminated against in regards to receiving public funds when Fundamentalist Mormons are people and part of the communicty as well?

"There is no religious belief that supports same-sex marriage, because the concept of same-sex marriage does not come from God,"

Alright, let's push brennan's example further. There are religious groups that support polygamous marriage, namely Fundamentalist Mormons in Arizona & Utah. They argue that polygamy comes from God as revealed by certain teachings of Joseph Smith and later by claimed revelations of Brigham Young. Let's assume that marital norms begin to change in most states where polygamy begins to be tolerated and finds Supreme Court approval on Lawrence v. Texas grounds.

Accordingly, Fundamentalist Mormons believe that plural marriages are condoned by God and adoptions by plural families are perfectly acceptable. If a state's legal regime forbade adoption by plural couples, would you argue that religious liberty obligated that state to fund this religion's facilitation of adoption by plural families?

The illusive line remains. And no, the answer to this question of where to draw the line in First Amendment public-funding jurisprudence is not to merely overlay Catholic religious concepts (though correct they are) and argue that polygamy is not ordained by God.

Posted by: CK | Dec 29, 2011 6:52:18 PM

CK, the answer is not to try to win the argument by drawing a comparison to a "name that group we can all despise" but rather that the Catholic church and it's charity organizations should keep their hands out of the governmental coffers. There's no such thing as charity with tax dollars taken by force.

Every citizen should be demanding the government get out of the "charity" business all together. And the Catholic church should use it's own funds, donated or earned, etc. to provide charity. Christ didn't tell people to go and tax all you have and give it to the poor. But rather to give it willingly.

Posted by: chris | Dec 29, 2011 9:08:43 PM

C.K., I would argue that if it is true that our Founding Fathers recognized it is God, with the capital G Who Has endowed us with our unalienable Rights, then it would also be true that they realized that God does not condone polygamy, and thus the concept of polygamy does not come from God, and religious liberty could not obligate any state to condone polygamy.

Posted by: Nancy D. | Dec 29, 2011 9:37:30 PM

"There is no religious belief that supports same-sex marriage ...."

Nancy provides us with a fine reminder that narrow-minded zealots can become unmoored from reality. It is one thing to believe that your religion is the most correct; it is delusional -- and terribly intolerant -- to deny the existence of other religions.

The interesting question for Rob Vischer and the other bloggers here who express religious liberty concerns over things like the events in Illinois, however, is whether their views on this issue truly differ from Nancy's, or if they instead are merely more politic. So, Mirror-of-Justicers, do religions whose beliefs are fundamentally at odds with Catholicism have religious liberty rights that a Catholic is bound to respect, and, more to the point, that the state must defer to?

Posted by: brennan | Dec 29, 2011 10:21:56 PM

Brennan, we first need to know what the religious belief is that supports same-sex marriage in order to compare that religious belief with Marriage as defined by God and affirmed by Christ.

Posted by: Nancy D. | Dec 29, 2011 11:14:58 PM

Brennan, to answer your question, my own view is that it would depend on the nature of the belief being asserted as the basis for a religiously based conscience objection. If, for example, the nature of the putative adoptive parents' objection was that their religion demands child sacrifice, and that they do not see why their beliefs should not be accommodated by the state, then I would take that to be both (1) a religious reason "fundamentally at odds with Catholicism" and which a Catholic is not "bound to respect" (by the way, these may be two different things), and (2) one which the state should not accommodate.

I recognize that the example is extreme, and I intended it to be so, because it seems to me that you are pressing on the question of line-drawing. This is a difficult question, no doubt, but this is not the only context in which line-drawing is difficult, and yet we do draw lines. I also think that the fact that drawing lines is sometimes hard to do (not always, since I hope you would agree with my child-sacrifice example), and that sometimes a line will be drawn which someone thinks is arbitrary, is not a reason never to draw lines. The alternative is to impose a one size fits all regime on everybody; and I suppose that while some people favor that option, it's not the one that I would choose for a pluralistic polity.

Posted by: Marc DeGirolami | Dec 30, 2011 7:19:36 AM

Prof. DeGirolami, would you say that the line you begin to draw with the extreme example would is something akin to Mill's harm principle? In short, the state should not accomodate through public funds those whose religious beliefs would lead to the violation of a born child's right to life (i.e. harm).

