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Professor Laycock responds

to my questions about the meaning and potential applications of the proposal that he and four other academics have advanced for reconciling religious-liberty concerns and same-sex marriage. Here is his response:

I wrote one of the two letters that Dale Carpenter references in his post on the same-sex marriage legislation in Connecticut. Let me say a few things by way of background, and then respond to his four specific questions.

I wrote separately from the others, and I speak only for myself here. I wrote separately because I support gay rights and same-sex marriage and I also support religious exemptions; in my view, these are parallel protections for quite similar claims to individual liberty in matters essential to personal identity.

We may also have a different sense of the magnitude of the problem. Compelling a person or religious organization to do things in violation of conscience can be devastating to the individuals affected. There are several high profile cases around the country, but the total number of such cases that have come to public attention is not large, and the lack of a marriage case per se in five years in Massachusetts is encouraging. Of course, Massachusetts is also notorious for forcing Catholic Charities to entirely withdraw from adoption services because of its conscientious objection to placing children with same-sex couples..

The number of people who think same-sex marriage is morally or religiously wrong is large. But the percentage of those people who feel sufficient personal responsibility to assert a conscientious objection claim rather than facilitate what they perceive to be the immoral acts of others is considerably smaller. The percentage of those who are in an occupation where the issue arises for them is much smaller still. The percentage of those who will turn away business in the name of conscience is somewhat smaller still. And as same-sex marriages becomes more familiar and accepted, each of these percentages should fall. On the other side, that portion of the gay and lesbian community that is more interested in making examples or provoking legal confrontations than in living their own lives may also be rather small. For all these reasons, I don't find it surprising that there are a relatively small number of cases in which conscientious objection to facilitating same-sex marriage is actually asserted. Of course that means that the cost of granting exemptions is also small, while the benefit to the individuals who need the exemption remains great.

I have addressed the implementation of exemptions as some length in the Afterword to Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony M. Picarello, and Robin Fretwell Wilson, eds.) (Rowman & Littlefield 2008). As that publication makes clear, I think that any right to exemption cannot be absolute. An individual who occupies a blocking position -- who is the only person reasonably available to provide a needed service -- is not in my view entitled to an exemption. Similar issues might arise in a community in which many service providers are conscientious objectors, or a needed service is in shortage. In my view, this proposed exception to the exemption language is a specific application of the compelling interest test.

The statutory language that the other letter proposed and that I endorsed did not include this exception to the exemptions. That is because we were contacted very late in the legislative process; the letters and the proposed amendment were drafted in hurry, and may well need some tweaking. I endorsed the proposed language because in a legislative debate, it is essential to rally around a single proposal; negotiation and amendments could come later if we got anyone's attention. And I think the exception to the exemptions are unlikely to arise very often in a state like Connecticut, which is compact, urbanized, and politically liberal.

With that background, let me turn to Dale's specific questions:

1. The state's interest in insisting on equal service for all is at its maximum in state offices, and the individual's claim to private conscience is considerably weakened when he is acting in an official capacity. And the state is a monopolist for things like licenses. So state officials will often be in a blocking position, and in the context of governmental services, even a minimal blockage is a serious problem. So I think a clerk who does not want to issue a marriage license must have a co-worker immediately available to issue that license at the same window at the same time, without requiring the couple to stand in a new line.

On the other hand, a judge who performs an occasional wedding, usually for a friend or acquaintance, is acting much more personally. She is empowered by her office to perform weddings, but she is not obligated by her office to perform weddings; she is not remotely in position to block anyone from getting married, or even to cause inconvenience, because the request to perform the wedding typically comes well in advance of the date. The reality is that a judge has broad discretion to perform a marriage or not, and I would not allow a claim of discrimination against same-sex marriages to interfere with that discretion.

2. It was certainly not my intention to protect harassment. What counts as harassment must be defined in light of free speech and free exercise; not every expression of disapproval can be defined as harassment. But the targets of such disapproval have the right to stop the conversation and insist that it not be renewed. The purpose of exemptions is to protect people who conscientiously object to personally facilitating a same-sex marriage; these people just need to be left alone. Those who want to affirmatively interfere or harass present a very different and less defensible claim.

