Over at First Things, Ryan Anderson laments Great Britain's requirement that the Catholic Church's publicly funded adoption agencies place children with same-sex couples. Here's an excerpt:
the Church isn’t arguing that gay parents shouldn’t be allowed to adopt, or even that the state shouldn’t place children with gay couples. As Notre Dame law professor Richard Garnett points out, the Church is merely asking for an exemption—an exemption allowing it the freedom to continue to place children; an exemption that wouldn’t force it into the dilemma of either violating its own conscience or having to close its adoption programs.
In this case, the religious believers are clearly on the side of conscience and freedom, while secular liberals are promoting a state-imposed moralism that coerces everyone, at least everyone who desires to cooperate with the state for the common good. Thus, the Anglican archbishops of Canterbury and York, in solidarity with their Catholic brethren, wrote to Blair: “The rights of conscience cannot be made subject to legislation, however well meaning.”
They are entirely right, but, unless properly understood, their statement can be misleading. If committed homosexual relationships were true marriages, and if gay couples were equally suited to raise children, then the anti-discrimination legislation as applied to adoption would make sense. This is why Alan Johnson, the education secretary, was right when he said: “To me this is legislation to prevent discrimination on the grounds of sexual orientation and you cannot do that and at the same time allow discrimination in one area.” If the Church’s teaching about homosexuality and marriage is true, then the Church’s claim to the rights of conscience is valid. But if it is false, then so, too, is its claim for exemption—think back to the case of Bob Jones University and interracial dating.
I've consistently enjoyed the writing Ryan has done for First Things, but I believe he's wrong on this one. The validity of a conscience claim cannot turn on the truth of the view contained therein. Aquinas taught that even the erroneous conscience must be obeyed -- not to honor a man's conscience is to tempt him to sin because it asks him to deny his understanding of the divine command. Our focus should be on correcting the erroneous conscience through persuasion, not on coercing the erroneous conscience. The institutional conscience of Bob Jones University was not invalid because its views on race were wrong; it was simply deemed unworthy of government benefits (tax exemption) in light of our emerging societal consensus on race.
If the federal government had moved to shut down Bob Jones University because of its inter-racial dating ban, such action would pose a much bigger problem for conscience. And if the British government simply moved to cut off funding to adoption agencies that discriminate against same-sex couples, that's not nearly as problematic as shutting them down (as happened in Massachusetts, in my understanding). If our protection of conscience devolves into a battle over objective truth, the outlook for conscience is not a particularly rosy one.
UPDATE: Ryan Anderson responds to my post as follows:
You’re entirely right about the individual’s obligation to follow his own conscience, even if it objectively errs. On this I agree with you (and St. Thomas). I should have been more careful and more precise on this point in my original piece at First Things. But, I do not think our obligations to conscience necessarily entail the political implications you describe. As far as public law goes, appeals to erroneous consciences and their freedoms need not hold sway. That is, I do not think all moral paternalism is unjust.
Consider an example. Appealing to a right to freedom of conscience in the case of racial discrimination in hiring practices (based upon a deeply held, sincere belief that God told you some racial group is inferior or wicked), wouldn’t legitimize an exemption from anti-discrimination laws in business hiring. Only if the underlying belief (that the racial group is inferior, wicked, etc.) was true, would the conscience claim hold weight for public law. That is, only if the moral legislation of the state was wrong—i.e. racial discrimination is in fact legitimate but the state prohibits it—would the appeal to conscience carry the day. Of course the individual still has to follow his conscience (even if objectively erroneous), but the state may certainly penalize him for doing so (as we do in non-discriminatory hiring law, and many other paternalistic laws).
In the UK adoption case, it seems to me that if the underlying morality (and applications) of the sexual orientation anti-discrimination law is correct, then the Church’s appeal to the rights of conscience will not work. To appeal to conscience in this case would require one to argue that the law itself is misguided (in its implications for marriage and adoption, but not, as Cardinal Murphy-O’Connor put it, in its prohibition of “forms of unjust discrimination, violence, harassment or abuse directed against people who are homosexual.”) The point of the post was to say that the UK got the political theory right (especially since secular-liberals so often claim to oppose moral paternalism), but that they got the underlying morality (and the prudence of morals legislation on this question at this time) wrong. The future of our same-sex marriage discussions in the US, as Maggie Gallagher describes them, seems to be just as volatile.
As an aside, it is my understanding (but this remains somewhat unclear to me) that the British government’s proposed law is enforced via elimination of public funding. The Catholic adoption agencies—if they refused to place children with gay and lesbian couples—would lose all of their public funds. The lack of public funding is what would then force them to close. That they are so dependent on government monies is a whole other discussion, however… Nonetheless, deciding who is eligible to receive public funds to serve the public good is still a form of paternalism.
To be clear, I agree with Ryan that a conscience-based claim for exemption from an otherwise applicable law entails a claim that the law itself is misguided (at least as applied to the person/group seeking the exemption) -- i.e., that the law conflicts with a moral claim that the person/group believes to be true. But that does not mean that we must establish the objective truth of the view on which the conscience claim is based. Even if such a standard is binding in theory (which I do not believe it is), it's a non-starter in practice.
On February 15, at 4 p.m., the Lumen Christi Institute is hosting an event -- a panel discussion, part of the Institute's Yves Simon series -- in Chicago dedicated to my friend and colleague John McGreevy's recent book, "Catholicism and American Freedom." (I'm a big fan of the book. My review is here.) I and several others will be offering some thoughts on John's book. If you are in or near Chicago, check it out!