Of course, then the question remains, what other issues might the state see as harms? Utilizing Lawrence v. Texas, the state might be able to see it as a harm to a child's "interests" to provide public funds to Catholic organizations that only adopt children to heterosexual parents, and an even further harm if such parents take the view that homosexuality is disordered. Alright, maybe that's a stretch which hasn't knocked down the harm principle as a basis for which to draw the line.

Posted by: CK | Dec 30, 2011 9:34:36 AM

Thanks, CK -- I don't think that my example necessarily commits me to the Millian harm principle. In fact, I tend not to like consequentialist calculi masquerading as high principles. All that the child-sacrifice example shows is that we are quite capable of drawing lines in certain places and that it is possible to reject all kinds of religious conscience based claims which are fundamentally at odds with Catholicism, unworthy of respect, and undeserving of governmental accommodation. It's just a narrow response to the question that I took Brennan to be asking -- namely, are there circumstances in which virtually all of us can agree that someone making a religiously based conscience claim which is fundamentally at odds with Catholicism, as well as undeserving of respect from Catholics, ought not to be accommodated by the state.

Posted by: Marc DeGirolami | Dec 30, 2011 9:55:57 AM

Sorry for this delayed response to your question, David: I do think that there is a difference between a religious group's claim not to be coerced into placing children with same-sex couples and a religious group's claim not to be prohibited from placing children with same-sex couples. There is a difference between the government forcing me to do something that I believe is morally impermissible and the government prohibiting me from doing something that I believe is morally permissible. The difference will begin to blur as the "morally permissible" becomes the "morally obligatory." For what it's worth, though I strongly oppose the legal impositions that we've seen in Massachusetts, DC, and Illinois, I do not support categorical bans on adoption by same-sex couples.

Posted by: rob vischer | Dec 30, 2011 10:09:36 AM

Marc,
I am indeed pressing on the line-drawing issue. I think that's not just legitimate, however, but necessary. Of course, line-drawing is difficult. But if someone complains that Illinois' new rule infringes on Catholic beliefs wrongly, but gives no general account of why Illinois' line-drawing was wrong, then we are left only with self-interested whining. Ruling out child sacrifice doesn't even budge the dial on giving a general account of drawing lines re religious liberty, however, precisely because everybody (who is sane) would agree with it (thus, we'd all agree that a modern Abraham should be locked up).

I note that you chose not to respond to my earlier hypo, chosen to give the mirror image case for religious liberty, so I think it reasonable to guess that you do not think that "religious liberty" would require a state to grant a religious child services agencies that approved of same-sex couple adoptions an exemption from a general rule forbidding such adoptions. (Feel free to correct my guess.) If you won't defend the religious liberty of other religions in similar situations, then it seems your case against Illinois' new rules rests only on special pleading.

And in your response to CK, you get my question precisely backwards when you describe is as "are there circumstances in which virtually all of us can agree that someone making a religiously based conscience claim which is fundamentally at odds with Catholicism, as well as undeserving of respect from Catholics, ought not to be accommodated by the state." My question asks when you would recognize that someone making a religiously based conscience claim which is fundamentally at odds with Catholicism OUGHT to be accommodated by the state. It's precisely when you defend your opponents in a pluralistic society that your principled support of a pluralism and tolerance becomes comprehensible.

Posted by: brennan | Dec 30, 2011 10:17:59 AM

Rob says,

"There is a difference between the government forcing me to do something that I believe is morally impermissible and the government prohibiting me from doing something that I believe is morally permissible."

Why is this a real distinction as opposed to just how you frame the issue?

You obviously are trying to frame the issue as involving only the moral status of placing a child with a same-sex couple. This suits you because that it what is morally prohibited by the Catholic heirarchy. But other religions have different moral beliefs. How does your claim work when another religion believes that it is immoral to treat straight and same-sex adoptive parents differently? What if the belief is that, becuase there is no moral status difference between straight and same-sex adoptive parents, it is immoral not to give the children the widest possible pool of potential adoptive parents? Then the bishops' position would still require the state to force non-Catholic religions to behave immorally.

I don't think your framing gets you out of the problems you have in giving a general account of religious liberty.

Posted by: brennan | Dec 30, 2011 10:32:34 AM

Brennan, I'm sorry, I lost track of your hypotheticals. You are of course entitled to make any assumption you like, reasonable or not, reflective of my opinions or not. But you asked a question, and I have given an answer to the question. If you want to ask a different question, go right ahead. But I gave an answer to at least one question that you asked.

