The destructive consequences of "gay marriage" is already happening!
VR24WC
getting out of the adoption business. "We have encountered a dilemma
we cannot resolve. . . . The issue is adoption to same-sex couples."
It was shocking news. Catholic Charities of Boston, one of the
nation's oldest adoption agencies, had long specialized in finding
good homes for hard to place kids. "Catholic Charities was always at
the top of the list," Paula Wisnewski, director of adoption for the
Home for Little Wanderers, told the Boston Globe. "It's a shame
because it is certainly going to mean that fewer children from foster
care are going to find permanent homes." Marylou Sudders, president of
the Massachusetts Society for the Prevention of Cruelty to Children,
said simply, "This is a tragedy for kids."
How did this tragedy happen?
It's a complicated story. Massachusetts law prohibited "orientation
discrimination" over a decade ago. Then in November 2003, the
Massachusetts Supreme Judicial Court ordered gay marriage. The
majority ruled that only animus against gay people could explain why
anyone would want to treat opposite-sex and same-sex couples
differently.
[Of course, this preposterous conclusion is obviously false]
That same year, partly in response to growing pressure for gay
marriage and adoption both here and in Europe, a Vatican statement
made clear that placing children with same-sex couples violates
Catholic teaching.
[Not to mention the most basic common sense]
Then in October 2005, the Boston Globe broke the news: Boston Catholic
Charities had placed a small number of children with same-sex couples.
Sean Cardinal O'Malley, who has authority over Catholic Charities of
Boston, responded by stating that the agency would no longer do so.
Seven members of the Boston Catholic Charities board (about one-sixth
of the membership) resigned in protest. Joe Solmonese, president of
the Human Rights Campaign, which lobbies for lesbian, gay, bisexual,
and transgender equal rights, issued a thundering denunciation of the
Catholic hierarchy: "These bishops are putting an ugly political
agenda before the needs of very vulnerable children. [FALSE] Every one
of the nation's leading children's welfare groups agrees that a
parent's sexual orientation is irrelevant to his or her ability to
raise a child. [They are dead wrong] What these bishops are doing is
shameful, wrong, and has nothing to do whatsoever with faith."
[Correct. Religious faith is not required to accurately identify
objectively demonstrable moral codes]
But getting square with the church didn't end Catholic Charities'
woes. To operate in Massachusetts, an adoption agency must be licensed
by the state. And to get a license, an agency must pledge to obey
state laws barring discrimination--including the decade-old ban on
orientation discrimination. With the legalization of gay marriage in
the state, discrimination against same-sex couples would be outlawed,
too.
Cardinal O'Malley asked Governor Mitt Romney for a religious exemption
from the ban on orientation discrimination. Governor Romney
reluctantly responded that he lacked legal authority to grant one
unilaterally, by executive order. So the governor and archbishop
turned to the state legislature, requesting a conscience exemption
that would allow Catholic Charities to continue to help kids in a
manner consistent with Catholic teaching.
To date, not a single other Massachusetts political leader appears
willing to consider even the narrowest religious exemption. Lieutenant
Governor Kerry Healey, the Republican candidate for governor in this
fall's election, refused to budge: "I believe that any institution
that wants to provide services that are regulated by the state has to
abide by the laws of the state,"
[You will know your society is doomed when Men who wish to provide
sincere, helpful charity, must first get permission from Men whose
only function is to create obstacles to that service in the name of
political correctness.]
Healey told the Boston Globe on March 2, "and our antidiscrimination
laws are some of our most important."
[... AND they are mpolitically correct. LOL! What a joke!]
From there, it was only a short step to the headline "State Putting
Church Out of Adoption Business," which ran over an opinion piece in
the Boston Globe by John Garvey, dean of Boston College Law School.
It's worth underscoring that Catholic Charities' problem with the
state didn't hinge on its receipt of public money. Ron Madnick,
president of the Massachusetts chapter of Americans United for
Separation of Church and State, agreed with Garvey's assessment: "Even
if Catholic Charities ceased receiving tax support and gave up its
role as a state contractor, it still could not refuse to place
children with same-sex couples."
[IOW, if you were a sincere, competent, PRIVATE adoption broker,
offering your service at no charge to the recipients, you could STILL
not choose WHO you serve based on your own values. So much for
freedom!.]