3. In my view, the right to exemption for conscience should be quite general, subject to the compelling interest test as developed and applied in particular factual contexts. So there should not be much difference between the right to exemption from same-sex marriage laws and the right to exemption from gay rights laws more generally, and issues of coordinating the two exemptions should rarely arise. In the real world, I would interpret each set of exemptions to protect as broad a set of conscience claims as the statutory text permits, subject to the constraint that the conscientious objector cannot inflict significant harms on others.

4. Again, I think the right to conscientious objection should be general, and so of course it should include similar objections to other controversial marriages, although these claims are likely to be even scarcer than claims of conscientious objection to facilitating same-sex marriages.

I am committed to a book project this summer and may not reply to all follow up questions. But as I mentioned, my answers to implementation questions are largely set out in the book.

I'm grateful for this characteristically reasonable and thoughtful response. It leaves some issues of interpretation and application on the table, but helps clarify what many of those issues might be. We disagree in particular on the significance of the Massachusetts Catholic Charities case, which I believe is not attributable to SSM, but to a 1989 antidiscrimination law that does not turn on the existence of a marriage. We appear to disagree on whether a state employee, in her capacity as an employee, should ever be able to get a religious-liberty exemption from performing what are otherwise her duties to the public.

But we agree on the general principal, I think, that for private parties (including individuals, like wedding photographers, and groups, like the Knights of Columbus) fairly broad exemptions should be available to protect religious scruples when the exemptions won't impose any substantive (as opposed to symbolic) hardship on married gay couples and families. How you draft an exemption to implement that general principle -- no more, no less -- is the hard part.

Oren:
Thanks for the measured and reasoned response.

Could you clarify (or, more likely, point to some previous work where you did so) your thoughts on the adoption-agency debate? I'm not clear by what standard one (or just you, perhaps) judges whether the refusal of a State agency to allow a non-State actor to assume its duties can be discriminatory. I'm at a loss for an effective analogy because, it seems to me, that the particular relationship between the State and non-State actors in adoption agencies is sui generis.
4.23.2009 12:54pm
rjh:
There is no clear case of anyone being forced to participate in SSM in Massachusetts. The closest that you find is state employees required to process the paperwork. SSM participation remains voluntary.

Catholic Charities was indeed a state anti-discrimination situation, not SSM. It only removed state funding for the charity. They can remain a private adoption agency. It is even further complicated by conflicts with their external board The board approved procedures that were state acceptable, was overridden by the church authorities, which led to some resignations from the board.
4.23.2009 1:08pm
a non:
Could someone explain why religious scruples need to be protected more than other scruples?
4.23.2009 1:09pm
David Drake:
a non: First Amendment "free exercise" clause.
4.23.2009 1:20pm
Curmudgeonly Ex-Clerk (www):
a non:

Because the protection of religious scruples is part of our Constitutional order. It's pretty obvious that free exercise of religion and freedom of association are implicated. Is your question serious?
4.23.2009 1:28pm
rob vischer (mail):
To rjh: do you have a source for your assertion that Cath Charities only lost state funding for adoptions in Mass? My understanding is that they would have lost their state license for violating state anti-discrim law. A private adoption agency cannot operate without a state license.
4.23.2009 1:35pm
efs5r (mail):
David D and Ex-Clerk: This begs the question of why the Constitution was written to protect scruples based on religious conscience above all others. I presume it was because the founders knew that religion was an important source of moral order and principle. But what about those who have deeply held moral convictions that are not based on any particular religious doctrine (I imagine this sort of thing was a lot less common when the Constitution was written than it is today)? If I'm not mistaken, pacificists who had no particular religious basis for their pacifism were granted contentious objector status to the Vietnam war. Why should this same principle not extend to other areas of the law? I think it's appropriate for our legal system to consider the place of non-religious moral convictions in our Constitutional framework.
4.23.2009 1:41pm
Props:
Professor Carpenter:

I wanted to both acknowledge your post (and Professor Laycock's response) as thought-provoking and thank you for calling these issues to attention.