I also disagree with your statement that if we cannot draw up a general principle applicable across all kinds of cases, all we are left with is "special pleading." You seem not to think that we are left only with special pleading in the child sacrifice case. Why not?

Posted by: Marc DeGirolami | Dec 30, 2011 10:43:03 AM

One could argue that although we live in a pluralistic society, if a religious based objection is not grounded in respect for the inherent Dignity of the human person who has been created in the Image of God, equal in Dignity, while being complementary as male and female, then that "religious" objection is a concept that does not come from God.

Posted by: Nancy D. | Dec 30, 2011 11:16:52 AM

Marc,
No need to apologize - You don't have to answer my questions at all! I throw them out there for anyone interested in dialogue, that's all.

Of course, as best as I can tell you answered my question, "do religions whose beliefs are fundamentally at odds with Catholicism have religious liberty rights that a Catholic is bound to respect, and, more to the point, that the state must defer to?" with the response: It depends on the belief, but child sacrifice is right out. Given what we are actually discussing, the situation in Illinois, I think your response is more evasion than answer.

And frankly, I think it's a waste of time to answer your request that I explain why society correctly discriminates against child sacrifice.

Posted by: brennan | Dec 30, 2011 11:17:15 AM

As Marc knows, I consider the child sacrifice question unanswerable, although I am equally certain that disallowing it is what we will and should do. This thread illustrates, I think, the fact that these line-drawing exercises ultimately are going to depend on unanswerable assertions about what is true and/or about fundamental moral conclusions. There is no getting around it, although on a day-to-day level I happen to believe it is certainly possible to try to engage in dialogue, to reach common ground on various issues, and to minimize, although not eliminate, moral remainders. And in this, I agree with what I take to be one of Rob's basic points: if we are to attempt this, we ought to try, without sacrificing entirely our own deeply held views, to find language that helps us to do so.

And I suppose this leads me, Rob, to ask what you think of Robert George's most recent post, which quotes you and purports to agree with you, although in my view the gap between the two of you is considerable. George, as I read him, appears to conclude that anything short of total war is a mug's game, and broadly questions the honesty and motives of anyone who might have suggested that same-sex marriage and religious liberty can co-exist in the least. Although I think that issue (and many others) cannot be finally resolved, I suppose, dupe that I am, that I am less willing to construe everything that those I disagree with say so negatively, and more willing to stop short of total war.

Posted by: Paul Horwitz | Dec 30, 2011 11:41:03 AM

Brennan: Whether or not you believe my distinction holds water in this scenario, I do believe there is merit in the distinction more broadly. Being forced to work on the Sabbath implicates my conscience in a different way than being forbidden (through Sunday closing laws) from working on Sundays. I agree that the distinction will be less helpful in some of the settings where "rights of conscience" are being debated today.

Paul: I'm not sure I agree that Robby is calling for "total war," but I do think that I tend to be more optimistic about the prospects for a legal regime that both recognizes SSM and takes religious liberty seriously. The past couple of years have not bolstered my optimism, I must admit, and time will tell whether I'm just being naive.

Posted by: rob vischer | Dec 30, 2011 12:26:33 PM

Paul: I just went back and read Robby's post, then your post on Prawfs about the post, and I'm not sure why you think his argument is so extreme. I read him as saying, "If we want to maintain religious liberty on SSM, we need to resist SSM. A SSM regime is unlikely to maintain religious liberty for those who disagree." As I wrote above, I'm more optimistic than he is, but I can see where Robby is coming from. There is, in fact, a significant element of the pro-SSM argument that does seek to demonize dissenters to the same extent that society demonized racists in the past. If opposition to SSM ultimately is treated, by both social and legal norms, as being akin to racism, won't Robby's prediction be accurate?

Posted by: rob vischer | Dec 30, 2011 12:38:22 PM

Like Paul Horwitz, I too was struck by the fact that Robert George purports to agree with Rob Visher, and yet to me they appear to be miles apart. Also, it seems to me George has made up the whole "grand bargain" dialogue out of whole cloth. Where and when did these negotiations take place?

George says: "The dispute about sex and marriage is not, according to those leading the charge for redefining marriage, a reasonable disagreement among reasonable people of goodwill. It is a battle between the forces of reason, enlightenment, and equality, and those of ignorance, bigotry, and discrimination. Their opponents are to be treated just as racists are treated---since they are the equivalent of racists."

