The Volokh Conspiracy - Let Catholic Charities Discriminate:

In early March, Catholic Charities of Boston (CCB) announced that it would stop providing adoption services in Massachusetts rather than comply with a state law that it not discriminate against prospective parents on the basis of sexual orientation. In response, Mass. Gov. Mitt Romney proposed a bill that would exempt religiously affiliated adoption agencies like CCB from compliance with this antidiscrimination requirement.

I've finally gotten around to writing a column responding to these events. A bit of background from the column on adoptions:

Private agencies contract with the state [of Massachusetts] to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. This means that Massachusetts adoption agencies may not refuse to consider same-sex couples as adoptive parents.

This is sound public policy. First, gay couples can provide children with very good homes. Indeed, research so far tends to support the thesis that gay parents are comparable to similarly situated straight parents. They're at least competent to raise children.

Second, there's a shortage of good homes for children. In Massachusetts alone, some 682 children now await adoption. It would be cruel to shuffle them from foster home to foster home while turning away perfectly good prospective parents simply because they're gay.

Here's where CCB comes in:

Until recently, Catholic Charities coexisted peacefully with this anti-discrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. Last December, the 42-member lay board of the group voted unanimously to continue the practice.

But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. The church hierarchy has evidently decided to root out all internal manifestations of opposition to its longstanding belief that homosexuality is “intrinsically disordered.” Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children “would destroy the child's future, it would be an act of moral violence against the child.” Catholic Charities is reluctantly bowing to this pressure.

CCB's decision, in turn, prompted Romney's proposal for exemption. Gay groups objected, saying that CCB and Romney were promoting invidious discrimination and putting politics before the interests of children (since Romney is considering a run for the GOP presidential nomination in 2008 and has been assiduously wooing religious conservatives). Typical was the reaction of the Human Rights Campaign, which issued a press release quoting exective director Joe Solmonese as follows:

Denying children a loving and stable home serves absolutely no higher purpose. 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.

Here's my response to this from the column:

In most respects, this statement [from HRC] is wrong. Allowing an exemption would not deny children loving and stable homes. They will get good homes through Catholic Charities, just not good gay homes. Gay couples could still adopt through dozens of other private agencies or through the state child-welfare services department itself, which places most adoptions in the state.

At most it could be argued that allowing Catholic Charities to discriminate would make it very slightly more difficult for gay couples to adopt (since one private agency would not be available to them). If numerous other agencies also began barring gay couples, a real difficulty might arise. But that problem is nowhere in sight in Massachusetts.

While gay advocates may strongly disagree with church doctrine, there's no basis for saying that the Catholic Church's objections to gay adoptions have “nothing whatsoever to do with faith.”

Exempting Catholic Charities would serve the “higher purpose” of respecting the deep religious convictions of a major faith tradition, without hurting children or appreciably affecting the adoption prospects of gay parents. That is what we'd ordinarily a call a win-win situation.

I don't think religious objectors should always be completely exempt from anti-discrimination laws (such exemptions are not constitutionally required). If, for religious reasons, a large employer refused to hire gay people or a huge apartment-complex owner refused to rent to gay couples, the harm caused by their actions would potentially be great. It would literally foreclose many important opportunities.

Exemptions to laws of general applicability inevitably raise slippery-slope concerns. All kinds of exemptions exist in all kinds of laws. Each is an invitation to slide down a slope, but we seem to manage it. Title VII is understood to exempt the Catholic Church from having to hire women priests, for example, but that hasn't gutted employment-discrimination protection. There are particular line-drawing problems about what would constitute a “religious” exemption, but those problems aren't peculiar to this case.

If we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but our resulting discomfort is an acceptable price for living in a religiously pluralistic and free society. When there are plenty of alternatives for those discriminated against, continued objection to an exemption seems pretty abstract and illiberal to me.

If we can't respect others' exercise of religious conscience in a case where it costs us nothing to do so, can we really be said to respect religious liberty in a meaningful way at all? In an age when government regulation encroaches on every area of life, to say that we can't make an exemption under circumstances like this is really to say that religion has no place in the public square. I'm not ready to say that.