This March, then, unexpectedly, a mere two years after the
introduction of gay marriage in America, a number of latent concerns
about the impact of this innovation on religious freedom ceased to be
theoretical. How could Adam and Steve's marriage possibly hurt anyone
else? When religious-right leaders prophesy negative consequences from
gay marriage, they are often seen as overwrought. The First Amendment,
we are told, will protect religious groups from persecution for their
views about marriage.
So who is right? Is the fate of Catholic Charities of Boston an
aberration or a sign of things to come?
I PUT THE QUESTION to Anthony Picarello, president and general counsel
of the Becket Fund for Religious Liberty. The Becket Fund is widely
recognized as one of the best religious liberty law firms and the only
one that defends the religious liberty of all faith groups, "from
Anglicans to Zoroastrians," as its founder Kevin J. Hasson likes to
say (referring to actual clients the Becket Fund has defended).
Just how serious are the coming conflicts over religious liberty
stemming from gay marriage?
"The impact will be severe and pervasive," Picarello says flatly.
"This is going to affect every aspect of church-state relations."
Recent years, he predicts, will be looked back on as a time of
relative peace between church and state, one where people had the
luxury of litigating cases about things like the Ten Commandments in
courthouses. In times of relative peace, says Picarello, people don't
even notice that "the church is surrounded on all sides by the state;
that church and state butt up against each other. The boundaries are
usually peaceful, so it's easy sometimes to forget they are there. But
because marriage affects just about every area of the law, gay
marriage is going to create a point of conflict at every point around
the perimeter."
For scholars, these will be interesting times: Want to know exactly
where the borders of church and state are located? "Wait a few years,"
Picarello laughs. The flood of litigation surrounding each point of
contact will map out the territory. For religious liberty lawyers,
there are boom times ahead. As one Becket Fund donor told Picarello
ruefully, "At least you know you're not in the buggy whip business."
Picarello is a Harvard-trained litigator experienced in religious
liberty issues. But predicting the legal consequences of as big a
change as gay marriage is a job for more than one mind. So last
December, the Becket Fund brought together ten religious liberty
scholars of right and left to look at the question of the impact of
gay marriage on the freedom of religion. Picarello summarizes: "All
the scholars we got together see a problem; they all see a conflict
coming. They differ on how it should be resolved and who should win,
but they all see a conflict coming."
These are not necessarily scholars who oppose gay marriage. Chai
Feldblum, for example, is a Georgetown law professor who refers to
herself as "part of an inner group of public-intellectual movement
leaders committed to advancing LGBT [lesbian, gay, bisexual,
transsexual] equality in this country." Marc Stern is the general
counsel for the center-left American Jewish Congress. Robin Wilson of
the University of Maryland law school is undecided on gay marriage.
Jonathan Turley of George Washington law school has supported
legalizing not only gay marriage but also polygamy.
[As we predicted. Today Gay maarriage, tomorrow, polygamy, the next
day, incest, then finally, pedophillia and bestiality. The slope gets
more and more slippery with each passing gay parade.]
Reading through these and the other scholars' papers, I noticed an odd
feature. Generally speaking the scholars most opposed to gay marriage
were somewhat less likely than others to foresee large conflicts
ahead--perhaps because they tended to find it "inconceivable," as Doug
Kmiec of Pepperdine law school put it, that "a successful analogy will
be drawn in the public mind between irrational, and morally repugnant,
racial discrimination and the rational, and at least morally
debatable, differentiation of traditional and same-sex marriage."
That's a key consideration. For if orientation is like race, then
people who oppose gay marriage will be treated under law like bigots
who opposed interracial marriage. Sure, we don't arrest people for
being racists, but the law does intervene in powerful ways to punish
and discourage racial discrimination, not only by government but also
by private entities. Doug Laycock, a religious liberty expert at the
University of Texas law school, similarly told me we are a "long way"
from equating orientation with race in the law.
By contrast, the scholars who favor gay marriage found it relatively
easy to foresee looming legal pressures on faith-based organizations
opposed to gay marriage, perhaps because many of these scholars live
in social and intellectual circles where the shift Kmiec regards as
inconceivable has already happened. They have less trouble imagining
that people and groups who oppose gay marriage will soon be treated by
society and the law the way we treat racists because that's pretty
close to the world in which they live now.