It seems to me that George takes as extreme a view of those he disagrees with as he claims they do of him. And one must ask if reasonable people of goodwill—let's take Cardinal George of Chicago, recently president of the USCCB—liken those with whom they disagree to the Ku Klux Klan.

George says: "Of course, we don't put racists in jail for expressing their opinions---we respect the First Amendment; but we don't hesitate to stigmatize them and impose various forms of social and even civil disablity upon them and their institutions. (Just ask Bob Jones University.)"

Is George taking the position that Bob Jones University was unfairly treated and its racist policies should have been tolerated in the name of freedom of religion? It is not something I would expect him to say, so if anyone else (or George himself) could clarify, I would appreciate it.

Posted by: David Nickol | Dec 30, 2011 12:39:49 PM

Rob, I agree that to the extent that the two positions are stated in absolute terms -- no religious exemptions from or barriers to SSM, or no SSM for anyone -- then there is an unavoidable clash of views. (But not everyone takes this position!) I agree that, as a general rule, analogizing to racial bigotry is unlikely to help those who would like to see a working compromise (and only a working compromise) between the contending views, although I am not in a position to say whether that comparison is true or not, since it depends on the premises one adopts in getting there. (Similarly, although I disliked the Cardinal's comparison between the SSM movement and the Klan, I was only in a position to dislike it, not to refute it. How could one refute it? Similarly, how could one refute a comparison between the Catholic Church and the Klan? All three are similar in certain respects and different in others.) And, although I find the word "significant" not especially helpful, I agree that there are SSM supporters who starkly oppose and/or demonize religious opponents of SSM -- and, of course, vice versa, as we have just seen.

But to admit that there is a clash of views, even one that is finally unresolvable, doesn't say enough, in my view. The difference is, as it were, like the difference between believing that the End of Days is inevitable and doing everything you can to hasten it. It doesn't tell us whether we should seek to reach a modus vivendi as best we can and try to reach compromises where possible, recognizing that it's not always possible -- or whether, because we believe a final compromise is impossible, we should just opt for total war and an absolute victory. Moreover, I don't think the conclusion that our differences are finally unbridgeable requires us to question the motives of everyone on the other side of the debate, which is pretty well what George does in his post. If I dislike that kind of thing coming from SSM supporters, which I do, I am equally critical of it coming from George.

David: I too found George's reference to Bob Jones curious. I assume it was mostly a rhetorical flourish. But it seems to me that if you take George's post seriously, then he ought to believe that the Court did the right thing in Bob Jones, since, in the uncompromising war of values he posits, we ought to stigmatize and penalize our opponents. The people (like me, or Robert Cover) who either disagree with Bob Jones, want to find room for compromise, or are willing to concede its tragic elements are the ones left out of his schema or dismissed with contempt as dupes.

Posted by: Paul Horwitz | Dec 30, 2011 1:23:32 PM

Certainly one can agree that, "dismissing religious liberty concerns as the progeny of a "separate but equal" mindset does not bode well for the future course of those debates" and nor recognize as Professor George clearly does, that at the end of The Day, Truth cannot be reconciled with error, nor can you compromise Truth without resulting in error because once you add a false assumption to that which is True, The Truth no longer is The Truth.

Posted by: Nancy D. | Dec 30, 2011 1:32:18 PM

Rob says "Whether or not you believe my distinction holds water in this scenario, I do believe there is merit in the distinction more broadly. ... I agree that the distinction will be less helpful in some of the settings where "rights of conscience" are being debated today."

You mean, settings like the one we are currently discussing?

I think that if you (and this is not just directed at Rob!) claim that Illinois' decision wrongly crossed a generally-applicable line protecting religious liberty, then you should be prepared to identify the generally-applicable line that was crossed when challenged, not merely mumble that line-drawing is very difficult and the usual moral distinctions are less helpful in this case.

I completely agree that this is a thorny area, presenting difficult issues of law and fairness, but if you can't explain clearly why Illinois' decision wrongly applied general principles, then maybe the decision is actually not a frontal attack on religious liberty, eh? Maybe it's just the case that being in a democracy kinda sucks when you learn that your moral intuitions, which you had assumed were widely shared, or even were intrinsic to human nature, turn out to be the minority position.

Posted by: brennan | Dec 30, 2011 1:44:36 PM

There is no inherent Right to engage in any act, including any sexual act that demeans the inherent Dignity of the human person.

