State putting Church out of adoption business

TITLE VII of the 1964 Civil Rights Act forbids employment discrimination on the basis of gender. It doesn't make an exception for churches. However, courts have interpreted Title VII to exempt churches. This is not surprising. Catholics, Mormons, and certain Orthodox Christians do not ordain women as priests. Orthodox Jews do not ordain women as rabbis. Traditional schools of Islam do not allow women to act as imams. The Constitution would not permit the government to change these church rules even if it wanted to.

Title VII has allowed women to pursue career ambitions and support their families, just as men do. Many Catholics, Jews, and Muslims think that this equal opportunity should extend to ministry. But society is also committed to religious freedom, and that means that sometimes the government has to respect limits even on worthwhile programs.

There is a lesson here that has been ignored in the recent contretemps over gay adoptions by Catholic Charities. Catholic Charities managed 41 cases last year, and more than 700 since 1987. Most involved children with special needs.

Charities that provide adoption services are governed by two state agencies. All of them need a license from the Department of Early Education and Care. The Department's regulations forbid licensees to discriminate on the basis of sexual orientation. Charities that handle adoptions of older and special needs children also contract with the Department of Social Services (they receive money for providing this service). DSS regulations forbid contractors to refuse service on the basis of sexual orientation. These two regulations caused a problem for Catholic Charities, because the Church believes that homosexual relationships are sinful and that it is wrong to place a child in such a family. The agencies refused to grant an exemption. The governor, though sympathetic to Catholic Charities' plight, said the problem should be corrected through legislation. Leaders in the Legislature said they were unwilling to pass such a law. Faced with a legal requirement that it serve gay and straight families alike, Catholic Charities reluctantly decided to stop doing adoptions.

It seems surprising that the state would want to put the Catholic Church out of the adoption business. Corporal works of mercy are no less important to the life of the Church than its sacramental ministry. Forbidding the Church to perform them is a serious blow to its religious liberty. Why would the government do that?

One reason is that the Church refused to go along with the effort, enshrined in these regulations and blessed in Goodridge v. Department of Public Health, to give gay families the same legal rights as straight families.

But Catholic Charities did not obstruct that effort; it only declined to assist it. Is our commitment to equality so strong that we are willing to put Catholic Charities out of business because it won't promote an agenda that it views as morally wrong?

The issue is not whether the Church or the state has the better of the debate over gay families. When freedom is at stake, the issue is never whether the claimant is right. Freedom of the press protects publication of pornography, blasphemy, and personal attacks. Freedom of religion is above all else a protection for ways of life that society views with skepticism or distaste.

A second reason might be that Catholic Charities received money from DSS (about $1 million out of a budget of $38 million) when it provided special-needs adoptions. But even if Catholic Charities gave up the money it got from DSS, it still wouldn't be able to provide adoption services because it also needed a license from the Department of Early Education and Care. Second, it is likely that the real reason Catholic Charities contracted with DSS was not to get an additional 3 percent in its budget, but so that it could help with the special-needs adoptions that comprised 80 percent of its caseload. It was not about the money; it was about the Gospel.

Respect for religious liberty is a good thing. We should not lose sight of it in an effort to achieve other social goals. To paraphrase Barry Goldwater, extremism in the defense of equality can be a vice.

John Garvey is dean of Boston College Law School.