From Overlawyered.com :
In suburban Washington, D.C., Bono Film and Video has an announced policy of refusing to duplicate material that owner Tim Bono regards as contrary to his Christian values. Now the Arlington County (Va.) Human Rights Commission has held a public hearing and investigated Bono on charges that he discriminated against Lilli Vincenz by refusing to duplicate her Gay Pride videos.
I don’t usually agree with free-market libertarians, but in this case I think they’re right: the business owner should be free to discriminate based on content. If Tim Bono doesn’t have the right to turn down this business, then it follows that similar businesses have no right to turn down xeroxing flyers advertising the KKK – or anti-gay videos produced by Conservative Christians, for that matter. (In both cases, the person turned down could claim to have been discriminated against on the basis of religion).
I don’t think that Bono should be free to discriminate against a customer’s identity; if Virginia wants to force Bono to accept gay customers (or black customers, or Jewish customers, or transgendered customers, etc), then that’s okay by me. (I remain convinced that the Supreme Court’s decision in Dale vs. Boy Scouts was wrong). But although the line between discriminating against who customers are and discriminating against what a particular customer’s job says is blurry, it’s still a line worth maintaining. In this case, the government should defer to the free speech rights of bigots to be bigots.
(On the other hand, just as Mr. Bono has a right to follow the mistaken, bigoted dictates of his conscience, queer and queer-positive customers have the right to follow the dictates of their consciences and refuse to bring any business whatsoever to Mr. Bono. I don’t think such boycotts – from either side – are great forms of political activism; but Mr. Bono started it, and if his business suffers I’ll have no sympathy.)
Dale Carpenter, a same-sex marriage advocate I respect a lot, brings up a tougher case:
Catholic Charities of Boston has decided to stop providing adoption services rather than comply with a state law prohibiting discrimination against gay couples.
Gov. Mitt Romney (R) has proposed a special exemption from this law for religiously affiliated adoption agencies; gay groups have responded that this would amount to discrimination that places politics before the interests of children. […]
Private agencies contract with the state to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. […]
Until recently, Catholic Charities coexisted peacefully with this anti-discrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. […] But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. […] Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children “would destroy the child’s future, it would be an act of moral violence against the child.” Catholic Charities is reluctantly bowing to this pressure.
Of course, anti-marriage equality folks have already been spinning this as an example of the Goodridge decision (the decision which established the right to marriage for same-sex couples in Massachusetts) leading to a crackdown on religion. That argument is dishonest; it’s the Catholic Church, not the Massachusetts government, which has changed policy in the wake of Goodridge. In effect, the Vatican is trying to pick a fight over gay rights.
Carpenter makes a compelling argument that the Catholics should be granted their exemption. Since there are plenty of non-religious adoption agencies able to take up the slack, an exemption won’t actually deprive same-sex couples of the chance to adopt, nor will it deny any children the chance to be adopted.
Exemptions to laws of general applicability inevitably raise slippery-slope concerns. All kinds of exemptions exist in all kinds of laws. Each is an invitation to slide down a slope, but we seem to manage it. Title VII is understood to exempt the Catholic Church from having to hire women priests, for example, but that hasn’t gutted employment-discrimination protection. […]
If we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but our resulting discomfort is an acceptable price for living in a religiously pluralistic and free society. […] If we can’t respect others’ exercise of religious conscience in a case where it costs us nothing to do so, can we really be said to respect religious liberty in a meaningful way at all?
Carpenter’s argument is persuasive. In my heart, I’d like the Massachusetts government to drive Catholic Charities out of business, because I find what the the Vatican is doing disgusting and hateful. But “revenge” isn’t a principled reason to oppose religious freedom in a pluralistic society. (Dammit!)
However, I’m skeptical about the “religious liberty” flag Carpenter is waving. Is there really any threat to religious liberty here? No one is being prevented from praying, from performing rituals, or in any other way from practicing their religion. It is possible to be a practicing, religious Catholic without running an adoption agency in Massachusetts (indeed, I suspect that the large majority of Catholics run few if any adoption agencies).
Nor am I convinced that religious liberty should extend to freedom from anti-discrimination laws so long as no one is hurt. Suppose that the Vatican wanted to open a “no Latina or Latinos allowed” private school – should that be acceptable so long as there were enough open slots in other schools that no child would be deprived of a good education?
But of course, even if it wanted to, the Vatican wouldn’t dare do that. And that’s the point. Suppose the Vatican had sent a message that no more adoptive placements with Asian families were to be allowed? My bet is that no one would find that acceptable, and there would be no question of granting an exemption to anti-discrimination law to coddle the Pope’s loathing of Asians.
What’s the message sent by an “it’s okay to discriminate against queers” exemption? That exemptions like this still seem reasonable to many – so long as the targets of discrimination are gay – is a measure of how much lesbians and gays are not seen as fully human. If the interests of lesbians and gays were seen as fully important the way that (say) the interests of Jews are, this legislation would be seen as beyond the pale.