Posted by: Nancy D. | Dec 30, 2011 7:27:25 PM

Brennan: My reference to settings where rights of conscience are currently being debated was not made with the SSM/adoption issue in mind; I was thinking of some of the debates about professional roles. I do think that the distinction has some value in the adoption debate, so let me come at it another way. Even if a person strongly believes that same-sex couples should be included in the pool of potential adoptive or foster care parents, that person would find nothing intrinsically immoral about placing a child with an opposite-sex couple. The tension with the person's conscience would only be raised by considering the broader context in which placements are occurring. Forcing someone to eat pork implicates the conscience of both the practicing Muslim and the person who objects to factory farming, but the law's first priority must be to protect the practicing Muslim, and, more broadly, to minimize the occasions in which individuals (and the associations to which they belong) are forced to act in ways that amount to intrinsic violations of their consciences. (Sometimes even this is unavoidable, of course -- see, e.g., Mayan sacrifice.) We see such a distinction made by the law on conscientious objection -- we'll exempt the person who objects to all war, but not the person who objects to this particular war in light of certain facts. Same idea: first protect those for whom the coerced conduct is intrinsically immoral.

All that said, I feel a bit awkward pressing this distinction too much because 1) I have repeatedly cautioned in my writing against taking too lightly the implications for conscience of the law prohibiting an act deemed morally permissible (especially as it slides toward morally obligatory); and 2) I oppose categorical bans on adoption by same-sex couples.

Posted by: rob vischer | Dec 30, 2011 11:44:04 PM

Rob, if you oppose a categorical ban on adoption by same-sex couples, you must not believe that a child deserves the Love of both a father and a mother because to oppose a categorical ban on adoption by same-sex couples, is to intentionally deny a child of the Love of both a father and a mother.

Posted by: Nancy D. | Dec 31, 2011 8:13:02 AM

Not to mention that a "Catholic" agency that offered to refer same-sex couples to agencies that do not oppose a categorical ban on adoption by same-sex couples, must not believe that every child deserves the Love of both a father and mother.

Posted by: Nancy D. | Dec 31, 2011 8:32:57 AM

I am emphatically not speaking for Rob or his position, since I don't know enough about it. But it seems to me, Nancy, that you have left out at least one salient possibilities. The question is not whether one believes or doesn't believe that a child deserves the love of both a father and a mother; it's whether one believes that where adoption or fostering is concerned, a child deserves *at a minimum* the love of both a father and mother. Imagine that one believes that the United States is a better country to live in than Canada, and that both are better countries to live in than Sudan. If you are placing refugees from Sudan, you might prefer to place them all in the United States. But if that is impossible for any reason, you might prefer to place those refugees in Canada rather than leave them in the Sudan. Similarly, one might fully believe that a child deserves the love of both a father and mother, but also believe that where such a placement is impossible for whatever reason, placing a child in, say, a foster-parent situation with a same-sex couple may, all else being equal, be preferable to leaving the child in an orphanage, even if it is not as good as placing the child with an opposite-sex couple. Mind you, I am not trying to convince you of anything here with respect to same-sex foster parenting or adoption; I'm perfectly content for us to disagree. Nor am I making any empirical claims. It just seems fair to point out that your binary way of stating the issue is incomplete.

Posted by: Paul Horwitz | Dec 31, 2011 8:55:40 AM

Paul, if one does not believe that every child deserves the Love of a father and mother to begin with, then on what basis can one make the argument that leaving a child in an orphanage is not a Good idea?

Posted by: Nancy D. | Dec 31, 2011 10:54:23 AM

Nancy D.,

You say: "Not to mention that a 'Catholic' agency that offered to refer same-sex couples to agencies that do not oppose a categorical ban on adoption by same-sex couples, must not believe that every child deserves the Love of both a father and mother."

You are arguing a position all your own rather than defending Illinois Catholic Charities, which places adoptive children with single parents.
http://www.pbs.org/wnet/religionandethics/episodes/september-30-2011/catholic-charities-and-gay-adoption/9621/

There are many branches of Catholic Charities, and I don't know that there is an overall policy, but I have been unable to find a branch that does not place children with single parents.

So the policy of Catholic Charities is NOT based on the principle "that every child deserves the Love of both a father and mother."