The (Gay) Public Intellectual
Of all the scholars who attended, perhaps the most surprising is Chai
Feldblum. She is a Georgetown law professor who is highly sought after
on civil rights issues, especially gay civil rights. She has drafted
many federal bills to prohibit orientation discrimination and
innumerable amicus briefs in constitutional cases seeking equality for
gay people. I ask her why she decided to make time for a conference on
the impact of same-sex marriage on religious liberty.
"Not because I was caught up in the panic," she laughs. She'd been
thinking through the moral implications of nondiscrimination rules in
the law, a lonely undertaking for a gay rights advocate. "Gay rights
supporters often try to present these laws as purely neutral and
having no moral implications. [A L L laws have inescapable moral
consequences] But not all discrimination is bad," Feldblum points out.
In employment law, for instance, "we allow discrimination against
people who sexually abuse children, [Why? On what basis do we allow
even THIS kind of discrimination?] and we don't say 'the only question
is can they type' even if they can type really quickly."
To get to the point where the law prohibits discrimination, Feldblum
says, "there have to be two things: one, a majority of the society
believing the characteristic on which the person is being
discriminated against is not morally problematic, and, two, enough of
a sense of outrage to push past the normal American contract-based
approach, where the government doesn't tell you what you can do. There
has to be enough outrage to bypass that basic default mode in America.
Unlike some of my compatriots in the gay rights movement, I think we
advance the cause of gay equality if we make clear there are moral
assessments that underlie antidiscrimination laws."
But there was a second reason Feldblum made time for this particular
conference. She was raised an Orthodox Jew. She wanted to demonstrate
respect for religious people and their concerns, to show that the gay
community is not monolithic in this regard.
"It seemed to me the height of disingenuousness, absurdity, and indeed
disrespect to tell someone it is okay to 'be' gay, but not necessarily
okay to engage in gay sex. What do they think being gay means?" she
writes in her Becket paper. "I have the same reaction to courts and
legislatures that blithely assume a religious person can easily
disengage her religious belief and self-identity from her religious
practice and religious behavior. What do they think being religious
means?"
To Feldblum the emerging conflicts between free exercise of religion
and sexual liberty are real: "When we pass a law that says you may not
discriminate on the basis of sexual orientation, we are burdening
those who have an alternative moral assessment of gay men and
lesbians." Most of the time, the need to protect the dignity of gay
people will justify burdening religious belief, she argues. But that
does not make it right to pretend these burdens do not exist in the
first place, or that the religious people the law is burdening don't
matter.
"You have to stop, think, and justify the burden each time," says
Feldblum. She pauses. "Respect doesn't mean that the religious person
should prevail in the right to discriminate--it just means
demonstrating a respectful awareness of the religious position."
Feldblum believes this sincerely and with passion, and clearly (as she
reminds me) against the vast majority of opinion of her own community.
And yet when push comes to shove, when religious liberty and sexual
liberty conflict, she admits, "I'm having a hard time coming up with
any case in which religious liberty should win."
She pauses over cases like the one at Tufts University, one of many
current legal battles in which a Christian group is fighting for the
right to limit its leaders to people who subscribe to its particular
vision of Christianity. She's uncertain about Catholic Charities of
Boston, too: "I do not know the details of that case," she told me. "I
do believe a state should be permitted to withhold tax exempt status,
as in the Bob Jones case, from a group that is clearly contrary to the
state's policy. But to go further and say to a group that it is not
permitted to engage in a particular type of work, such as adoptions,
unless it also does adoptions for gay couples, that's a heavier hand
from the state. And I would hope we could have a dialogue about this
and not just accusations of bad faith from either side."
But the bottom line for Feldblum is: "Sexual liberty should win in
most cases. There can be a conflict between religious liberty and
sexual liberty, but in almost all cases the sexual liberty should win
because that's the only way that the dignity of gay people can be
affirmed in any realistic manner."
The Litigator
Marc Stern has known Chai Feldblum since she was eight years old.
"Vivacious, really extraordinary," he says as he smiles, shaking his
head at the memories of the little girl whose father he knew well.
"Chai is among the most reasonable [gay rights advocates]," he says.
