On December 14, the day before the D.C. Council’s final passage of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, Council member Phil Mendelson, chairman of the Committee on Public Safety and the Judiciary, received proposed amendatory language from the Archdiocese of Washington. He had been in discussions with them for some time in a good-faith effort to resolve any differences if resolution were possible. Even at that late hour, he did not dismiss the proposed changes out of hand but consulted policy advocates including myself and faith community leaders who had worked for passage of the bill.
The suggested language from the Archdiocese included a “business necessity” exemption to the non-discrimination provisions of the D.C. Human Rights Act. I replied that for Catholic Charities to claim a business necessity in this case would require stretching and deforming the Human Rights Act so badly that it would make every statue of the Virgin Mary in town weep. The language from the Archdiocese amounted to a blanket license to discriminate that went far beyond the First Amendment’s Free Exercise clause which allows them, for example, to deny the marriage sacrament in cases that violate their religious doctrine. Their amendment in effect would have dismantled the “wall of separation between church and state” described by Thomas Jefferson.
Jesus said, “Render unto Caesar that which is Caesar’s, and to God that which is God’s.” The Archdiocese’s proposal rendered everything to their particular concept of God and nothing to the state or the secular sphere that people of every faith and no faith must share. The language in the bill already included protections for the core religious functions of religious organizations while preserving the right of the government to regulate the provision of public services. The Archdiocese has contracted with the city to provide social services for many years without demanding a blanket exemption to discriminate against divorced and remarried persons, even though divorce and remarriage are contrary to Catholic doctrine. Their selective invocation of doctrinal concerns in the present case, regarding not their church function but their function as a city contractor, was a hypocritical attempt to bully the city into letting them dictate public policy. Fortunately, the city refused to be bullied.
A revealing moment came when Mendelson asked the Archdiocese whether it would support the civil marriage equality bill if the Council accepted its proposed changes. The answer, of course, was no. This is Mother Church's one-sided concept of negotiation. In this case, the Church badly overplayed its hand and brought it widespread cries of heartlessness. Outside the precincts of Fox News, few blamed this on gay couples seeking legal recognition. (Incidentally, on Thursday GLAA turned down a request by Fox News for a taped interview on the harm caused to others by the marriage equality bill. We did not wish to be a tool for their biased framing.)
The approximately two hundred gay-affirming D.C. clergy who signed a marriage equality pledge last year demonstrated the diversity of religious beliefs on same-sex marriage. The bill as passed on Dec. 15 and signed by Mayor Fenty on Dec. 18 represents a careful effort to protect the rights of everyone. GLAA supports the right of any religious organization to deny gay people its sacraments, denounce us from its pulpit, and bar us from its sanctuary. Indeed, we led a coalition of gay rights and civil liberties advocates in December defending the right of the group Stand for Marriage DC to run anti-gay ads on D.C. Metrobuses, simply because the Metro System, as a quasi-governmental body, is barred by the First Amendment from censoring unpopular political speech. It is sad but unsurprising that our opponents do not return the favor.
The Archdiocese of Washington demanded the right to discriminate using public funds. This brought them criticism not just from gay activists but from other religious groups that did not insist on subordinating their pastoral mission toward orphans and the poor to anti-gay intolerance. Thus, when Catholic Charities was ordered by the Archdiocese to end its foster care program recently rather than provide health care to the spouses of its gay employees, all of the program’s services, clients, and staff were seamlessly taken over by the Baptist-run National Center for Children and Families. God and Caesar continue to coexist peacefully in the nation’s capital, even with the advent of civil marriage equality.
Update: I should note that the WaPo story on Catholic Charities ending its foster care program in D.C. stated that it was doing so "rather than license same-sex couples," in addition to avoiding providing spousal benefits to them. But barring same-sex couples from serving as foster parents would already violate the D.C. Human Rights Act in the absence of the marriage-equality bill. Indeed, even full adoption by same-sex couples has been a normal occurrence here since 1995. [In re M.M.D. v. B.H.M., 662 A.2d 837 (D.C. 1995)] So by raising this complaint now, the Archdiocese is opening itself to investigation for having been in violation of the Human Rights Act all along. Keep in mind that discrimination based on sexual orientation has been prohibited by the law since its passage in 1977, and also under its pre-Home-Rule predecessor, Title 34, passed by the Presidentially-appointed City Council in 1973.
But regardless of how any investigation turns out, children in need of loving homes will be better off if one of the agencies providing placement services is not routinely and arbitrarily excluding an entire group of people from consideration as potential parents (either foster or adoptive). As Sandhya Bathija of Americans United for Separation of Church and State writes, "If faith-based groups are insistent on promulgating their religious beliefs through social services programs, then they should forgo public funding. Catholic Charities never should have received a government contract if it was so insistent on disobeying civil-rights laws."
Speaking of children, as I stated in my testimony before the D.C. Board of Elections and Ethics on Feb. 16, GLAA rejects the junk science used by our opponents to support allegations that children are harmed by being raised by gay parents. Credible studies consistently refute those claims. [See Brad Sears and Alan Hirsch, "No harm done to children of gay marriages: U.S. studies consistently dispute claims of opponents," Edmonton Journal, April 10, 2004.]