Unfortunately, most of the posts on the subject of GLBT rights, SSM etc quickly devolve in the comments section to warring accusations of bigotry and self-righteousness. And many devolve futher into Bill Maher-style religion bashing.

By engaging the legal contours of this important issue in such a reasoned and thoughtful manner, this is one of the first posts I've come across that has the potential of advancing and contributing to the debate in a productive manner. And given your question in the opening post soliciting reaction from all sides, I thought you'd be encouraged to hear that someone like me--(1) Catholic, (2) who believes that all citizens have the same rights under the law, regardless of sexual orientation, race, gender, etc.,(3) believes that the government has no business meddling with the intergrity of sacramental marriages (i.e. church marriages), but is agnostic as to the "marriage" label outside of the church, and (4) generally recoils from what I perceive as the hyper-sexualization of culture and public discourse, when such issues are, in my view, intensely private--would not object to SSM laws if they contained sufficient free exercise protections.
4.23.2009 1:41pm
Ex-Fed (mail) (www):
Again, I think the right to conscientious objection should be general, and so of course it should include similar objections to other controversial marriages, although these claims are likely to be even scarcer than claims of conscientious objection to facilitating same-sex marriages.



I applaud the honesty of this, whether or not I agree with the substance. But it raises a question. What is the principled basis for "protecting conscience" -- and by doing so providing exemptions to generally applicable anti-discrimination laws -- only in the context of marriage?
4.23.2009 1:46pm
a non:
My question is very serious and the responses have been non-substantive -- that the religious must be accommodated does not imply that others may not be.

Could someone articulate a good reason why the exemption should be specific to situations that "cause that individual ... to violate their sincerely held religious beliefs". Specifically, what's wrong with the following:

No individual and no corporation, entity, association, educational institution, or society shall be penalized or denied benefits under the laws of this state or any subdivision of this state, including but not limited to laws regarding employment discrimination, housing, public accommodations, licensing, government grants or contracts, or tax-exempt status, for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization of any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage.
4.23.2009 1:47pm
Oren:

David D and Ex-Clerk: This begs the question of why the Constitution was written to protect scruples based on religious conscience above all others ...

You should read your history -- it was a specific response to religious persecution in the Old World. Read about William Penn and the Quakers, for instance. Religious toleration (which is a word with just lovely implications) didn't take hold in Europe until the 19th century.

See, e.g., here, here, here and here.
4.23.2009 1:54pm
efs5r (mail):
Fair enough, Oren. Still begs the question of why non-religious folks should not have similar protections, particularly in this day and age when religion is used to disadvantage and persecute those who do not follow the dominant religion.
4.23.2009 2:12pm
einhverfr (mail) (www):
rob vischer:

My understanding of CCB and gay adoptions was different still. The issue was a combination of lost funding and the fact that they would have to promise to abide by all applicable laws. There was a CONCERN that this could lead to a lost license, but there was not the willingness to test whether a religious exemption was allowed in court under current law. Mormons for example, have their own internal adoption agencies which only adopt to Mormon families, so ISTM, that this is more complex than "we would have lost our license anyway."

Also, regarding the recent UK law, the law did include a religious exemption, and Catholic adoption agencies decided NOT to take advantage of it. So this seems like a pattern of more heat than light.
4.23.2009 2:15pm
one of many:
David D and Ex-Clerk: This begs the question of why the Constitution was written to protect scruples based on religious conscience above all others. I presume it was because the founders knew that religion was an important source of moral order and principle. But what about those who have deeply held moral convictions that are not based on any particular religious doctrine (I imagine this sort of thing was a lot less common when the Constitution was written than it is today)? If I'm not mistaken, pacificists who had no particular religious basis for their pacifism were granted contentious objector status to the Vietnam war. Why should this same principle not extend to other areas of the law? I think it's appropriate for our legal system to consider the place of non-religious moral convictions in our Constitutional framework.