. . .

So let them discriminate, but don't let anyone forget what they're doing.

My views on this could be criticized from two polar positions. At one pole, a libertarian criticism would be that antidiscrimination laws are generally problematic, so my willingness to allow religious exemptions only where there's no appreciable harm is too stingy. I'm sympathetic to claims that antidiscrimination law as practiced has many problems, but I'm less sympathetic to this concern in the context of adoptions. The state recognizes and enforces enormous parental control over children. As long as that's the case, the state has an obligation to ensure that it puts children's interests, including parental fitness, at the forefront when placing them in adoptive homes. The state rightly thinks parental sexual orientation is irrelevant to the placement decision, since the state has very good reason to believe that criterion is of little or no importance to a child's best interests.

At the other pole my view has been criticized from a gay-equality or children's-interests perspective. This response has broken down into three main types of arguments so far.

First, many critics have labored to find some appreciable, concrete "harm" either to children or to prospective gay parents in allowing an exemption. (I'd distinguish concrete harm from abstract harm, as in: an exemption violates "the principle of antidiscrimination"). But I have yet to hear a convincing account of concrete harm. CCB doesn't monopolize access to the adoption of any child in the state, any more than a single real estate agent monopolizes access to real property for sale (indeed, probably less so). Any adoption agency can secure the adoption of the available children and any gay couple or individual can go to any of these other agencies. Further, it's not like CCB is claiming that its religious scruples require that children be placed in the homes of unfit parents who are, say, addicted to peyote. CCB wants the children to go to parents everyone would agree are fit; the only disagreement it has with the state is that its conception of "fitness" is narrower than the state's (or my) conception of fitness. Real harm to the children would come only if CCB either monopolized access to some children, thus limiting the pool of fit parents available to them (which CCB does not do), or if it adopted for religious reasons a definition of fitness that was broader than the state's, as by insisting that drug-addicted people adopt children (which CCB also does not do).

Second, many gay-rights critics of my view have emphasized that an exemption would allow public money ("my tax dollars") to support invidious discrimination. This argument has a lot of intuitive and popular appeal, but I don't think it withstands much reflection. First, it's common for public money to "support" discrimination and discriminatory organizations. Consider property-tax exemptions for churches (which discriminate in all sorts of ways), or the huge outlays for the military (which bars gays), or the numerous state and government contracts with private service providers that themselves discriminate on objectionable grounds. One could consistently object to all of this "support" for discrimination, of course, but I doubt many do. Further, given the pervasiveness of government financial interaction with private entities I doubt it would be practical to have a no-support-for-discrimination policy. It wouldn't leave much room for moral disagreement.

It's also doubtful that Massachusetts' contract with CCB amounts to net public "support" for discrimination. As I understand it, CCB itself shoulders much of the cost of its adoption services. The services are not fully compensated by the state, and the state may have to make up for the loss of CCB's services in other ways. Thus, the public appears to be getting a net financial gain from CCB's participation in adoption, not a net loss.

And even if we could characterize an exemption as public money "supporting discrimination," at least it is not harmful discrimination (if I'm right about the absence of more than de minimus harm). That makes the objection about public support for discrimination another species of the abstract concerns I addressed in the column.

A third critique of my view presses the various slippery-slope concerns. I won't belabor the point since I sketched a response in the column.

I'll admit I had a harder time coming to this view than I have had in justifying tolerance for discrimination in other contexts, like the Boy Scouts. (I'm still not certain I'm right about this one; I'm sure I'm right about letting the Boy Scouts discriminate.) Perhaps that's because children's interests are involved here in a special way. Perhaps it's because I suspect CCB's decision isn't really a reflection of deep religious conviction, but a capitulation to a Church hierarchy whose views are based more on falsifiable and outdated empirical claims about how gay parents harm children than on first principles. Perhaps it's because the state has always, and rightly, been heavily involved in regulating adoptions in a way that it hasn't long regulated the membership of organizations like the Boy Scouts. I also strongly object to the cynical use of this episode by some to critique gay marriage. As I wrote in the column:

Some opponents of gay marriage have been using this episode to claim, “Aha! This proves that gay marriage will erode religious freedom. Massachusetts has had gay marriage just two years and already Catholics are being forced out of adoptions.”