Posted by: David Nickol | Dec 31, 2011 11:21:48 AM

Rob,
Thanks for responding, but I think you are ignoring my critique of the framing issue. In the same-sex adoption context, there are necessarily multiple points at which one can identify morally significant conduct. One such point is the inclusion of gay couples in the pool of potential adoptive parents, another is the placement of a child with adoptive parents. If the legal regime forbids discrimination against same-sex adoptive parents, it coerces "intrinsically immoral" conduct by those who believe that placing a child with a same-sex couple is taboo. If the legal regime mandates discrimination against same-sex couples, then it coerces "intrinsically immoral" conduct by those who believe that discrimination against same-sex couples in this way (wrongly) marks same-sex couples as inferior. In both cases, the legal regime mandates intrinsically immoral conduct by some group, albeit at different points within the larger issue -- so how does your proposed distinction exist, alone have value?

Happy New Year!

Posted by: brennan | Dec 31, 2011 1:11:47 PM

Does the Catholic Church consider it "intrinsically immoral" to place an adoptive child with a same-sex couple? Of course the Catholic Church teaches that sex between same-sex partners is intrinsically immoral. But it is a great leap from condemning sex acts performed by adoptive parents to condemning the placement of a child with same-sex parents.

Suppose an adoptive child is so severely developmentally disabled that he or she never approaches the equivalent of the "age of reason." Suppose the potential adoptive parents are two lesbians, one of whom is a physician and the other a direct support professional (that is, someone who by profession works with the developmentally disabled). The moral education of the child in such a case would be utterly irrelevant. And yet, it seems to me Illinois Catholic Charities wanted the right to declare such parents automatically unfit.

It seems to me that the position that *no* same-sex couple would be acceptable as parents to *any* child—if that is the position of Illinois Catholic Charities—is beyond question a matter of prejudice and bigotry. It does not take into consideration in any way at all what would be in the best interests of the child. It is not a reasoned position. What is offensive, I think, in the Catholic position as stated in the case of Illinois Catholic Charities is not so much that adoptive children are not placed with same-sex couples as that same-sex couples are ruled out even for *consideration.* Someone knowledgable over on Vox Nova has written that he believes all Catholic Charities is legally required to do is give same-sex couples a fair hearing and they would be in compliance with nondiscrimination laws. Would the state of Illinois or other states actually second-guess actual placement decisions on the part of Catholic Charities and other adoption service providers? I am inclined to think that Church leaders who declare in advance their intentions not to allow local branches of Catholic Charities to place children with same-sex parents (and then who close down their operations when the state objects) are more interested in the "culture war" than they are in reasoned, human placement of children in need of adoptive parents.

Posted by: David Nickol | Dec 31, 2011 2:21:06 PM

This has been an interesting conversation. I must bow out of it, but I'd like to make the last point I made clear, because I think Nancy may have misunderstood it. I did not say that I (or anyone else, including the hypothetical person I was addressing) doesn't believe that a child deserves the love of both a father and a mother. I said that even if one believes that, that doesn't answer the question whether you can imagine degrees of goodness or badness short of that standard. It seems possible to me that while some people might say that it's better to leave a child in an orphanage rather than let him or her live with same-sex parents, others, including those who strongly favor opposite-sex parenting, might prefer short- or long-term same-sex parenting over leaving the child in an orphanage. I deliberately didn't take a stand on that issue, nor did I answer the question whether a group like Catholic Charities should be obliged to do or not do anything. I was just pointing out that your belief in the importance of having a father and a mother for a child did not answer every relevant question of policy. I would say, with respect, that has been my source of friendly and respectful frustration with you: not that I disagree with your premises and principles, but that you seem unwilling to say anything especially concrete about how to apply them in real life.

Posted by: Paul Horwitz | Jan 1, 2012 11:57:25 AM

Professor Horwitz, my point was that if one no longer recognizes that it is Good for a child to have the Love of both a father and mother, and thus one should not intentionally deprive a child of the Love of a father and a mother then on what basis can one make the argument that it is not Good for a child to be left in an orphanage?