Normally I dislike “send a message” arguments about legislation. Laws are not post-it notes, and the rights and lives of individuals shouldn’t be trampled on to make rhetorical points. In this case, however, the legislation would do little harm either way. According to Carpenter, whether or not the exemption is granted will have little or no impact on any individual child’s odds of getting adopted, or on any same-sex couple’s chance of adopting a child. With so little directly at stake here, I think it’s appropriate to consider the indirect results, such as the message sent.
An exemption to discriminate against gays, when no such exemption against other groups would be granted, endorses the still-pervasive belief that gay and lesbian interests are unimportant, trivial, disposable. In contrast, refusing to allow this exemption says that expanding discrimination against same sex couples – even when apparently “harmless” – is not reasonable, not mainstream, not acceptable. It’s hate, and the government of Massachusetts shouldn’t practice giving a special green lights for spreading hate and prejudice against citizens of Massachusetts. For that reason, I think Carpenter’s position is mistaken.
Curtsy: CultureWatch.
NOTE: Comments on “Alas” are heavily moderated – especially comments by right-wingers. If you’re having trouble posting here, try the unmoderated comments to the same post at Creative Destruction.
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I think the key point here is that:
Given that these people are being funded out of our taxes it’s entirely appropriate the government gets to tell them how to spend that money.
Carpenter’s religions exemption argument is also nonsense. Religious people are not more sensitive and important than everybody else and should not get to play by a special set of rules.
I’ve also a question:
The issue isn’t who changed policy first. It’s did the Goodridge decision make stopping providing adoption services to gay couples illegal where it was legal before? Now I don’t know, did it or not? If it did the Vatican would have had a right to change policy before, but not now, and the Goodridge decision would be to blame for that.
I don’t see why the state should permit the exemption. I don’t know enough about how children are allocated among agencies, but CC is taking money from the state and providing a service. Really, what if a fundamentalist evangelical group stated that it could not in good conscience place a child with a non-Christian family? Why should the state go down this road? Unless excluding CC would compromise the placement of children for adoption, i.e., prevent the state from getting the services that it needs, then there’s no need for the state to accommodate CC in preference to other groups. As I understand it, (I think, anyway), CC could run a private adoption agency but it wouldn’t be state funded. In this case, CC is helping the state carry out the state’s mission, not vice versa. CC can carry out its own mission, if materially different, on its own dime. (Of course, I know full well that CC couldn’t care less about meeting the state’s criteria, but it’s governed by a “higher” authority.)
The issue is that Catholic Charities isn’t the church. Adoptions aren’t a fundamental excercise of their religion. Which is precisely what makes it fundamentally different than forcing the church to hire women priests. Catholic Charities, of course, has no right to discriminate in hiring. So why should they have a right to discriminate in the execution of a state function? It is extremely disappointing that the Vatican has chosen to pick this fight. I doubt many who were doing the day to day work at Catholic Charities approved of this decision but it was an order they were obligated to follow or lose their church funding. One hopes that the people on the ground will move to other agencies to help pick up the slack. But I can see no rational reason to allow them to act upon this discrimination that wouldn’t allow other “religious” organizations to discriminate however they saw fit, whether by race or ethnicity or anything else. Yeah, its easy to say that we should just let the Catholics have this discrimination so they can continue to do genuinely good work arranging adoptions. But the principle is too strong and too compelling.
I would agree, though, that private business owners have a fundamental right to discriminate on the basis of content. This has been established repeatedly and is simply the right call. All one needs to do is consider the opposite circumstance to recognize that we don’t want private citizens forced to accept views they disagree with. Public agencies and duties are different, but private enterprise should be free to be private.
If Tim Bono doesn’t have the right to turn down this business, then it follows that similar businesses have no right to turn down xeroxing flyers advertising the KKK – or anti-gay videos produced by Conservative Christians, for that matter.
Do you favor Tim Bono’s position, which you disagree with, so that others will have the right to take a position that you do agree with? Or do you favor his position on the basis that the State has no right t0 interfere with matters of conscience?
Would you favor Tim’s position if he was the only facility that could do this within 100 miles? Would you recognize a right of the customer that would override Tim’s rights?
Not being a lawyer, I’m not certain this is correct, but it is my understanding that businesses that make copies of various media have the same rights and constraints as publishers do. That is, regular publishers and vanity publishers are perfectly free to refuse to produce or reproduce material for any reason related to the *content* of the material, but (I think) they cannot discriminate on the basis of some characteristic of the *author*, unless other laws apply. So Mr. Bono is well within his rights to refuse to reproduce material he finds offensive, especially as his policy has been stated up-front. The distance argument RonF makes is irrelevant, because videos can be sent anywhere in the country for a nominal fee, which is not true for people (I’m assuming he’s bringing it up because the distance argument is frequently used in debates about providing various medical services, especially abortion).
