May 11, 2006
Gay marriage vs. religious liberty
What an eye-opening column by marriage advocate Maggie Gallagher -- Banned in Boston: The coming conflict between same-sex marriage and religious liberty.
In a nutshell, Catholic Charities of Boston placed children for adoption. A small number of these children were placed with gay couples.
The Catholic Church told Catholic Charities such placements were against church policy. When Catholic Charities complied, refusing to place any more children with gay couples, the state of Massachusetts blocked it from engaging in adoptions at all.
What has happened is that gay activitists have persuaded the courts (and to some extent public opinion) that their cause is a civil rights issue (an equivalence that maddens a significant number of African Americans who flatly reject this comparison), for which no religious or conscience exemptions could be made. From the article:
From there, it was only a short step to the headline "State Putting Church Out of Adoption Business," which ran over an opinion piece in the Boston Globe by John Garvey, dean of Boston College Law School. It's worth underscoring that Catholic Charities' problem with the state didn't hinge on its receipt of public money. Ron Madnick, president of the Massachusetts chapter of Americans United for Separation of Church and State, agreed with Garvey's assessment: "Even if Catholic Charities ceased receiving tax support and gave up its role as a state contractor, it still could not refuse to place children with same-sex couples."This March, then, unexpectedly, a mere two years after the introduction of gay marriage in America, a number of latent concerns about the impact of this innovation on religious freedom ceased to be theoretical. How could Adam and Steve's marriage possibly hurt anyone else? When religious-right leaders prophesy negative consequences from gay marriage, they are often seen as overwrought. The First Amendment, we are told, will protect religious groups from persecution for their views about marriage.
Gallagher asked numerous legal scholars, including Anthony Picarello, president and general counsel of the Becket Fund for Religious Liberty, what this all means. How serious are the coming conflicts over religious liberty stemming from gay marriage? "The impact will be severe and pervasive," Picarello says flatly.
These experts' comments make clear that it is not only gay marriage, but also the set of ideas that leads to gay marriage--the insistence on one specific vision of gay rights--that has placed church and state on a collision course. Once sexual orientation is conceptualized as a protected status on a par with race, traditional religions that condemn homosexual conduct will face increasing legal pressures regardless of what courts and Congress do about marriage itself.Nevertheless, marriage is a particularly potent legal "bright line." Support for marriage is firmly established in our legal tradition and in our public policy. After it became apparent that no religious exemption would be available for Catholic Charities in Massachusetts, the church looked hard for legal avenues to continue helping kids without violating Catholic principles. If the stumbling block had been Catholic Charities' unwillingness to place children with single people--or with gay singles--marriage might have provided a legal "safe harbor": Catholic Charities might have been able to specialize in placing children with married couples and thus avoid collision with state laws banning orientation discrimination. After Goodridge, however, "marriage" includes gay marriage, so no such haven would have been available in Massachusetts.
Precisely because support for marriage is public policy, once marriage includes gay couples, groups who oppose gay marriage are likely to be judged in violation of public policy, triggering a host of negative consequences, including the loss of tax-exempt status. Because marriage is not a private act, but a protected public status, the legalization of gay marriage sends a strong signal that orientation is now on a par with race in the nondiscrimination game. And when we get gay marriage because courts have declared it a constitutional right, the signal is stronger still.
The method and the mechanism for achieving protected status may be different for orientation and for race. Even the Massachusetts supreme court, for example, declined to rule explicitly that orientation is a protected class, subject to strict scrutiny. But in Massachusetts, the end result may be similar. If state courts declare gay marriage a constitutional right, they are likely to see support for gay marriage as state public policy.
The article quotes some leading legal minds on the extent to which placing gays on the same level as minorities will impact activities sponsored by religious groups, from adoptions to schools (can they expel lesbian students?), homeless shelters, marriage counseling and retreats.
It even remains cloudy whether free speech -- the freedom to argue against gay marriage -- would be freely permitted.
Even a lesbian legal scholar at Georgetown University has some pause about where we are heading. Chai Feldblum, raised an Orthodox Jew, notes:
She pauses over cases like the one at Tufts University, one of many current legal battles in which a Christian group is fighting for the right to limit its leaders to people who subscribe to its particular vision of Christianity.She's uncertain about Catholic Charities of Boston, too: "I do not know the details of that case," she told me. "I do believe a state should be permitted to withhold tax exempt status, as in the Bob Jones case, from a group that is clearly contrary to the state's policy. But to go further and say to a group that it is not permitted to engage in a particular type of work, such as adoptions, unless it also does adoptions for gay couples, that's a heavier hand from the state."
Indeed. Do read Gallagher's full article to see an amazingly wide range of legal views on the implications of gay marriage as a civil rights issue.
I'll also highly recommend reading Gallagher's excellent book 
The Case for Marriage, which takes on feminist notions that marriage is only good for men.
Other blogs commenting on "Banned in Boston:"
- Bettnet.com (note a lively set of comments after the blog entry).
- Rod Dreher: Why I Can't Help Voting GOP.
- And National Review's the Corner, where Stanley Kurtz foresees that "same-sex marriage will be used as a tool, not only to silence opposition, but to unstring religion itself as a force in American life." He summarizes:
Scholars on the left and right agree that the gay marriage movement has raised the specter of a massive and protracted battle over religious liberty. In states that adopt same-sex marriage, religious liberty is clearly going to lose. The source of the problem is the flawed analogy between the battle for same-sex marriage and the sixties movement for civil rights. Gay marriage proponents argue that sexual orientation is like race, and that opponents of same-sex marriage are therefore like bigots who oppose interracial marriage. Once same-sex marriage becomes law, that understanding will be controlling.
Why should we read her full article?
Is she gay? Is she married? Is she divorced? What exactly is her interest and expertise? She works for an institute, of which there is one staff member besides her.
Before suggesting that readers find Gallagher's work and give it full faith and credit, should you not inform them of who she is?
Something not mentioned in your posting is that Maggie was part of a Bush administration scandal in 2002-2003, when she, along with others like Armstrong Williams, were receiving tens of thousands of dollars from the Bush administration to pass of their policy plans as journalism.
That is but one thing a simple search of Maggie's name will turn up. Before taking Maggie's work on full faith and credit, do a little research of your own, and then decide if she is a credible voice on issues such as these.