Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, August 24, 2010

The vanishing Catholic adoption agency

The last Catholic adoption agency in the U.K. has closed after losing its legal challenge to anti-discrimination laws that require agencies to consider same-sex couples as adoptive parents:

Since Labour’s homosexual rights law came into effect in January 2009, all the other 11 Catholic adoption agencies in England have either had to close down or sever their ties with the church hierarchy. Catholic Care was the last to hold out as it launched its legal bid.

Apparently, in certain "compelling circumstances," discrimination on the basis of sexual orientation is permitted, but the Catholic agencies have failed to establish such circumstances.  Andrew Hind, the Chief Executive of the Charity Commission, explained:

“This has been a complex and sensitive decision which the Commission has reached carefully, following the principles set out by the High Court, case law and on the basis of the evidence before us. Clearly the interests of children are paramount."

Hmmm. . . I understand that there are other values motivating anti-discrimination laws, but I have a hard time figuring out how "the interests of the children are paramount" unless we are assuming that excluding same-sex couples from any single agency's pool of adoptive parents so compromises the pool's quality that it jeopardizes children's best interests.  I haven't heard anyone make that argument, so I'm not sure what Hind means.  I'd prefer if he said, "Look, we know we're losing an important service to children here, but our government has decided that equal treatment of same-sex and opposite-sex couples is so important that we're willing to make some hard trade-offs." 


Vischer, Rob | Permalink

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I think, in context, it may be taken to mean something like, "We all can agree that the interests of the children are paramount. And indeed, if a charity can show that they have a case where discriminating on the basis of sexual orientation is in the best interest of the child, then of course they will be permitted to so discriminate. But Catholic Care hasn't made a convincing case, and consequently we cannot allow them to discriminate."

I take it that Catholic Care took the position that it simply would not consider same-sex couples as adoptive parents. It seems to me that puts the burden on them to make a case that never, ever could there be a same-sex couple who could be excellent parents to a child. What if the child were a special-needs child and the same-sex parents were both doctors, or child psychologists, or from some other profession that specialized in taking care of the problems the child had. Can one make a blanket case that heterosexual parents will always be better adoptive parents, in every single case? Apparently this is what Catholic Care believes. I am guessing that it would have been open to Catholic Care to say they would take things on a case-by-case basis. But apparently they took the position that same-sex couples were always unfit to be parents. That sounds a lot like discrimination to me.

Andrew Hind, Charity Commission chief executive, said: "This has been a complex and sensitive decision which the Commission has reached carefully, following the principles set out by the High Court, case law and on the basis of the evidence before us.
'Clearly the interests of children are paramount.
'In certain circumstances, it is not against the law for charities to discriminate on the grounds of sexual orientation.
'However, because the prohibition on such discrimination is a fundamental principle of human rights law, such discrimination can only be permitted in the most compelling circumstances.
'We have concluded that in this case the reasons Catholic Care have set out do not justify their wish to discriminate.'

Posted by: David Nickol | Aug 24, 2010 9:06:10 PM

David, I don't dispute that it's discrimination. It is clearly discrimination; the question is whether it's discrimination of a sort that the government has an interest in prohibiting, even if the vast majority of adoption agencies (including government agencies) do not discriminate on that basis (and so same-sex couples still have access to adoption), and even if the ban results in Catholic providers closing their doors (and so some children do suffer because the pool of adoption placement avenues correspondingly shrinks).

Posted by: rob vischer | Aug 24, 2010 11:38:06 PM

Rob, I am not sure -- when it comes to human rights -- why some organizations of a particular kind may violate them just because the majority of organizations of that kind don't. If there are ten McDonald's restaurants in a town, and one of them refuses to serve Catholics, I don't think the argument would be that Catholics have plenty of places to go to get a Big Mac.

Also, I don't think it can necessarily be said that "some children do suffer because the pool of adoption placement avenues correspondingly shrinks." It may very well be that a slightly smaller number of adoption agencies, all of which do not discriminate, does a better job of placing children with the best parents than a larger number of adoption agencies, some of which do discriminate. It is an issue that was considered, since the commission found that "[e]ven if Catholic Care closed, children would still be placed into adoptive care by other means."

Also, I see that this is larger than just one country, since the argument was that Catholic Care's policy "breached the European Convention on Human Rights." I don't see why the Catholic Church should be exempt from honoring basic human rights, especially when adopting a child is something overseen by the state. Adoption agencies merely assist by bringing parents and children together, but it is only the state that has the power to actually legally enact the adoption.

Posted by: David Nickol | Aug 25, 2010 7:42:48 AM

David: My own approach is to be wary of anti-discrimination norms as non-negotiable moral claims to be imposed on the entire society; I prefer to view them as means of ensuring access to essential goods and services. This is a bigger argument than the adoption context, I realize, and it's laid out in my book Conscience and the Common Good.

Posted by: rob vischer | Aug 25, 2010 9:39:01 AM

Rob, I ordered a copy of your book. (I'm working on my meta-cognition.) I don't know whether this will be on-topic, so I'll keep it brief.

Roughly a year ago, a Justice of the Peace in Louisiana refused to marry an interracial couple for what might somewhat plausibly (I think) be considered "non-bigoted" reasons. The couple could easily have found another Justice of the Peace, yet the incident made the national news, and the result was that the Justice of the Peace resigned. Should such a big deal have been made of his refusal, or should the couple simply have found someone else to marry them?

Also, in 2007, authorities in Minneapolis-St. Paul passed an ordinance that would suspend for a month Muslim cab drivers who refused passengers carrying liquor, and would suspend them for two years for a second offense. So far, the policy has been upheld.

It should be noted that passengers who were refused service were not left stranded at the airport. The cab drivers who refused them were sent to the end of the taxi line to wait (sometimes 2 to 4 hours) for another fare. Wasn't this a solution that took into account both the needs of passengers and the religious obligations of the Muslim cab drivers? (It was a little more complex than my summary, if you read the account at the following link.)

Posted by: David Nickol | Aug 26, 2010 10:35:11 AM