The Supreme Court isn't getting involved just yet, but if same-sex marriage becomes a constitutional right, then Catholic child welfare agencies go out of business. It's already happened in California, Illinois, Massachusetts and Washington, D.C.
To collect state funds, agencies had to convert to secular status. The forced conversions saved some agencies, but closed others that were never replaced. The bottom line: Children suffer.
Two issues here: one legal, one theological.
The legal argument is in the public square. There is really no argument against a civil union or civil marriage between those individuals the state deems fit. This is, after all, the United States of America.
The theological argument is in the church's courtyard. There is no argument against respect for any individual, and there is an obligation to help those in need. This is, after all, the Catholic church.
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But should the legal argument trump the church's theological determination that some situations are objectively unacceptable? When a Catholic or other religious agency states it cannot place a child with a same-sex couple, it is speaking quite sincerely from its theological beliefs.
Here comes the First Amendment. Remember religious liberty?
The Supreme Court's Hobby Lobby decision found that government can decide if your theological claim is sincere but cannot determine whether that claim is right or wrong. With foster care and adoption, the church's theological claim is that same-sex unions are not valid marriages and therefore are inappropriate for child placement. How can the state say the church is wrong in its theological belief?
But the state's claim is that refusing to place children with same-sex couples is discriminatory. So in many places, with more to come, it's either take the money with state strings attached or take a hike.
Must it be this way? Who is suffering discrimination now? Under cross, crescent, or star, there are many theological beliefs restricting otherwise legal behavior. But where a theological belief argues against a given behavior, folks start screaming discrimination. Why?
Back in the church's courtyard, the conversation is about whether homosexuality is a biological condition or a free behavioral choice. The church seems to posit that only free choice is involved, and that the action -- not the person -- is "objectively disordered." Many moral theologians are saying no, homosexuality is an innate condition, not a choice, and human rights and dignity allow that status to be fully enjoyed. If so, then homosexual activity (within other parameters) can be just and moral. Even Pope Francis used the term "gay person" on that plane ride when he asked, "Who am I to judge?"
But the official church says no to gay sex, and therefore will not (and cannot) condone same-sex marriage.
So where does all this leave the children and Catholic efforts to supply needed services, especially where no other agency exists? In Scotland, at least, courts support the Catholic contention that agencies need not abandon religious beliefs. Other countries' policies vary. Some U.S. states have worked out accommodations whereby religious agencies need not place children, but may refer prospective gay parents to other agencies.
The collision between the legal discussion and the Catholic discussion is a serious one. On the one hand, the legal rights of citizens are at stake, perhaps in other arenas. On the other hand, the legal rights of Catholic agencies are at stake; they suffer discrimination based on their theological tenets.
In the middle are the children.
So far, the Supreme Court has refused to get involved. If same-sex marriage becomes the law of the land, anti-discrimination laws could be activated, putting Catholic agencies across the country out of business.
The future? The U.S. Conference of Catholic Bishops seems to pin its hopes on twin House and Senate bills -- The Child Welfare Provider Inclusion Act of 2014 -- now sitting in committee. (The gory details: One is in the House Ways and Means Committee, the other in the Senate Finance Committee. Snowball's chance comes to mind.)
Did I mention that in the middle are the children?
Yes, there is the argument that public agencies are just as good as Catholic agencies. Yes, there is the argument that public money is a public trust, and the law must be followed. But where will it end? Will the state next force conversion from any religious belief before any agency or any person receives any public money?
It does not have to be this way, and the children should not suffer. But, for now at least, it seems more and more Catholic welfare agencies are headed under the bus.
[Phyllis Zagano is senior research associate-in-residence at Hofstra University and winner of the 2014 Isaac Hecker Award for Social Justice. She will speak Oct. 14 at the Church of the Assumption in Fairport, N.Y.; Nov. 9 at Chestnut Hill College in Philadelphia; and Dec. 6 at Union Theological Seminary in New York. Her newest books are Mysticism and the Spiritual Quest: A Crosscultural Anthology and Ordination of Women to the Diaconate in the Eastern Churches.]
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