Catholic bishops in Illinois have followed their colleagues in other states and shutdown adoption centers rather than comply with anti-discrimination laws requiring equal treatment for gay couples. Despite my support for gay rights and same-sex marriage, I have previously written that anti-discrimination laws are threatening the free exercise of religion. There is a possible distinction between areas like tax exempt status as opposed to contracting with the state. While I strongly disagree with this tenet of Catholic faith, I do not believe that religious organizations should be forced to abandon such principles under anti-discrimination laws as a general matter. Yet, it becomes a more difficult argument in the context of a state contract where the church has decided to compete for government contracts.
Catholic charities have served for more than 40 years as a major avenue for the adoption of neglected children. The loss of these centers will have a profound impact on adoption rates for children who are often difficult to place in homes.
The adoption controversy is made more difficult by the fact that the Church’s activities are permitted or contracted with the state. The receipt of a state contract comes with the obligation to comply with standard anti-discrimination laws. In New York, religious organizations were given a special exemption from such laws. However, “The Illinois Religious Freedom Protection and Civil Union Act” contains no such exemption. A month ago, the Church abandoned its legal efforts to block the application of the laws to Catholic Charities and its adoption work.
There is a strong argument to be made that if the Church wants to receive public funding, it is wrong to force gay and lesbian citizens — as well as civil libertarians — to support a discriminatory organization. The Church should have every right to discriminate on the basis for faith in its internal church affairs. However, when asking the public for funds, it is asking for funds from all groups and all citizens. At issue is a reported $30 million in contracts — no small amount of public funding.
What makes the adoption issue a closer question is that it is impossible to perform adoption work without state approval. Even if the state did not give any money, there would remain a claim that the contract or license for adoption would bring an obligation for non-discrimination. I have long held the view that we took the wrong path in dealing with non-for-profit organizations, particularly in such cases as Bob Jones University v. United States, 461 U.S. 574 (1983). We need to re-examine how anti-discrimination laws are encroaching upon religious organizations to give free exercise more breathing space in our society — a position I discussed in a book with other authors. Mere state licensing comes closer to the tax exemption date for religiously discriminatory organization. Here the Church was received significant public funding.
As I mentioned, the adoption controversy makes this a much more difficult question due to the existence of a state contract and funding. Moreover, I have long taken a dim view of faith-based programs that entangle church and state. The Obama Administration has expanded on the Bush Administration’s faith-based programs. While the rulings in Illinois can be viewed as reaffirming separation of church and state, it is worth noting that many churches can continue to receive such contracts due to their non-discriminatory faith structure. There is a trend in favor of lowering the wall of separation in our society. I am more concerned about the denial of tax exempt status than I am the denial of state contracts. The former is virtually essential for organizations to flourish while the latter is a voluntary decision to engage state offices — and state policies.
There is always tension in serving seeking to do the work of God under the auspices of the state. Perhaps this shows the wisdom in the statement that “No one can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve both God and Money.” For critics, the church “tripped the wire” by asking for millions in public funds — a Faustian bargain if they wanted to use public funds while refusing to comply with public contracting laws. Presumably, non-religious organizations can perform this work and seek the $30 million of funding. It does however, spell the end to a long-standing church-based system for adoptions. The question is where to draw the line. There is a wide array of Church-based hospitals, schools, day care centers, and other facilities which often receive state or federal funding. If these organization are exempt, what about secular organizations with discriminatory tenets? Should religious discrimination be allowed while denying non-religious discrimination?
What do you think?
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