The claim is unfounded, since the conflict here is based on an anti-discrimination law that predates the recognition of gay marriage in Massachusetts.

Gay marriage in Massachusetts did not bring about this conflict; CCB's own change in policy produced it.

But for me, the bottom line is that I can't find much concrete harm if we allow an exemption in this case. And if we don't allow an exemption, I see much potential harm in losing the valuable services of an historically important adoption agency and in failing to reaffirm a liberal respect for diverse views of the good life.

UPDATE: In response to this post, many commenters have pressed me on slippery-slope issues. I don't think much of slippery-slope arguments as a general rule, but let me respond very briefly to two especially common ones in this context.

One common slippery-slope argument is that if we allow an exemption here for sexual-orientation discrimination, we'll have to allow one for race discrimination, e.g., by letting adoption agencies refuse to work with prospective black parents or interracial couples or by letting the agencies refuse to place children with parents of a different race. I think sexual-orientation discrimination is unjustified and often irrational, but given our history I think race discrimination is many orders of magnitude worse. So allowing an exemption for race discrimination is, in principle, a much harder call.

The second common slippery-slope argument is that if we allow an exemption for religious conscience, we'll have to allow an exemption for non-religious conscience. Two responses: First, exemptions limited to religious institutions are a common feauture of anti-discrimination law, so there's nothing very peculiar about it in this context. Second, religion occupies a special place in our political and constitutional heritage. In principle, exemptions for religious conscience are a way of fulfilling the constitutional promise of free exercise beyond what the Court has been willing to do. Legislators are entitled to take this principle into account in crafting exemptions to antidiscrimination law. They may decide to allow exemptions for non-religious objectors as well, but the case for religious objectors is ordinarily even stronger.

