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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.

Ross Levatter (mail):
Dale: "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."

Yes, it would foreclose the opportunity of working for a boss who hates you and living in a place where you're not wanted.

I would think Dale's own well-thought arguments in favor of religious exemptions for adoption--that we live in a diverse country with multiple opportunities for adoption--would apply even more firmly to employment and housing. I suggest one has more opportunities for employment and housing in this country than one does in adoption agencies, possibly relating to the higher level of government regulation in adoption than in work and housing.

Although firmly in favor of "legalizing" homosexuality (that little matter of sodomy laws) and in favor of gay marriages (to the extent the govt. should be involved in marriage contracts at all), I fail to see, with Epstein, how laws prohibiting private choices over the use of one's property, including the choice to discriminate, can be justified in a free society.

RL
4.11.2006 8:40pm
Freder Frederson (mail):
I fail to see, with Epstein, how laws prohibiting private choices over the use of one's property, including the choice to discriminate, can be justified in a free society.

Because this country has a history of racism where people were routinely frozen out of jobs because of their race, religion, national origin, sexual orientation (the latter btw is still a permissable basis for discrimination in most places and under federal discrimination law) and even today when people who can get away with it. So we have to have laws to enforce simple human decency since some people aren't adult enough to deal with others as adults.

Or to turn the tables on you: Why does the fact that you own a business or apartment building give you the right to be a racist pig and discriminate against somebody just because you don't like their race, religion, national origin, or sexual orientation? Living in a free society comes with responsibility too. And the first responsibility is to treat others fairly.
4.11.2006 8:51pm
Fingerprint File (mail):
Good post. The only thing I'd like to know is whether there it's possible for the discrimination to spread to different agencies and different parts of the country if an exemption is made here. For example, are there other private agencies in MA that would like to discriminate and would take this as a cue to do so; and are there Catholic agencies in other states that will now feel free to discriminate? If so, would the aggregate discrimination still be de minimis?
4.11.2006 8:51pm
Kovarsky (mail):
I fail to see, with Epstein, how laws prohibiting private choices over the use of one's property, including the choice to discriminate, can be justified in a free society.

Correct me if I'm wrong, but adoption agencies are licensed by the state, are they not? If so, there's no "property" interest in providing adoption placement services here. And even if there were, when the well-being of children is on the counterbalance, I'm inclined to say that the forged libertarian constitutional narratives should yield.
4.11.2006 9:20pm
Kovarsky (mail):
I fail to see, with Epstein, how laws prohibiting private choices over the use of one's property, including the choice to discriminate, can be justified in a free society.

Correct me if I'm wrong, but adoption agencies are licensed by the state, are they not? If so, there's no "property" interest in providing adoption placement services here. And even if there were, when the well-being of children is on the counterbalance, I'm inclined to say that the forged libertarian constitutional narratives should yield.
4.11.2006 9:20pm
Owen Hutchins (mail):
What "right" does any religious group have to get paid by the state to provide adoption services? They can discriminate with their own funds.
4.11.2006 9:27pm
dew:

My understanding from a local paper is that the central Mass Worcester Catholic diocese has quietly disallowed their local catholic charities from participating in gay adoptions for years, but that the agency actively provides references to other agencies that are friendly to gay adoptions. Not really perfect for either extreme, but apparently no one ever felt the need to make a stink about the compromise there.
4.11.2006 9:36pm
plunge (mail):
I'm all for allowing private entities to discriminate. But I in general, in all cases, oppose the idea of requring people to be taxed to pay for services that they are barred, purely by discrimination, from being a part of. The Boy Scouts is a classic case. This organization (and I am an Eagle Scout myself, but I disapprove of the demoninational tyrant that the National BSA has become) for some reason feels it is entitled to tax money from people who are barred for no reason other than secretarian ideology, from participating.

Most of your counter-examples are stretches. Churches are non-profits, which is primarily the reason, both historically and legally, why they are not taxed the same way as private businesses. But even if not, there is at least some rationale that the government should not be interefering with churches, regulating them, using taxes to burden them, etc. Not taxing them may in an economic sense be equivalent to subsidizing them, but it's a radically different relationship when we are actually contracting for them to do something with government money.
4.11.2006 9:55pm
Andy Freeman (mail):
The good professor is ignoring the very important purpose that the restriction serves - it is state condemnation of "those people".

Just as the state should not employ pederasts, it should not employ Catholics.

What? The state should employ pederasts? Okay - but not Catholics. We have standards.
4.11.2006 10:01pm
Cornellian (mail):
So when Mathew Hale gets out of prison and wants to run an adoption agency through his Worldwide Church of the Creator, he'll be free to refuse to place children with non-white families?

The slippery slope counter example you use (the Catholic church isn't required to have female priests) is an entirely different and unrelated slope. There's a world of difference between regulating the internal hierarchy of a religious institution and regulating that institution when, and to the extent it provides a public service. You cannot exempt them from this provision without exempting them from every other licensing requirement. Since they'd been placing children with gay couples for years before the Vatican decided to object you're not placing any requirement on them that their position be the result of some long standing practice or belief. If they can declare their way out of this requirement, why can't they declare their way out of any other requirement, such as a requirement not to discriminate against divorced people or atheists or anyone voting for a candidate who is pro-choice or any number of other groups unpopular with the Catholic church these days?
4.11.2006 10:06pm
dew:

"What "right" does any religious group have to get paid by the state to provide adoption services? They can discriminate with their own funds."

I think you may be missing the issue. By requiring adoption agencies to be licensed by the state, the state is regulating Catholic Charities' behavior (and, presumably other religious agencies) regardless of whose money is involved.

Also, having been through adoptions in MA (though not very recently and not through an agency affiliated with any religion) I don't think the money paid to agencies are just giveaways to the agencies as your statement seems to imply. Rather it subsidizes the typical agency adoption fees the parents would otherwise pay to encourage people to adopt state wards (as opposed to competing private adoptions, international adoptions, etc), thus saving tax dollars.
4.11.2006 10:09pm
Elais:
Why should the Church be above the law with regards to discrimination?
4.11.2006 10:10pm
Ken Arromdee (mail):
Yes, it would foreclose the opportunity of working for a boss who hates you

Working for a boss who hates you may not be the theoretical best job you can get--but it sure beats being unemployed.
4.11.2006 10:10pm
Kipli:
I'm having more and more trouble accepting actions based on religious convictions. While the potential harm may be small, I can't accept that it's okay for the Catholic agency to discriminate against gay couples simply because it is against the "deep religious convictions of a major faith tradition".

Would it be acceptable for another adoption agency to not arrange adoptions for homosexual couples for the sole reason that the owners think homosexuality is 'icky'? And what if an agency claims 'religious conviction' to justify not placing a white baby with a black couple? Would the state now be in the position of having to interpret the religious beliefs of a group to determine which are legitimate religious beliefs and which are not?

Why give religious conviction such a privileged position? Or am I just imagining that claims of "that's against my religon" are getting more common?
4.11.2006 10:11pm
dk35 (mail):

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.