Given that these people are being funded out of our taxes it’s entirely appropriate the government gets to tell them how to spend that money.
There certainly is logic to this point.
Carpenter’s religions exemption argument is also nonsense. Religious people are not more sensitive and important than everybody else and should not get to play by a special set of rules.
Ah, but there is a special set of rules, codified in the First Amendment to the Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ….”
Congress can’t make laws setting up a specific denomination as the official state religion; it must treat them all equally. And it also can’t make laws preventing you from exercising your religion freely. That’s why there’s a Native American band in New Mexico (?) that can, in defiance of Federal law, ingest peyote during religious ceremonies. If the Catholic Church says that placing children for adoption with same-sex couples imperils their immortal souls and those of the people who do the placement, it would interfere with their free exercise of their religion for the State to force them to do so. The courts cannot decide what is a fundamental principle of a given religion and what is ancillary.
OTOH, that doesn’t mean that the State has to pay them for this. If the Catholic Charities wants to withold placement of children for adoption with same-sex couples, it seems to me that the State has every legal right to withold payment from them and let them fund their own activities.
But this could get more interesting. Let’s say that this exemption passes. Is it consistent with the Constitution of the Commonwealth of Massachusetts? One law can certainly modify the provision of another law. If it is the will of the citizens of the Commonwealth of Massachusetts (expressed through their representatives) to create such an exception, the courts have to accept it if all it does is modify a previous law. But if the courts are of the opinion that Massachusetts’ constitution forbids such discrimination against same-sex couples, they can strike it down. I haven’t read a copy of their constitution lately, so I don’t know what the situation is. When the Goodrich decision was made by the Massachusetts Supremes, was it based on the Commonwealth’s laws, or on its constitution?
BTW, as far as the Vatican just coming up with this; the RCC’s doctrine on homosexuality (indeed, the general Christian doctrine on homosexuality) is something that has been codified for two millenia. The placement of adopted children with same-sex couples has always been at odds with that doctrine. What’s new is that a) secular society in some areas such as Boston has become tolerant of such an act, and b) the Vatican found out that the American Church was actually doing this. From their viewpoint, the American Church was picking a fight with it though such an act.
Amp, the news item doesn’t say what the Arlington Human Rights Commission concluded. The commission receives and investigates complaints from those who believe they have been victims of unlawful discrimination — and usually helps the parties resolve the matter. It’s a free public service. “The Commission’s investigative and hearing processes usually result in resolution of complaints. If necessary, however, the Commission can, with County Board approval, seek enforcement of its decisions in court,” according to the commission’s web site.
It seems a straightforward legal (non)issue. I would be very surprised if the commission took this case to court and hasn’t already resolved the issue by pointing out the numerous Queer-friendly businesses in the Washington D.C. area to this woman.
(It almost makes me wonder whether the Christian business owner couldn’t legitimately make his own case of harassment against this woman — he’s within his clear legal rights as a private business owner. Could he argue she’s singled out his business, based on her religious intolerance for example, for harassment by means including initiating a government investigation and hearing on baseless claims?)
Hm. These statements give me pause.
So why should they have a right to discriminate in the execution of a state function?
and
prevent the state from getting the services that it needs, …. In this case, CC is helping the state carry out the state’s mission
These seem to be assertions that adoption is a State function. Is it? The State regulates a lot of things that are not state functions (e.g., handling of hazardous materials, food manufacture and sale). I can see where ensuring that adoption is performed with the best interests of the children in mind is something that the State should regulate, but I’m not clear that the State has responsibility for adoptions. Are adoption agencies doing a job for the State? Or are they doing a job for the children and the adopting parents, that the State wants to make sure is done correctly due to the fact that one of the parties is not able to represent themselves?
What’s the message sent by an “it’s okay to discriminate against queers” exemption? That exemptions like this still seem reasonable to many – so long as the targets of discrimination are gay – is a measure of how much lesbians and gays are not seen as fully human. If the interests of lesbians and gays were seen as fully important the way that (say) the interests of Jews are, this legislation would be seen as beyond the pale.
The interests and rights of homosexuals is not the point here. Indeed, there are many other people who are discriminated against by adoption policies – poor people come first to mind, but in some juristictions it’s becoming acceptable to discriminate on the basis of race (cross-racial adoptions are being frowned upon, especially black kids with white couples). Gay rights is not an issue because adoption of children is not a right, it’s a privilege. What is at issue here is whether or not permitting homosexual couples to adopt children is in the best interests of the children, not whether a ban on such interferes with the interests of the same-sex couple. This bill has come to the fore because many people believe that allowing same-sex couples to adopt is against the best interests of the adopted child.
