June 21, 2011

Let Them Have It

The NY State Senate is still tied up with a resolution that would finally permit same-sex marriage in the state. The tie up is largely due to “concerns” from some religious leaders (by no means all — several Episcopal bishops including Sisk and Singh to name but two have spoken out in support of the resolution). These other concerned religious leaders, perhaps best represented by the one with most to fret about, Archbishop Dolan, wish to have the act amended to provide greater “protections” to various of their members and agencies.

Of course, as we all know (don’t we?) no church can be forced to perform a marriage against its doctrine. Roman Catholics can turn legally divorced persons away without blinking an eye; no rabbi can be forced to officiate at a marriage of non-Jews; nor could an Episcopal priest be required to solemnize a marriage in which both of the parties are unbaptized. There is, in short, no civil right to marriage that trumps a religious right to refuse to solemnize those deemed outside the relevant religious tradition. There is no right to a rite.

So the “concerns” are more removed from the actual issue of marriage itself, at least in the ritual or religious sense. A church that rents its hall for parties may want to refuse to rent it for a gay couple's wedding reception. A church-related agency for adoption or foster-care may want to refuse to place a child with a married lesbian couple.

And my opinion is, let them have it. Let them discriminate on these grounds. There are other halls to rent, and adoption and foster care agencies to place children. (I do feel for the children who may not find or be delayed in finding a loving couple to care for them; but the responsibility for this will lie with the religious leaders who place a premium on their own concept of righteousness at the expense of the little ones.)

This view is not, by the way, meant to accommodate the individual person of strong religious views, but only institutionally related facilities. The homophobic baker should not have the right to refuse to bake a cake for gay couples — though, at the same time, there are other bakers who will be glad to oblige. But we do get into sticky areas of fondant and marzipan when personal beliefs, however deeply held, are granted special privilege to operate apart from some institution committed to that peculiar view, and for specifically doctrinal reasons.

I say this because I believe the arc of history is on our side. Even the baker will soon find herself with fewer customers, were this provision even to be extended so far — which as I say I do not advise. If the Roman Catholic Church wishes to take what it thinks is the high road — let them do it. History — and the Almighty — will be their judge, as history and God are mine.

But I can read history as well as anyone, and conservative churches wed to the bigotries of the past soon are wearing unbecoming widows' weeds. They do not have a particularly good track record in this regard, whether the matter be the treatment of spiritual movements, of slavery, or even of cosmology.

What the Almighty will say when all is said and done... well, that will depend upon who is acting with greater consistency with the Gospel.

Update and clarification: I neglected to mention the issue of church-related agencies that receive state financial support. I by no means want to suggest that, for example, a church-affiliated adoption agency should continue to receive public financial support if it chooses to limit its services on the grounds of religious beliefs. To continue to offer financial support would be precisely to favor a particular religious aspect of their general work. They cannot have it both ways: if they are claiming an exemption from respecting the civil rights of others on religious grounds, then the civil society has every responsibility to withhold its support of what is, by their own admission, an action based on religion.

Tobias Stanislas Haller BSG

24 comments:

Tim said...

Preach it, brother!

WV: Prize (as in, keep your eyes on the...)

R said...

Reminds me of the "pound of flesh" in The Merchant of Venice. The themes, of course, are not so accidentally similar to those we saw unfold around Proposition 8 here in California.

To all our beloved sisters and brothers in New York:

Like Portia, warn them not to draw any blood with what they exact!

Erika Baker said...

Tobias
is there any example in history where discrimination has been dealt with legally and where then pockets of it have been allowed to continue before it was successfully overcome everywhere?

I would fear that allowing discrimination from religeous groups would give homophobia a continued veneer of respectability - after all, people of faith are often still identified with having high moral standards, so the signal effect is really poor.

You cannot eradicate prejudice with legislation, but to have partial legislation and partially sanctioned discrimination can only be counterproductive.

Tobias Stanislas Haller said...

Thanks, Tim.

R, there are similarities, in that I think this is a case, to use another analogy from Will of Avon, a case of hoisting and petards. Their actions against the little ones will be the very millstones that plunge them to the depths.

Erika, yes. That is usually how it works. It is very, very rare for traditions of exclusion to be overturned in a day or an hour, and generally pockets of resistance continue. Note that none of the "protections" I cite are in any way necessary -- this is, from the conservative side -- largely a political smoke-screen. In the US no church will ever be forced to do a religious rite against its will. So it is not a question of "allowing discrimination" but affirming that people do have a religious right to discriminate. This is why I think a laissez-faire approach is the best, precisely because the legislation cannot eradicate prejudice, and the US system cannot eradicated it to the extent it has a religious veneer.

