Should Religious Organizations Be Exempt from a Rule that Adoption Agencies May Not Discriminate Against Potential Parents Based on Sexual Orientation?
How a U.S. Supreme Court Case Can Inform a British Debate

By MARCI HAMILTON

Thursday, Feb. 08, 2007

Currently, Britain's law forbids adoption agencies from discriminating against potential adoptive parents on the basis of sexual orientation. The measure is intended to make it possible for same-sex couples -- who, since late 2005, have been able under U.K. law to enter into civil partnerships -- to be treated fairly in the adoption process.

This anti-discrimination law represents the public policy views of the British people, as expressed through their government. Yet Catholic adoption agencies are seeking an exemption for this equality mandate - for, they say, their beliefs are at odds with such a directive, and it is thus their practice to refuse to include gay couples as candidates for adoption. Indeed, Cardinal Cormac Murphy-O'Connor threatened that the Catholic agencies would shut down if an exemption from the law were not granted.

Reportedly, Prime Minister Tony Blair, ever practical, backed an exemption from the start. However, Education Secretary Alan Johnson steadfastly opposed it, on the ground that a little discrimination was still bad discrimination.

As of now, it seems Johnson's side has won, with the government deciding to reject the exemption concept - though with a proviso that Catholic agencies could take advantage of a 21-month window of "adaptation" before they had to start including same-sex couples in their processes.

In this column, I'll consider the arguments on each side, and explain how, if this controversy were occurring in the U.S., constitutional law here - though not directly applicable - would still speak to its proper resolution.

A Public Policy Question, But One to Which Constitutional Values are Relevant

On the one side, supporters of the British anti-discrimination measure have argued, "You can either be against discrimination or you can allow for it. You can't be a little bit against discrimination."

The other side, though, points to a distinguished history of serving the public good by providing adoption services, and argues that its religious beliefs should be taken into account. One can easily imagine the same arguments being made in the U.S. in a similar clash, whether on the state or (far more unlikely, at present) federal level. Indeed, there was a similar battle in Massachusetts in 2006.

It's important to recognize that this is purely a public policy, as opposed to a constitutional, question. Adoption agencies that fail to comply with the law will not be shut down; they simply will no longer receive public funding. There is no constitutional right, under American law, for a Catholic, or any religious, agency to receive public funds to perform public services in a way contrary to public policy. Thus, an argument that Catholic adoption agencies' religious freedom would be infringed by conditioning their receipt of public funding on compliance with a general anti-discrimination law, is simply a non-starter.

However, though no constitutional question is raised here, it's fair to say that the public policy question at issue does implicate constitutional or quasi-constitutional values - such as the value of religious liberty and the value of anti-discrimination. Which value ought to prevail? Interestingly, there is reasoning within American law that supports either conclusion.

The Relevant American Supreme Court Opinion - But Does It Apply?

In the Bob Jones University case, for example, the IRS successfully sought to remove the University's tax exempt status due to its racially discriminatory policy of prohibiting interracial dating. The University argued that to do so, would infringe its right to religious liberty. The Supreme Court, however, disagreed.

The Court's opinion rested on its reasoning that enforcement of the public policy against racial discrimination is of such paramount public interest that the government should not be forced, even by the Constitution, to underwrite such discrimination through the tax-exempt status of the University's operations.

Thus, there is a U.S. constitutional precedent indicating that the Constitution is not offended if the government chooses the anti-discrimination route, even if it means burdening a religious organization.

The twist for this issue is that, in the United States, the question whether sexual orientation is constitutionally protected has itself received a complex answer from the Supreme Court. Thus, anti-discrimination on the basis of sexual orientation can hardly be classed in the same category as on the basis of race.

At best, sexual-orientation may eventually be treated by the Court as, like gender discrimination, deserving an intermediate standard of review - but not the "strict scrutiny" applicable to racial categorizations. In addition, in current jurisprudence, the Court has found ways to protect homosexual persons - in cases such as Romer v. Evans and Lawrence v. Texas - without applying the strict scrutiny standard. This is a far cry from treating sexual orientation discrimination the way race discrimination is treated in American constitutional law.

The door is open, therefore, for the government to go either way on this one. The law legitimately can make choices between the two sides of the issue with an eye toward the public good. Religious liberty is always a worthy element in the public good equation, as is equality. But these two interests do not cover the full universe of interests, which has to extend to the welfare of children. The rights of the two most obvious entities might well need to be subjugated to the interests of the children, depending on the facts. As I argue in God vs. the Gavel: Religion and the Rule of Law, this is where the legislature is obviously the best branch to make the determination, because it has the capacity through hearings, studies, and/or commissions to focus beyond the two obvious players and into the details necessary to ensure children's interests are also served. The legislature can take into account - in addition to the interests already apparent -- the number of agencies, the number of children in need of adoption, and the number of interested gay couples.

While the Resolution of the British Issue Will Have Little Practical Impact, It Will Be Significant as a Clash of Values

In Britain, the numbers indicate that an exemption would have little effect on the number of children adopted, or upon gay couples' practical ability to adopt. Reportedly, the Catholic agencies deal with only about 200 children at a time, which means there are many other agencies for gay couples to use. Moreover, out of 3,700 adoptions in the preceding year, only 185 were by gay couples - indicating that there is no risk demand for gay adoptions might overwhelm the nondiscriminating agencies.

On these facts, it is possible to serve all three sets of interests simultaneously, because exempting the religious groups would still leave opportunities for gay couples as well as adequately protect children's interests. (In the United States, there is an inclination to provide religious exemptions, so this would seem to be the most obvious solution on these facts. The question will always be, though, what the facts are.)

In the end, this is a political question, and one that calls for political judgment. It will be interesting to see what happens in England under a non-exemption strategy.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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