I beg to differ. As for the property-tax exemptions, I think that many only tolerate this because it puts religious organizations on par with other non-profits. As for the latter two, it seems obvious that the majority of the Massachusetts voters, as demonstrated by their representatives in the federal government (most of whom oppose banning gays in the military) and state government (most of whom support denying funds to the discriminatory Catholic church regarding adoption services) disagree.
4.11.2006 10:18pm
Sasha (mail):
Your use of the phrase de minimus instead of (as is proper) de minimis makes your whole point entirely invalid.
4.11.2006 10:31pm
Hoosier:
I find it funny that HRC feels up to proclaiming that the bishops' decision "has nothing whatsoever to do with faith."

Isn't that kinda up to, you know . . . the bishops?

I'm still waiting for the Log Cabin Republicans to weigh in on the filioque.
4.11.2006 10:44pm
logicnazi (mail) (www):
It seems to me that the critical question is whether you are willing to make a similar exception if some racist organization creates an adoption agency and refuses to place children with mixed race parents or refuses to place children with parents of a different race (whether or not their might be other good reasons for this is besides the point I'm stipulating that they are doing this for racist reasons).

If not it is hard to see how this isn't blatant pro-catholic capitulation just because they are big, popular and have relatively mainstream views while racists are clearly out of the mainstream. This differing treatment might not be a first ammendment violation but it certainly smells wrong to me.
4.11.2006 10:51pm
Ex-Fed (mail) (www):
"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."

What principled basis is there for limiting this consideration to religious exemptions, as opposed to exemptions based on political views, personal ethical positions, or preferences of taste? The right to freedom of religion is certainly important. But so are the rights of freedom of speech and association. Why give one set of exemption-seekers more of a break than others? What makes a Catholic's religious opposition to gay adoption more exalted than a liberarian's ideologoical opposition to laws regulating private discrimination?
4.11.2006 10:54pm
Sydney Carton (www):

"There's a world of difference between regulating the internal hierarchy of a religious institution and regulating that institution when, and to the extent it provides a public service."


I didn't realize that helping and ministering to the poor, couples, the sick, the elderly, and others constituted a "public service." I think you'll find that a Church's view of their social activities are hardly separable from their missions. In fact, before government was engaged in these things they were primarily done by Churches of all kinds. Why do you think there are so many religious hospitals, nursing homes, and youth centers? If all of that is deemed to be a "public service," then all you're really doing is regulating the Church out of part of its earthly ministry.

Pretty soon, they'll say that it's a "public service" to take communion and wine during Mass, as it's "serving food" or something, and the government will try to get its grubby hands on that too.
4.11.2006 11:21pm
Steve Reuland (mail) (www):
I can think of no reason to make an exception for the CCB that doesn't ammount to blatant religious favoritism. We would never make such an exception for a secular organization, so there is no valid reason for doing it for the CCB either.

I suppose one could employ a simplistic utilitarian calculus and figure that it's better for the CCB to discriminate and place some children than it is for them to place no children at all. Not knowing exactly how these adoption agencies work, I don't know if their withdrawal would have any real impact on the number of adoptions, or if other agencies would simply pick up the slack (maybe the market's saturated?). Regardless, making exceptions for discriminatory behavior is wrong, even if it temporarily serves a purpose. Carpenter calls this a slippery slope, but I think that mischaracterizes the issue. It's a matter of standing on principle, an extremely important principle. If we make exceptions to the rule everytime some petulant organization takes their marbles and goes home, what's the point in having rules? Why is it the state, and not the Catholic church, that is being asked to violate its principles for the greater good? If we accept the fact that the state must make laws irrespective of whether or not the Catholic church or any other private organization objects to them, then making exceptions like this is the wrong thing to do. It empowers the church at the expense of the people.
4.11.2006 11:25pm
Ex-Fed (mail) (www):
"I didn't realize that helping and ministering to the poor, couples, the sick, the elderly, and others constituted a "public service." I think you'll find that a Church's view of their social activities are hardly separable from their missions. In fact, before government was engaged in these things they were primarily done by Churches of all kinds. Why do you think there are so many religious hospitals, nursing homes, and youth centers? If all of that is deemed to be a "public service," then all you're really doing is regulating the Church out of part of its earthly ministry."

But Sydney, in this instance, isn't the Church arranging the adoption of wards of the state, based on arrangement with the state, paid by the state? (Pardon me, the Commonwealth). Regulating that process hardly seems the same as regulating all public service.
4.11.2006 11:28pm
Cornellian (mail):
didn't realize that helping and ministering to the poor, couples, the sick, the elderly, and others constituted a "public service." I think you'll find that a Church's view of their social activities are hardly separable from their missions. In fact, before government was engaged in these things they were primarily done by Churches of all kinds.

Churches don't get to define the scope of "public service" based upon what they feel like doing or not doing at any given place or time. And yes, running a hospital is a public service, and a Church isn't immune to the secular law of the land that requires the hospital to be staffed by doctors rather than laypeople, to maintain hygiene standards, to pay overtime to its employees etc.
4.11.2006 11:47pm
SLS 1L:
Sydney:
Pretty soon, they'll say that it's a "public service" to take communion and wine during Mass, as it's "serving food" or something, and the government will try to get its grubby hands on that too.
Is there some reason Communion should be any more immune from regulation than Native American ceremonies involving peyote? Alcohol and bread products are regulated; should Communion wine and wafers be immune?
4.11.2006 11:51pm
ReaderY:
It's worth remembering that sexual preference is itself a form of "discrimination" in its direct meaning. If a large enough percentage of one sex were homosexual or there were a substantial imbalance among the sexes -- particularly in the presence of a substantial power imbalance -- social difficulties could arise.

Books like "Reign of the Phallus" suggest there have been such societies, and they have had serious problems, for example, that Classical Athens used male homosexuality in such a way as to oppress women domestically in something like the way the American South oppressed blacks economically. One could use women for low forms of sex, but not anything personally meaningful.

In short, it would seem to be equally possible to make a slippery slope argument in both directions. If one accepts that a society in which everyone is homosexual (or everyone in one sex is) could lead to serious social problems, perhaps a society could rationally ban it entirely in order to prevent an argued slippery slope leading to such a state.

If one is willing to allow an individual or a small minority to do things that could present problems if they become a supermajority -- indeed, if one claims it is irrational not to allow it -- this argument would seem to cut both ways as well.

The whole problem with descrimination (or any sort of preference) is its aggregate effects when it gets so pervasive as to take over a society/ The whole is distinctly not the mere sum of the parts. The harm done by any single individual act isolated act is slight, and if it were the only one of its kind it would be easily outweighed by the benefits of a general policy of individual freedom. If there had been only one lunch counter in the country that hadn't admitted blacks, no-one would have ever noticed, and if anyone had been so foolish as to ban it on moral grounds, libertarians would have been out in force arguing the benefits of racial preference and the drawbacks of inflexible moral puritanism.

In the society described in the Reign of the Phallus, banning the whole practice perhaps makes sense from the point of view of women condemned to be either prostitutes or hidden-at-home wives; connecting procreative sex with pleasurable/meaningful sex would serve as a sort of aggressive (50-50 quota) affirmative action plan for domestic life and incline men to take and treat their breeding stock more seriously and humanely. One could think of it as a kind of civil rights legislations for its day.

Arguably, its day has wholly past, and from this point of view we have lingering effects of what may have been two-millenia-old civil rights legislation that may arguably have outlived its usefulness.

