Jeff Jacoby has a column in the Boston Globe about the situation with Catholic Charities and gay adoptions in Massachusetts. It's not nearly as balanced and thoughtful a column as you usually get from him, but I'm going to agree with the core of his argument while rejecting the over-the-top rhetoric with which it is delivered. There is much that is wrong with his article, and I'll address those things, but the basic policy position is a sound one.
The overheated rhetoric begins with the headline: Kids take back seat to gay agenda. That's a ridiculous headline and flat out wrong. On the merits of the question of gay adoption, there are two sides - those who are for it and those who are against it - and it's the anti-gay side that is harmful to children. It's the anti-gay agenda that leaves children all around the country in foster homes rather than placing them with caring, decent people solely because of religious objections to homosexuality. He's also wrong about the possible options that the Church had. He writes:
Caught between the rock of Catholic teaching, which regards such adoptions as ''gravely immoral," and Massachusetts regulations, which bar adoption agencies from discriminating on the basis of sexual orientation, the Boston Archdiocese had hoped to obtain a waiver on religious-freedom grounds. But when legislative leaders refused to consider the request, the archdiocese was left with no option but to end a ministry it had been performing for a century.
This is false. They could have filed a suit in state court and, under multiple Massachusetts SJC precedents, been entitled to a heightened scrutiny review of the policy. Under such scrutiny, the state would have been forced to show not only that the law mandating that adoption agencies place children with qualified gay couples served a compelling state interest (which it does, as even Gov. Mitt Romney admitted yesterday), but also that it was the least restrictive means of achieving that goal (which, I would argue, it's not).
Essentially, the courts would have had to apply the same standards found in the Federal Religious Freedom Restoration Act (RFRA). Under that standard, the burden of proof is really on the side of the government that passed the statute to show that the policy goal cannot be achieved unless the religious group is refused an exemption from the generally applicable rule and that is clearly not the case here. Because there is a wide range of groups providing adoption services for the state of Massachusetts and only one of them, Catholic Charities, objects to facilitating gay adoptions, granting them an exemption will not impede the goal of allowing gay adoptions.
Now, I can see the argument on the other side of this as well, particularly because I am so strongly in favor of allowing gays to adopt myself. But let's bear in mind that laws like the RFRA were designed in large part to protect minority religious views and has been used in court for that purpose. It has been used to protect the rights of American Indians to use a traditional hallucinogenic tea in their ceremonies, granting them an exemption from the Controlled Substances Act for that narrow activity.
The basic argument here is that they should be allowed to follow their beliefs as long as doing so does not deny anyone else their rights. The RFRA sought to confer exemptions from generally applicable laws when those laws impinged upon the free exercise of religion, but only when that free exercise did not render such a law ineffective. And as Jacoby notes, the Church's policy here does not do so because there are other agencies to make sure gay couples could adopt:
Catholic Charities made no effort to block same-sex couples from adopting. It asked no one to endorse its belief that homosexual adoption is wrong. It wanted only to go on finding loving parents for troubled children, without having to place any of those children in homes it deemed unsuitable. Gay or lesbian couples seeking to adopt would have remained free to do so through any other agency. In at least one Massachusetts diocese, in fact, the standing Catholic Charities policy had been to refer same-sex couples to other adoption agencies.
I think that we can in fact find a compromise that allows for gay adoption in the state (one of the few states that explicitly allows it, for which they should be applauded) and still allows Catholic Charities to continue to do good work without violating the tenets of their faith. To me, this is very much akin to gay marriage. I am a vociferous advocate of allowing gay couples to get married, but I am an equally vociferous opponent of requiring any particular church or minister to perform the ceremonies.
And contrary to Jacoby's claim, I believe my position is much closer to the mainstream "gay agenda" than those who would want to use the power of the state to force those with religious objections to violate their faith. I don't think most advocates of gay marriage or gay adoption really want to force churches to participate, they just want the right to do it and to find, if they wish, those churches who want to participate. I will happily condemn them for their bigotry, but I cannot justify using the law to force such choices on them. That is exactly why I fight for gay rights, to keep the government from imposing an orthodoxy of opinion or behavior. I cannot turn around and support the same thing against my opponents without becoming the thing that I despise.
The other reason is purely practical. If we want to win public support for gay adoption (or gay marriage, or laws against discrimination based on sexual orientation), we simply have to allow religious exemptions for those laws. The public simply isn't going to stand for a law that forces churches to perform gay weddings and gay adoptions, and frankly, on this one the public is right where they are so often wrong. There is a middle ground here and it's one that is beneficial enough to overcome the obvious objections to it.
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"It's not nearly as balanced and thoughtful a column as you usually get from him"
Thanks for the best laugh I've had so far this morning!
Platypus:
I'm not a regular reader of Jacoby's columns, but I've seen half a dozen or so over the years and they've seemed quite reasonable to me. Perhaps I've missed some outrageous ones that would have pushed me in the other direction. The ridiculous rhetoric in this one (even if I agree with the notion of a compromise granting an exemption on this issue) certainly does give me pause, I must admit.
The Globe has a reputation as a liberal paper. Jacoby on the op-ed page and "Mallard Fillmore" on the comics page are supposed to provide a counterbalance to the overall slant of the paper. Both Jacoby and the talking duck do so with the same level of intellecutal depth.
