Sexual Orientation Nondiscrimination and Religious Exemptions

First a thanks to the folks at Concurring Opinions for letting me blog this month.

Now, the blog post. Tomorrow, June 1, 2011, Illinois will begin permitting same-sex (and heterosexual couples) to enter into civil unions. Last Thursday, Catholic Charities of Rockford, IL announced it would cease its foster care and adoption services rather than abide by the state’s prohibition of discrimination on the basis of sexual orientation (a prohibition which has been in place since 2006). A recent, last ditch attempt to exempt religious child-welfare service providers failed to pass the Illinois legislature.

This is not the first time Catholic Charities has shuttered its doors rather than permit same-sex couples to adopt or become foster parents. In 2006 (2 years after Massachusetts began permitting same-sex couples to marry), Catholic Charities of Boston made a similar decision. The agency had previously placed a number of children with same-sex couples. Shortly after this information was brought to light by the Boston Globe in 2005, officials stated that the practice would end. This decision was contrary to a unanimous vote by the agency’s board to continue placing children with gay and lesbian couples and seven members of the agency’s board resigned in protest.

Shortly thereafter and, notably, two years before California began permitting same-sex couples to marry, the Archdiocese of San Francisco announced it would “no longer allow same-sex couples to adopt children through its Catholic Charities organization[.]”

While not specifically directed to the Catholic Charities issues, consideration of whether and to what extent to exempt religious organizations (and, some argue individuals with strong religious convictions) from sexual orientation nondiscrimination laws has been the subject of much scholarly writing. Laura Underkuffler recently published a piece in which she argues that “just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status.” Others have argued in favor of broad exemptions for religious entities and individuals. My colleague, Alan Brownstein, has staked out a middle ground. He recently argued that “the starting place for determining whether or not an accommodation for religious objectors to same-sex marriage should be granted is to ask whether a comparable accommodation would be granted to an individual or institution seeking the right to discriminate on the basis of religion in providing goods, services, or benefits to others.”

One thing is clear: this debate is likely to continue for at least some time.

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