As laws protecting gay Americans from discrimination proliferate, they increasingly conflict with important liberties. The latest example of this clash comes from Massachusetts, where the Catholic Charities of Boston has decided to stop providing adoption services rather than comply with a state law prohibiting discrimination against gay couples. Gov. Mitt Romney (R) has proposed a special exemption from this law for religiously-affiliated adoption agencies; gay groups have responded that this would amount to discrimination that places politics before the interests of children. While Romney's motives may be self-serving (he's thinking of running for the GOP presidential nomination), his proposal is defensible on principle and sensible as a matter of politics.
Private agencies contract with the state to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. This means that Massachusetts adoption agencies may not refuse to consider same-sex couples as adoptive parents.
This is sound public policy. First, gay couples can provide children with very good homes. Indeed, research so far tends to support the thesis that gay parents are comparable to similarly situated straight parents. They're at least competent to raise children. Second, there's a shortage of good homes for children. In Massachusetts alone, some 682 children now await adoption. It would be cruel to shuffle them from foster home to foster home while turning away perfectly good prospective parents simply because they're gay.
Until recently, Catholic Charities coexisted peacefully with this antidiscrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. Last December, the 42-member lay board of the group voted unanimously to continue the practice.
But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. The church hierarchy has evidently decided to root out all internal manifestations of opposition to its longstanding belief that homosexuality is ''intrinsically disordered.'' Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children ''would destroy the child's future, it would be an act of moral violence against the child.'' Catholic Charities is reluctantly bowing to this pressure.
When Gov. Romney proposed a narrow exemption for religiously-affiliated adoption agencies, many gay groups reacted angrily. ''Denying children a loving and stable home serves absolutely no higher purpose,'' said Joe Solmonese of the Human Rights Campaign (HRC). ''These bishops are putting an ugly political agenda before the needs of very vulnerable children... . What these bishops are doing is shameful, wrong and has nothing to do whatsoever with faith.''
In most respects, this statement is wrong. Allowing an exemption would not deny children loving and stable homes. They will get good homes through Catholic Charities, just not good gay homes. Gay couples could still adopt through dozens of other private agencies or through the state child-welfare services department itself, which places most adoptions in the state.
At most it could be argued that allowing Catholic Charities to discriminate would make it very slightly more difficult for gay couples to adopt (since one private agency would not be available to them). If numerous other agencies also began barring gay couples, a real difficulty might arise. But that problem is nowhere in sight in Massachusetts.
While gay advocates may strongly disagree with church doctrine, they have no basis for saying that the Catholic Church's objections to gay adoptions have ''nothing whatsoever to do with faith.''
Exempting Catholic Charities would serve the ''higher purpose'' of respecting the deep religious convictions of a major faith tradition, without hurting children or appreciably affecting the adoption prospects of gay parents. That is what we'd ordinarily a call a win-win situation.
I'm not arguing that people of faith should always be exempt from antidiscrimination laws. If, for religious reasons, a large employer refused to hire gay people or a huge apartment-complex owner refused to rent to gay couples, the harm caused by their actions would potentially be great. It would literally foreclose many important opportunities.
But, in principle, if we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but that is an acceptable price for living in a religiously pluralistic and free society. When there are plenty of alternatives for those discriminated against, continued objections to the exemption seem pretty abstract to me.
If respect for liberal principle is not enough, there is also political self-interest in magnanimity. Some opponents of gay marriage have been using this episode to claim, ''Aha! This proves that gay marriage will erode religious freedom. Massachusetts has had gay marriage just two years and already Catholics are being forced out of adoptions.''
The claim is unfounded, since the conflict here is based on an antidiscrimination law that predates the recognition of gay marriage in Massachusetts. But it is a potent political argument. This episode may unnecessarily fuel not just the backlash against gay marriage but the senseless and cruel drive in some states to ban adoptions by gay parents altogether.
So let them discriminate, but don't let anyone forget what they're doing.
Dale Carpenter is a law professor. He can be reached at email@example.com.