Erika Baker said...

Tobias,
so you are only talking about the churches rights to discriminate with regard to religious rites and not with regard to adoption, admission to schools, admission to healthcare plans for employee partners etc?

Then I don't have a problem with it.
But the church will. The big public battles are being fought in the grey area where religious rites and public service blur.

Tobias Stanislas Haller said...

Hi Erika. You might want to take a look at the "update" paragraph I added above.

I am suggesting that if a church runs an adoption service, and they do so as a "religious practice" then they have a right to protection, though none to public funds. Not all are happy with that notion, but I do believe that if religious liberty is to mean anything it must mean the protection of religious views some might find objectionable. There is a grey area when a church is involved in "secular services" -- but I'm content to let the religious leaders set that boundary as a matter of right. Once they set it, they forfeit all public support, though.

This is hard, but I don't see any other way to actually protect religious freedoms. The moment the state is the one setting the boundaries we have a problem. I am a libertarian at heart on these matters, which may explain my position. As I tried to articulate, I think change comes by the larger society seeing the injustices -- not in trying to cover them up. Let religions refuse to marry inter-racial couples (as they once did) or ordain women, or hire divorcees as religious educators (as they still do). I don't want the state meddling in matters of religion even when I disagree with the religious decisions.

But I don't want my tax dollars paying for bigotry! Let them discriminate on their own dime.

Deacon Charlie Perrin said...

I have found Archbishop Dolan to be a very congenial and even likable guy. (much more so the horse's a** he succeeded). However as nice and congenial as he is it's important to remember that he hasn't had an independent thought in quite some time (if ever). In fact had he any independent thoughts he wouldn't be the archbishop now, would he?

It takes no courage to spout the company line.

Erika Baker said...

Tobias
I struggle with this. Since when has "religious tolerance" meant "being allowed to impose my religious views on others"?

We need to get away from the notion that "my right to my faith" is the same as "my right to act as though my faith was all that mattered".

Adoption is a particularly difficult issue. I don't know the situation in America, but in Britain, the State is responsible for children who need to be adopted. It can employ agencies with the task of finding children, but whether those agencies receive state finances or not, they come under the regulatory framework of the State.

The State has a responsibility to treat all citizens the same, so it cannot, for example, risk that babies who grow up to be gay are placed deliberately with families who follow a Catholic line on homosexuality, because there is then the question of how they would pastorally support those children.

“Just let them do what they want” really only works when it is restricted to religious rites within the group of people who have consented to be part of that group.

MarkBrunson said...

I have to agree with Tobias. Things are appreciably different in the area of religiously-run operations that receive no public funding than in many countries. Until we change our legislation - and I hope we will - that's the reality.

Give the protections in writing that they already have in fact. Spell it out. The reason for this is as much for us as them - we can't be accused of being "against religion" or "against belief" or "against separation of church and state." We've been aboveboard and gracious - St. Paul's "heaping hot coals upon their heads."

Believe me, this is a wedge. The American mentality is to resist what is demanded, and they count on that to cast us as bad guys, refusing to grant the poor, beleagured, oppressed religious minority their rights. The fact they already have those rights guaranteed makes no difference if it is not spelled out. I've seen it here in Georgia - our state constitution already limited the definition of marriage implicitly to male/female, yet a law was passed to make it explicitly "one man and one woman" and those who opposed this law - which in no way would've changed the fact of marriage in Georgia - we're branded, successfully, as enemies of freedom and religious conviction.

Tobias Stanislas Haller said...

Thanks again, Erika, and Mark.

Erika, I take this position from conviction as well as for the very pragmatic reason Mark notes. We are, I believe, in a transitional period, which will likely last, at my guess, two generations -- another 40 years or so. (It will faster in some places than others.)

As to the "conviction" -- I do not think there is a "right" to adopt, as such. Although I share your primary concern for the child placed with "dissonant" adoptive or foster parents, I have to say there is also no "right" to have supportive, loving parents. Most gay people are in fact born to non-gay parents, after all, and many of them are not supportive. So I don't think this is a strong point in an argument. I'd also observe that many catholics are able to be supportive of gays -- regardless of what their church teaches.

As to the state matter: if the state is "empolying" discriminating agencies, then it is offering financial support. My point is that they should not do that if the agency chooses to discriminate. Let them become private adoption agencies, regulated by the state as far as all else goes (ensuring the safety and well-bring of all adoptees), but allowing, for example, a child of devout Muslim parents killed in a motoring accident to be placed with Muslim foster-parents.