Posted by: Nancy D. | Jan 1, 2012 3:00:11 PM

OK. But I didn't say that it isn't good for a child to have the love of both a father and a mother. I simply pointed out that this belief, no matter how strongly held, doesn't answer every policy question by a long shot. Even if one fervently believes that, one may still believe, and have a basis, empirical or otherwise, for believing that among the alternative options, assuming that not every child gets placed with opposite-sex parents, there are still second-best options, third-best options, and so on. Again, to take my earlier example: even if one strongly believes that the U.S. is the best place in the world to live, that doesn't mean that one believes that if Sudanese refugees are not placed in the United States, the best thing for them is to stay in the Sudan; one might believe that there are other options (Canada, England, etc.) that are not as good as the United States but far better than staying in the Sudan. Similarly, even those who strongly believe in opposite-sex parents still have good reason to think about what the best available alternatives to that are.

And with that, I bow out of this thread for good, wishing everyone a happy new year.

Posted by: Paul Horwitz | Jan 1, 2012 4:09:18 PM

At the end of The Day, a Good parent is one who desires that their children be protected and nurtured so that they may learn to develop healthy and Holy relationships and friendships that are grounded in authentic Love and thus respect the inherent Dignity of all persons, who have been created wholly human from the moment of their conception, equal in Dignity while being complementary as male and female.

Posted by: Nancy D. | Jan 2, 2012 10:19:48 AM

Brennan: Maybe this gets back to the line-drawing problem. I find it helpful to draw a (limited) distinction between legally coerced acts that are morally forbidden and legally prohibited acts that are morally permissible. You are right, and I have acknowledged elsewhere, that the distinction fades in some contexts depending on how we frame the relevant acts. Conceptually, you're probably right that just about any form of less-than-universal service can be put into the first category, though as a practical matter, I think this could make it virtually impossible to maintain the liberty of conscience as a relevant metric for much of our political discourse. E.g., the adoption provider who believes that it is immoral to exclude polygamous families from the placement pool is indistinguishable from the Muslim compelled to handle pork products.

Posted by: rob vischer | Jan 2, 2012 10:50:56 AM

Robert George's two jeremiads above (On marriage, religious liberty, and the "grand bargain"; "What will happen to Catholics and others . . . ?") do not take into account what happened in New York regarding same-sex marriage laws and contrast it with what happened in Illinois regarding civil unions.

Note that New York now has authentic, same-sex marriage, and yet the religious community in New York, instead of declaring "total war" against same-sex marriage, worked out a compromise granting religious exemptions. See the following article in the New York Times:
http://www.nytimes.com/2011/06/26/nyregion/religious-exemptions-were-key-to-new-york-gay-marriage-vote.html

As the New York Times article to which Rob Vischer links points out"

**********
In New York State, religious groups lobbied for specific exemption language in the same-sex marriage bill. But bishops in Illinois did not negotiate, Bishop Paprocki said.

“It would have been seen as, ‘We’re going to compromise on the principle as long as we get our exception.’ We didn’t want it to be seen as buying our support,” he said.
**********

As a consequence, religious organizations in New York will be exempt from any obligation to “provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of a marriage,” and, among other things, Catholic Charities will be able to refuse to place adoptive children with legally married same-sex couples. Meanwhile, in Illinois, same-sex couples in (mere) civil unions were in a position to claim they were illegally discriminated against if Catholic Charities refused to consider them as adoptive parents.

Robert George's message is, "There's no negotiating with these people," but that was not true in New York. On the other hand, perhaps if Bishop Paprocki and other religious leaders in Illinois had not declared "total war," they might not have wound up being on the wrong side of anti-discriminationn laws and giving up their contracts with the state for adoption services.

Posted by: David Nickol | Jan 2, 2012 4:23:50 PM

David,

"As a consequence, religious organizations in New York will be exempt from any obligation to “provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of a marriage,” and, among other things, Catholic Charities will be able to refuse to place adoptive children with legally married same-sex couples."

Interesting point, but I am not sure that the last clause of this sentence is accurate. I don't think the NY SSM law limits any conditions on state service contracts. (Not sure though.) See http://www.governor.ny.gov/assets/GPB_24_MARRIAGE_EQUALITY_BILL.pdf

Posted by: brennan | Jan 2, 2012 4:51:03 PM

Why would you compromise The Truth of Love, unless you did not believe He Is The Way, The Truth, and The Life, to begin with?

Posted by: Nancy D. | Jan 2, 2012 6:39:59 PM

Nancy,

You say: "Why would you compromise The Truth of Love, unless you did not believe He Is The Way, The Truth, and The Life, to begin with?"