As current civil rights legislation trends into the realm of absolute, emotional, no-exceptions, anyone-who-even-questions-is-evil morality, it may create similar future problems. Perhaps, for example, there are some people out there genertically predisposed to think smarter or work harder when around people of their own gender; such people (or their descendents) may someday gain sufficient knowledge, courage, and organization to protest against our civil rights laws, claiming that failing to make an exception for their special needs condemns them to a life where they cannot achieve their full personal potential.

If this turns out to be a tiny minority, it will be much easier to accommodate them then if otherwise. The whole is not the sum of the parts. One can easily imagine ministers condemning such a minority.
4.11.2006 11:56pm
JNOV:
The question isn't what is the harm, but why should the exemption be allowed? No babies will fail to get homes if Catholic can't place them, and the state's antidiscrimination policies would be hindered. The reason not to allow the discrimination is that it is invidious. Posit a religion that believes strongly and deeply that the races should be separate. Should the state grant an exception so that that religion may place babies only in same-race families? Posit a religion that believes strongly and deeply in the superiority of the white race. Should the state grant an exemption so that it may participate in adoptions only of white babies with white families?
4.12.2006 12:01am
Fishbane (mail):
There's a world of difference between regulating the internal hierarchy of a religious institution and regulating that institution when, and to the extent it provides a public service.

I think this is an important point. The simplest formulation here is that the government is paying a proxy agent to perform a service (placing children) with different criteria than (b) both that service itself previously used, and than the government would prefer. Furthermore, the reason for the change in policy (passively endorsed and paid for by the state) is a change in policy made by a foreign power.

I understand Dale's somewhat utilitarian arguments for going along with them, and have a lot of sympathy. But having a religious exemption to state policies on such things strikes me as troubling, in cases where there's a fairly explicit pay for service situation, like this. There have been other cases lately where religious organizations got passes on truly egregious behaviour while taking state money, and I think the state, if it is going to be in this business at all, has an obligation to enforce its standards.

This issue could easily be forced by a Church of Satan attempting to charter a arm (yes, they are a 501c3) - form an agency that would refuse to place children in Christian families.
4.12.2006 12:51am
Lev:
Yeah, a comment:

It would be nice, perhaps even polite, if Carpenter would tease his comments on the main Volokh page, then put the whole extended very very long thing at the Volokh comments link.
4.12.2006 1:10am
Randy R. (mail):
Look, conservatives often like to talk about the "will of the people." Well, it was the legislature, not the courts, that made the law about adoption. The Will of the People is clear -- there should be no discrimination against gay couples when it comes to adoption. Now, it appears some groups don't like this law. But now we have to bend over backwards to appeal to this minority that wants to go against the Will of the People.

Well, you can't have it both ways, and that' what I'm hearing in this debate. "But we must find some way around the the Will of the People in order to satisfy the Catholic Church!" Bull. If the church doesn't want to play by the rules that apply to everyone, then get out of the business of adoption.

And who would be harmed by that? There are plenty of other adoption agencies ready and willing to take up the slack. If a couple is looking for a child to adopt, will they now not be able to find a child just because there is one less player in the market? I hardly think so.

But my biggest problem is that if you let the Church off the hook on this one, the slippery slope I envision is the sense that when it comes to gays, you CAN discriminate in the name of religion. Today, we have lots of faith-based services, thanks to George Bush. If a church is giving services such as drug rehab, AIDS treatment, shelter for the homeless, whatever, what's to stop them from saying that they can't treat gays under the exact same exemption? And heck, if the Catholics can think gays are unworthy of basic human dignity, why can't I spit on them too, literally and figuratively?

Nope. There are too many good arguments against allowing this to happen.
4.12.2006 1:10am
RBG (mail):

Why does the fact that you own a business or apartment building give you the right to be a racist pig and discriminate against somebody just because you don't like their race, religion, national origin, or sexual orientation?

Wow, Freder, I certainly hope you're not one of those left-of-center folks who likes to lecture social conservatives about how "you can't legislate morality," because, um, isn't that the gist of your position? If you can use the power of the state to enforce your sense of right and of good manners, why don't so-cons get the same opportunity?
4.12.2006 1:10am
Fishbane (mail):
Me: This issue could easily be forced by a Church of Satan attempting to charter a arm (yes, they are a 501c3) - form an agency that would refuse to place children in Christian families.

I noticed the obvious flaw. Reread my comment as: "[...] would refuse to place children in straight families."
4.12.2006 1:35am
Mac (mail):
A few facts are in order here. First, this Catholic Charities is not in the business of placing babies who are highly adoptable, but children with disabilities, mental and/or physical, who are very hard to place, esp. the older they are. It is a much needed service and a very difficult job. Thus, one can not speak of harm without mentioning the harm that will befall these children who will not have this organization working to place them in a loving adoptive home, but will remain in an institution or foster care for the rest of their lives.
Two, we already have laws that discriminate based on race. For instance, American Indians wanted to have a say in who adopted their children, but the legislature screwed it up when they wrote the law and stipulated that you had to be part American Indian to adopt an Indian child at all. Needless to say, this has had a terribly negative effect on placing Indian children. That would seem to be most discriminatory. I am uncertain if it is law or not, but some adoption agencies work to place African Am. babies only with African-Am. families. Also, reducing the pool of families available for these children and reducing their opportunities for adoption. So, discriminatory adoption based on race is the law or the practice in some areas as it stands, although not in the way suggested above. No one seems to care, except, perhaps, the children who will never have a permanent home. Odd how no one cares about discrimination, even if based on race, depending on who is doing the discriminating. I don't know, but if the State has already approved discrimination based on people's theories that a child is better off in a family of it's own ethnicity, even if it means it will never get adopted, then it seems a little difficult to censure an organization for primarily placing children in a family with a mother and a father because it believes that it best for the child. I, also, would not be so quick to accept the studies hook, line a sinker quoted above. This is a very new phenomena and I doubt if it has been around long enough to properly study. This may come as a shock to some of you, but psychologists et al, are not exactly immune from prejudice in their studies and by the very nature of their studies can easily find whatever they want. At any rate, I am highly suspect of anyone claiming veracity based on "studies show" when they do not reference the studies. When you go to look for the "studies" authors suggest exist to prove their point, you frequently find dubious or nonexistent scientific procedure and I am not referring to just this topic, but many.
Bottom line is that this Catholic Charities was providing a much needed service for the State, the taxpayers and the children. They will be hard to replace and, as usual, it is the children who will suffer.
4.12.2006 1:38am
Proud to be a liberal :
I think that one quesiton is whether the issue is anti-discrimination laws in general or laws against discrimination on the basis of sexual orientation. It appears that, with regards to religion, the Catholic church has no problem complying with the law regarding discrimination on the basis of race and sex, for example, and it appears that it does not have a problem complying with the law on discrimination on the basis of religion.

Would it be acceptable for an adoption agency to discriminate on the basis of race and, let's say, refuse to serve African-American couples? If not, then the issue is not discrimination law but rather a special rule for discrimination on the basis of sexual orientation.

Bob Jones University fought a losing battle for years for the proposition that its religious views required it to discriminate on the basis of race.

My sense is that many think that discrimination based on sexual orientation is different from race and is socially acceptable, or at least, legitimately based on religious grounds.

It is however important to remember that at one time individuals claimed that discrimination based on race and even slavery were required by genuine religious beliefs.
4.12.2006 2:10am
jpaulg (mail):
Part of the problem here seems to be that the lay Catholics involved in the CCB are using this issue as a political tool in their theological debates with the Vatican.