	[Dale Carpenter, April 11, 2006 at 7:19pm] Trackbacks Let Catholic Charities Discriminate: In early March, Catholic Charities of Boston (CCB) announced that it would stop providing adoption services in Massachusetts rather than comply with a state law that it not discriminate against prospective parents on the basis of sexual orientation. In response, Mass. Gov. Mitt Romney proposed a bill that would exempt religiously affiliated adoption agencies like CCB from compliance with this antidiscrimination requirement. I've finally gotten around to writing a column responding to these events. A bit of background from the column on adoptions: Private agencies contract with the state [of Massachusetts] to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. This means that Massachusetts adoption agencies may not refuse to consider same-sex couples as adoptive parents. This is sound public policy. First, gay couples can provide children with very good homes. Indeed, research so far tends to support the thesis that gay parents are comparable to similarly situated straight parents. They're at least competent to raise children. Second, there's a shortage of good homes for children. In Massachusetts alone, some 682 children now await adoption. It would be cruel to shuffle them from foster home to foster home while turning away perfectly good prospective parents simply because they're gay. Here's where CCB comes in: Until recently, Catholic Charities coexisted peacefully with this anti-discrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. Last December, the 42-member lay board of the group voted unanimously to continue the practice. But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. The church hierarchy has evidently decided to root out all internal manifestations of opposition to its longstanding belief that homosexuality is “intrinsically disordered.” Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children “would destroy the child's future, it would be an act of moral violence against the child.” Catholic Charities is reluctantly bowing to this pressure. CCB's decision, in turn, prompted Romney's proposal for exemption. Gay groups objected, saying that CCB and Romney were promoting invidious discrimination and putting politics before the interests of children (since Romney is considering a run for the GOP presidential nomination in 2008 and has been assiduously wooing religious conservatives). Typical was the reaction of the Human Rights Campaign, which issued a press release quoting exective director Joe Solmonese as follows: Denying children a loving and stable home serves absolutely no higher purpose. 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. Here's my response to this from the column: In most respects, this statement [from HRC] is wrong. Allowing an exemption would not deny children loving and stable homes. They will get good homes through Catholic Charities, just not good gay homes. Gay couples could still adopt through dozens of other private agencies or through the state child-welfare services department itself, which places most adoptions in the state. At most it could be argued that allowing Catholic Charities to discriminate would make it very slightly more difficult for gay couples to adopt (since one private agency would not be available to them). If numerous other agencies also began barring gay couples, a real difficulty might arise. But that problem is nowhere in sight in Massachusetts. While gay advocates may strongly disagree with church doctrine, there's no basis for saying that the Catholic Church's objections to gay adoptions have “nothing whatsoever to do with faith.” Exempting Catholic Charities would serve the “higher purpose” of respecting the deep religious convictions of a major faith tradition, without hurting children or appreciably affecting the adoption prospects of gay parents. That is what we'd ordinarily a call a win-win situation. I don't think religious objectors should always be completely exempt from anti-discrimination laws (such exemptions are not constitutionally required). If, for religious reasons, a large employer refused to hire gay people or a huge apartment-complex owner refused to rent to gay couples, the harm caused by their actions would potentially be great. It would literally foreclose many important opportunities. Exemptions to laws of general applicability inevitably raise slippery-slope concerns. All kinds of exemptions exist in all kinds of laws. Each is an invitation to slide down a slope, but we seem to manage it. Title VII is understood to exempt the Catholic Church from having to hire women priests, for example, but that hasn't gutted employment-discrimination protection. There are particular line-drawing problems about what would constitute a “religious” exemption, but those problems aren't peculiar to this case. If we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but our resulting discomfort is an acceptable price for living in a religiously pluralistic and free society. When there are plenty of alternatives for those discriminated against, continued objection to an exemption seems pretty abstract and illiberal to me. If we can't respect others' exercise of religious conscience in a case where it costs us nothing to do so, can we really be said to respect religious liberty in a meaningful way at all? In an age when government regulation encroaches on every area of life, to say that we can't make an exemption under circumstances like this is really to say that religion has no place in the public square. I'm not ready to say that. . . . So let them discriminate, but don't let anyone forget what they're doing. My views on this could be criticized from two polar positions. At one pole, a libertarian criticism would be that antidiscrimination laws are generally problematic, so my willingness to allow religious exemptions only where there's no appreciable harm is too stingy. I'm sympathetic to claims that antidiscrimination law as practiced has many problems, but I'm less sympathetic to this concern in the context of adoptions. The state recognizes and enforces enormous parental control over children. As long as that's the case, the state has an obligation to ensure that it puts children's interests, including parental fitness, at the forefront when placing them in adoptive homes. The state rightly thinks parental sexual orientation is irrelevant to the placement decision, since the state has very good reason to believe that criterion is of little or no importance to a child's best interests. At the other pole my view has been criticized from a gay-equality or children's-interests perspective. This response has broken down into three