"If she's having trouble coming up with cases in which religious
liberty should win, we're in trouble."
As general counsel for the American Jewish Congress, Marc Stern knows
religious liberty law from the inside out. Like Anthony Picarello, he
sees the coming conflicts as pervasive. The problem is not that clergy
will be forced to perform gay marriages or prevented from preaching
their beliefs. Look past those big red herrings: "No one seriously
believes that clergy will be forced, or even asked, to perform
marriages that are anathema to them. Same-sex marriage would, however,
work a sea change in American law. That change will reverberate across
the legal and religious landscape in some ways that are today
unpredictable," he writes in his Becket Fund paper.
Consider education. Same-sex marriage will affect religious
educational institutions, he argues, in at least four ways:
admissions, employment, housing, and regulation of clubs. One of
Stern's big worries right now is a case in California where a private
Christian high school expelled two girls who (the school says)
announced they were in a lesbian relationship. Stern is not
optimistic. And if the high school loses, he tells me, "then religious
schools are out of business." Or at least the government will force
religious schools to tolerate both conduct and proclamations by
students they believe to be sinful.
Stern agrees with Feldblum that public accommodation laws can and
should force truly commercial enterprises to serve all comers. But, he
asks, what of other places, such as religious camps, retreats, and
homeless shelters? Will they be considered by courts to be places of
public accommodation, too? Could a religious summer camp operated in
strict conformity with religious principles refuse to accept children
coming from same-sex marriages? What of a church-affiliated community
center, with a gym and a Little League, that offers family programs?
Must a religious-affiliated family services provider offer marriage
counseling to same-sex couples designed to facilitate or preserve
their relationships?
"Future conflict with the law in regard to licensing is certain with
regard to psychological clinics, social workers, marital counselors,
and the like," Stern wrote last December--well before the Boston
Catholic Charities story broke.
Think about that for a moment. Of all the experts gathered to forecast
the impact of gay marriage on religious organizations, no one, not
even Stern, brought up adoption licenses. "Government is so pervasive,
it's hard to know where the next battle will be," he tells me. "I
thought I had a comprehensive catalog, but the adoption license issue
didn't occur to me."
Will speech against gay marriage be allowed to continue unfettered?
"Under the American regime of freedom of speech, the answer ought to
be easy," according to Stern. But it is not entirely certain, he
writes, "because sexual-harassment-in-the-workplace principles will
likely migrate to suppress any expression of anti-same-sex-marriage
views." Stern suggests how that might work.
In the corporate world, the expression of opposition to gay marriage
will be suppressed not by gay ideologues but by corporate lawyers, who
will draw the lines least likely to entangle the company in
litigation. Stern likens this to "a paroxysm of prophylaxis--banning
'Jesus saves' because someone might take offense."
Or consider a recent case at William Paterson University, a state
school in New Jersey. A senior faculty member sent out a mass email
inviting people to attend movies with a gay theme. A student employee,
a 63-year-old Muslim named Jihad Daniel, replied to the professor in a
private email asking not to receive messages "about 'Connie and Sally'
and 'Adam and Steve.'" He went on, "These are perversions. The absence
of God in higher education brings on confusion. That is why in these
classes the Creator of the heavens and the earth is never mentioned."
The result: Daniel received a letter of reprimand for using the
"derogatory and demeaning" word "perversions" in violation of state
discrimination and harassment regulations.
Interestingly, Stern points out, a single "derogatory or demeaning"
remark not seeking sexual gratification or threatening a person's job
security does not constitute harassment under ordinary federal and
state sexual harassment law originally intended to protect women in
the workplace. Moreover, Stern says, "our entire free speech regime
depends on the principle that no adult has a right to expect the law
will protect him from being exposed to disagreeable speech."
Except, apparently in New Jersey, where a state attorney general's
opinion concluded, "[C]learly speech which violates a
nondiscrimination policy is not protected." "This was so 'clear' to
the writer," notes Stern, "that she cited not a single case or law
review article in support." Ultimately, the school withdrew its
reprimand from Daniel's employment file after receiving negative
publicity and the threat of a lawsuit from the Foundation for
Individual Rights in Education (FIRE).