Anyone even vaguely affiliated with the Catholic Church knows its teachings on homosexuality, knows that the Vatican's position is based on St Pauls Letter to the Romans. I know its trendy for other Christian churchs to discard the bits if the bible that they no longer agree with, but with the Catholics its different. The lay people in Boston may disagree with the Vatican's teaching, but in their debate with the theologians, all the theologians do is go straight back to St Paul and say that it is a practise that has been specifically condemned by the second most important founder of the Church behind St Peter, and say sorry can't change this.

The Catholic heirarchy's position is fairly simple. If complying with a law means doing something sinful, Catholics should not comply with the law. It seems to me that the lay people in Boston thought they'd get the Vatican to back down, and get some de facto approval for homosexuality into official Catholic doctrine.

My view is that this is an internal Catholic brawl that spilled over and dragged that State in, not a brawl between the Catholic Church and the State
4.12.2006 2:27am
deenk:
Whether or not the Church should be allowed to discriminate in this fashion, there are other questions raised by this situation. If homosexuality is wrong, should this disqualify gay couples from adoption? Sinners can still be good parents or else there wouldn't be any good parents. Will the diocese still allow adoptions by people who have remarried after divorce? If the diocese allows adoptions by non-Catholics, isn't it ceding these children to spiritual darkness and a probable fate of eternity in Hell? How can it justify such adoptions from the point of view of religious dogma?

When an organization participates in civic good works (adoption services, charity, health care, etc.), there is always a potential conflict between delivering these services evenly and some set of religious restrictions. These conflicts becomes more problematic when public funds are involved.
4.12.2006 2:31am
SLS 1L:
I have to agree that as a theological matter the Catholic Church's position on this issue is pretty hard to defend. "Gay sex and lust are wrong" does not entail "placing children with gay couples is wrong." I'm pretty sure the Catholic Church doesn't think it's wrong to place children with proud people or greedy people, which I'm pretty sure Catholic doctrine considers to be extremely serious sins, and others have already mentioned e.g. people who have remarried after divorce.

Nonetheless, it's not really the state's job to be deciding whether the Church is interpreting its own theology correctly. Still, I don't see the difference between this case and the case where they say that doctrine prevents them from placing children with interracial couples.
4.12.2006 3:22am
jpaulg (mail):
I think you'll find that Catholic doctrine with respect to placing children does attempt to exclude placing children with morally unsuitable people, not just gays. Some examples already included in this discussion are drug users and child abusers. The issue that has come up here is what the state says is morally acceptable is different to what Catholic doctrine says is morally acceptable.

The Catholic Church has a long history of distinguished thelogians from Gregory the Great, to St Augustine, to Thomas Aquinas to St Anthony of Padua to St Hilary of Poitiers to the Venerable Bede to St John of Damascene and so forth and so on. Exactly none of whom have suggested there is biblical support for the contention that homosexuality is a good thing that ought to be supported. Catholoic doctrine is that acts of homosexuality are like any other acts of sex outside of marriage (and marriage is between a man and a woman according to the bible), sinful and the act of sin is to be condemned whilst accpeting the sinner and asking for the sinner to seek redemption. Part of redemption is for the siner to go and sin no more, which is very difficult to say that the sinner has truly sought redemption if they are living in a state sanctioned marriage and indicate that they will continue to do so in the future.

If we take a sexual activity that is considered aberrant today, and posit that in 200 years time that what we consider to be sexually deviant becomes socially acceptable and legally acceptable. For example bestiality. Hypothetically in 200 years time the Catholic Church would not place adopted children with families that openly practiced bestiality because the combined years of teachings of the Catholic Church and biblical text support their view that bestiality is immoral. Now you may well consider my example to be ludicrous, but in 1806 how many people in Boston would have said that in 200 years time that homosexuals would have full marriage and adoption rights in their town?
4.12.2006 3:50am
Cornellian (mail):
Anyone even vaguely affiliated with the Catholic Church knows its teachings on homosexuality, knows that the Vatican's position is based on St Pauls Letter to the Romans. I know its trendy for other Christian churchs to discard the bits if the bible that they no longer agree with, but with the Catholics its different. The lay people in Boston may disagree with the Vatican's teaching, but in their debate with the theologians, all the theologians do is go straight back to St Paul and say that it is a practise that has been specifically condemned by the second most important founder of the Church behind St Peter, and say sorry can't change this.


Riiiight, the Catholic Church never changes its position, it just sticks with the entire Bible. That's why they still support slavery right? 'Cause the Bible says it's OK.

Heck they're changing their position on this very issue, since they had been placing children for adoption with gay couples for years (without any problems I might add) and only now have decided it's a problem.

You can be an atheist, divorced and still be considered for adoption on your merits as a parent, even though you're breaking one of the ten commandments and ignoring the dictates of Jesus himself. Heck, you can break several commandments and all seven deadly sins and the Church will still consider you on the merits, but if you're gay, then the Church's new position is that you must be rejected as a parent without any consideration of your merits as a parent. Where's the Biblical support for putting homosexuality in some category of its own beyond anything else in the Bible?
4.12.2006 5:16am
jpaulg (mail):
Cornellian,

As I said, this seems to me to be more of an internal Catholic squabble with the people in Boston disagreeing about the rules set by Rome, and seeking de facto Vatican support for approval of gay marriage. Certainly if they had gone to Rome and asked for permission to place adopted children with gay parents in the first place the answer would be the same as the answer given now. The Church's position remains the same, the lay catholics involved in CCB simply brought the matter to the attention of Rome.

As I said later the church is prepared to accept the sinner as long as the sinner does penitence. By living in an openly homosexual relationship the sinner is effectively saying that they are not repentant and that they will continue to commit sin, and thus choose to exclude themselves from mercy. The biblical support is "go and sin no more".

Issues with respect to slavery are more complex than the issue of homosexuality from a theological point of view. Homosexuality is explicity and specifically condemned in the old and new testaments, nor is it the only sin in such a category. Slavery was acknowledged in the Old Testament as a fact of life, but the New Testament is silent on whether slavery is explicitly a good or a bad thing. The new testament implies that slavery is a bad thing, and the Christian churches as a whole, including the Catholic church, were at the forefront of abolitionist campaigns.
4.12.2006 6:05am
Cornellian (mail):
A few facts are in order here. First, this Catholic Charities is not in the business of placing babies who are highly adoptable, but children with disabilities, mental and/or physical, who are very hard to place, esp. the older they are. It is a much needed service and a very difficult job. Thus, one can not speak of harm without mentioning the harm that will befall these children who will not have this organization working to place them in a loving adoptive home, but will remain in an institution or foster care for the rest of their lives.

Given the choice between a disabled child remaining a permanent ward of the state and being placed with a gay couple for adoption, the Catholic Church will choose ward of the state regardless of how outstanding the couple might be in every aspect of parenting. State law requires adoptive parents to be considered on their merits regardless of sexual orientation. So who's placing ideology over the welfare of children here?
4.12.2006 7:28am
Cornellian (mail):
As I said later the church is prepared to accept the sinner as long as the sinner does penitence. By living in an openly homosexual relationship the sinner is effectively saying that they are not repentant and that they will continue to commit sin, and thus choose to exclude themselves from mercy. The biblical support is "go and sin no more".