main types of arguments so far. First, many critics have labored to find some appreciable, concrete "harm" either to children or to prospective gay parents in allowing an exemption. (I'd distinguish concrete harm from abstract harm, as in: an exemption violates "the principle of antidiscrimination"). But I have yet to hear a convincing account of concrete harm. CCB doesn't monopolize access to the adoption of any child in the state, any more than a single real estate agent monopolizes access to real property for sale (indeed, probably less so). Any adoption agency can secure the adoption of the available children and any gay couple or individual can go to any of these other agencies. Further, it's not like CCB is claiming that its religious scruples require that children be placed in the homes of unfit parents who are, say, addicted to peyote. CCB wants the children to go to parents everyone would agree are fit; the only disagreement it has with the state is that its conception of "fitness" is narrower than the state's (or my) conception of fitness. Real harm to the children would come only if CCB either monopolized access to some children, thus limiting the pool of fit parents available to them (which CCB does not do), or if it adopted for religious reasons a definition of fitness that was broader than the state's, as by insisting that drug-addicted people adopt children (which CCB also does not do). Second, many gay-rights critics of my view have emphasized that an exemption would allow public money ("my tax dollars") to support invidious discrimination. This argument has a lot of intuitive and popular appeal, but I don't think it withstands much reflection. First, it's common for public money to "support" discrimination and discriminatory organizations. Consider property-tax exemptions for churches (which discriminate in all sorts of ways), or the huge outlays for the military (which bars gays), or the numerous state and government contracts with private service providers that themselves discriminate on objectionable grounds. One could consistently object to all of this "support" for discrimination, of course, but I doubt many do. Further, given the pervasiveness of government financial interaction with private entities I doubt it would be practical to have a no-support-for-discrimination policy. It wouldn't leave much room for moral disagreement. It's also doubtful that Massachusetts' contract with CCB amounts to net public "support" for discrimination. As I understand it, CCB itself shoulders much of the cost of its adoption services. The services are not fully compensated by the state, and the state may have to make up for the loss of CCB's services in other ways. Thus, the public appears to be getting a net financial gain from CCB's participation in adoption, not a net loss. And even if we could characterize an exemption as public money "supporting discrimination," at least it is not harmful discrimination (if I'm right about the absence of more than de minimus harm). That makes the objection about public support for discrimination another species of the abstract concerns I addressed in the column. A third critique of my view presses the various slippery-slope concerns. I won't belabor the point since I sketched a response in the column. I'll admit I had a harder time coming to this view than I have had in justifying tolerance for discrimination in other contexts, like the Boy Scouts. (I'm still not certain I'm right about this one; I'm sure I'm right about letting the Boy Scouts discriminate.) Perhaps that's because children's interests are involved here in a special way. Perhaps it's because I suspect CCB's decision isn't really a reflection of deep religious conviction, but a capitulation to a Church hierarchy whose views are based more on falsifiable and outdated empirical claims about how gay parents harm children than on first principles. Perhaps it's because the state has always, and rightly, been heavily involved in regulating adoptions in a way that it hasn't long regulated the membership of organizations like the Boy Scouts. I also strongly object to the cynical use of this episode by some to critique gay marriage. As I wrote in the column: Some opponents of gay marriage have been using this episode to claim, “Aha! This proves that gay marriage will erode religious freedom. Massachusetts has had gay marriage just two years and already Catholics are being forced out of adoptions.” The claim is unfounded, since the conflict here is based on an anti-discrimination law that predates the recognition of gay marriage in Massachusetts. Gay marriage in Massachusetts did not bring about this conflict; CCB's own change in policy produced it. But for me, the bottom line is that I can't find much concrete harm if we allow an exemption in this case. And if we don't allow an exemption, I see much potential harm in losing the valuable services of an historically important adoption agency and in failing to reaffirm a liberal respect for diverse views of the good life. UPDATE: In response to this post, many commenters have pressed me on slippery-slope issues. I don't think much of slippery-slope arguments as a general rule, but let me respond very briefly to two especially common ones in this context. One common slippery-slope argument is that if we allow an exemption here for sexual-orientation discrimination, we'll have to allow one for race discrimination, e.g., by letting adoption agencies refuse to work with prospective black parents or interracial couples or by letting the agencies refuse to place children with parents of a different race. I think sexual-orientation discrimination is unjustified and often irrational, but given our history I think race discrimination is many orders of magnitude worse. So allowing an exemption for race discrimination is, in principle, a much harder call. The second common slippery-slope argument is that if we allow an exemption for religious conscience, we'll have to allow an exemption for non-religious conscience. Two responses: First, exemptions limited to religious institutions are a common feauture of anti-discrimination law, so there's nothing very peculiar about it in this context. Second, religion occupies a special place in our political and constitutional heritage. In principle, exemptions for religious conscience are a way of fulfilling the constitutional promise of free exercise beyond what the Court has been willing to do. Legislators are entitled to take this principle into account in crafting exemptions to antidiscrimination law. They may decide to allow exemptions for non-religious objectors as well, but the case for religious objectors is ordinarily even stronger.