two words: Test Acts


That explains why the constitution was written the way it was although you may have a good point about extending the protection beyond religious groups. At the time religion and politics and conscience were still so entwined that if you knew someone's religion you had a pretty good handle on their conscience. Given that conscience and religion have become separated it might be a good idea amend the constitution to provide for similar protection outside the bounds of religion but until such an amendment is made we have to recognize that special provision has been made in the constitution for religion.
4.23.2009 2:15pm
einhverfr (mail) (www):
David Drake:

That however is largely rhetorical because the free exercise clause as incorporated to the states seems to be no stronger than the substantive due process guarantee requires (rational basis review).[1] Consequently I don't think 1A applies to this case in any reasonable way.

[1] See Smith v. Employment Division of Oregon. Congressional attempts to change this, via the RFRA, failed. See City of Boerne v. Flores. However, the RFRA binds the Federal Government strongly, see O Centro v. Gonzales.
4.23.2009 2:19pm
Oren:

Fair enough, Oren. Still begs the question of why non-religious folks should not have similar protections, particularly in this day and age when religion is used to disadvantage and persecute those who do not follow the dominant religion.

You are free to start an attempt to amend the Constitution more to your liking. I don't think it will succeed.

Moreover, I don't see any support for your factual claim in the second clause.
4.23.2009 2:22pm
Seamus (mail):
particularly in this day and age when religion is used to disadvantage and persecute those who do not follow the dominant religion

Huh? I thought we were talking about the United States, not Saudi Arabia.
4.23.2009 2:40pm
rob vischer (mail):
einhverfr: I think you're correct that there was no pending action to rescind the license, but I wouldn't characterize a requirement to promise to abide by the anti-discrim laws as part of a pattern of "more heat than light." I think a court challenge would've been extremely difficult in light of Empl Div v. Smith unless there was a reason for hope under the Mass constitution.
4.23.2009 2:41pm
byomtov (mail):
a non,

Let's leave aside the issue of providing services to a wedding ceremony for the moment and look at another part of your proposed law:

No individual and no corporation, entity, association, educational institution, or society shall be penalized or denied benefits under the laws of this state or any subdivision of this state, including but not limited to laws ....for refusing to treat as valid any marriage.

Do you really want this? Should an employer who normally makes available health insurance to employees' spouses be permitted to refuse that benefit to marriages he considers "invalid?" What about interracial marriages, or interfaith marriages, or those created in a civil ceremony? Would a Catholic employer be allowed to consider the remarriage of a divorced person invalid?

The same arguments apply to hopitals, for example, with respect to visitation rights, decisions about treatment, and so on. I think if the state says "these two people are legally married" then they are entitled to the same privileges as any other legally married couple.
4.23.2009 2:42pm
Bama 1L:
Professor Vischer, don't you think the decisive conflict was that within CCB--or even between CCB and Cardinal O'Malley? CCB had been complying with the law and something like a sixth of its board resigned immediately when O'Malley suggested they follow Church teaching instead.

O'Malley might have gotten a legislative exemption but was surely hampered by the very public fight between himself and former CCB personnel who said they were working in the children's best interest.
4.23.2009 2:52pm
a non:
byomtov: I actually want this. Private employer should have to go on record about their policies, but they should be free to adopt their own policies (and we should be free to refuse to treat with those employers who discriminate).

When the state says "these two people are legally married" then any thing in the laws related to marriage should apply -- but the only "privileges" the state should confer are those under control of the state. A state hospital should treat as "married" everyone who is legally married in the state. A private hospital should treat as married those people it decides to treat as married. Using a Catholic hospital means enjoying the largesse of the Catholic Church and its followers, but accepting the charity should come with whatever baggage the Church wishes to add to it.

More importantly, note that the proposed law does allow religious employers to deny benefits in the situations you discuss. To ask my question a different way, what is the rationale for having anti-discrimination law which only applies to secular people but not to the religious?
4.23.2009 3:08pm
David Drake:
einhvrfr--

A law that purported to require a Catholic priest to marry two people of the same sex prevents the free exercise of his religion much more directly than the denial of unemployment benefits to someone who used peyote or the denial of a building permit to expand a church. The priest administers the sacrament of marriage, among others. On your thinking, a state could force a priest to give communion to someone who does not qualify to receive it under Catholic doctrine. Or to stop proclaiming opposition to abortion in his homilies. Surely that would violate the Free Speech or Exercise Clause.

