Back With Thoughts On Adoption And Religious Freedom

I’m not sure what it is about this semester that is making finding time for the blog so difficult, but something there must be because here a whole week went by.   Sigh.   Partly I’ve spent that week working on a presentation that will be given this coming Thursday.   Since it’s just about showtime, I thought I’d try a little bit of a run-through here, even though this doesn’t connect to anything terribly current-eventsy.

Here’s the general idea:   An increasing number of states have enacted statutes that prohibit discrimination against lesbians and gay people.   That means those who offer various services to the public have to offer them without regard to sexual orientation.   You cannot have a restaurant or a hotel that won’t accept lesbian and gay patrons.    There’s nothing so terribly radical about a statute like this–all states already have antidiscrimination statutes that identify protected groups, and just as the list of protected groups has been expanded in the past (to include veterans or the disabled or whatever), so some states have expanded it to include lesbians and gay men.

Now in some states, antidiscrimination statutes apply to adoption providers.  That means that providers cannot turn people based on the characteristics outlined in the statutes.   In some states that means providers cannot turn away lesbian and gay people.

Now some providers want to do just that.   They assert a right to discriminate grounded in religious freedom.   For instance, there have been several instances where Catholic Charities (it isn’t actually called that everywhere, but you get the idea) has insisted that it must be allowed to turn away lesbian and gay people, because the Catholic Church teaches that lesbian and gay people cannot be good parents.    In Massachusetts, Catholic Charities stopped providing all adoption services rather than agree to provide them on a non-discriminatory basis.

The question is how should we think about this?   When and how can an assertion of religious freedom justify otherwise unlawful discrimination?

It’s important to note at the outset that no one disputes the right of religious entities themselves (churches, synagogues, mosques, temples) to discriminate.    That’s not what is at issue here.  Catholic Charities isn’t the same as the Catholic Church and the services it provides (here adoption services) aren’t themselves religious services.

Some people have suggested that there is a middle ground where everyone can be accommodated.   In Massachusetts, say, there are other agencies through which lesbian and gay people can adopt children.  Why not allow CC to refer away the lesbian and gay couples–especially if it can be shown that it won’t cause particular hardship to those couples?   CC can uphold its religious principles and continue to provide adoption services in MA if it is allowed an exemption from the antidiscrimination laws in this circumstance.

So far all that I’ve summarized here is ground other people have written about.   There’s a lot out there (if you care to read it).  But I think the discussion thus far is incomplete.  In considering the possibility of compromise, folks have only considered the harm exemptions to antidiscrimination laws might inflict on lesbian and gay people wanting to adopt.   If these harms can be addressed–say by ensuring that there are readily available willing providers–then that seems to take care of the lesbian/gay side of the equation and it seems more reasonable to accommodate religious freedom claims.

What I think is missing is an appreciation of the broader harm caused by exemptions from antidiscrimination laws.   These exemptions amount to a statement by the government that the discrimination is permitted, which is to say they are state approval of discrimination.   I don’t think there is much doubt that when the state approves discrimination against some group it stigmatizes that group and the members of the group.  And just as surely, stigmatization–and particularly stigmatization by the state–causes harm to the members of the group.   Surely this is one of the core insights of Brown vs. Board of Education.

Thus it isn’t just lesbian and gay people who want to adopt who are harmed by the exemptions sought by CC and others.  It’s all lesbian and gay people.   Importantly this includes lesbian and gay people currently raising children, who are told (in essence) that they are really not fit to the task–or at least, that it is fine to discard their capacities based solely on their lesbian or gay identities.

The compromise that is most often suggested does nothing to address these harms and that’s my point.   One could still say the compromise is a good thing–after all, in plenty of states there is no protection at all for lesbian and gay men so anyone can discriminate against them.    But one at least ought to recognize the realities of the trade-off being offered.