Now, many people (and I presume the majority of people posting here) disagree vehemently with the concept that a same-sex adoption is against the best interests of the child. I’ve certainly seen proponents of it quote studies supporting their point. I’m not arguing that. I’m arguing that this is the focus of this legislation. There are a fair number of people who don’t care if their next door neighbor is gay and lives with his boyfriend, but they may well be of the opinion that allowing them to adopt a kid is not in that kid’s best interests. Appealing to the public to oppose this legislation because it’s unfair to gays and lesbians is going to miss this point.
It did not. The Goodridge decision had absolutely zero effect on Massachusetts adoption law.
RonF, So much here depends on what CC’s relationship to the state is. After reading the Carpenter piece, although not completely clear, it appears that the adoptions we are talking about are the adoption of children in the state’s custody as foster children, not highly adoptable infants being placed by biological parents who almost certainly choose the adoptive parents based on their own criteria. In other words, the state’s interest is in approving as many qualified potential adoptive parents as possible, in order to facilitate the adoption of vulnerable children who are not easy to place. The state is PAYING adoption agencies to carry out this service, and in that scenario, if the agency wishes to continue receiving money from the state to carry out adoptions as a contractor to the state, then I don’t see why it should be exempt from state criteria unless the exemption is necessary in order for the state to achieve its goals (in other words, if there are an insufficient number of alternative agencies willing and able to pick up the slack). The agency can decide whether the state’s policies are objectionable such that it will refuse to participate with the state, but the agency shouldn’t have the power to set the state’s policies. Basically, what I see here is the Catholic Church trying to evade or change democratically established policies by using the goodwill of its strong social service agencies to put a thumb on the scale of state policy. It wants to continue being associated with “mainstream” social programs even as it adheres to positions and carries out policies that are no longer mainstream.
Now, if the state were handing out a license to adoption agencies and agents that enabled those agencies to conduct private adoptions at their own expense, then the state would likely have a problem if it began including requirements that conditioned licensure on the agency’s willingness to adhere to philosophically repugnant conditions.
If Tim Bono doesn’t have the right to turn down this business, then it follows that similar businesses have no right to turn down xeroxing flyers advertising the KKK – or anti-gay videos . . . . I don’t think that Bono should be free to discriminate against a customer’s identity; if Virginia wants to force Bono to accept gay customers (or black customers, or Jewish customers, or transgendered customers, etc), then that’s okay by me.
I’m not sure this works very well.
You’re making a distinction between turning down the business and turning down the customer, but there are cases where there is no such distinction. The landmark equal access cases were over hotel and apartment accomodations: did bigoted owners have an obligation to rent to gay tenants on the same basis as everyone else? The courts ruled that they did, on essentially the same grounds as the lunch-counter desegregation decisions of the 1960s. (The court has not recognized sexual orientation as a “protected category” like race, but it has ruled that purely arbitrary discrimination – discrimination based upon “irrational animus” – is disallowed in any context.) The rulings established the principle that any “public accomodation” must treat all customers equally (thus setting the grounds for later rulings integrating semi-public organizations such as the Lions Club).
This seems like the right ruling. The alternative is to allow businesses to shut out entire categories of persons. If we then want to ban certain forms of discrimination, such as race-based, or “customer-based”, we would have to go back and argue for exemptions to the basic pro-discrimination policy on a case-by-case basis. Instead, the courts have shifted the balance the other way, to a general principle of non-discrimination, for which pro-discrimination exemptions must be argued for on a case-by-case basis (most notably, in the cases of religious organizations). This is a much better principle, and much more coherent as well. It not only opens the public sphere to minorities and the oppressed, but it frees us from making strained distinctions such as whether anti-gay prejudice is “better” than anti-racial prejudice, or between rejecting gay customers’ business and rejecting gay customers.
To go at it from another angle: purely private behavior has never been regulated or subject to anti-discrimination policies. You and your friends can be assholes in private just as much as you like. Public enterprises – meaning not publicly owned but operated in public, taking advantage of the vast services, tax breaks, physical protection, legal protection, infrastructure, social goods, and other advantages provided for such enterprises at public expense – are subject to public regulation, and must treat all members of the public – the body politic that gives them their advantaged place – equally. If business owners don’t want to treat members of the public with equal respect, they can simply forego the advantages of being in business – i.e., they can remove to the private sphere. If they want the public’s money – and fire service, and police protection, and limited liability, and income shelters, and business tax breaks, and expense deductions, and transportation infrastructure, and free education for their workforce, and a stable social climate, and favorable macro-economic policies, and military protection against piracy and invasion, and border and coast guards, and every other thing . . . – they can at least serve their damn customers – the ones who are providing all that for the business owners’ benefit. It’s not too much to ask. In fact, it’s (part of) what is owed us as the political body, in the Hobbesian sense, that makes business possible.