Moreover, if the state of Massachusetts refused to deal with an adoption agency that wouldn't place children with interracial couples on religious grounds, there wouldn't even be a debate. Bigotry shouldn't get a pass simply because it's couched in the language of religious freedom. And this passage:
Gay or lesbian couples seeking to adopt would have remained free to do so through any other agency. In at least one Massachusetts diocese, in fact, the standing Catholic Charities policy had been to refer same-sex couples to other adoption agencies.
reads to me like an appeal to the legally untenable doctrine of "separate but equal."
Sean and Platypus are right. Jacoby is a paleocon, perhaps included in the Boston Globe to appease the rabid right on one hand, and make the right look like moronic troglodytes to everyone else.
I completely agree with your argument on gay marriage, Ed, although Jacoby's bothers me (namely by blaming this on gay rights groups and not lawmakers). Specifically, I've always thought that the word "marriage" should be eliminated from civil law altogether and replaced by "civil unions" for everyone who wants legal recognition as a couple. Then religious institutions could marry couples in the eyes of God, their friends and family, and whoever else buys into marriages from that organization, and they could choose whom to marry using their own standards.
As opposed to changing the word "marriage" to "civil unions" in our laws so that some religions can keep what they've always felt to be the privileged status of having the best word, I think that those churches which refuse to acknowledge or go along with what they consider to be NON-Godly marriages should be the ones to change THEIR vocabulary. This is already being done in some areas, with the words "covenant marriage." A covenant marriage is one where the couple is explicitly married *under God.* It allows them to distinguish themselves without yanking away the warm fuzzies of being "married" from infidels -- which always looks, you know, sorta mean.
Sean Foley wrote:
I think this is clearly the most powerful argument that can be made against my position and it's a compelling one. But I think analogies can cut both ways here and I'm not sure this is really all that analogous. One of the very core aspects of any religious faith is determining what is and is not moral behavior. Though I agree with you that their anti-gay feelings are bigoted, they still have every right to hold them. It is not illegal for them to think that homosexuality is immoral. Further, no government has the legitimate authority to force them either to take part in what they deem to be sinful, or to force them to facilitate such behavior.
I would still push this analogy in the other direction. Are you in favor of forcing churches to perform gay marriages?
What doomed segregation was not the doctrine of "separate but equal", it was the fact that separate really wasn't equal. In this case, it is. There is nothing that Catholic Charities can do as an adoption agency that another agency cannot do and there is nothing that referring gay couples to another adoption agency deprives them of. In this case, separate actually is equal, just like having male and female bathrooms is not unequal even though they're separate.
Sastra: That would work, too, if it could get passed by all religious organizations, which I think would be harder than getting the reverse passed just in the government (if there is anything harder than getting something passed in congress). Also, I think changing the legal term circumvents that whole "sanctity of marriage" line. It's true that marriage does have a "holy" connotation, and many consider marriage to be "sacred." Which is exactly why I don't think it should be in the legal lexicon. While it's nice, in theory, to place the burden on the discriminator, I think getting the laws on the books quickly and establishing a firmer separation between church and state is a nobler aspiration.
I would still push this analogy in the other direction. Are you in favor of forcing churches to perform gay marriages?
No, I'm not. In the Catholic Church, marriage is a sacrament, an integral part of Church practice and doctrine. Refusing to perform gay marriages is analogous to refusing me the Eucharist (I'm not Catholic). In each case, the issue is religious practices. In the case of marriage, the government mandating that the Church alter its liturgy and rituals to allow gay marriage would represent undue entanglement just as mandating that I be allowed to receive Communion would. I don't see that the Massachusetts law allowing gay couples to adopt represents state meddling with the religious practice of Catholicism: adoption is not a sacrament or similar central practice of the Church. Given that there is a state interest in regulating the process of adoption, I don't think it's untoward to require that all adoption agencies comply with state laws. If the Church finds itself unable to do so for doctrinal reasons, then they should get out of the adoption business.
Sean Foley wrote:
I would argue that the church's moral doctrines are every bit as integral as its rituals, perhaps more so.
But that's not the argument being made. It's not the law allowing gay couples to adopt that is problematic - I am an enthusiastic supporter of that law, and Catholic Charities is not trying to overturn that law. Even the virulently anti-gay governor of Massachusetts, Mitt Romney, is not trying to overturn that law. Catholic Charities would rather continue doing adoptions and they are not trying to void this law; indeed, they have a practice of referring gay couples to other adoption agencies so they can adopt. They are just asking for an exemption from actually facilitating such adoptions. Given that their refusal won't actually deny anyone their rights or impinge on the law's ability to achieve the state's interests, I don't see any good reason to deny such an exemption to them.
Specifically, I've always thought that the word "marriage" should be eliminated from civil law altogether and replaced by "civil unions" for everyone who wants legal recognition as a couple.
Wow, I have had people agree with me when I have espoused that very sentiment, then usually say it will never happen. I have never heard anyone else actually say that themselves. . .
"Specifically, I've always thought that the word "marriage" should be eliminated from civil law altogether and replaced by "civil unions" for everyone who wants legal recognition as a couple."
Treban wrote:
"Wow, I have had people agree with me when I have espoused that very sentiment, then usually say it will never happen. I have never heard anyone else actually say that themselves. . ."
I suspect that this is because to most people giving the word "marriage" to the Religious Right and agreeing that the nonreligious can have "civil unions" would be like conceding that that Christian-Nation people can go ahead and take the word "citizen" while the rest of us come up with some other word like "political constituant." It's not just a trivial matter of vocabulary, regardless of how equally both groups would be treated under the law.