Catholic Charities Issue

[Andrew Wyatt]

Someone is always going to be dissatisfied when the state attempts to
resolve conflicting priorities.  Any state policy is a de facto value
judgment, although the First Amendment rightly heightens the legal
scrutiny when religious matters are implicated.  Massachusetts lawmakers
evidently believe that discrimination on the basis of sexual orientation
is so reprehensible that it warrants the loss of those adoption or
placement entities--religious or not--that discriminate.  I suspect that
in a Catholic state like Massachusetts, lawmakers were well aware of the
ramifications of this policy.  Massachusetts voters are free to remove
their lawmakers if they don't agree with that judgment.  (Not
coincidentally, Catholic Charities had to make the similar judgment
call.  Evidently, the charity believes that discrimination on the basis
of sexual orientation is so important that it is warrants a loss of
government subsidy.)

What I don't understand is how policies such as these can be seen as
infringing on religious liberty.  This seems like a clear case of
"Discriminate all you want, just don't expect us to subsidize it."  A
liberal state necessarily has a set of secular values that will conflict
with any number of religious values.  It's just the nature of the beast.
Someone, somewhere, will take issue with each and every value that
undergirds each and every policy decision.  Provided that the state
pursues those values through policies that are neutral, the conflicts
that arise may be unfortunate for affected religious groups--less money,
diminished legitimacy, reduction in comfortable access to government
officials--but how is a trampling of liberty?  I'm not sure I'm
comfortable with a definition of liberty that encompasses the "liberty"
of religious groups to spend government money in contravention of
government policies when secular groups have no such "liberty".

Andrew Wyatt

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Rick Duncan
> Sent: Monday, March 13, 2006 10:10 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Catholic Charities Issue
> 
> Mark: I think Rust controls here, and, thus, the state
> has the power to define the rules any way it wishes to
> govern its own program. So CC had to walk if it wished
> to obey God.
> 
> But the rule, although probably within the power of
> the state to enact, has the effect of excluding--as
> "immoral"--CC because of CC's religious convictions
> about the nature of marriage and family. Thus, *your*
> temple *could* be an adoption grantee under the
> Massachusetts program, but the other temples you
> mentioned--those with a different understanding of
> "the basic precepts of Judaism"--would be(along with
> CC)excluded from the program.
> 
> If your ultimate concern affirms homosexuality, you
> end up being intolerant toward the "other" temples and
> institutions like CC. Your tolerance toward homosexual
> families looks like religious intolerance from the
> perspective of the "other" temples and CC.
> 
> I suppose if Massachusetts wanted to be tolerant to
> everyone, it would have many grantees (e.g. both your
> temple and the other temples)and allow each grantee to
> find good homes for children based upon its reasonable
> (but different) understanding of marriage and family.
> Your temple would include homosexual couples in its
> search for parents and the other temple would not.
> That is a way of ensuring inclusion of homosexual
> couples without forcing CC (and the other temples) out
> of the program.
> 
> Cheers, Rick
> 
> --- Mark Graber <MGRABER at gvpt.umd.edu> wrote:
> 
> > I guess I get more confused by this debate as it
> > goes on.
> >
> > 1. Part of my confusion is on the debate over the
> > status of gay
> > abortions in the Catholic Church.  I'm not sure why
> > we are debating the
> > issue.  Presumably if the Catholic Bishops of Boston
> > claim to have
> > religious reasons for not engaging in that practice,
> > that ought to be
> > good enough for the rest of us.  Maybe a debate on
> > that ought to go on
> > within the Catholic Church, but most of us have no
> > say in that debate.
> >
> > 2. I'm also confused why it is anti-religious to
> > insist that all
> > institutions that arrange for adoptions not
> > discriminate against gay and
> > lesbian couples.  It may be wrong as a matter of
> > public policy, but it
> > is not anti-religious per se.  Some religions
> > believe that homosexuality
> > is immoral (or something to that effect).  My temple
> > takes the position
> > that discrimination against homosexuals is immoral
> > and inconsistent with
> > basic precepts of Judaism (other tempes disagree).
> > We might imagine
> > that the state might require particular parenting
> > standards that differ
> > from those imposed by some religions.  Again,
> > whether those parenting
> > standards are desirable is independent of whether
> > they are consistent
> > with any religion.
> >
> > 3.  In short, Massachusetts seems to believe that
> > discrimination
> > against same sex couples in the adoption process is
> > (almost) as
> > inconsistent with state values as discrimination
> > against different race
> > couples.  I think that is correct.  Rick Duncan
> > thinks that is wrong.
> > But our fight is on the merits of that proposition,
> > because if I am
> > right on the moral proposition, the religious
> > argument seems to fall.
> >
> > Mark A. Graber
> > _______________________________________________
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> 
> 
>   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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