Sexual harassment law as an instrument for suppressing religious
speech? A few days after I interviewed Stern, an Alliance Defense Fund
press release dropped into my mail box: "OSU Librarian Slapped with
'Sexual Harassment' Charge for Recommending Conservative Books for
Freshmen." One of the books the Ohio State librarian (a pacifist
Quaker who drives a horse and buggy to work) recommended was It Takes
a Family by Senator Rick Santorum. Three professors alleged that the
mere appearance of such a book on a freshman reading list made them
feel "unsafe." The faculty voted to pursue the sexual harassment
allegation, and the process quickly resulted in the charge being
dropped.
In the end the investigation of the librarian was more of a
nuisance--you might call it harassment--than anything else. But the
imbalance in terms of free speech remains clear: People who favor gay
rights face no penalty for speaking their views, but can inflict a
risk of litigation, investigation, and formal and informal career
penalties on others whose views they dislike. Meanwhile, people who
think gay marriage is wrong cannot know for sure where the line is now
or where it will be redrawn in the near future. "Soft" coercion
produces no martyrs to disturb anyone's conscience, yet it is highly
effective in chilling the speech of ordinary people.
Finally, I ask Stern the big question on everyone's mind. Religious
groups that take government funding will almost certainly be required
to play by the nondiscrimination rules, but what about groups that,
while receiving no government grants, are tax-exempt? Can a group--a
church or religious charity, say--that opposes gay marriage keep its
tax exemption if gay marriage becomes the law? "That," says Stern, "is
the 18 trillion dollar question."
Twenty years ago it would have been inconceivable that a Christian or
Jewish organization that opposed gay marriage might be treated as
racist in the public square. Today? It's just not clear.
"In Massachusetts I'd be very worried," Stern says finally. The
churches themselves might have a First Amendment defense if a state
government or state courts tried to withdraw their exemption, he says,
but "the parachurch institutions are very much at risk and may be put
out of business because of the licensing issues, or for these other
reasons--it's very unclear. None of us nonprofits can function without
[state] tax exemption. As a practical matter, any large charity needs
that real estate tax exemption."
He blames religious conservatives for adopting the wrong political
strategy on gay issues. "Live and let live," he tells me, is the only
thing around the world that works. But I ask him point blank what he
would say to people who dismiss the threat to free exercise of
religion as evangelical hysteria. "It's not hysteria, this is very
real," he tells me, "Boston Catholic Charities shows that."
Fundamentally, Stern sees this as a "religious war" between people for
whom an egalitarian secular ethic is the only rational option and
people who can make room for an ethic based on faith in a God who
commands. There are very few signs of a willingness to compromise on
either side, he notes.
"You look around the world and even the right to preach is in doubt,"
he tells me. "In the United States we are not foreseeably in that
position. Fundamentally speech is still safe in the United States.
Beyond speech, nothing is safe."
The Health Care Law Expert
Robin Wilson is an expert in both family law and health care law. So
when Anthony Picarello approached her about thinking through the
impact gay marriage may have on religious institutions, she had a
ready model at hand: the struggles over conscience exemptions in the
health care field after Roe v. Wade elevated abortion to a
constitutional right.
Wilson predicts "a concerted effort to take same-sex marriage from a
negative right to be free of state interference to a positive
entitlement to assistance by others. Although Roe and Griswold
established only the right to noninterference by the state in a
woman's abortion and contraceptive decisions, family planning
advocates have worked strenuously to force individual institutions to
provide controversial services, and to force individual health care
providers to participate in them."
"This litigation after Roe," she says, "provides a convincing
prediction about the trajectory that litigation after Goodridge will
take" (Goodridge being the Massachusetts supreme court decision that
legalized gay marriage). The post-Roe litigation also provides fair
warning about the limits of First Amendment protection. The lever used
to force hospitals and doctors to perform abortions and sterilizations
was the receipt of any public money. "Given the status of most
churches as state nonprofits and federally tax-exempt organizations,
it is likely that public support arguments will be advanced to compel
churches to participate in same-sex marriage. Thus, churches in
Massachusetts (and perhaps soon other states) may have much to worry
about," Wilson writes. "Churches that oppose same-sex marriage today
may perceive a credible, palpable threat to their tax-exempt status,
the benefits of which are substantial."