Mark, thanks: you've grasped my point exactly. This is definitely a hot coals scenario. It is what is needed to destabilize the tradition by giving it its head.

Daniel Weir said...

I think that the "spelling out" of the rights already guaranteed is not an issues-it's a stalling tactic. Of course, no matter what the facts are, someone will spin/twist the news to picture us as the enemy. That has happened with the decision of the Boston Archdiocese to close down its adoption services when government funding was cut. People on the right have cited it as an example of a restriction on religious freedom.
There has also been some debate about adoption of children of color by white couples. Would it be permissible for an agency to refuse to do that?

Tobias Stanislas Haller said...

Daniel, I agree that this is a stalling tactic -- but that's where the "wisdom of the willow" comes in. Since most of these "rights" are already protected, it is of no cost to allow them.

The hand-wringing in Boston is a case in point. When they whine, the response should be -- you are free to continue to operate; turn to your people for the financial support you lost from the state; no one is restricting you, we're just not paying you!

As to the race issue, as far as I know race is sometimes a factor in placements, at least in terms of preference -- and unlike sexual orientation it is a "known" in infancy. I don't know if there are actually agencies that would go so far as to refuse to place a black child with a white family, and I assume that would not be legal. But that is also not a matter of religion. The "natural norm" is for children to be of the genetic origin of their parents,,, If an "All Africa Adoption Agency" were to start as a private venture, placing only black children with black adoptive or foster parents -- would that be legal? I really don't know! I do know I would rather see children adopted than not...

Erika Baker said...

Tobias
English law seems to think that protecting children from foster parents who have said they cannot accept homosexuality and would help a child in their care to change its orientation is indeed important.

No-one vets biological parents, but there are thorough vetting schemes in place for prospective adoptive parents. We cannot prevent people who beat their children from having them, we can only remove children from them if their wellbeing is seriously endangered. But no adoption agency would be allowed to place a child with someone who says they might beat him.

The State has an absolute duty of care towards these children and, I believe, would lay itself open to later legal action against it if a child could prove that she suffered at the hands of adoptive parents and that the State had known from the outset that this was a distinct possibility.

Adoption is never about the wishes of the parents, unlike natural procreation.
It is always about protecting children who have already had a bad start in life and to make sure that their future wellbeing is paramount.

Erika Baker said...

Tobias
A supplementary question, please. In Britain, children who are not being looked after by their parents are the legal responsibility of the State until adoptive parents have been found for them.
Adoption agencies are only ever intermediaries, whether paid or not.
They cannot act in a vacuum and they are always answerable to the State.

Is this different in America?

Tobias Stanislas Haller said...

Erika, I'm not an adoption lawyer, and have scant familiarity with either English or even American regulations. I believe you are correct that the state has a prevailing interest. But that isn't my point. My point is whether the state's interest need become entangled with matters of church teaching on sexuality, and the extent to which those teachings have the right to be respected. As I understand it the state is free not to place children through any agency whose own guidelines do not coincide with its own. I do not know if the situation is the same in England as in the US concerning the legal issue. It may well be the US system is more flexible in that it provides guidelines and regulations, but does not "require" that private agencies abide by strict non-discrimination standards. My understanding is that adoptive parents exercise a range of discretion and are permitted to express preferences in choosing what child to adopt -- no one is forced to adopt. I believe the case in Boston was not, "Follow non-discrimination or be closed down" but "Follow non-discrimination or forfeit state support." They refused, and closed down, but not because they were forced to close.

Your example, with which I am somewhat familiar from press reports, was not about an adoption agency, but a particular couple who said that their religious views might lead them to raise a gay or lesbian child so as to avoid acting on their sexual orientation, and they were denied on that ground. At least that is how I recall the case.

Adoption agencies, operating under state rules, thus have the right and responsibility to place children in the care of people whom they judge to be suitable to the task. It is ironic, therefore, that you cite this case; as the RC agencies judge that a gay or lesbian couple are not suitable foster or adoptive parents. Either it is appropriate for the state to make judgments about such matters or it isn't.

I do not accept the notion that only gay-affirming couples are suitable parents, which seems to me to be the ultimate conclusion your argument forces -- since the sexual orientation of the child may be unknown at time of adoption.

In any case, the issue here is about gay couples adopting -- a fairly narrow concern, and I think we have gone far beyond the issue: which is that some people feel a gay couple should not adopt; even some states have that provision on their law books, so in some places the agencies are merely following the legal restrictions. That's why this is such a smoke-screen issue.

