Separation of Church and State in Religious Adoption Agencies
As Julie shared in her post Adoption Website Under Fire, Adoption Media LLC is being sued for not allowing homosexual couples in New York to post a parent profile on their website. This company went through a similar lawsuit in the State of California. Both Lisa and Julie expressed their outrage at Adoption Media's position here and here, calling it discrimination against homosexuals.
One of the hazards of having a law degree is looking at any controversy from all sides. After all, as a lawyer, you have to defend the position of whoever is paying you to do so, right? I do not think this case is as cut and dry as the comments all over the Internet are making it.
What many of the articles on the Internet fail to disclose is the reason why Adoption Media is refusing to allow a homosexual couple to post a parent profile. The owners of the company are Mormons, and the Church of Latter Day Saints believes that homosexuality is a sin. Whether or not you agree with the Church of Latter Day Saints, this position matters in this lawsuit.
Our country was founded upon the principle of separation of church and state. Many people in recent years have tried to turn this into protecting the state from the influence of the church, but the original intention was to protect religious people from having the government interfere with the practice of their religious beliefs. The founders of our country had a long history of the government interfering with their religious practices, and they wanted to found a country in which people were free to practice their religion without the government butting in.
When alleged discrimination against homosexuals is rooted in religion, the constitution gets involved. This is the kind of case I can see going all the way to the Supreme Court. The government cannot force a religion to violate its religious beliefs. Of course, this is a business and not a branch of the Church, so it will be interesting to see how this unfolds.
And just to clarify – I am neither a member of the Church of Latter Day Saints nor an employee of Adoption Media LLC. I am also not saying that I agree with their position in this matter. I am merely pointing out that the fact that this position is rooted in a religious belief matters from a legal perspective.
The outcome of this matter can have far-reaching implications regarding the rights of other religious adoption agencies and facilitators to make decisions based upon their own religious beliefs. I am very curious to see how this case winds up affecting religious adoption agencies, such as Catholic Social Services, that are actually a part of a religious organization. This case has the potential of affecting more than just a homosexual couple's right to post a parent profile. Theoretically, this case could affect religious adoption agencies' abilities to tailor their adoption services in a way that supports their religious beliefs.
Photo credit: Lynda Bernhardt
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This is an excellent post
This is an excellent post Faith and a reminder of our constitution, a document I personally admire! My indignation is not with the laws that protect the religious rights of the citizens of the U.S., it is with the discrimination itself. I'm well aware that there are religions who believe that homosexuality is a sin and that only a couple can raise a child. However, each person needs to stop and think for themselves, and perhaps come to the realize that discrimination is discrimination,even when it is cloaked in the doctrine of a church.
Lisa S.
I agree
I do not disagree with you. While I am a member of a Methodist church, I disagree with several positions of the Methodist church. I agree with them enough to belong to a Methodist church and believe that they have more "right" than "wrong." However, each person must make his own decision about different issues, particularly controversial ones like this one.
Homosexuality is an easy "sin" to beat up on because heterosexuals are not tempted to "commit" it. It bothers me to see the level of hatred that **some** religious people have toward the homosexual population. I know many homosexuals through a message board for adult survivors of child abuse. I cannot fathom how somebody can throw stones at a person who cannot enter into a heterosexual relationship at least in part because of sexual abuse that he suffered. When a girl is repeated raped by a man, it is understandable how she could reject having a consensual sexual relationship with a man and seek the arms of a woman. I am not saying that this is the case for all homosexuals, just that I have seen this dynamic in multiple situations. My heart breaks for these people. They need compassion, not judgment.
But I disgress ...
If this case goes to trial and is appealed, I will be interested to see how all of this pans out. I could see the Supreme Court considering a case like this.
- Faith
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We must BE the change we wish to see in the world. - Ghandi
Good Lord Faith, you seemed like a normal person.
A lawyer???? You seemed so normal. Holy redacted. We knew that Lisa had gone to the other side, but not you too? You don't suppose its contaigious do you?