Also, this probably violates the "Free Speech" clause in that it would force the priest to speak when performing the marriage ceremony.

In any event, I (and three S.C. Justices in Smith as well as a majority of Congress) believe that Smith was wrongly decided.
4.23.2009 3:14pm
rob vischer (mail):
Bama 1L: if the CCB-Cardinal conflict was "decisive" to the prospects of getting a legislative exemption, I would find that troubling as well. If a primary concern coming out of this episode is the state's failure to respect the institutional autonomy of religious orgs, I don't think that failure is mitigated by the fact of internal dissension within the org. The org needs to have authority over its institutional identity, especially in a case like this where constituents had an exit option. From the state's perspective, the organization's interests/identity should be discerned through the decision-making channels designated by the org -- ultimately, in this case, the bishop.
4.23.2009 3:18pm
Bama 1L:
To ask my question a different way, what is the rationale for having anti-discrimination law which only applies to secular people but not to the religious?

The First Amendment may prevent you from compelling the religious people to do certain things. It might be unconstitutional to apply the law to religious people, so you go ahead and leave them out.

Also, for reasons you're welcome to disagree with, legislatures carving out exceptions from their laws tend to give religious people a break. Apparently legislatures generally don't like to bother religious people and are willing to make some accommodations that they otherwise wouldn't.
4.23.2009 3:21pm
Bama 1L:
Professor Vischer, I don't see how you can prevent the state's generally-applicable, religiously-neutral laws from now and then contributing to religious dissension and questions about religious identity, even if you grant exemptions.

I don't see any evidence that anyone in government questioned whether O'Malley had authority to speak for the Church. The question on the legislators' mind was whether CCB could actually do any practical good, and thus merit an exemption, given the deep public split between O'Malley and many lay directors and staff.
4.23.2009 3:44pm
einhverfr (mail) (www):
David Drake:

I agree that Smith was wrongly decided, which is why I am glad that you bring up free speech issues rather than relying solely on free exercise.

Also nothing prevents states from having stronger free exercise protections.
4.23.2009 4:07pm
einhverfr (mail) (www):
Also (to David Drake):

On your thinking, a state could force a priest to give communion to someone who does not qualify to receive it under Catholic doctrine.


Not sure. It would have to pass rational basis review (substantive due process) and not run amok with free speech (compelled speech), free association, etc. More to the point, I think the state could, if they wanted to, forbid the use of alcoholic substances in communion where minors are involved.
4.23.2009 4:17pm
John Moore (www):

Do you really want this? Should an employer who normally makes available health insurance to employees' spouses be permitted to refuse that benefit to marriages he considers "invalid?" What about interracial marriages, or interfaith marriages, or those created in a civil ceremony? Would a Catholic employer be allowed to consider the remarriage of a divorced person invalid?

All of the above, as repugnant as some of those practices are.



The same arguments apply to hopitals, for example, with respect to visitation rights, decisions about treatment, and so on. I think if the state says "these two people are legally married" then they are entitled to the same privileges as any other legally married couple.

Then make a specific exemption for hospitals.

As a Catholic, I oppose the imposition of SSM on religious organizations. As a citizen, I oppose SSM on two grounds:
1) It normalizes abnormality. I don't think ANY adoption agency should be allowed to place children with SS couples, for example.
2) It has slippery slope possibilities that even the above exceptions are not at all immune to.

OTOH, SS relationships exist, their members are not evil or deserving of punishment, so as much as possible should be done to remove problems due to their SS nature... except where that conflicts with issues like I raise above. Hence hospital visitation, HIPPA access rights, etc should be available to them except in hospitals where there are religious objections (and I doubt the Catholic church would reject either of those in their own hospitals).
4.23.2009 4:45pm
Oren:

All of the above, as repugnant as some of those practices are.