How is that any different from someone who has divorced and remarried? According to the Catholic Church that person is committing adultery every single day and certainly isn't repentant about it, yet he can still be considered as an adoptive parent. This despite the fact that Jesus condemned divorce but never said a word about homosexuality.

Issues with respect to slavery are more complex than the issue of homosexuality from a theological point of view. Homosexuality is explicity and specifically condemned in the old and new testaments, nor is it the only sin in such a category. Slavery was acknowledged in the Old Testament as a fact of life, but the New Testament is silent on whether slavery is explicitly a good or a bad thing. The new testament implies that slavery is a bad thing, and the Christian churches as a whole, including the Catholic church, were at the forefront of abolitionist campaigns.

It's highly debtable whether the New Testament condemns homosexuality and the Old Testament doesn't condemn homosexuality in any terms stronger than any number of other things (like eating shellfish or working on the Sabbath) that Christians today routinely ignore. In any event my point was that the Catholic Church was hardly some bastion of eternally unchanging moral principles and I pointed to their prior support of slavery as one example. Your reply just proves my point. Yes the Catholic Church eventually came around on the issue of slavery because, like every other religious denomination, they've made mistakes in the past, both on issues of morality, social policy and Biblical interpretation. They're mistaken on this issue as well and they'll come around eventually, hopefully in less than the 400 years it took them before they apologized to Galileo.
4.12.2006 7:36am
Cornellian (mail):
As I said later the church is prepared to accept the sinner as long as the sinner does penitence. By living in an openly homosexual relationship the sinner is effectively saying that they are not repentant and that they will continue to commit sin, and thus choose to exclude themselves from mercy. The biblical support is "go and sin no more".

How is that any different from someone who has divorced and remarried? According to the Catholic Church that person is committing adultery every single day and certainly isn't repentant about it, yet he can still be considered as an adoptive parent. This despite the fact that Jesus condemned divorce but never said a word about homosexuality.

Issues with respect to slavery are more complex than the issue of homosexuality from a theological point of view. Homosexuality is explicity and specifically condemned in the old and new testaments, nor is it the only sin in such a category. Slavery was acknowledged in the Old Testament as a fact of life, but the New Testament is silent on whether slavery is explicitly a good or a bad thing. The new testament implies that slavery is a bad thing, and the Christian churches as a whole, including the Catholic church, were at the forefront of abolitionist campaigns.

It's highly debtable whether the New Testament condemns homosexuality and the Old Testament doesn't condemn homosexuality in any terms stronger than any number of other things (like eating shellfish or working on the Sabbath) that Christians today routinely ignore. In any event my point was that the Catholic Church was hardly some bastion of eternally unchanging moral principles and I pointed to their prior support of slavery as one example. Your reply just proves my point. Yes the Catholic Church eventually came around on the issue of slavery because, like every other religious denomination, they've made mistakes in the past, both on issues of morality, social policy and Biblical interpretation. They're mistaken on this issue as well and they'll come around eventually, hopefully in less than the 400 years it took them before they apologized to Galileo.
4.12.2006 7:36am
Cornellian (mail):
Hmm, not sure how that double post happened. Oops.
4.12.2006 7:51am
Some Guy (mail):
Wow, and people wonder why homosexual rights organizations have such a hard time finding sympathy among non-lefties!

In fact, here's a few new slogans for 'em:
"Human Rights Campaign--Where is your God now, kid?"
"Human Rights Campaign--We won't rest until we've screwed every orphan in Massachusetts."
"Human Rights Campaign--Making sure orphans STAY orphans!"
"Human Rights Campaign--Hot gay sex is more important than orphans."
4.12.2006 10:28am
rjh:
All this and nobody is asking "who is the client?"

The client of an adoption agency is the child. The agency is responsible for making the best possible choice for that child and being an advocate for the child. In terms of impact to the child, this is perhaps even more significant than being the lawyer for the child. So, since many of the readers are lawyers, how would you answer the question of whether your sponsoring organization (the Vatican) is authorized to command you to do less than the best possible for your client?

Prior to this, the CCB found in 17 out of 720 cases that the best interest of the child was gay parents. The Commonwealth (the paying organization) has stated in various ways that the best interest of the child shall rule, not the religious, political, or other views of the agency. The Vatican has stated that they will not permit the charity to make the interests of the child paramount. The Vatican rules shall be paramount. The state has simply replied that this means that they cannot therefore act as the advocate for the child.

It is also true that this is part of a general revulsion in the local community to the Vatican, its child abuse irresponsibility, etc. It is worth mentioning that the local CCB board was unanimous in disagreeing with the Vatican decision, and that some members have resigned in protest. Romney is playing to out of state political interests with his proposed law. The Vatican is extremely unpopular locally. I see little support for the proposed change.
4.12.2006 10:30am
Public_Defender (mail):
If there's little harm in forcing gay adoptive parents to go elsewhere, why isn't there little harm in forcing non-gay adoptive parents to go elsewhere?

The reality is that both sides in this case put their principles above the needs of the children who need homes. How you evaluate this depends on how you value the principles involved.
4.12.2006 11:33am
port (mail):
That argument sounds like a common argument for affirmative action: yes, it's discrimination but the effects on any one person are de minimus. When I hear that, I wonder if the proponent is the one paying the price for allowing the discrimination. Usually, not.
4.12.2006 11:40am
Sydney Carton (www):
Cornellion:

"the Catholic Church never changes its position, it just sticks with the entire Bible. That's why they still support slavery right?"

Are you making things up as you argue, or do you have ANY support to justify this statement?

"It's highly debtable whether the New Testament condemns homosexuality..."

I see. You're making it up. This statement is pure ignorance, or a lie, and a smarter man wouldn't even make it in an argument when it's so easily refuted. Paul's Letter to the Romans, Chapter 1:


18 For the wrath of God is revealed from heaven against all ungodliness and wickedness of men who by their wickedness suppress the truth....

24 Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, 25 because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed for ever! Amen.

26 For this reason God gave them up to dishonorable passions. Their women exchanged natural relations for unnatural, 27 and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error.

28 And since they did not see fit to acknowledge God, God gave them up to a base mind and to improper conduct. 29 They were filled with all manner of wickedness, evil, covetousness, malice. Full of envy, murder, strife, deceit, malignity, they are gossips, 30 slanderers, haters of God, insolent, haughty, boastful, inventors of evil, disobedient to parents, 31 foolish, faithless, heartless, ruthless. 32 Though they know God's decree that those who do such things deserve to die, they not only do them but approve those who practice them.


I don't know why this blog bothers to post on religious issues when so many people make up pure lies or speak out of complete ignorance.
4.12.2006 11:48am
Sydney Carton (www):
SLS1: "Gay sex and lust are wrong" does not entail "placing children with gay couples is wrong."

Sure it does. Children have a natural right to have a father and a mother. It's that simple.
4.12.2006 11:50am
Hans Bader (mail):
Dale's line-drawing is reasonable, but the courts often are not. They prefer rigid bright lines to reasonable distinctions that are fuzzy on the edges, leading them to reject modest free speech and freedom-of-religion defenses to expansive applications of antidiscrimination laws.