The typical method of federal control of what should be state's rights is generous funding with strings. Do it our way only, or get nothing. Isn't that likely to come into play here, the state laws are likely to reflect what agencies and they ancillary services must do to qualify for funding. Couldn't this degenerate into 'We can't lose our funding, and we can't let them do that in our state per the feds'. Not a separation of church and state issue, but unlawful discrimination, as defined by the feds. John
LOL!!
Yep -- now you know my deep, dark secret. If it helps, I saw the error of my ways a long time ago and have not practiced law in over a decade. I would much rather write than argue all day. LOL Unfortunately, once you learn to think like a lawyer, it is hard to undo the damage. :0)
I am not sure where this is going to go. It might make a difference that an LLC is not a charity, so they might not be able to seek protection as a religious organization. I would be very curious to see the outcome of a similar suit with an agency that is part of a religious organization, such as Catholic Social Services (not that I want them to be sued). When decisions are being made based upon a sincere religious belief, things get dicey.
- Faith
++++++++++
We must BE the change we wish to see in the world. - Ghandi
reminds me of the pharmacists
This kind of reminds me of that whole thing in the news a while back about pharmacists who refused to give women the day-after pill - and in some cases even the birth control pill - due to their personal religious beliefs even though these prescriptions had been prescribed by their doctor. The problem in that case was the pharmacist was exercising his/her religious beliefs in a secular job, and by doing so they were denying access to prescribed drugs to certain customers. Basically their beliefs were directly blocking someone else from exercising their own freedom of choice. I don't remember all the details but if I'm not mistaken the pharmacists ultimately were told they either had to serve all of their customers equally or lose their job.
I see this case as somewhat similar in the sense that these folks are running a secular business (that is, not officially run by any religious organization) and yet applying their own religious beliefs to their business practices. It gets sticky when their beliefs clash with the beliefs of potential clients, and then they refuse to do business with that client.
Discrimination is against the law. If I walked into a restaurant and refused to be seated because I'm short, I could sue and would probably win. If I walked into a church and got refused from entering because I'm short, then the church has that right. Bottom line: run a secular business and you should have to adhere to the law. Secular businesses shouldn't get a free pass just for claiming freedom of religion.
Good point
You make a very good point. An LLC is a secular business, so they might not be entitled to claim religious freedom in this situation.
As far as the example goes with pharmacists, I can definitely see where they would not be protected by the first amendment.
- Faith
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We must BE the change we wish to see in the world. - Ghandi
Pharmacists’ religion beliefs trump patient's access
I would say that in the vast majority of complaints / newly established company policy / law suits... the Pharmacists’ religion beliefs won over a patient's right to medication.
Here is an example from April 2008, Pharmacy board declines action on birth-control issue (Montana)
There are at least 5 or 6 states where it is legal for the pharmacist to refuse to fill these prescriptions. And for states that it isn't legal, the drug store can just not stock the medication. (ie see the Montana example above)
Updated November 2007, Pharmacist Conscience Clauses: Laws and Legislation
AngelaW
The ones that you love the most are usually the ones that hurt you the most. - Unknown
Neil Noesen
Neil Noesen in 2002 refused to fill a birth control prescription because he is "devout Roman Catholic". I didn't realize that his case is finally resolved.
Punishment for druggist who opposes birth control upheld
Neil's case really drove a bunch of states to try and pass state laws making it legal for Pharmacists to refuse birth control prescriptions.
AngelaW
The ones that you love the most are usually the ones that hurt you the most. - Unknown
thanks for the links
Angela, thanks for the links. I didn't realize that many of the pharmacists won their cases.
This is all really interesting, though - where is the line between religious freedom and breaking discrimination laws? In the case of the pharmacists they are refusing to fill the medication itself, not necessarily refusing the customer. It doesn't matter who you are, they aren't willing to dispense those prescriptions to ANYONE. Although I'm not sure if I agree with that or not, now that I think about it more I can see why the pharmacists would be protected under the Conscience Clauses.
