A Collision Between Church and State is Bound to Happen Soon

Catholic Charities of Boston made the announcement on March 10: It was getting out of the adoption business. "We have encountered a dilemma we cannot resolve... The issue is adoption to same-sex couples."

It was shocking news. Catholic Charities of Boston, one of the nation's oldest adoption agencies, had long specialized in finding good homes for hard to place kids. "Catholic Charities was always at the top of the list," Paula Wisnewski, director of adoption for the Home for Little Wanderers, told the Boston Globe…

How did this tragedy happen?

It's a complicated story. Massachusetts law prohibited "orientation discrimination" over a decade ago. Then in November 2003, the Massachusetts Supreme Judicial Court ordered gay marriage. The majority ruled that only animus against gay people could explain why anyone would want to treat opposite-sex and same-sex couples differently. That same year, partly in response to growing pressure for gay marriage and adoption both here and in Europe, a Vatican statement made clear that placing children with same-sex couples violates Catholic teaching.

Then in October 2005, the Boston Globe broke the news: Boston Catholic Charities had placed a small number of children with same-sex couples. Sean Cardinal O'Malley, who has authority over Catholic Charities of Boston responded by stating the agency would no longer do so…

But getting square with the church didn't end Catholic Charities' woes. To operate in Massachusetts, an adoption agency must be licensed by the state. And to get a license, an agency must pledge to obey state laws barring discrimination — including the decade-old ban on orientation discrimination. With the legalization of gay marriage in the state, discrimination against same-sex couples would be outlawed, too.

Cardinal O'Malley asked Governor Mitt Romney for a religious exemption from the ban on orientation discrimination. Governor Romney reluctantly responded that he lacked legal authority to grant one unilaterally, by executive order. So the governor and archbishop turned to the state legislature, requesting a conscience exemption that would allow Catholic Charities to continue to help kids in a manner consistent with Catholic teaching.

To date, not a single other Massachusetts political leader appears willing to consider even the narrowest religious exemption…

From there, it was only a short step to the headline "State Putting Church Out of Adoption Business," which ran over an opinion piece in the Boston Globe by John Garvey, dean of Boston College Law School.

It's worth underscoring that Catholic Charities' problem with the state didn't hinge on its receipt of public money. Ron Madnick, president of the Massachusetts chapter of Americans United for Separation of Church and State, agreed with Garvey's assessment: "Even if Catholic Charities ceased receiving tax support and gave up its role as a state contractor, it still could not refuse to place children with same-sex couples."

This March, then, unexpectedly, a mere two years after the introduction of gay marriage in America, a number of latent concerns about the impact of this innovation on religious freedom ceased to be theoretical. How could Adam and Steve's marriage possibly hurt anyone else? When religious-right leaders prophesy negative consequences from gay marriage, they are often seen as overwrought. The First Amendment, we are told, will protect religious groups from persecution for their views about marriage.

So who is right? Is the fate of Catholic Charities of Boston an aberration or a sign of things to come?

I put the question to Anthony Picarello, president and general counsel of the Becket Fund for Religious Liberty… Just how serious are the coming conflicts over religious liberty stemming from gay marriage?

"The impact will be severe and pervasive," Picarello says flatly. "This is going to affect every aspect of church-state relations." Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses. In times of relative peace, says Picarello, people don't even notice that "the church is surrounded on all sides by the state; that church and state butt up against each other. The boundaries are usually peaceful, so it's easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter…"

Picarello is a Harvard-trained litigator experienced in religious liberty issues. But predicting the legal consequences of as big a change as gay marriage is a job for more than one mind. So last December, the Becket Fund brought together ten religious liberty scholars of right and left to look at the question of the impact of gay marriage on the freedom of religion. Picarello summarizes: "All the scholars we got together see a problem; they all see a conflict coming. They differ on how it should be resolved and who should win, but they all see a conflict coming."

These are not necessarily scholars who oppose gay marriage… Marc Stern is the general counsel for the center-left American Jewish Congress… Jonathan Turley of George Washington law school has supported legalizing not only gay marriage but also polygamy.

Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead — perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage."

That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law…

The Litigator

As general counsel for the American Jewish Congress, Marc Stern knows religious liberty law from the inside out. Like Anthony Picarello, he sees the coming conflicts as pervasive. The problem is not that clergy will be forced to perform gay marriages or prevented from preaching their beliefs. Look past those big red herrings: "No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them. Same-sex marriage would, however, work a sea change in American law. That change will reverberate across the legal and religious landscape in some ways that are today unpredictable," he writes in his Becket Fund paper.

Consider education. Same-sex marriage will affect religious educational institutions, he argues, in at least four ways: admissions, employment, housing, and regulation of clubs. One of Stern's big worries right now is a case in California where a private Christian high school expelled two girls who (the school says) announced they were in a lesbian relationship. Stern is not optimistic. And if the high school loses, he tells me, "then religious schools are out of business." Or at least the government will force religious schools to tolerate both conduct and proclamations by students they believe to be sinful.