So, by extension, you don't mind if a company refuses to provide spousal benefits to hetero, but not homo, spouses?


It normalizes abnormality. I don't think ANY adoption agency should be allowed to place children with SS couples, for example.

Is it more or less abnormal than being bounced around between foster parents for a decade?
4.23.2009 5:13pm
Ex-Fed (mail) (www):
Isn't any reference to the state compelling a priest to perform a marriage service just a red herring? Can anyone point to any case in which a religious organization has been forced to engage in a religious rite, as opposed to make available a non-religious facility made generally available to the public? Can anyone point to a precedent that raises the credible threat that courts would allow the state to tell a church how to administer a sacrament based on non-discrimination principles?
4.23.2009 5:29pm
John Moore (www):
Oren:


So, by extension, you don't mind if a company refuses to provide spousal benefits to hetero, but not homo, spouses?

I would be in favor of the law allowing that. I would not like a company to do it, and I don't expect SS advocates to like the company that doesn't grant SS spousal benefits.

Is it more or less abnormal than being bounced around between foster parents for a decade?

Are those the only choices? Why do we bounce kids around between foster parents? Would those kids end up with SS couples but not with hetero couples?
4.23.2009 5:45pm
rob vischer (mail):

The question on the legislators' mind was whether CCB could actually do any practical good, and thus merit an exemption, given the deep public split between O'Malley and many lay directors and staff.



Bama 1L: I'm a little unclear as to what you mean. Do you mean that, in the legislature's judgment, an exemption to CCB would have been pointless b/c the org could not have kept providing adoption services given the internal dissent?
4.23.2009 6:18pm
einhverfr (mail) (www):
John Moore:


1) It normalizes abnormality. I don't think ANY adoption agency should be allowed to place children with SS couples, for example.


By moving from 'prohibited from' to 'allowed to,' you have moved to an area which I think is fundamentally dangerous because it requires heavy state involvement in determining what is "normal."

What is next? "I don't think any adoption agency should be allowed to place children with members of religious group X?" (X could be the Church of Satan, Temple of Set, FLDS, Muslims, Jews, Protestants, whatever.)

What about "I don't think any adoption aency should be allowed to place children with members of the Communist Party?"

Under NO circumstances do I want the government making that sort of decision.

Also a few facts and statistics about foster care and adoption might help this discussion :-)



2) It has slippery slope possibilities that even the above exceptions are not at all immune to.


Everything has slippery slope. I am not generally impressed by slippery slope arguments unless a) they are legal arguments and b) they are solid arguments. I don't see either of these here but rather concerns about the direction of social change. We can talk about these directions and unintended effects, but I don't think they constitute a normal "slippery slope."
4.23.2009 6:49pm
Bama 1L:
Professor Vischer, that's pretty much it. Some of CCB's lay directors and staff made it clear they would rather see the organization shut down rather than discriminate (and follow the teachings of the Church). This weakened O'Malley's persuasive case for an exemption.

Do you think legislatures can't or shouldn't think in these terms when contemplating religious exemptions?
4.23.2009 6:53pm
John Moore (www):

By moving from 'prohibited from' to 'allowed to,' you have moved to an area which I think is fundamentally dangerous because it requires heavy state involvement in determining what is "normal."

It has nothing to do with "normal" and everything to do with the likelihood of healthy upbringing.

Since you have so much fun with strawmen,

How about prohibiting adoption agencies from placing children with known pedophiles - even SSM or OSM pedophiles? Don't they have rights? How about with George Bush's torturers?

Either the state has an interest in the welfare of adoptees, or it does not. The majority says it does (way too much IMHO).
4.23.2009 8:16pm
trad and anon (mail):
It has nothing to do with "normal" and everything to do with the likelihood of healthy upbringing.

Exactly. And that's why the state acted appropriately. People who arbitrarily refuse to place kids with good parents should not be in the business of providing adoption services.
4.23.2009 8:42pm
John Moore (www):

People who arbitrarily refuse to place kids with good parents should not be in the business of providing adoption services.