For example, even isolated exemptions to antidiscrimination laws that will not adversely affect the overall aims of an antidiscrimination law (like letting a religious landlady not rent to a cohabiting couple, when plenty of other landlords are happy to rent to that same couple, even if her actions are technically "marital status discrimination") are rejected by left-wing courts that say that preventing any "transactional" discrimination, no matter how little harm it causes, is a "compelling state interest."
4.12.2006 11:58am
Ace (mail):
I am not using the "slippery slope" argument, but just bringing up similar discrimination. So its just one agency What if it was just one hotel (Heart of Atlanta), one restaurant (Ollie's Barbeque), just one coffee shop in one parking garage (Burton v Wilimington Parking), just one public park (compliments of United States Senator A. O. Bacon of Georgia).

Discrimination is not made right by the fact of availability of non-discriminatory alternatives. It creates two classes of citizens, those that can use all agnecies, and those that can only use a few.
4.12.2006 12:01pm
Cornellian (mail):
"the Catholic Church never changes its position, it just sticks with the entire Bible. That's why they still support slavery right?"

Are you making things up as you argue, or do you have ANY support to justify this statement?


I was being sarcastic, obviously. My point was that the Vatican used to support slavery, citing the Bible in support of its position. It's not the Vatican's current position, as you could see me acknowledge in my subsequent posts. That was in response to another poster who claimed that it was "trendy" in other denominations to discard inconvenient portions of the Bible. It was thus perfectly fair to point out that Catholicism isn't a model of unchanging doctrine either.
4.12.2006 12:32pm
Cornellian (mail):
For this reason God gave them up to dishonorable passions. Their women exchanged natural relations for unnatural, 27 and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error.

You forgot the rest of it:

Although asserting they were wise, they became foolish and turned the glory of the incorruptible God into something like the image of corruptible man and of birds and four-footed creatures and creeping things.

The reference is to idolatry, not homosexuality and in particular to pagan cults, popular in Paul's day, who believed that granting sexual favors to the priest of the cult would be rewarded with fertility of crops and offspring.
4.12.2006 12:37pm
Cornellian (mail):
Mr. Carton,

And since they did not see fit to acknowledge God, God gave them up to a base mind and to improper conduct. 29 They were filled with all manner of wickedness, evil, covetousness, malice. Full of envy, murder, strife, deceit, malignity, they are gossips, 30 slanderers, haters of God, insolent, haughty, boastful, inventors of evil, disobedient to parents, 31 foolish, faithless, heartless, ruthless. 32 Though they know God's decree that those who do such things deserve to die, they not only do them but approve those who practice them.

You've provided a great quote. Note the characteristics:

1. envy
2. murder
3. haters of God
4. insolent
5. haughty
6. boastful
7. inventors of evil
8. disobedient to parents
9. foolish
10. faithless
11. heartless
12. ruthless

You can be every single one of these things (with the presumed exception of #2 - a murderer) and the Catholic Church will still evaluate you on your merits as a possible adoptive parent. You might get accepted or not, but you'll at least get considered. How many people have they turned down for being "disobedient to parents?" Meanwhile, homosexuality, which is not mentioned in the verse at all, is an automatic exclusion, even if the couple is not any of the 12 things listed in the verse.
4.12.2006 12:44pm
Sydney Carton (www):
"Meanwhile, homosexuality, which is not mentioned in the verse at all, is an automatic exclusion, even if the couple is not any of the 12 things listed in the verse."

It doesn't matter. The point stands that the New Testament clearly denounces homosexual acts, which is what you disputed. There is no denying that, even if it was also a point made in reference to a bigger attack against pagan rituals.

I was being sarcastic, obviously.

Obviously.

My point was that the Vatican used to support slavery, citing the Bible in support of its position.

Please cite to me any source that documents the Vatican's support for, and not the mere acknowledgement of, slavery. Thanks.
4.12.2006 1:00pm
Cornellian (mail):
It doesn't matter. The point stands that the New Testament clearly denounces homosexual acts, which is what you disputed.

And which I continue to dispute, as I said in my post. The denunciation you cite isn't of homosexuality.
4.12.2006 1:26pm
Cornellian (mail):
My point was that the Vatican used to support slavery, citing the Bible in support of its position.

Please cite to me any source that documents the Vatican's support for, and not the mere acknowledgement of, slavery. Thanks.


With pleasure:

The Third Lateran Council of 1179 imposed slavery on those helping the Saracens. The legitimacy of slavery was incorporated in the official Corpus Iuris Canonici, based on the Decretum Gratiani, which became the official law of the Church since Pope Gregory IX in 1226:

" 24. Cruel avarice has so seized the hearts of some that though they glory in the name of Christians they provide the Saracens with arms and wood for helmets, and become their equals or even their superiors in wickedness and supply them with arms and necessaries to attack Christians. There are even some who for gain act as captains or pilots in galleys or Saracen pirate vessels. Therefore we declare that such persons should be cut off from the communion of the church and be excommunicated for their wickedness, that catholic princes and civil magistrates should confiscate their possessions, and that if they are captured they should become the slaves of their captors. We order that throughout the churches of maritime cities frequent and solemn excommunication should be pronounced against them. Let those also be under excommunication who dare to rob Romans or other Christians who sail for trade or other honourable purposes. Let those also who in the vilest avarice presume to rob shipwrecked Christians, whom by the rule of faith they are bound to help, know that they are excommunicated unless they return the stolen property.

Consider also the following quotation from the Apostolic Constitution written by His Holiness, Pope Nicholas V, on January 8, 1455 ("Apostolic Constitutions" carry more authority than an "Apostolic Letter", and Ordinatio Sacerdotalis was issued as an Apostolic Letter):

" We (therefore) weighing all and singular the premises with due meditation, and noting that since we had formerly by other letters of ours granted among other things free and ample faculty to the aforesaid King Alfonso -- to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery,...
4.12.2006 1:30pm
Gordo:
Aside from the constitutional issues, CCB's stance is only a problem is they dominate the adoption business in Massachusetts. And it sounds like they don't.
4.12.2006 1:33pm
Sydney Carton (www):
"The denunciation you cite isn't of homosexuality."

Your persistant denial of the obvious is amusing, but also sad. I bolded the language in my citation. You can believe it says something other than the fact that homosexuality is a "shameless act" and an "error", but it doesn't. There's no way around that. Moreover, since we're talking Catholic theology, it is the Church that speaks with Authority on how to read the Bible, and the Church has consistently and clearly stated that homosexuality is a sin. So even if in your mind you had some perverse desire to read something other than what's clearly there, the Church is obligated to correct a Catholic, and to abide by its own understanding of that citation, as well as others, in the performance of itself and its agents.

I don't think your citation to the Apostolic Constitution is relevant, since it looks like a mere discussion that King Alfonso had authority to wage war. It's not clear that in such a context, slavery means anything other than being a forced subject of the king (since all subjects of the king were slaves). In any event, it certainly isn't a theological discussion of the glories of slavery. Nice try, though.
4.12.2006 2:00pm
therut:
Liberals read the Bible like they do the Constiution-----------with no truth or understanding but with the wishes of the own heart and desire. A fatal error but one they are free to make.
4.12.2006 2:11pm
SLS 1L:
Sydney:
SLS1: "Gay sex and lust are wrong" does not entail "placing children with gay couples is wrong."

Sure it does. Children have a natural right to have a father and a mother. It's that simple.
Um, how does "Gay sex and lust are wrong" entail "Children have a natural right to have a father and a mother"? Consider any analogous argument form:

Pride is wrong.
Therefore, children have a natural right to parents who are humble.