Finally, I don’t think there’s any parallel between the business owner’s decision not to serve certain customers and those customers’ decisions not to patronize – or even to boycott – the business. It’s not a symmetrical relationship to begin with. The business owner has set up in the public way and has an obligation to serve all members of the public equally; nobody ever has an obligation to patronize a business.
But so does a liberal insitance that every gay and lesbian is secretly harboring a desire to entrench themselves in heteronormative practices (i.e. marriage, child-rearing). There are many facets of fear and hate: assimilation being one of the most insidious.
Nik’s got it right. CC is a contract-holder from the state, and part of its fulfillment of the contract is to offer adoptions without discrimination as to status (race, religion, sexual orientation, etc) as defined by the state laws. If the state laws didn’t provide some status protection for sexual orientation and didn’t have same-sex marriage, one might be able to argue that CC could still be in fulfillment of its contract. But it isn’t, and the contract should be terminated.
What adoptions it chooses to do on its own dime are up to it, as long as all transactions occur between practicing Catholic parties, in which case one might put the adoption under the umbrella of pastoral care of members of the Church. I’d say such adoptions would be untouchable by the law as an exercise of religion.
I think so. Adoption is a legal procedure that has to be authorised by the state. So private organizations can’t perform them without state sanction, just as they can’t perform (legally binding) marriages, or convict people of crimes, or divorce them, and so on…
Yes, you’re right. All I can do is emphasis I said religious people should not get to play by a special set of rules. I think the First Amendment is a load of nonsense. I can’t see why people who do X because of their religion should get rights that people who do X for other reasons don’t.
In this case, so far as I can tell, adoption is definitely a function of the state because I believe that CC’s contract is to facilitate the adoption of children who are wards of the state. The state always supervises the placement of children in adoptive homes, for the safety of the children, but not all children are actually wards of the state when placed for adoption (in other words, there’s a difference between a child whose parent’s rights have been superseded by the state, and a child whose parents voluntarily relinquished their rights in favor of another set of parents chosen by them, which is what happens in a private adoption).
Nothing that the state is doing here would contravene the right of a pregnant woman to refuse to place her child with a gay couple as adoptive parents. But a parent normally has rights that an adoption agency does not. In that light, no adoption agency has rights with regard to the placement of adoptable children. In this case, CC would be superseding the state’s prerogative and imposing additional, even conflicting, policy goals on a state program that would, arguably, make it harder for the state to place children.
Adoption is absolutely a state function. As is the job of pharmacists. Drug distribution is state regulated to protect a state interest. Tape duplication is not a state function. Its a private function. There are ways it is regulated, of course, but in ways any business is regulated. There is no special need to regulate private decisions in such functions. Likewise, any newspaper is free to choose advertisers and reject advertisers by their own standards. While we can cry foul when they are inconsistant in enacting their own standards, their right to do as they wish should be broadly protected. Its a slightly more difficult question with TV stations that use public airwaves, but I think broad leeway should still be offered but internal inconstancy should be more loudly protested.
Its not simply to protect acts of conscience I’d agree with. Its because its what is right. Considering a circumstance I’d agree with only illuminates that. Its not the justification in itself. Likewise, I would object to an adoption agency that wished to discriminate against Catholics, so this test doesn’t work in that scenario. Compare it to birth control debate, would I want pharmacists withholding drugs I found objectionable? No. I don’t think that is their responsibility and agreeing with their opinion doesn’t make their behavior right.
A Possible Solution
Without getting mired in the gobbledegook arguments of church and state, I’d like to make a suggestion and a small point.
First, the small point.
Abyss2hope, your post seems to attribute the church’s decision to the Vatican. Without necessarily supporting the Vatican, I’d like to point out that in this instance, it is more likely that the local diocese is making the decisions. The Vatican allows a wide range of activities and is constantly evolving. Back in the middle ages, a radical monk named Francis was allowed to establish a new order (albeit with some trepidation).
Now, the suggestion.
The church and it’s pastor may feel uncomfortable giving guidance for adoption to gay couples. It may also not want to invite gay couples to church sanctioned support groups.
In order to maintain it’s eligibility for funding the church could establish a separate entity which operates the adoption services required by the state in order to keep its license. It could then just maintain a policy of not referring gay couples directly to the entity they operate. If a gay couple finds it on their own or by reference of a friend – or by the state agency, then the church run adoption agency would be required to provide the services mandated by state law.
The Catholic Church also provides divorce support groups which refuse to condone or suggest that divorce is correct in any circumstances. Many couples who do get divorces still are able to benefit from these support groups.
azbballfan
Dale Carpenter has written at least twice on this topic. I first read it at Volokh. While it is true that CC’s decision is likely made at the local level, it also follows quickly on the heels of guidance from Cardinal Alfonso López Trujillo, who was recently appointed as head of the Pontifical Council for the Family. So, CC does seem to be doing what many call “following guidance from The Vatican.”