Erika Baker said...

I think we're still talking cross purposes.
The potential foster carers in question sought a ruling whether they would be eligible as foster carers if they persisted with their attitude to homosexuality. Although no ruling was made, because no actual case was presented, the judge cited other recent verdicts and quoted legislation that all indicated strongly that fostering would not be open to that couple.

You say the state doesn't have to place children with agencies that don't comply with its guidelines.

It's stronger than that. The state is not allowed to ignore the law and it cannot place children with agencies that do not comply with its guidelines.

As the state is the legal carer of ALL children requiring adoption or fostering, this in effect means that non-complying agencies will not be allowed to operate.

I agree that this is a different case than not allowing gay couples to adopt.
But the legal objections are based on the same equality laws, which means that agencies in Britain who will not consider same sex parents are unable to continue to function.

What fascinates me is that we consider that to be a great legal and moral achievement over here, whereas you argue for a completely different approach.

Tobias Stanislas Haller said...

Erika, I am not arguing for anything. I believe the laws are different in England (I know they are on a number of matters) and in the US the protection of religion is much stronger than in Europe. I am not arguing for or against it, merely noting the fact. As far as I know, private religion-based adoption agencies are allowed to set standards of behavior for adopting parents that might include restricting same-sex couples from adopting. I'm not saying I think this is good, merely that the "protection" exists. My article is not about adoption policy, but about same-sex marriage. Perhaps when the US has equality laws such as you have in England things will be different. As it is now we have "inequality" laws on the books in many states, and at the federal level. I think we are talking apples and pineapples.

Erika Baker said...

"I think we are talking apples and pineapples."

I agree!

And I'm sorry we got to this stage! I had simply wanted to query the moral logic behind your arguments that to me, coming from where I am, seems to be odd.

The misunderstanding probably arose because you did mention adoption in your blog post and I mistakenly latched on to that!

Tobias Stanislas Haller said...

Yes, Erika. The adoption issue is not the focus. Rather this is the conflict between religious freedom and civil rights -- a hierarchy or rights. Personally, as religion is virtually always a lifestyle choice I think it falls lower in the hierarchy of values than the right to marriage -- which is a basic human right!

MarkBrunson said...

It is, perhaps, a case of people divided by a common basis of law. Both the U. S. and the U. K. are countries of the "rule of law" - but both countries, in practice, apply that rule of law in different ways, according to differing cultural biases (in the non-pejorative sense). The U. K. custom of legal interpretation seems to be one of communal or state interest first, while the U. S. custom of legal interpretation revolves around protection of individual or private interests first. I advocate for neither, as both have their vices and virtues, but simply note the difference as I perceive it.

Tobias Stanislas Haller said...

Thanks, Mark. I think that's precisely it. England is still much under the shadow of Hobbes, while the US tends towards Locke!

Erika Baker said...

I was prepared to let this drop, but I can't let Mark's comment and Tobias' agreement stay completely unchallenged.

It seems to me that the law in both countries revolves around individual interests first. Only, in the case of minors (and this is what we had been talking about, although I accept it was not the main thrust of Tobias' post), the the responsible adults are charged with protecting the individual's interest.

If the State showed a preference for the religious rights of would be adopters to the potential detriment of the individual children it is legally responsible for, it would be precisely reneging its duty of care towards the individual.

Tobias Stanislas Haller said...

Erika, I take your point, but I don't think you appreciate the extent to which freedom of religious expression is an American value -- like it or not, it is in our DNA. Much of what is happening in Europe these days (including England) would not only be unlikely here, but the law actually goes to the other side. As I think I said above, this is going to take another couple of generations, and the ultimate victory will be by people seeing the harm done by the "religious" people. The tragedy is that people (mostly children) will be harmed in that process -- which was the point I had hoped to make concerning the ultimate judgment not only of history but of God.

Meanwhile, the debate drags on among our Senate Republi-can'ts.

MarkBrunson said...

Erika,

You're looking at the ideal - the law in a vacuum. The practical realities of the application of law don't bear out what is, I and Tobias agree, a perfectly reasonable expectation.

I would, in fact, go a little farther than Tobias in saying that an attempt to go in the direction of the UK and much of Europe would result in violence and governmental instability. Look at how much political hay the Tea Party has made with a society that is, in fact, biased toward traditional christianity.

I don't think either of us disagree with you on the ideal - that the child's welfare absolutely trump the religious "freedom" of potential adoptees - merely that that is not the reality, here in the U. S.