Stern agrees… that public accommodation laws can and should force truly commercial enterprises to serve all comers. But, he asks, what of other places, such as religious camps, retreats, and homeless shelters? Will they be considered by courts to be places of public accommodation, too? Could a religious summer camp operated in strict conformity with religious principles refuse to accept children coming from same-sex marriages? What of a church-affiliated community center, with a gym and a Little League, that offers family programs? Must a religious-affiliated family services provider offer marriage counseling to same-sex couples designed to facilitate or preserve their relationships?

"Future conflict with the law in regard to licensing is certain with regard to psychological clinics, social workers, marital counselors, and the like," Stern wrote last December — well before the Boston Catholic Charities story broke.

Think about that for a moment. Of all the experts gathered to forecast the impact of gay marriage on religious organizations, no one, not even Stern, brought up adoption licenses. "Government is so pervasive, it's hard to know where the next battle will be," he tells me. "I thought I had a comprehensive catalog, but the adoption license issue didn't occur to me."

Will speech against gay marriage be allowed to continue unfettered? "Under the American regime of freedom of speech, the answer ought to be easy," according to Stern. But it is not entirely certain, he writes, "because sexual-harassment-in-the-workplace principles will likely migrate to suppress any expression of anti-same-sex-marriage views." Stern suggests how that might work.

In the corporate world, the expression of opposition to gay marriage will be suppressed not by gay ideologues but by corporate lawyers, who will draw the lines least likely to entangle the company in litigation. Stern likens this to "a paroxysm of prophylaxis — banning 'Jesus saves' because someone might take offense."

Or consider a recent case at William Paterson University, a state school in New Jersey. A senior faculty member sent out a mass email inviting people to attend movies with a gay theme. A student employee, a 63-year-old Muslim named Jihad Daniel, replied to the professor in a private email asking not to receive messages "about 'Connie and Sally' and 'Adam and Steve.'" He went on, "These are perversions. The absence of God in higher education brings on confusion. That is why in these classes the Creator of the heavens and the earth is never mentioned." The result: Daniel received a letter of reprimand for using the "derogatory and demeaning" word "perversions" in violation of state discrimination and harassment regulations.

Interestingly, Stern points out, a single "derogatory or demeaning" remark not seeking sexual gratification or threatening a person's job security does not constitute harassment under ordinary federal and state sexual harassment law originally intended to protect women in the workplace. Moreover, Stern says, "our entire free speech regime depends on the principle that no adult has a right to expect the law will protect him from being exposed to disagreeable speech."

Except, apparently in New Jersey, where a state attorney general's opinion concluded, "[C]learly speech which violates a nondiscrimination policy is not protected." "This was so 'clear' to the writer," notes Stern, "that she cited not a single case or law review article in support." Ultimately, the school withdrew its reprimand from Daniel's employment file after receiving negative publicity and the threat of a lawsuit from the Foundation for Individual Rights in Education (FIRE).

Sexual harassment law as an instrument for suppressing religious speech? A few days after I interviewed Stern, an Alliance Defense Fund press release dropped into my mail box: "OSU Librarian Slapped with 'Sexual Harassment' Charge for Recommending Conservative Books for Freshmen." One of the books the Ohio State librarian (a pacifist Quaker who drives a horse and buggy to work) recommended was It Takes a Family by Senator Rick Santorum. Three professors alleged that the mere appearance of such a book on a freshman reading list made them feel "unsafe." The faculty voted to pursue the sexual harassment allegation, and the process quickly resulted in the charge being dropped.

In the end the investigation of the librarian was more of a nuisance — you might call it harassment — than anything else. But the imbalance in terms of free speech remains clear: People who favor gay rights face no penalty for speaking their views, but can inflict a risk of litigation, investigation, and formal and informal career penalties on others whose views they dislike. Meanwhile, people who think gay marriage is wrong cannot know for sure where the line is now or where it will be redrawn in the near future. "Soft" coercion produces no martyrs to disturb anyone's conscience, yet it is highly effective in chilling the speech of ordinary people.

Finally, I ask Stern the big question on everyone's mind. Religious groups that take government funding will almost certainly be required to play by the nondiscrimination rules, but what about groups that, while receiving no government grants, are tax-exempt? Can a group — a church or religious charity, say — that opposes gay marriage keep its tax exemption if gay marriage becomes the law? "That," says Stern, "is the 18 trillion dollar question."

Twenty years ago it would have been inconceivable that a Christian or Jewish organization that opposed gay marriage might be treated as racist in the public square. Today? It's just not clear.

"In Massachusetts I'd be very worried," Stern says finally. The churches themselves might have a First Amendment defense if a state government or state courts tried to withdraw their exemption, he says, but "the parachurch institutions are very much at risk and may be put out of business because of the licensing issues, or for these other reasons — it's very unclear. None of us nonprofits can function without [state] tax exemption. As a practical matter, any large charity needs that real estate tax exemption."

He blames religious conservatives for adopting the wrong political strategy on gay issues. "Live and let live," he tells me, is the only thing around the world that works. But I ask him point blank what he would say to people who dismiss the threat to free exercise of religion as evangelical hysteria. "It's not hysteria, this is very real," he tells me, "Boston Catholic Charities shows that."