Interstingly, I read both Dr. Carpenter’s articles, some time ago and took the same point of view as Amp on both cases. Catholic Charities must do what their conscious tells them (whether or not guided by the Vatican). However, since other agencies willing to follow State guidelines exist, I see no particular reason Massachusetts needs to hire CC to do the job.
As to publishing the video: here we must balance first amedment rights against what? Life? No. Health? No. Maybe inconvenience? At best, I think we see the customer and video store owners first amendments rights balanced against each other.
Bono is refusing to assist a customer in Bono finds abhorrent. This is incovenient to the customer, but he’ll get the thing replicated. Given the balance, I think Mr. Bono should be allowed to refuse to replicate the video.
While I could be convinced otherwise, right now, I don’t this as similar to refusing to serve people food, provide them shelter, dispensing life and health protecting drugs or discriminate in hiring which affects people ability to feed or house themselves.
O.K. If this is a situation where the state has custody of a group of children, then arranging adoptions for those particular children would seem to be a state function; whereas while regulation of private adoption (e.g., through licensing) is a state function, arranging those adoptions is not. It’s not clear from what’s quoted whether or not Massachusetts law forbids adoption agencies arranging private adoptions from basing a choice of adoptive parents on their sexual orientation, or just those adoptions involving children in the custody of the state.
The agency can decide whether the state’s policies are objectionable such that it will refuse to participate with the state,
Yup. Agree with you there.
but the agency shouldn’t have the power to set the state’s policies.
I agree with you there as well. Fortunately, the CC isn’t doing any such thing.
Basically, what I see here is the Catholic Church trying to evade or change democratically established policies by using the goodwill of its strong social service agencies to put a thumb on the scale of state policy.
What I see here is the democratic process working through a vote on a proposed bill by democratically elected representatives in a republican form of government (that’s with a small “r”, folks). That’s how all our laws are made. I don’t know what pressures that CC or the RCC have put on anyone other than preaching from the pulpit and making phone calls. Neither one has a lot of spare cash right now. Of course, Mitt Romney is a Mormon, a denomination that if anything is to the right of the RCC on this issue. I’d imagine that the members of the Great and General Court (the formal name of the legislature, back from the days when it had both legislative and judicial functions) are majority RCC. I also figure that Mitt is a damn good politician and won’t get too far away from what he figures is the general will of his electorate. Changing democratically established policies is what democracies do.
I’m curious, BTW. How democratic was the process by which forbidding the genders of the two people in an adoptive couple to be a factor in permitting them to adopt became policy? Was it directly through legislative action? Or was it more removed, being done though a regulation by executive-deparment bureaucrats? Or was it a court case, such that it was established by judges?
It wants to continue being associated with “mainstream” social programs even as it adheres to positions and carries out policies that are no longer mainstream.
Actually, it seems to me that they have stopped being associated with the social program of placing children for adoption. It’s hard to say from the context, though, if they’ve stopped all adoption services, or just those associated with children in the custody of the state.
As far as what’s “mainstream”, I guess that we’ll see about that. If placement of children with same-sex couples is mainstream, then this bill would likely fail. Remember, only a handful of people got to vote on Goodrich; the law as established by the legislature opposed it.
What adoptions it chooses to do on its own dime are up to it, as long as all transactions occur between practicing Catholic parties,
Nik, why would such a transaction have to be between practicing Catholic parties?
Never mind the pitfalls in having the State involved in what is to be considered “Catholic” and “practicing”.
Well dang, nik, I’m glad you’re not in charge. Unless your argument is that all of us, not just some Native Americans out West, should have access to peyote.
BStu, I’m making a distinction between State functions (building roads, law enforcement, establishing a military to defend the country) and private functions regulated by the State to ensure that public interests are protected. Pharmacies are private enterprises (absent pharmacies in public hospitals, military bases et. al.). It’s in the interest of the public for the State to ensure that they don’t sell adulterated drugs and that the people there are trained for their work. But the dispensing of drugs for profit to the public is not a State function. Neither is adoption (again, save for the adoption of children in State custody). The regulation of an industry or enterprise does not make that industry or enterprise a State function.
Ron;
I didn’t write the above, NancyP did. I appreciate it’s an easy mistake to make.
I’m not suggesting that all of us, not just some Native Americans, should have access to peyote. Just that either all of us should have access to it or none of us. I that it’s unfair that one person gets a jail term for something, whereas someone else gets away with it because of his or her religion.
RonF,
It would seem the process was highly democratic as in “A law passed by the Mass Legislature a long time ago.”
The law has been in place 17 years. For many years, Catholic Charities (CC)pacted as an adoption agency, followed the existing law banning discrimination and from time to time, placed children with same sex couple. Recently, CC announced they would stop providing adoption services rather than follow existing Mass. Law. It appears they have also taken legal action to obtain a religious dispensation. In addition, Mitt Romeny has proposed the legislature pass an exemption for CC.