This threat is credible, she explains, because to be recognized as
tax-exempt under Section 501(c)(3) of the Internal Revenue Code, an
organization must have purposes and activities that do not violate
fundamental "public policy," a concept that neither the Supreme Court
nor the IRS has fully defined.
The case that worries Wilson in this regard is one that Chai Feldblum
mentioned: Bob Jones University v. United States, in which the IRS
revoked the federal tax exemption of Bob Jones University because the
school prohibited interracial marriage and dating among its students.
The Court easily dismissed Bob Jones's claim that its prohibition on
interracial dating was religiously grounded and therefore protected by
the First Amendment. The denial of tax benefits, the Court asserted,
would not prevent the school "from observing their religious tenets."
Equally, the First Amendment did not prevent religious hospitals from
being punished for refusing to perform abortions, once abortion became
a constitutional right. It was Congress and state legislatures that
stepped in to provide generous statutory religious exemptions. Once
gay marriage is legal, it too will probably become fundamental public
policy. To protect the tax-exempt status of religious groups that
oppose gay marriage will thus likely require legislative intervention
to create religious exemptions at either the state or federal level or
both, says Wilson. She means the same kind of religious exemption
that, to date, no politician in Massachusetts besides the outgoing
governor is willing to support.
The Legal Eagle
Jonathan Turley, the George Washington professor who is a First
Amendment specialist, also sees a serious risk ahead. Turley has no
problem with gay marriage. But the gay marriage debate, he notes,
exposes "long ignored weaknesses in doctrines relating to free speech,
free exercise, and the right to association."
Before 1970 the law was "viewpoint neutral" with regard to the tax
exempt status of all charitable, religious, and public interest
organizations under section 501(c)(3), he says. The tax exemption was
viewed not as a public subsidy, but as a means of encouraging private
donations and charitable conduct in general. In 1971, the IRS issued a
decision redefining the tax exemption as a public endorsement or
subsidy. This meant that the IRS would strip an organization of its
exempt status if its purposes, although legal, were "contrary to
public policy." The goal at the time was to use legal pressure to end
private racial discrimination. But why stop there?
Right now, Turley notes, there is no clear federal public policy
against discrimination on the basis of sexual orientation. But such a
policy is imminent, he believes, most likely within the decade. Once
that occurs, he agrees with Robin Wilson: "Any organization that
engaged in such discrimination as a matter of faith would be in a
position similar to Bob Jones University."
It's not that hard to imagine: Pass an antidiscrimination law at the
federal level, which polls suggest the majority of Americans already
support; look for a 5-or 10-point swing in public opinion on gay
marriage; then add a new IRS commissioner (not directly accountable to
the voters) who wants to make his or her progressive mark, and
religious groups would wake up to find themselves playing in a whole
new ballgame.
Religious bodies may be as simple as the small, independent
congregations that exist all over America, but often they are large
and complex institutions with extensive property and multiple
missions, notably saving souls. Even a slight risk of anything so
damaging as the loss of tax-exempt status will persuade many such
groups to at least mute their marriage theology in the interest of
preserving the rest of their activities. Such a self-imposed muting on
the part of faith communities would change our culture of marriage,
and our understanding of the free exercise of religion, without
necessarily creating visible martyrs.
The Consensus Broker
Charles Haynes, a senior scholar at the Freedom Forum's influential
First Amendment Center, specializes in helping groups in conflict find
common ground on First Amendment issues. For example, he recently got
the Christian Educators Association International and the Gay, Lesbian
and Straight Education Networks (GLSEN) to agree to what he calls
"consensus guidelines" for public schools dealing with orientation
issues. I went to him for an outside opinion from a First Amendment
expert who had not attended the Becket Fund conference. Like every
other expert I interviewed, Haynes told me he wasn't concerned that
clergy will be forced to marry same sex couples. What about the other
potential conflicts? Are they real? "There are already tensions," he
tells me. "I think there is a kind of collision course here that is
inevitable."
For a man in the conciliation business, Haynes doesn't sound
optimistic. "I think it's a serious question that will grow more
difficult. I think we will have more and more tension between efforts
by the state to protect gay rights and the need to protect religious
freedom. This will have an impact on religious individuals as well as
perhaps religious organizations in areas such as housing, the
workplace, hiring."
