Wednesday, December 28, 2011
"Separate but equal"
The New York Times has an article on the Church's resistance to laws forcing Catholic Charities to place children with same-sex couples for foster care and adoption. Most of the article's analysis is yesterday's news to regular MoJ readers, but this quote caught my attention:
When the contracts [in Illinois] came up for renewal in June, the state attorney general, along with the legal staff in the governor’s office and the Department of Children and Family Services, decided that the religious providers on state contracts would no longer be able to reject same-sex couples, said Kendall Marlowe, a spokesman for the department.
The Catholic providers offered to refer same-sex couples to other agencies (as they had been doing for unmarried couples), but that was not acceptable to the state, Mr. Marlowe said. “Separate but equal was not a sufficient solution on other civil rights issues in the past either,” he said.
The tension between religious liberty and gay rights is a thorny problem that will continue to crop up in our policy debates for the foreseeable future. Dismissing religious liberty concerns as the progeny of a "separate but equal" mindset does not bode well for the future course of those debates. As I've written elsewhere, trying to force every civil rights issue into the template provided by the Jim Crow south is unhealthy and unnecessary. If our focus is -- as I think it should be -- on ensuring access to goods and services deemed essential by the political community, there is no reason to force every religious child welfare agency to include same-sex couples in its pool of prospective foster care and adoptive parents. The dignity-based harm that discrimination causes -- and if there is no real threat to access, that is what we're talking about -- is a dangerous foundation for the state's intrusion into religious associations. If government funding is enough to merit such intrusion, then we should be prepared, for example, to force Christian colleges that rely on federal financial aid programs to provide married student housing for same-sex couples. In some fields, government funding is a prerequisite to meaningful market participation. The government should have some say when taxpayer funds are involved, but it's a lot more complicated than the "separate but equal" rhetoric suggests.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/12/separate-but-equal.html
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Rob Vischer,
You say: " If government funding is enough to merit such intrusion, then we should be prepared, for example, to force Christian colleges that rely on federal financial aid programs to provide married student housing for same-sex couples."
I don't see why this should be so. The taxpayer dollars that go to Catholic Charities *directly fund* the very service that the Church wants to deny to same-sex couples. This is not a case of government saying that if an organization gets government funds in one area, it cannot discriminate against same-sex couples in another. This is a case of the state of Illinois saying it won't award contracts for adoptions services to people who won't provide those services as the state wants them provided.
Bishop Paprocki is quoted as saying, “In the name of tolerance, we’re not being tolerated.” It is one thing for the state to *tolerate* discrimination. It is another thing to *fund* it.
Maybe the idea that "separate is not equal" doesn't apply here, but there are certainly *some* parallels and similarities between the civil rights movement and the gay rights movement, and between discrimination based on race and discrimination based on sexual orientation.
Bishop Paprocki is also quoted as saying, “It’s true that the church doesn’t have a First Amendment right to have a government contract, but it does have a First Amendment right not to be excluded from a contract based on its religious beliefs.” If those arguing for gay rights go too far by invoking "separate is not equal," Bishop Paprocki goes too far in claiming (it seems to me) that whatever is religiously motivated should be accepted. Many defended racial segregation (and, in fact, slavery) on religious grounds, and they were not given religious exemptions to continue practicing it when it was legally abolished.