More on Gay Adoptions and Religious Liberty

I'm with Rick in seeing a significant religious liberty issue in the Catholic Charities adoption case.  There are plenty of serious free exercise issues that don't involve, in Rob's words, "the protection of religious speech or a community's internal affairs" -- for example, a state rule, applied to a Catholic hospital, requiring all hospitals to offer abortion services in order to have a license to operate.  Under the "compelling interest" test that likely governs under Massachusetts' religious freedom clause, see, e.g., Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994), the state can't just assert a need for uniformity of whatever moral norm it chooses.  (That a generalized need for uniformity is insufficient to constitute a compelling interest is the key holding of the Uniao do Vegetal case decided by the Supreme Court last month.  And that's true with respect to children, too, as Wisconsin v. Yoder, one of the key cases applying the compelling interest test, shows.)  The state should have to show in some more particularized way how Catholic Charities' refusal to place children in gay families would harm the children or impede the process.  Both of those conditions might well be present if there were no opposite-sex family to adopt and therefore the special-needs child assigned to Catholic Charities would stay longer in a foster home waiting for a placement.  But (a) there's no evidence that I've heard that this happens, and (b) a "less restrictive means" of addressing this (also part of the compelling interest test) would be to require Catholic Charities to give notice of such a problem within a short time and reassign the child to another adoption placement service.

Tom

UPDATE:  Rob's latest post points out that the state can want the child placed in the best adoptive family (based on criteria other than the same-sex or opposite-sex nature of the couple), so the state's interest  arises even when there are heterosexual-couple alternatives.  Fair enough, but if we start from the premise of allowing room for moral pluralism on the homosexuality issue, then society shouldn't be so ready to dictate that homosexuality is always and everywhere irrelevant to parenting (and thus that a child will always lose if the straight family s/he is placed with is even slightly less qualified based on the other criteria).  With race discrimination, we've reached the conclusion, after two centuries of experience including a civil war, that we will allow less room for moral pluralism on the issue (while still affording basic rights to racist speech etc.).  If we're now reaching the same conclusion about discrimination based on homosexuality, then Catholic Charities loses; but that's to say that we're rejecting moral pluralism as the solution to the homosexuality dispute.

In addition, it's hard for me, as it is for Rob, to believe that the state is really concerned about the loss of potential numbers or quality in the parenting pool.  How many potential adoptive families will the state lose -- or how many delays will there be in placing children -- by losing the connections and experience that Catholic Charities and like-minded agencies have?

Tom