Positive Liberty

Jeff Jacoby has a column in the Boston Globe about the situation with Catholic Charities and gay adoptions in Massachusetts. It’s not nearly as balanced and thoughtful a column as you usually get from him, but I’m going to agree with the core of his argument while rejecting the over-the-top rhetoric with which it is delivered. There is much that is wrong with his article, and I’ll address those things, but the basic policy position is a sound one.

The overheated rhetoric begins with the headline: Kids take back seat to gay agenda. That’s a ridiculous headline and flat out wrong. On the merits of the question of gay adoption, there are two sides - those who are for it and those who are against it - and it’s the anti-gay side that is harmful to children. It’s the anti-gay agenda that leaves children all around the country in foster homes rather than placing them with caring, decent people solely because of religious objections to homosexuality. He’s also wrong about the possible options that the Church had. He writes:

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 had hoped to obtain a waiver on religious-freedom grounds. But when legislative leaders refused to consider the request, the archdiocese was left with no option but to end a ministry it had been performing for a century.

This is false. They could have filed a suit in state court and, under multiple Massachusetts SJC precedents, been entitled to a heightened scrutiny review of the policy. Under such scrutiny, the state would have been forced to show not only that the law mandating that adoption agencies place children with qualified gay couples served a compelling state interest (which it does, as even Gov. Mitt Romney admitted yesterday), but also that it was the least restrictive means of achieving that goal (which, I would argue, it’s not).

Essentially, the courts would have had to apply the same standards found in the Federal Religious Freedom Restoration Act (RFRA). Under that standard, the burden of proof is really on the side of the government that passed the statute to show that the policy goal cannot be achieved unless the religious group is refused an exemption from the generally applicable rule and that is clearly not the case here. Because there is a wide range of groups providing adoption services for the state of Massachusetts and only one of them, Catholic Charities, objects to facilitating gay adoptions, granting them an exemption will not impede the goal of allowing gay adoptions.

Now, I can see the argument on the other side of this as well, particularly because I am so strongly in favor of allowing gays to adopt myself. But let’s bear in mind that laws like the RFRA were designed in large part to protect minority religious views and has been used in court for that purpose. It has been used to protect the rights of American Indians to use a traditional hallucinogenic tea in their ceremonies, granting them an exemption from the Controlled Substances Act for that narrow activity.

The basic argument here is that they should be allowed to follow their beliefs as long as doing so does not deny anyone else their rights. The RFRA sought to confer exemptions from generally applicable laws when those laws impinged upon the free exercise of religion, but only when that free exercise did not render such a law ineffective. And as Jacoby notes, the Church’s policy here does not do so because there are other agencies to make sure gay couples could adopt:

Catholic Charities made no effort to block same-sex couples from adopting. It asked no one to endorse its belief that homosexual adoption is wrong. It wanted only to go on finding loving parents for troubled children, without having to place any of those children in homes it deemed unsuitable. Gay or lesbian couples seeking to adopt would have remained free to do so through any other agency. In at least one Massachusetts diocese, in fact, the standing Catholic Charities policy had been to refer same-sex couples to other adoption agencies.

I think that we can in fact find a compromise that allows for gay adoption in the state (one of the few states that explicitly allows it, for which they should be applauded) and still allows Catholic Charities to continue to do good work without violating the tenets of their faith. To me, this is very much akin to gay marriage. I am a vociferous advocate of allowing gay couples to get married, but I am an equally vociferous opponent of requiring any particular church or minister to perform the ceremonies.

And contrary to Jacoby’s claim, I believe my position is much closer to the mainstream “gay agenda” than those who would want to use the power of the state to force those with religious objections to violate their faith. I don’t think most advocates of gay marriage or gay adoption really want to force churches to participate, they just want the right to do it and to find, if they wish, those churches who want to participate. I will happily condemn them for their bigotry, but I cannot justify using the law to force such choices on them. That is exactly why I fight for gay rights, to keep the government from imposing an orthodoxy of opinion or behavior. I cannot turn around and support the same thing against my opponents without becoming the thing that I despise.

The other reason is purely practical. If we want to win public support for gay adoption (or gay marriage, or laws against discrimination based on sexual orientation), we simply have to allow religious exemptions for those laws. The public simply isn’t going to stand for a law that forces churches to perform gay weddings and gay adoptions, and frankly, on this one the public is right where they are so often wrong. There is a middle ground here and it’s one that is beneficial enough to overcome the obvious objections to it.

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