So, the current political questions are:
1) Should the Mass. Legislature take up Romney suggestion and modify the existing law for the sake of CC? I would vote no. I don’t see a very good reason for this exemption.
2) Should the courts grant CC a dispensation?
In my opinioin, vis-a-vis #1: Unless CC is accomplishing something Mass cannot otherwise accomplish, I don’t see any reason for the legislature to change existing law.
Vis a vis #2. Acting as a paid agent to facilitate adoption of children is neither a major nor minor tenent of the Roman Catholic religion. Should CC bow out of this business, that will have no impact on any Roman Catholics freedom of religion.
You can get some context in Dale Carpenter’s April post and Jim Lindgren’s article. And for good measure, you can read Eugene Volokh’s comments on a similar issue in San Francisco.
Premises:
1. You have autonomy/freedom/liberty/whathaveyou. Autonomy means, among other things, that you have no duty to aid me unless there is some exceptional relationship between us (parent/child, lifeguard/swimmer, someone who created a mess/someone who is harmed by the mess, etc.)
2. Government should not act except to fulfill legit. gov. purpose. Government should fulfill its purposes in the manner that imposes the least burden upon your autonomy. Government should not tell you what to believe or do (Establishment Clause), nor impinge upon your beliefs or actions (Free Exercise Clause) or discriminate (Equal Protection Clause) except to the extent necessary to fulfill a legit. gov. purpose (such as hiring on the basis of bonfide occupational qualifications).
3. There is legitimate dispute about whether discouraging private “discrimination” is a legitimate governmental function. To the extent government created discrimination, government has a legit. purpose in remedying it. Otherwise, government does not.
Analysis:
A. What role does government have in impinging on the autonomy of a shop owner to decide whether to copy a gay-themed video he disapproves of? This is unclear to me. If government created discrimination against gays then government may have some role in remedying it. Even so, does government have a less burdensome means of remedy than impinging upon the story owner’s autonomy?
B. What role does government have in impinging upon the autonomy of a pharmacist to withhold contraceptives? This is unclear to me. If government caused the public to believe that pharmacists could not withhold contraceptives, then maybe government would have some role in remedying this impression. Even so, does government have a less burdensome means than impinging upon the pharmacists’s autonomy?
C. What role does government have in impinging on the autonomy of Catholic Charities to decide whether to help gay people adopt kids? Again, this is unclear to me. If government created discrimination against gays then government has some role in remedying it. Even so, does government have a less burdensome means of remedy than impinging upon the autonomy of Catholic Charities?
Admittedly, this is a different situation because government is acting as an employer, not merely as a regulator. If government has a legit purpose in getting kids adopted, I see no problem with government offering a bounty to private adoption agencies for that purpose. And if some adoption agency chooses to forego the opportunity to earn a bounty by placing a kid with a gay person, or a black person, or a poor person, or a short person, that’s the agency’s choice. It’s no skin off my nose if they do. So long as gays, blacks, poor people and short people can get served elsewhere, that looks ok to me. (Government should guard against becoming the enforcing arm for private discrimination, but that’s a larger topic.)
Hypothetically, if government could work with only a limited number of adoption agencies then government should allocate its scarce supply of agency licences on the basis of bona fide occupational qualifications. If three candidate agencies were willing to work with all potential adopters, then government might have grounds to reject Catholic Charities.
One person’s “discrimination” is another person’s religion. I prefer government not to discriminate on the basis of religion any more than necessary to fulfill its legit. gov. purposes.
All I can do is emphasis I said religious people should not get to play by a special set of rules. I think the First Amendment is a load of nonsense. I can’t see why people who do X because of their religion should get rights that people who do X for other reasons don’t.
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I’m not suggesting that all of us, not just some Native Americans, should have access to peyote. Just that either all of us should have access to it or none of us. I that it’s unfair that one person gets a jail term for something, whereas someone else gets away with it because of his or her religion.
Agreed. If there is a legit. gov. purpose to banning peyote, then government should ban it. Otherwise, it shouldn’t. Government should not discriminate on the basis of religion – yet this is precisely what the Supreme Court has permitted in some instances. (But Establishment Clause cases are all over the map.)
I actually think that current laws on religious discrimination make a very good model here. I think that private businesses, churches or whatever should be able to discriminate against gays and lesbians in all and only those cases in which they could discriminate against members of other religions. Race and sex discrimination raise slightly different issues which make them problematic as models. But in the case of both anti-gay/lesbian discrimination and anti-various specific religion discrimination, the discriminating business/church/whatever is saying it doesn’t like the beliefs/actions of the other.
Thus no one would say (I trust) that the law should force Catholics to hire Jews or Mormons as priests. But a businessman can’t refuse to serve Jews or Mormons just because, as a Catholic, he/she thinks they’re going to hell. The same should hold true for gays and lesbians.
