Here we go again. About a year ago, Catholic Charities of Boston clashed with state authorities over their refusal to include same-sex couples in their adoption services. This followed a proclamation from Rome that facilitating such adoptions was anathema, and CCB's sheepish acknowledgment that it had assisted adoptions for a several same-sex couples over the years. The state rebuffed the idea of an exemption for CCB, and faced with the loss of its license, the organization decided to cease all adoption services rather than offend Catholic doctrine.
This is an unfortunate outcome for all concerned -- you don't have to be one of those foretelling a massive train-wreck between gay rights and religious liberty in order to be saddened that this large, well-respected charity will no longer be provided this badly needed service to anyone. And now the same drama appears to be playing out in the United Kingdom. The Catholic Church is asking for an exemption from the UK's antidiscrimination law, and threatening to close its adoption services if it doesn't get its way.
While one is easily reminded of Catholic Charities' losing battles with contraceptive equity laws in California and New York, this conflict seems more stark. There, Catholic Charities wasn't being asked to directly participate in activity offensive to it, and it had some options open to it comply with the law without paying for contraception. With adoption, the organization is being asked to actually do something contrary it doctrine, no ifs, ands or buts about it.
Is there any way around this? Should we make religious exceptions for sexual orientation discrimination where we wouldn't even consider it for, say, race or disability? If so, why? As I have argued previously, I find a distinction based on "immutability" untenable. It seems to me that the relevant difference is that more religious people and institutions believe in anti-gay discrimination than in any other form of illegal discrimination, with the possible exception of gender discrimination. While one could argue as a practical matter for recognizing such a numerical difference in law, this unprincipled move to me unjustified.
During a recent lunch-hour talk on this subject at my law school, I asked - off the top of my head - whether there might be some way to split the baby by way of remedy: rather than revoking its license, the government could impose a substantial, annual fine on Catholic Charities for engaging in discrimination. That way, the state could retain the normative benefit of its proscription on discrimination; CC could continue to provide services without violating its conscience; and the cost of continuing to do so would ensure that any organization making use of this "exception" was motivated by genuine religious principle.
The faculty member giving the talk found my (admittedly half-baked) idea intriguing but ultimately unavailing. Wouldn't this just make everybody unhappy? But I still think it might work. Consider Bob Jones University v. United States, in which the Supreme Court upheld the revocation of tax-exempt status from BJU because it banned interracial dating on campus. This action imposed a financial punishment on the school, and heightened pressure from society to abandon the policy, which it ultimately did, years later. While you could view this as a coerced conversion -- just as you could with Wilford Woodruff's 1890 "revelation" on polygamy -- it seems to me that BJU's leaders really did have a change of heart as to any religious reason for their policy. While the LDS Church leaders faced prison and the wholesale abolition of their sect, BJU could have chosen to stick to their guns and ride out the resulting difficulties. It seems to me that religious organizations that feel compelled to discriminate against LGBT people should also have that option.
It's not a totally satisfying solution, of course - probably it would leave everybody unsatisfied. But as far as I can tell, it's better than the available alternatives.