"good parents" is a matter of dispute. Adoption agencies refuse to place children for all sorts of reasons. For example, they often refuse to place black children with white parents who want them, for racial reasons. Same with native American. The evaluation of potential adoptee parents is part of the job of the agency.

Many believe, for good reasons, that children placed with SSM "parents" are at a substantial disadvantage because of the well documented higher rates of social and psychological dysfunction among male homosexuals in the US (don't know about females).
4.23.2009 9:59pm
a non:
Why ... Would ... kids end up with SS couples but not with hetero couples?


The reason is simple: there are many more children without homes than couples willing to adopt them (even were SS couples allowed to adopt freely). Since permanent solutions (adoptive parents) are not available children bounce between temporary solutions (foster homes).

Since there are more needy children than "hetero couples" (your term) willing to adopt, the alternative really is between SS adoption and no adoption at all.
4.23.2009 10:02pm
rob vischer (mail):
Bama 1L -- right, I don't think the state should base the exemption on whether a particular org will, in the state's estimation, be able to make use of the exemption successfully. I'd much rather give the org an opportunity to live out its mission and fail then to have the state foreclose the opportunity based on its own evaluation of the org's internal politics.
4.23.2009 11:28pm
einhverfr (mail) (www):
John Moore:

You misunderstood the purpose of my other examples.

If same-sex adoption is bad because it places kids in abnormal families (presumably because "normal" families are "better"), then one has serious problems defining normalcy. Certainly there are a wide range of things which could be used by the state to determine fitness to bring up children in this way. These could include:

1: Do either parents have mental illnesses, chronic depression, etc. Maybe these folks are more likely to be abusive?

2: Religious ideology. Up until very recently, it wasn't THAT uncommon for Wiccans, Church of Satan members, etc. to lose custody of children on religious ideology alone during divorce proceedings. After all, all that nudity in ritual settings is OBVIOUSLY unhealthy for the kids.....

3: Political ideology. Certainly the state would have a clear interest in preventing children from being brought up among weirdo families who might want to overthrow the government. There have been cases of the state taking kids away from parents who engage in civil disobedience, so this is not entirely without basis.

My argument is that as soon as we get government involved in this, all sorts of interests will inevitably add whatever conditions folks want to add. This is a legislative sticky web and a legal slippery slope.

As for a few cases where there are known and quantifiable risks, like those with a history of child abuse of any sort, then they should be denied an opportunity to adopt, but there has to be a clear and present risk which must be greater than the risk that the kid will remain in foster care. A mere theory that "we think this is probably unhealthy" can't be sufficient.
4.24.2009 1:34am
Randy R. (mail):
John Moore: "Many believe, for good reasons, that children placed with SSM "parents" are at a substantial disadvantage because of the well documented higher rates of social and psychological dysfunction among male homosexuals in the US (don't know about females)."

And if they believe that, they are of course wrong. Study after study has shown that children of gay parents are just as healthy and well adjusted as children of opposite sex parents. Studies have been conducted both in the US and Britain.

The issue is so well settled that every major adoption agency is on record as saying that they support adoptions going to gays.

If any gay couple is dysfunctional, they can and should be denied as adoptive parents, just as any dysfunctional straight couple. But that must be decided on a case by case basis.
4.24.2009 1:47am
Richard Aubrey (mail):
The question of "better" is so subjective that there is no way on earth to question the adoptocrats. None.
In Britain, one family was refused its forty-first foster child on the grounds that, since the mom and dad got along so well--never a fight--that the kids would not learn the hurly-burly of family life.
So "case by case" allows for any prejudice--including progressive,forward-thinking,politically correct prejudices and none can say them nay.
For example, say a SSM couple does X, which seems like a bad idea to most folks.
"What's wrong with that?"
If you have to ask....
But it matters not. It's all good and there is never any grounds for dispute.
Even longitudinal studies can be dismissed--see IQ and race--if the prevailing thinking doesn't want to hear it. Or the 'crats.
4.24.2009 7:40am
einhverfr (mail) (www):
Richard Aubrey:

In Britain, one family was refused its forty-first foster child on the grounds that, since the mom and dad got along so well--never a fight--that the kids would not learn the hurly-burly of family life.