It seems that the issues are similar enough that the existing legal framework could be applied pretty directly.
The added benefit here is that anti-gay/lesbian bigotry is almost always religiously motivated (if only on an unconscious, they-learned-it-young-and-so-it-seems-“natural” level). So that anti-gay/lesbian bigots should have the same rights to express those views as people do to express specific religious views — but no more rights to use the government to impose their views on others.
I’m an adoptive parent, and at the time we went through the process, Catholic Social Services was the only local adoption agency in our metro area. They were friendly, affordable, professional, and not in the least bit evangelical toward us (we’re Jewish).
What they did push, and rightly so, was the concept of open adoption, that is, where the adoptive parents have some contact (and perhaps an ongoing relationship) with the birth parents or birth mother. I feel strongly that this is enormously better than the brutally secretive old “closed” adoption system.
When we were at CSS, they did adoptions for singles and same sex couples, transracial adoptions, whatever made sense in context. If that is no longer the case, due to pressure from the Vatican, then our community and probably many others around the country with no non-Catholic local agency are the losers.
RonF, you make very little useful distinction between state and private functions if you think adoption and pharmacuticals are not areas of state interest. Though I suppose it is good to hear that you must whole heartedly endorse and promote gay marriage. However, while you would support gay marriage because you must think marriage is not a state function (if adoption isn’t after all, how could marriage be?). I, however, think that marriage is something the state has an interest in and has the right to set certain guidelines for in keeping with their state constitution. Ideally, civil marriage and religious marriage should be kept seperate. Let anyone perform whatever religious ceremony they deem appropriate but have the legal recognition of marriage be a functionally different enterprise. Priests ought not to have powers vested in them by any state to perform a civil marriage simultanious to a religious ceremony. It muddies the water and has clearly emboldened others to think the state vests powers in them for religious purposes. Even still, the distinctions are clear. Catholic Charities is largely run by lay Catholics, not priests who are authorized by the church to practice the rituals of the faith. Likewise, pharmacists are pharmacists, liscensed by the state to dispense medication under a doctor’s professional direction. They have no right to substitute their moral judgement for a doctor’s professional judgement. If you have moral objections to the professional demands of a job, choose another career.
RonF, you make very little useful distinction between state and private functions if you think adoption and pharmacuticals are not areas of state interest.
Please point out where I said that those things are not of state interest? That’s quite a distortion of what I said.
Catholic Charities is largely run by lay Catholics, not priests who are authorized by the church to practice the rituals of the faith.
Lay Catholics are required by the Church to hold certain beliefs. Among those are the concept that homosexuality is “objectively disordered” and that homosexuals should live a life of chastity. Same-sex couples are highly unlikely to be living a life of chastity. For these reasons, it makes little sense to expect lay Catholics to approve of placing children for adoption with same-sex couples. You don’t have to be a priest practicing a religious ritual for your actions to be based on religious principles and for them to be thus protected by the First Amendment.
As I’ve said before, that doesn’t mean that the State has to pay you for any of your activities that are circumscribed by said religous beliefs.
A state function is something the state does. Thus, building roads is a State function. Enforcing the law is a State function. Protecting the public against foreign invasion is a State function.
Things like making drugs and selling them is a private function. Providing healthcare is a private function. Building a house is a private function. But in all those cases, it has been determined that for the protection of the public, certain areas of those functions need to meet particular standards such as efficacy and purity standards or building codes. These are enforced by the State. But the transaction itself takes place between private parties; neither one is acting on behalf of the State.
It might be, but it could argued that ensuring that healthcare is provided is a public/state function. For example, a hospital cannot legally turn away a dying person.
I think the claim that sales of pharmeceuticals is a private function is dubious. There are some private aspects but the pharmaceutical industry is regulated by the government in a huge variety of ways.
Our government noe only takes a huge role in ensuring the safety efficacy and availability of pharmaceuticals, the goverment is often the customer paying for them! Does filling a prescription remain private when Medicare or Medicaid pays? Might it not be fair for the goverment to enact legistlation that states that pharmacists who won’t fill valid birth control presecriptions can’t be reimbursed for filling all valid prescriptions?
As it happens, I do like to retain as much private liberty as possible. But, the issue of pharmacists not filling prescriptions goes a further than individual pharmacists refusing to sell. Some pharmacists want the private right to not fill prescriptions, while also forcing their private employers to retain them in their job.
If we are going to see this from the private -libertarian perspective, shouldn’t the owner of a pharmacy be permitted to fire a pharmacist who won’t dispense some valid prescriptions? That is: fire someone who turns away paying customers? Likewise, shouldn’t a gun dealer be permitted to fire someone who later says they won’t sell guns or bullets? Of a trinket shop be permitted to fire someone who won’t sell gold pentagrams if an employe objects on the grounds that the religious symbolism of the trinket violates their religious sensiblities?