Several weeks ago, there was mention in an MOJ posting of someone working in a large New York law firm who did not share the view of colleagues who had contributed some of their pro bono time to a pro-abortion cause that was subsequently celebrated within the firm. While the firm was reminded that not all shared in the celebration of this work and the victory to which it led, there was no indication that the work for this type of cause would desist as a pro bono activity. I wonder if that will be the same at Ropes & Gray in Boston?
As I mentioned in my previous posting from this morning, when members of the Lambda student organization at Harvard Law School discovered that the Ropes & Gray was assisting Catholic Charities to explore ways of avoiding same-sex couple adoptions, it was reported by this paper that the “gay and lesbian students wanted to stop the law firm in its tracks.” One student was quoted by the Globe as saying that there were “people who were upset and people who were very upset.” Again it was reported that a representative of the Harvard Lambda group met with the managing partner of Ropes & Gray to register the group’s complaint.
The Globe further reported that Lambda members suggested that students might protest in the future should Ropes & Gray recruit on the Harvard Law Campus. The Globe further asserted that a Lambda board member from Harvard was prepared to “shame” the law firm through tactics relying on terms quoted by the Globe that included “boycott-slash-picket.” Another person associated with Harvard Law School mentioned to the Globe that “students realize the powerful role they can play…” The possibility that the law firm would in fact recruit on the campus seems quite likely since it traditionally hires many of its new associates from Harvard according to the Globe. Whether or not the Lambda organization was successful in stopping the work the law firm was doing for Catholic Charities is unknown based on the Globe report, but the law firm did announce that it would no longer work for Catholic Charities because it “could not reconcile church [sic] doctrine, which holds that gay adoptions are ‘gravely immoral,’ with state antidiscrimination laws.”
I wonder what would happen if the Catholic Law Students organization at Harvard attempted a similar maneuver if a Boston law firm were assisting Planned Parenthood? I am certain that many share my view that assisting the destruction of human life at its earliest stages could be considered gravely immoral. I also wonder if any other student group may decide to lodge complaints with Ropes & Gray since, according to the Globe, the firm has also done pro bono work for “Gay and Lesbian Advocates and Defenders” and filed an amicus brief in Goodridge v. Department of Public Health?
In closing this posting, I recall the football fight song written by Tom Lehrer, I believe an alumnus of Harvard College, many years ago which might have some application to these developments in Boston and environs:
“Fight fiercely, Harvard,
Fight, fight, fight!
Demonstrate to them our skill.
Albeit they possess the might,
Nonetheless we have the will.
How we shall celebrate our victory,
We shall invite the whole team up for tea
(How jolly!)
Hurl that spheroid down the field, and
Fight, fight, fight!...”
RJA sj
Wednesday, March 15, 2006
The Boston Globe has just published an article on the Catholic Charities/Gay Adoption issue in Massachusetts. HERE As you will see, a group of students from Harvard Law School have become involved. I hope to respond to this article later today or tomorrow, but with Rick's, Rob's, and Tom's recent postings on the matter, I thought that contributors and readers would find the subject of the Globe article relevant to the discussion of this important topic. I agree with Rick about the religious liberty issue that is taking clearer shape in this matter. But there also appear to be other issues that are just beginning to emerge. RJA sj
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
Thanks to Rick for his thoughtful response on John Garvey's op-ed. It seems to me that the state can link its anti-discrimination requirement for adoption to child welfare. The state has an interest in the make-up of the pool of potential adoptive parents, and this interest is different than its interest in the make-up of the pool of other service providers. Many goods and services are fungible; parents are not. If a pharmacy decides not to dispense Plan B, for example, the same product is available elsewhere, and the state licensing program's beneficiary (i.e., the pharmaceutical consumer) has lost only the time it takes to travel to another pharmacy. But if an organization decides to exclude same-sex couples, as a category, from the parenting pool, isn't there an impact on the quality of the pool? If a couple that might otherwise be best suited for a particular unwanted child is excluded, hasn't the state licensing program's beneficiary (i.e., the child) suffered a loss even if other adults ultimately step forward?
Assume that a private adoption agency decided that whites are the most suitable parents and thus follows a policy of never placing children with non-white couples. Doesn't the state have an interest -- beyond the symbolic quality of the exclusion -- of ensuring that children have the benefit of a parenting pool that is constructed according to the public's judgment of appropriate parenting criteria, rather than the agency's racially biased criteria? Should the answer change if the racially biased criteria are grounded in religious beliefs?
All that said, I'm inclined to agree with Rick on this particular case because my guess is that Massachusetts is much more concerned with the symbolic dimension of Catholic Charities' exclusion than with any real impact on the quality of the parenting pool; I'm simply suggesting that the enforcement of public norms in adoption may have a firmer foundation than in other contexts where religious organizations are forced to toe the secular line.
Rob
