Catholic Charities Issue

Alan Brownstein aebrownstein at
Sat Mar 11 20:45:50 PST 2006

Not only isn't it impossible to have both gay rights and religious liberty, the core of both sets of claims have  common foundations. It makes no more sense for a gay activist to insist that a religious person should ignore the duties he or she owes to G-d (a duty that, I believe, arises out of love and principle) -- because the religious person can not reasonably be asked to do that -- than it does for a religious person to insist that a gay person should deny the love he (or she) shares with another person who he wants to spend his life with  -- because the gay person can not reasonably be asked to do that.
Alan Brownstein  


From: religionlaw-bounces at on behalf of Douglas Laycock
Sent: Sat 3/11/2006 7:42 PM
To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

It is not at all impossible to have both gay rights and religious liberty.  It is just that the gay rights activists mostly refuse to recognize religious liberty (at least if any gay rights issue is in anyway implicated), and the more conservative religious liberty activists mostly refuse to recognize gay rights.  Both sides want the symbolic victory of having the state declare the other side wrong, and both sides want to be assured they will never have to litigate a case at the boundary between the two freedoms.
Alan Brownstein sketched a perfectly sensible way to resolve the Massachusetts dispute in a way that protects both sides -- gay parents would be free to adopt through other state-funded agencies, and Catholic Charities would be free not to place children with gay parents.  More generally, strong gay rights legislation with strong religious liberty exceptions would protect both sides.  
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-471-6988 (fax)


From: religionlaw-bounces at on behalf of Rick Duncan
Sent: Sat 3/11/2006 8:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: Catholic Charities Issue

I think Marci and Doug are spot on. The state, as in Rust,  says "this is our program, take it or leave it." CC says, "okay, we'll leave it."  CC loses a part of its ministry, the state loses one of its best adoption-service providers, and the kids stay in state custody longer (and, for some, perhaps permanently, since CC was extra good at placing hard-to-place children).
This is why some of us fight so hard against gay rights and gay marriage--gay rights/marriage are incompatible (at least in certain situations) with religious liberty. As in Massachusetts, the state has to choose between religious liberty and gay rights. 
Some states choose gay rights. I choose religious liberty. I was born and raised in Massachusetts, but I couldn't live there now (and I don't think I even care to visit--not even if I had Monster seats at fenway).
Cheers, Rick Duncan 

Hamilton02 at wrote:

	What this dispute re: Catholic Charities illustrates is the danger of any religious institution in relying upon government funding for its programs.  Government funding always comes with strings.  In general, Catholic Charities gets 86% of its funding from government sources, 14% from private, with the vast majority of that coming from charities like United Way.  A tiny portion is paid by Catholics.  I would assume that on its own dime, CC can facilitate adoptions, but feel free to correct that assumption.  
	The question is whether it is going to accept the condition placed on it by the government's money. &! nbsp;CC is not required to take the government's money, right?  This is the Solomon Amendment -- private institution that has become dependent on government largesse insists that it is entitled to that largesse and that the government should have no power to place strings on the money.  There is no First Amendment problem and certainly no "substantial burden" under RFRA.  If "substantial burden" means that religious entities can force the government to give them money on their own terms, we are quite literally on the other side of Alice's looking glass.

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner


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