Greed is wrong.
Therefore, children have a natural right to parents who are charitable.

Obviously these inferences are b.s. That's becasue "X is wrong" doesn't entail "children have a natural right to parents who don't do X." If the claim about children's natural rights is instead based on the alleged fact that children do better with opposite-sex parents than same-sex ones, that's an empirical matter, not a theological one.

And, in any case, false: while the studies that have been done on this issue suffer from various problems (small sample sizes, selection biases, etc.), none of them have found that the children of parents of same-sex couples do significantly worse on any measure of well-being. Even taking the most negative interpretation of the data, the effects of being raised by same-sex parents are much, much smaller than the effects of factors that we do not consider disqualifying. Parental wealth (obviously) has enormous effects on the well-being of children, but we don't prohibit poor people from adopting, nor should we.
4.12.2006 2:46pm
JRDickens (mail):
I submit to SLS 1L that children do indeed have a natural right to a mother and a father. To insist otherwise is lunacy. Whatever the law says, there is simply no other way to have kids in the first place without both a mother and a father. Since that is the only way possible, it stands to reason that this is the intended state of affairs for all children. You can pass all the laws you like, but that aint gonna change anything.
4.12.2006 4:31pm
Sydney Carton (www):
JRDickens sums it up nicely.
4.12.2006 4:46pm
Cornellian (mail):
I submit to SLS 1L that children do indeed have a natural right to a mother and a father. To insist otherwise is lunacy.

What does this mean exactly? That single people are incapable of raising children? That widows and widowers aren't capable of raising children? That it would be acceptable to take the children of such single parents away from them and hand them over to adoptive parents if those adoptive parents consist of a man and a woman? The Catholic Church's position is that it would rather that a child have no parents (i.e. remain a ward of the state) than be placed with a same sex couple so I don't see how your slogan "every child has a right to a mother and a father" has any effect on that.
4.12.2006 5:29pm
Cornellian (mail):
Your persistant denial of the obvious is amusing, but also sad. I bolded the language in my citation. You can believe it says something other than the fact that homosexuality is a "shameless act" and an "error", but it doesn't. There's no way around that.

Your quote, for reasons I explained in my earlier post, is no more a denunciation of homosexuality than a denunciation of drive-by shootings is a denunciation of driving.

Moreover, since we're talking Catholic theology, it is the Church that speaks with Authority on how to read the Bible, and the Church has consistently and clearly stated that homosexuality is a sin.

Actually what Catholic theology entails and what a proper reading of the Bible entails are two different matters and I had thought you were talking about the latter. I don't doubt that Catholicism has maintained the position that homosexuality is a sin, which they are certainly free to do. I would point out, as I did in an earlier post, that the Catholic Church considers any number of things sinful (divorce, birth control, pre-marital sex) but doesn't consider any other of these sins to constitute an automatic disqualification from adoption, so what's so special about homosexuality?

I don't think your citation to the Apostolic Constitution is relevant, since it looks like a mere discussion that King Alfonso had authority to wage war. It's not clear that in such a context, slavery means anything other than being a forced subject of the king (since all subjects of the king were slaves).

You asked me for evidence that the Vatican supported slavery. I provided it. Now you're going all contextual on me. Are you seriously suggesting there was no distinction in medieval times between a subject of a king and a slave?
4.12.2006 5:37pm
Randy R. (mail):
If children have a natural right to a mother and a father, than that would preclude any adoptions to single people. However, virtually all states allow adoptions to single people. Why? Because most people agree that having one parent is better than having none.

Look, there are ideals of childhood -- every child should have two parents, a dog and a cat, a loving home, fields to run free in, no handicaps of any kind, no money worries, and as much chocolate as they can eat without hurting themselves.

But the world doesn't offer the ideal to most children, even children who are not orphans. The simple fact remains: Every single adoption agency that has made a report has said that children do as well with gay parents as with straight parents. Moreover, there are now plenty of children of gay parents - either through adoption or natural birth -- who have stated that they had a perfectly good childhood.

If you are going to say deny children to gay parents, then you have to have a REASON to deny them. Not to the gay parents, who don't have a 'right' to adopt any more than another other person, but because the children have a right to be raised in a loving home. Whether that loving home is a single parent, a married couple or a gay couple -- there simply is no evidence that there is any difference. Until you can come up with some actual reason, not a theoretical ideal, then you should allow the children the opportunity to be placed out of foster care and into a stable home.

In fact, when queried, most children in foster care said they don't care whether they get adopted by a gay parent or not, they just want stability and place where they can feel loved. Shouldn't THEIR concerns be more important than anyone else's?
4.12.2006 5:41pm
Cornellian (mail):
In fact, when queried, most children in foster care said they don't care whether they get adopted by a gay parent or not, they just want stability and place where they can feel loved. Shouldn't THEIR concerns be more important than anyone else's?

Which is exactly the law in the state of Massachusetts, the welfare of the child is paramount.
4.12.2006 5:46pm
Cornellian (mail):
Liberals read the Bible like they do the Constiution-----------with no truth or understanding but with the wishes of the own heart and desire. A fatal error but one they are free to make.

Everyone does that, it's hardly a failing exclusive to liberals.
4.12.2006 5:50pm
JRDickens (mail):
I submit to SLS 1L that children do indeed have a natural right to a mother and a father. To insist otherwise is lunacy.

What does this mean exactly?

It means exactly what says. Since no children are possible without both a mother and a father, the natural state of a child would seem to be to have one of each. Single people can certainly raise children, they are just not capable of producing them on their own.

My comments were directed at SLS 1L who seemed to imply that children did not have a natural right to a mother and father. Perhaps if it makes you more comfortable we could change it from a natural right to a birth right.

Also, to Randy R., it is a physical impossibility to have less than one parent.
4.12.2006 5:59pm
JRDickens (mail):
Furthermore,

If it's "all about the children", wouldn't the good people of Mass. be culpable here and not the Catholic Charity. They are the ones forcing the Catholics to retreat from providing its adoption services. The Catholic Charities have an obligation to follow the law, not find adoptive parents. Worrying about non-existent rights of a very vocal political fringe group over the welfare of orphans doesn't seem to me to be "about the children" at all.
4.12.2006 6:06pm
JRDickens (mail):
Also, to Randy R., it is a physical impossibility to have less than one parent.

I mean TWO parents of course.
4.12.2006 6:09pm
Cornellian (mail):
It means exactly what says. Since no children are possible without both a mother and a father, the natural state of a child would seem to be to have one of each. Single people can certainly raise children, they are just not capable of producing them on their own.

So sterile couples shouldn't be able to adopt because they can't produce children on their own? Since when does the ability to produce children equate to the ability to raise children? The issue in the Massachusetts situation is who is capable of raising children, not who is capable of producing children. These children don't have their natural parents anymore, that's why they're up for adoption. The law of Massachusetts says you consider the welfare of the child. The Catholic Church (now) says homosexuality automatically precludes any consideration for adoption, regardless of how fit you may be to raise children and even if it's a choice between a same sex couple and no parents at all. Sure two people of the same sex can't produce a child. So what? Neither can an opposite sex couple where one of the two is sterile, or a post-menopausal woman, or a single person and they're all eligible to adopt.
4.12.2006 6:26pm
JRDickens (mail):
Cornellian,

Nowhere on this thread have I stated that the people you mentioned should not be allowed to adopt. In fact, I don't really care one way or the other what Massechusetts does with its adoption laws.