My point exactly. Unless there is a known and quantifiable risk, something shouldn't be an obstacle to adoption.
4.24.2009 10:24am
Richard Aubrey (mail):
ein.
I like your opinion on the point. However, if I took your opinion to Starbuck's, would I get a discount?
Would the family in question get their kid?
4.24.2009 11:14am
Oren:


"good parents" is a matter of dispute.

Isn't that a policy decision to be made by a legislature?
4.24.2009 12:41pm
einhverfr (mail) (www):
Richard:

Yes, the family in question should get the kid. And under such a test they would, unless there was persuasive evidence that kids who grew up in happy families were harmed by this in a way that was measurable. Since I am not aware of any such evidence that such risks exist and that they are measurable, this should be seen as an attempted excuse rather than a reasonable justification.
4.24.2009 12:45pm
Randy R. (mail):
Richard: "So "case by case" allows for any prejudice--including progressive,forward-thinking,politically correct prejudices and none can say them nay. "

Recently, a heterosexual married couple adopted a baby boy from russia. They father left the boy in the car on a hot day and went to work, forgetting about him. The boy died.

It's a horrible tragedy, of course. So based on that, you could say that heterosexaul adoptions are flawed because fathers can't keep track of their kids, and so should be denied any adoptions.

But such reasoning is ridiculous, and it proves nothing of the sort. All studies show that in most circumstances, children do much better in an adoptive home than in a foreign orphanage or in US foster care. Same with gay adoptions. Now, if you have any studies that show that gay parents are consistently bad at parenting, or the kids come out badly, then you would have a point. But I notice that you didn't reference any.

In other words, "Unless there is a known and quantifiable risk, something shouldn't be an obstacle to adoption."
4.24.2009 12:52pm
Oren:

For example, say a SSM couple does X, which seems like a bad idea to most folks.
"What's wrong with that?"

If the legislature wants to mandate that X is not good for the kids, then there's nothing wrong with that.

If the legislature delegates the authority to the DSS, nothing wrong with that so long as they apply a consistent standard.
4.24.2009 1:00pm
trad and anon (mail):
If the legislature wants to mandate that X is not good for the kids, then there's nothing wrong with that.
Depends on what X is. If X is "violent felon," it's a great idea. If X is "lower-middle class" I've got a major problem with it. If X is "interracial couple" it's bigoted, immoral, and unconstitutional.
4.24.2009 1:38pm
Richard Aubrey (mail):
Randy R.
You and ein are right. Sort of. You started out with the dreaded "you could say", a version of "so you're saying", which always associated with deliberate misstatements of the other person's point.

Two points. One, you and ein are right, but you're not in charge. So it doesn't matter a hoot in hell that you're in the side of the angels.
Two. If there are quantifiable downsides, only some are legitimate. If, for example, it was possible to discover (imagine applying for funding for this study) or determine that adopting kids to SS couples is demonstrably bad for them, that wouldn't be allowed in the discussion. You know the various ways of demonizng facts, and you know which would be deployed.
4.24.2009 1:57pm
eddie (mail):
Let's take the exemption beyond the limited scope of marriage: if my religion states that it is a sin to get medical treatment, as the owner of a public accomodation can I refuse to comply with ADA because it would be accomodating the need of people who have received medical treatment? Can a law be drafted that will not require a case by case balancing of the equities and isn't that a gigantic cost for government (and actually the general population) to shoulder?
4.24.2009 4:18pm
einhverfr (mail) (www):
Richard Aubrey:

Two points. One, you and ein are right, but you're not in charge.


Wouldn't the world be a great and just place if I was the Supreme Leader of the World? ;-)

(offered in jest, no reply needed.)
4.24.2009 10:32pm
Richard Aubrey (mail):
ein.
I'd pick you over Randy R.
But I'd know where you lived and the range from the nearest public space to your front door.
4.24.2009 11:34pm

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