Banned in Boston - The coming conflict between same-sex marriage and religious liberty.
Jeff Dege
Banned in Boston
The coming conflict between same-sex marriage and religious liberty. by
Maggie Gallagher
CATHOLIC CHARITIES OF BOSTON made the announcement on March 10: It was
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. 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.
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. 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. What these bishops are doing is
shameful, wrong, and has nothing to do whatsoever with faith."
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," Healey told the Boston Globe on March 2, "and our
antidiscrimination laws are some of our most important."
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."
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.
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. But not all discrimination is bad," Feldblum points
out. In employment law, for instance, "we allow discrimination against
people who sexually abuse children, 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."
Maggie Gallagher is president of the Institute for Marriage and Public
Policy (marriagedebate.com) and coauthor of The Case for Marriage.
--
It must be remembered that there is nothing more difficult to plan, more
doubtful of success, nor more dangerous to manage, than the creation of
a new system. For the initiator has the emnity of all who would profit
by the preservation of the old institutions and merely lukewarm defenders
in those who would gain by the new ones.
- Niccolo Machiavelli, 1513
daklute
state gets out of the business of being the church, how is that a bad
thing?
Oh, yeah, it isn't.