Fundamentally, Stern sees this as a "religious war" between people for whom an egalitarian secular ethic is the only rational option and people who can make room for an ethic based on faith in a God who commands. There are very few signs of a willingness to compromise on either side, he notes.

"You look around the world and even the right to preach is in doubt," he tells me. "In the United States we are not foreseeably in that position. Fundamentally speech is still safe in the United States. Beyond speech, nothing is safe…"

The Legal Eagle

Jonathan Turley, the George Washington professor who is a First Amendment specialist, also sees a serious risk ahead. Turley has no problem with gay marriage. But the gay marriage debate, he notes, exposes "long ignored weaknesses in doctrines relating to free speech, free exercise, and the right to association."

Before 1970 the law was "viewpoint neutral" with regard to the tax exempt status of all charitable, religious, and public interest organizations under section 501(c)(3), he says. The tax exemption was viewed not as a public subsidy, but as a means of encouraging private donations and charitable conduct in general. In 1971, the IRS issued a decision redefining the tax exemption as a public endorsement or subsidy. This meant that the IRS would strip an organization of its exempt status if its purposes, although legal, were "contrary to public policy." The goal at the time was to use legal pressure to end private racial discrimination. But why stop there?

Right now, Turley notes, there is no clear federal public policy against discrimination on the basis of sexual orientation. But such a policy is imminent, he believes, most likely within the decade…

It's not that hard to imagine: Pass an antidiscrimination law at the federal level, which polls suggest the majority of Americans already support; look for a 5-or 10-point swing in public opinion on gay marriage; then add a new IRS commissioner (not directly accountable to the voters) who wants to make his or her progressive mark, and religious groups would wake up to find themselves playing in a whole new ballgame.

Religious bodies may be as simple as the small, independent congregations that exist all over America, but often they are large and complex institutions with extensive property and multiple missions, notably saving souls. Even a slight risk of anything so damaging as the loss of tax-exempt status will persuade many such groups to at least mute their marriage theology in the interest of preserving the rest of their activities. Such a self-imposed muting on the part of faith communities would change our culture of marriage, and our understanding of the free exercise of religion, without necessarily creating visible martyrs.

The Marriage Line

How much of the coming threat to religious liberty actually stems from same-sex marriage? These experts' comments make clear that it is not only gay marriage, but also the set of ideas that leads to gay marriage — the insistence on one specific vision of gay rights — that has placed church and state on a collision course. Once sexual orientation is conceptualized as a protected status on a par with race, traditional religions that condemn homosexual conduct will face increasing legal pressures regardless of what courts and Congress do about marriage itself.

Nevertheless, marriage is a particularly potent legal "bright line." Support for marriage is firmly established in our legal tradition and in our public policy. After it became apparent that no religious exemption would be available for Catholic Charities in Massachusetts, the church looked hard for legal avenues to continue helping kids without violating Catholic principles. If the stumbling block had been Catholic Charities' unwillingness to place children with single people — or with gay singles — marriage might have provided a legal "safe harbor": Catholic Charities might have been able to specialize in placing children with married couples and thus avoid collision with state laws banning orientation discrimination. After Goodridge, however, "marriage" includes gay marriage, so no such haven would have been available in Massachusetts.

Precisely because support for marriage is public policy, once marriage includes gay couples, groups who oppose gay marriage are likely to be judged in violation of public policy, triggering a host of negative consequences, including the loss of tax-exempt status. Because marriage is not a private act, but a protected public status, the legalization of gay marriage sends a strong signal that orientation is now on a par with race in the nondiscrimination game. And when we get gay marriage because courts have declared it a constitutional right, the signal is stronger still…

On the cultural level, the declaration by a court that only animus explains why anyone would treat two men differently from a husband and wife represents an unfolding civil rights logic that has real consequences. As Boston Globe columnist Ellen Goodman put it, "But if you give one church permission to discriminate against gays, what's next? Permission to discriminate against blacks or Jews who want to adopt?"

End Game

On April 15, the Boston Globe ran a story about three other Catholic adoption agencies, in Worcester, Fall River, and Springfield, that do not do gay adoptions. The story noted that, for now, these agencies will not be punished for their refusal. Constantia Papanikolaou, general counsel for the state Department of Early Education and Care, said her agency is holding off taking any action because the governor has proposed legislation that would provide a religious exemption for adoption agencies. "We're going to wait and see how the legislation plays out," Papanikolaou said.

The reprieve is likely to be short-lived. Observers universally say the religious exemption has no chance of passage, and in a few months, Mitt Romney will no longer be governor. What then? The Boston Globe story provides a clue: "Gary Buseck, legal director of the Gay & Lesbian Advocates & Defenders in Boston, said his group realizes that Massachusetts will have a new governor next year, and it expects that he or she will aggressively enforce the state's antidiscrimination laws."

Marc Stern is looking more and more like a reluctant prophet: "It's going to be a train wreck," he told me in the offices of the American Jewish Congress high above Manhattan. "A very dangerous train wreck. I don't see anyone trying to stem the train wreck, or slow down the trains. Both sides are really looking for Armageddon, and they frankly both want to win. I prefer to avoid Armageddon, if possible."