Religious freedom vs cultural values

Maggie Gallagher reports on the growing conflict between religious beliefs and societal values as it plays out in the battle between Catholic Charities of Boston and the State of Massachusetts:

CATHOLIC CHARITIES OF BOSTON made the announcement on March 10: It was getting out of the adoption business. "We have encountered a dilemma we cannot resolve. . . . The issue is adoption to same-sex couples."

It was shocking news. Catholic Charities of Boston, one of the nation's oldest adoption agencies, had long specialized in finding good homes for hard to place kids. "Catholic Charities was always at the top of the list," Paula Wisnewski, director of adoption for the Home for Little Wanderers, told the Boston Globe. "It's a shame because it is certainly going to mean that fewer children from foster care are going to find permanent homes." Marylou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children, said simply, "This is a tragedy for kids."

How did this tragedy happen?

It's a complicated story. Massachusetts law prohibited "orientation discrimination" over a decade ago. Then in November 2003, the Massachusetts Supreme Judicial Court ordered gay marriage. The majority ruled that only animus against gay people could explain why anyone would want to treat opposite-sex and same-sex couples differently. That same year, partly in response to growing pressure for gay marriage and adoption both here and in Europe, a Vatican statement made clear that placing children with same-sex couples violates Catholic teaching.

Then in October 2005, the Boston Globe broke the news: Boston Catholic Charities had placed a small number of children with same-sex couples. Sean Cardinal O'Malley, who has authority over Catholic Charities of Boston, responded by stating that the agency would no longer do so.

Seven members of the Boston Catholic Charities board (about one-sixth of the membership) resigned in protest. Joe Solmonese, president of the Human Rights Campaign, which lobbies for lesbian, gay, bisexual, and transgender equal rights, issued a thundering denunciation of the Catholic hierarchy: "These bishops are putting an ugly political agenda before the needs of very vulnerable children. Every one of the nation's leading children's welfare groups agrees that a parent's sexual orientation is irrelevant to his or her ability to raise a child. What these bishops are doing is shameful, wrong, and has nothing to do whatsoever with faith."

But getting square with the church didn't end Catholic Charities' woes. To operate in Massachusetts, an adoption agency must be licensed by the state. And to get a license, an agency must pledge to obey state laws barring discrimination--including the decade-old ban on orientation discrimination. With the legalization of gay marriage in the state, discrimination against same-sex couples would be outlawed, too.

Cardinal O'Malley asked Governor Mitt Romney for a religious exemption from the ban on orientation discrimination. Governor Romney reluctantly responded that he lacked legal authority to grant one unilaterally, by executive order. So the governor and archbishop turned to the state legislature, requesting a conscience exemption that would allow Catholic Charities to continue to help kids in a manner consistent with Catholic teaching.

To date, not a single other Massachusetts political leader appears willing to consider even the narrowest religious exemption. Lieutenant Governor Kerry Healey, the Republican candidate for governor in this fall's election, refused to budge: "I believe that any institution that wants to provide services that are regulated by the state has to abide by the laws of the state," Healey told the Boston Globe on March 2, "and our antidiscrimination laws are some of our most important."

I am struck by the similarity of the Catholic Diocese of Boston's request for a religious exemption from a state law and the demand by many Muslim communities in Western countries for the freedom to practice Sharia law within their own communities. Conservatives and most liberals in the US rightly see that such special concessions to Muslims are a threat to the rule of law and would enable the growth of , for all practical purposes, separate sovereign nations within our own. Yet I am doubtful that most conservatives see the same danger in the request by the Boston Diocese for separate status within the laws of Massachusetts.

Whether you feel that the anti-discrimination laws of Massachusetts are just or unjust, I hope that all of us can agree that we cannot allow dissenter status based on religious convictions. Such an application of the First Amendment's freedom of expression clause would undoubtedly undermine the very democratic principles upon which our country was founded. A law is either an unconstitutional infringement on First Amendment rights, or it isn't. If it isn't, then it must be enforced uniformly, without exemption for religious beliefs.

Gallagher's article probes beyond the Boston adoption controversy to what conflicts lie ahead in the struggle over Gay rights:

So who is right? Is the fate of Catholic Charities of Boston an aberration or a sign of things to come?

I PUT THE QUESTION to Anthony Picarello, president and general counsel of the Becket Fund for Religious Liberty. The Becket Fund is widely recognized as one of the best religious liberty law firms and the only one that defends the religious liberty of all faith groups, "from Anglicans to Zoroastrians," as its founder Kevin J. Hasson likes to say (referring to actual clients the Becket Fund has defended).

Just how serious are the coming conflicts over religious liberty stemming from gay marriage?

"The impact will be severe and pervasive," Picarello says flatly. "This is going to affect every aspect of church-state relations." Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses. In times of relative peace, says Picarello, people don't even notice that "the church is surrounded on all sides by the state; that church and state butt up against each other. The boundaries are usually peaceful, so it's easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter."

There are optimistic and pessimistic ways to predict the outcome of this upcoming struggle, but in either scenario I don't see the Church (broadly speaking) side of the struggle gaining any territory. The plurality of cultural values in the US will not shrink, but grow in the coming decades, and the central role that church and faith-based organizations have held in society, from marriage, adoption, and youth groups such as the Boy Scouts will come under pressure to either serve that plurality more broadly or watch their roles diminish.

When America was more religiously homogenous, religious freedom was seen more as a group freedom, that is, the right of a religious majority to establish laws and societal norms that reflected their common religious values. Thus the issue of paryer in public schools was seen as the right of the religious majority to establish the norm that everyone will be required to pray in the manner of the majority, whether they were a part of that majority or not. Though the rights of religious minorities were, by law, protected, in practice those rights were trumped by the collective rights of the majority.

The evolution of Church/State jurisprudence toward greater consideration for minority rights has been seen by majorities as a greater diminuition of religious freedom. This evolution has also mirrored the increasing religious and cultural pluralization of American society. American society has been able to achieve its amazing cohesion in the face of this pluralization precisely because of this trend toward increasing individual freedoms at the expense of group freedoms. To those who belong to those once majority groups, though, this greater cohesion seems more like a coming apart at the seams. It is a historical tradeoff, which it seems that only American society has been able to pull off. The alternative is cultural Balkanization, which has been the historical norm for most nations and empires. Will the upcoming struggles over Gay rights lead to a Balkanization of American society or will we maintain a common American identity?

Read Gallagher's article in full, it is a very thoughtful and well researched analysis of legal and cultural battles to come.