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.