1. You forgot to start with, "At the end of the day . . . " although you did remember to end with "to begin with."
2. What if there are Jews, Muslims, Buddhists, Hindus, Baha'is, atheists, and agnostics in the country? Do they have any rights as citizens, or do the laws that govern them have to conform to Catholic teaching?

Posted by: David Nickol | Jan 2, 2012 6:53:40 PM

brennan,

I am hesitant to interpret statutes on Mirror of Justice, but I have read a number of articles in which others express the opinion that Catholic Charities and other religious organizations in New York a will not run into the same difficulties as in Illinois. For example:

**********
In New York, the new marriage law contains a clause allowing religious groups to deny "accommodations, advantages, facilities or privileges" to same-sex couples. That should allow church-affiliated adoption agencies to deal only with heterosexual couples, avoiding the legal controversies that have flared in other states, [adoption lawyer Nina] Rumbold said.
http://www.huffingtonpost.com/2011/07/11/gay-marriage-adoption_n_894916.html

BP: Would the exemption protect Catholic Charities and prevent the problem that they had in Massachusetts?
NIMOCKS: It’s hard to say because you don’t know how all this is going to be interpreted. But I would say that Catholic Charities would likely be covered [by the exemption] because of the religious nature of Catholic Charities. But if you have a private adoption agency that is not overtly religious but believes they want to adopt kids out only to moms and dads — they’re not covered.
http://www.patheos.com/blogs/deaconsbench/2011/06/religious-exemption-and-new-yorks-gay-marriage-law/
**********

I also read something that pointed out that New York has forbidden discrimination against gay people in adoption since 2005 and has also recognized out-of-state same-sex marriages since 2008, and yet there have been no challenges to Catholic Charities adoption services.

I have mentioned previously that someone who goes by the name "Kurt" is of the opinion that Catholic Charities (this example being in Boston) provoke these confrontations by demanding the right not so much to determine their own policies for placing children with adoptive parents, but by demanding to be exempt from even giving same-sex couples a fair hearing.

**********
Kurt
December 13, 2010 5:09 pm

Boston Catholic Charities took the position that is was essential to have a formal, written, declared position that no gay person could present himself as a potential foster parent, guardian or adoptive parent of these hard to place children.
However, they have refused to implement a similar policy towards racists.

Were children being turned over to racists by BCC? I doubt it. Guardian, foster and adoptive care only follows extensive investigation and consideration by Catholic Charities. The fact such a policy did not exist up front did not mean children were being placed with parents or guardians that were not judged in the child’s best interest.

Massachusetts made no demand on Catholic Charities to place a child with a person other than whom the caseworker considered to be in the best interests of the child. And BCC had a legal right to hire professionally competent caseworks who demonstrate Catholic values to the satisfaction of the Church.

A BCC social worker only had to evaluate each prospective guardian or parent on a case-by-case basis to meet the Commonwealth’s requirement for funding.

BCC should be able to accept a system with faithful Catholic social workers who evaluate placements on a case by case basis leading to few if any placements to gay or racist households even without a formal policy barring them at the beginning of the process. They certainly feel this is acceptable for racists.

Admitingly, the weak point in this is the reality that most of the conservatives who share the Archdiocese’s views on gay people are unwilling to work at the wages its pays social workers.
**********

Prejudging *every* same-sex couple, sight unseen, to be unfit to adopt *any* child is, literally, prejudice.

Posted by: David Nickol | Jan 2, 2012 7:08:16 PM

David, I assume you knew that Christ, The Truth of Love Is The Beginning and The End, simultaneously. "All things are passing, only Love remains, for only Perfect Love is Life affirming and Life Sustaining.

Posted by: Nancy D. | Jan 2, 2012 7:57:32 PM

Nancy,
Saying love is the answer is a glib fantasy. Engagement with the real world is more difficult. But if you're going to say it, try using something catchier:

Love, love, love, love, love, love, love, love, love.
There's nothing you can do that can't be done.
Nothing you can sing that can't be sung.
Nothing you can say but you can learn how to play the game
It's easy.
There's nothing you can make that can't be made.
No one you can save that can't be saved.
Nothing you can do but you can learn how to be you
in time - It's easy.

(repeat)

Posted by: brennan | Jan 3, 2012 10:27:46 AM

Brennan, saying love is the answer is only a glib fantasy when we do not recognize the very essence of Love to begin with. And with that being said, I bow out of this thread, wishing you all Peace in Christ.

Posted by: Nancy D. | Jan 3, 2012 11:08:03 AM

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