The adoption agency is different, though. They aren't refusing a thing (like the pharmacists), they are refusing specific people because of who they are. It's really no different than refusing a person because of their race or gender. What they are doing is blatant discrimination. Being a secular business, how can that even be legal?
Just got stickier
In light of what Angela just shared, this case just got stickier. A person could argue that a precedent was set to protect the individual's legal right to practice his religion in a secular context w/the pharmacy cases.
One could argue that discrimination based upon homosexuality is different from race or gender discrimination because (1) neither race nor gender can be controlled (yes, I know that it's a controversial area re: whether homosexuality is nature or nurture); and (2) discrimination by race or gender is not religiously based whereas homosexuality is. Regardless of how you or I feel about treating a person differently based upon sexual orientation, there is no question that homosexuality is considered a "sin" in no uncertain terms in both the Old Testament and New Testament of the Bible, so Christian, Jews, Mormons, and I believe even Muslims could point to black & white text supporting this position as covered by their religious freedom.
To my knowledge, the U.S. Supreme Court has yet to extend equal protection to sexual orientation. This is different from race and gender, which are both protected. After a quick Google search, I found the following blog that explains it pretty well:
http://newyorklawschool.typepad.com/leonardlink/2008/02/a-recurring-iss....
Until laws are passed or the U.S. Supreme Court says that homosexuals have equal protection under the law, they do not from a legal perspective. And until homosexuals have equal protection under the law, then religious freedom under the First Amendment is going to trump any claims of discrimination.
I am sure that makes many people who are reading this angry. The answer is to change the laws. Write to your Congressmen and tell them how you feel.
- Faith
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We must BE the change we wish to see in the world. - Ghandi
Catholic Charities stops adoptions due to MA anti-discrimination
Catholic Charities stuns state, ends adoptions
Catholic Charities in Boston closed their adoption agency rather then facilitate gay adoptions. However this story is complex. Catholic Charities adoption agency was facilitating some gay adoptions so they wouldn't be breaking state law.
But when this was made public.... They decided it would be better to just stop processing adoptions because they were wrong.
This is similar in nature to what a dot com did with dropping the state of California.
The sad part about the Catholic Charities story is they specialized in finding homes for older and special needs foster children.
AngelaW
The ones that you love the most are usually the ones that hurt you the most. - Unknown
So sad
That is very sad.
I am surprised that Catholic Charities was put in this position. Because it is a direct outreach of the Catholic Church, and because the Catholic Church can point to the Bible for this being a religiously-based decision, it seems like a slam dunk under the First Amendment as long as the 14th amendment Equal Protection clause does not apply to homosexuals. (That is either up to the Supreme Court or a constitutional amendment.) My guess is that the issue was with going public about breaking their own religious beliefs.
- Faith
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We must BE the change we wish to see in the world. - Ghandi
I Stand for Israel Shirt
Free Speech? Not if You Hurt Their Feelings.
Here is another case of individual's rights trumping in a business... at first. It is from 2007 and mirrors the "solution" from the Pharmacists cases/policies. An individual can refuse service to another individual based on personal beliefs.
A university grocery/lunch place (independent, worker-owned co-op renting space from the University) was the business... Mia Lazarus was getting ready to pay for her food when the cashier read her TShirt. The shirt said Baltimore Zionist District" and "I Stand for Israel". Then the cashier said "Your shirt offends me. I won't ring you up."
Mia went to another cashier and paid for her food.
The University (ie landlord) saw this behavior as discrimination.They gave the store notice. If an incident of discrimination happened, the store would have 60 days to move off the University's property.
The new article is fascinating because I think it points out a generational gap in understanding "freedom of speech". The store and Mia herself were more focused on not hurting each other with their individual personal beliefs.
AngelaW
The ones that you love the most are usually the ones that hurt you the most. - Unknown