I ask him whether his concerns are shared by the wide spectrum of
religious and civil rights groups he deals with. "Everyone's talking
about it, thinking about it," Haynes tells me. "There are a lot of
different ideas about where we are going to end up, but everyone
thinks it is the battle of our times."
The Marriage Line
How much of the coming threat to religious liberty actually stems from
same-sex marriage? These experts' comments make clear that it is not
only gay marriage, but also the set of ideas that leads to gay
marriage--the insistence on one specific vision of gay rights--that
has placed church and state on a collision course. Once sexual
orientation is conceptualized as a protected status on a par with
race, traditional religions that condemn homosexual conduct will face
increasing legal pressures regardless of what courts and Congress do
about marriage itself.
Nevertheless, marriage is a particularly potent legal "bright line."
Support for marriage is firmly established in our legal tradition and
in our public policy. After it became apparent that no religious
exemption would be available for Catholic Charities in Massachusetts,
the church looked hard for legal avenues to continue helping kids
without violating Catholic principles. If the stumbling block had been
Catholic Charities' unwillingness to place children with single
people--or with gay singles--marriage might have provided a legal
"safe harbor": Catholic Charities might have been able to specialize
in placing children with married couples and thus avoid collision with
state laws banning orientation discrimination. After Goodridge,
however, "marriage" includes gay marriage, so no such haven would have
been available in Massachusetts.
Precisely because support for marriage is public policy, once marriage
includes gay couples, groups who oppose gay marriage are likely to be
judged in violation of public policy, triggering a host of negative
consequences, including the loss of tax-exempt status. Because
marriage is not a private act, but a protected public status, the
legalization of gay marriage sends a strong signal that orientation is
now on a par with race in the nondiscrimination game. And when we get
gay marriage because courts have declared it a constitutional right,
the signal is stronger still.
The method and the mechanism for achieving protected status may be
different for orientation and for race. Even the Massachusetts supreme
court, for example, declined to rule explicitly that orientation is a
protected class, subject to strict scrutiny. But in Massachusetts, the
end result may be similar. If state courts declare gay marriage a
constitutional right, they are likely to see support for gay marriage
as state public policy.
On the cultural level, the declaration by a court that only animus
explains why anyone would treat two men differently from a husband and
wife represents an unfolding civil rights logic that has real
consequences. As Boston Globe columnist Ellen Goodman put it, "But if
you give one church permission to discriminate against gays, what's
next? Permission to discriminate against blacks or Jews who want to
adopt?"
End Game
On April 15, the Boston Globe ran a story about three other Catholic
adoption agencies, in Worcester, Fall River, and Springfield, that do
not do gay adoptions. The story noted that, for now, these agencies
will not be punished for their refusal. Constantia Papanikolaou,
general counsel for the state Department of Early Education and Care,
said her agency is holding off taking any action because the governor
has proposed legislation that would provide a religious exemption for
adoption agencies. "We're going to wait and see how the legislation
plays out," Papanikolaou said.
The reprieve is likely to be short-lived. Observers universally say
the religious exemption has no chance of passage, and in a few months,
Mitt Romney will no longer be governor. What then? The Boston Globe
story provides a clue: "Gary Buseck, legal director of the Gay &
Lesbian Advocates & Defenders in Boston, said his group realizes that
Massachusetts will have a new governor next year, and it expects that
he or she will aggressively enforce the state's antidiscrimination
laws."
Marc Stern is looking more and more like a reluctant prophet: "It's
going to be a train wreck," he told me in the offices of the American
Jewish Congress high above Manhattan. "A very dangerous train wreck. I
don't see anyone trying to stem the train wreck, or slow down the
trains. Both sides are really looking for Armageddon, and they frankly
both want to win. I prefer to avoid Armageddon, if possible."
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Posted with permission. Following the example set by other posters
in this and other groups, the creator of this post has withheld
the author/source of the article above because the author/source
is not relevant to the merit of the article's content -- except
to whining liberals and big State collaborators who have no
intellectual, emotional or moral capacity to HONESTLY deal with
the points asserted by the article! Consequently, their typical
response is to attack the author or source. Pathetic! Withholding
attribution denies such intellectually shallow critics the opportunity
to attack anything BUT the content.