6 responses to “Back With Thoughts On Adoption And Religious Freedom

  1. This is my exact point regarding having so many different Surrogacy laws.

    When the Government or a Religious group says one from of Surrogacy is ok, but these other forms of Surrogacy are illegal. The general public doesn’t hear or understand the small distinctions. They just hear that Surrogacy is illegal and/or immoral.

    This stigmatizes everyone that has used Surrogacy.

    I believe that the same harm would be true for a group of people discriminated against in the adoption field. The government is clearly sanctioning a stance where one group is worth less than another.

    • I checked your websites out. You should not be in the business of separating people from their biological families that way as long as the law does not give people full legal recognition of their relationships with genetic kin equal to any relationships that are social or contractual. As far as I am concerned what you are doing in most instances helps people buy the absence of someone’s genetic parent and that is not your place I hope the law changes. Buying and selling people is wrong.

  2. You are absolutely correct; there is no need to compromise on the subject of discrimination. We do not need to find a happy middle ground to accommodate prejudice in the public realm. Your reasoning is spot on as well but your thinking small. Stigmatization of a particular group is not the real problem with discrimination. The real problem is that inequitable treatment of anyone is a problem for everyone. If the law is the same for all people then all people have the right to rely upon others to comply with those laws and then everyone is equally obligated and equally protected. When someone does not comply with the law and it shortchanges someone who relied upon their performance of that law they should have some legal recourse, civil or criminal. Legal recourse and protection when your rights are infringed upon does not set things straight necessarily but it is important to for the law to recognize that the inherent right is always there whether or not it is exercised or violated. It’s a matter of dignity and balance. Whenever someone is exempted from compliance with a law there is someone damaged by that law not being complied with – those people are then unfairly excluded from having the thing they would have gotten had the exemption not been given. Discrimination is everyone’s problem because nobody is safe when discrimination is tolerated – it could have been you with the short end of the stick if you happened to be black or gay or disabled or rich or poor or ugly or stupid or whatever the irrelevant barrier to obtaining service happens to be.

  3. I have written almost verbatim this very same argument that you make here about how the law unfairly treats donor offspring and how the enormous loss of rights experienced by people when parentage on their birth records is incomplete or genetically inaccurate.

    Your hypocrisy on the subject of equal rights is galling and unsettling; Nobody that gets writes what you wrote here has any business suggesting compromise in the areas of equalizing rights and obligations for people and their offspring. The specific exclusion of donor offspring in the UPA from receiving the benefits of of accurate paternity as described therein is unforgivable. human rights and civil liberties and their unforgivable exclusion of rights to accurate paternity, family health history and a sense of heritage, secured for other children through the uniform parentage act their specific exclusion from the uniformed parentage act, to donor offspring’s loss of rights sounds a whole lot like this: Forgive me Julie for not taking the time to look up direct quotes, I’m striving to be fair in my portray of your statements – but I recall your defense of denying donor offspring equal rights sounds a whole lot like you are saying:

    ‘What can we do to make being treated unfairly more comfortable for you?”


    ‘The harm some suggest they suffer at the loss of perceived rights is unfortunate but is not universal and is not measurable to the extent that harm from being childless is measurable. If there are people who benefit from treating you unfairly and you can’t prove any harm from the loss of those rights then we have no justification justification to start treating you fairly. What’s in it for us?’

    They don’t need to prove harm from being discriminated against Julie it is enough to merely be treated unfairly and you, after having written what you wrote here, understand that. Your indifference is inexcusable from an equal rights perspective. You may feel that nothing is lost by preventing biological family members from knowing one another but your opinion is disregards the health of people, their ability to prevent themselves from inbreeding and it prevents our country from managing the spread of heritable disease in the general public and from undertaking studies about birth defects.

    Your double standard is showing. Your very smart I’m sure you can figure a way to get what you want while being true to the ethics and principals of equality shown in your post here today.

  4. Wow that needs editing – sorry. But you get where I’m going I said it in there 20 times. sorry

  5. Discrimination is wrong and there is absolutely no credible evidence that suggests children raised by gays and lesbians turn out better or worse than those raised by straight people.

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