I was merely stating that the natural rights of a child would seem to be a different sex coupling based simply on the method by which children are produced in response to another commenter who seemed to have a differing opinion.

What I do bristle at is the suggestion that this law is for the welfare of orphans in that state. That is clearly not the case. By forcing the charity group to defy its parent organization's tenets, they are simply reducing the option available to those orphans. Gays and lesbians undoubtedly have plenty of options if they wish to adopt children.

The net result of this silly law is to decrease by one the number of organizations willing to perform these services in this state. All of this to protect a class of people who have all of the same rights I have,no more, no less.

If you want to say it's for the children, then go ahead. But we both know it isn't true.
4.12.2006 6:56pm
Cornellian (mail):

What I do bristle at is the suggestion that this law is for the welfare of orphans in that state. That is clearly not the case. By forcing the charity group to defy its parent organization's tenets, they are simply reducing the option available to those orphans. Gays and lesbians undoubtedly have plenty of options if they wish to adopt children.

The net result of this silly law is to decrease by one the number of organizations willing to perform these services in this state. All of this to protect a class of people who have all of the same rights I have,no more, no less.

If you want to say it's for the children, then go ahead. But we both know it isn't true.


The legislature of Massachusetts has decided that, in placing children for adoption, the welfare of the child is paramount, not the sexual orientation of the adoptive parents. The Catholic Church takes the opposite view, they consider sexual orientation to trump all other considerations, even the availability of other potential adoptive parents. The Catholic Church's position decreases the number of potential adoptive parents. To quote your words, "if you want to say (that's) for the children, then go ahead, but we both know it isn't true."
4.12.2006 7:27pm
eddie (mail):
It seems that the legal question has been left aside here:

The government does not need to interfere with any organization that legimately is seeking to facilitate adoptions. But government simply need not provide funding to those organizations that discriminate.

Is that so hard a concept to grasp?

Or are we down the slippery slope of entitlements for religious organizations, simply because they duplicate some functions that a moral democracy should itself perform?

Arguing the gospel and religion will never get us anywhere, precisely because it's about belief. But let's be honest and admit that one can be moral without religion and that whatever morality is infused into our government should never be legislated based on a religious based morality. Otherwise, can there be any meaning left in the First Amendment?
4.12.2006 7:37pm
BobN (mail):
Someone should ask the Vatican if they mind if some adoption agencies start refusing to adopt to Catholics. That should settle this matter.

I wish people would stop talking about opposition to gay people in the Catholic Church as though it were some sort of foundational, unshakeable belief. Until now, Catholic Charities were happy to place children with gay couples. Cardinal Levada, who is now directing an end to such adoptions, supervised CC in San Francisco until last year. He was well aware of adoptions just like the ones he objects to now.

Before JPII, the Catholic Church was gradually changing its view of how homosexuals should live and how we should be treated. Dignity -- an organization for gay Catholics -- was welcomed in churches. Catholic theologians made (I think rather convincing) arguments for our inclusion in the church and in society. Granted, that open attitude has been reversed through more than two decades of purges and the re-imposition of "orthodoxy" by JPII and now Ratziner, but that doesn't change the fact that the PEOPLE of the Church do not support the Vatican in this area and that it is NOT a matter of theology.

For those who defend the hierarchy, is the voice of one Pope more authoritative than the voice of another? JPI supported gay rights, gay adoption, even gay unions. Pity he died after only days in office. I'm sure some were quite happy he did.
4.12.2006 9:27pm
Cornellian (mail):
It seems that the legal question has been left aside here:

The government does not need to interfere with any organization that legimately is seeking to facilitate adoptions. But government simply need not provide funding to those organizations that discriminate.


As a policy choice, the state government could indeed back away from regulation completely, and let organizations do whatever they wish, but the public is unlikely to tolerate an organization that, for example refuses to place children with non-white families, or chooses where to place children on the basis of which families offer the most money, whether or not such organizations receive government funding. Like virtually every other area of human activity, the public appetite for regulation is insatiable. One occasionally hears rhetoric to the contrary from some politicians (especially Republicans) but their record since taking Congress in 1994 makes it abundantly clear that they are every bit as enthusiastic about government regulation as the Democrats they replaced.
4.12.2006 10:27pm
david blue (mail) (www):
I confess I haven't read this entire, rather long comment thread, so I apologize if I'm being redundant. But we here in Massachusetts got a good look at the bill Romney filed. It's a disaster. In short, even if were enacted - which will never happen, as everyone including Romney knew from the get-go - it might not give the bishops what they want (note that it is the bishops, not Catholic Charities, who wants the exemption - the lay board of Catholic Charities voted unanimously to continue serving gay couples shortly before the bishops overruled them, whereupon at least 8 of the 40 or so board members resigned). I explain the bill's defects in this post on my blog.
4.13.2006 12:35am
Randy R. (mail):
You know, I don't really give a hoot what the Bible has to say about anything. The Bible, contrary to some people's wishes, is not a book of any authority in the US. We do not quote it for legal precedent, any more than we quote the Koran, the Greek myths, the Analects of Confucious or any other religious text. So arguing with me about whether homosexuality is okay per the Bible is utterly ridiculous. The supreme law of the land is our Constitution, and it is that document, not the Bible, that should direct our discussions here. And it's something the catholic church should learn about the America.

I've never believed in half the stuff the Bible talks about, and frankly, after reading "Misquoting Jesus" I realize there is little point in believing the other half. And when you through in to the mix the fact that some people quote the Bible to deny rights to others, or use it as a weapon against people they don't like, well, that's just down right bizarre.
4.13.2006 3:02am
Randy R. (mail):
I would ask Dale Carpenter: If there were a Muslin Charities, and they decided to go into the adoption business, but they would deny adoptions, even the consideration, to any Christian family, your position would be that we must be sensitive to their religious faith and let them do it, correct? No objections, even though it would be clearly against the law, we should allow them an exemption, right?
4.13.2006 3:06am
raj (mail):
Randy, don't hold your breath waiting for Carpenter to respond. He won't even defend his thesis on Independent Gay Forum, where it has elicited a number of comments.
4.13.2006 4:09pm
lisamarie (mail):
I'm interested in the divorce and remarriage question raised above. Remarriage is one of the many things besides homosexuality that the Catholic Church considers a sin. So why does their evaluation of the fitness of adoptive parents rest on homosexuality? What about all the other sins (adultery, remarriage, the use of birth control, for example) that prospective adoptive parents can commit? Why are they not relevant?
4.14.2006 1:00am
Randy R. (mail):
They aren't relevant because they are what a LOT of people do. If you exclude everyone that commits the sins of adultery, remarriage, birth control and masturbation, to name just a few, you would limit the pool of people down to about zero. Let's not even talk about greed, sloth, gluttony and the fact that it's easier for a camel to go through the eye of a pin than a rich man go to heaven. When did the catholic church ever shun a man just because he was rich? And yet there it is, right in the ole Bible.

Since gays are a small minority, it's easy to pick them out and marginilize them. That way the church can pretend its upholding moral law, the straights can feel superior, and the gays -- well, who really cares how they feel? They are so few they don't count.
4.14.2006 2:08am