D.C. Same-Sex Marriage Vote Presents Problem for Archdiocese
BY JOAN FRAWLEY DESMOND
January 3-16, 2010 Issue | Posted 12/27/09 at 7:00 PM
WASHINGTON — The District of Columbia is the latest battleground for an escalating conflict between same-sex couples demanding the “right” to marry and churches defending their freedom to maintain the integrity of their institutions.
Last month, the district’s City Council legalized same-sex “marriage,” prompting celebrations for homosexual activists — and a sober reckoning for the Archdiocese of Washington.
Congress must still approve the city-council vote, and opponents of the proposed law vow to take their fight to Capitol Hill, or the courts. But nobody expects a quick resolution to an issue that will continue to plague Catholic bishops throughout the country.
In the five U.S. states where same-sex “marriage” is legal — Iowa, Connecticut, Massachusetts, New Hampshire and Vermont — Church leaders have not only redoubled their catechetical efforts to affirm traditional marriage, they also have grappled with statutory provisions that can make it impossible for Church social agencies to accept government funds.
Months ago, after the D.C. City Council unveiled a proposed same-sex “marriage” bill that included a “narrow” religious exemption for church-run institutions, Washington Archbishop Donald Wuerl warned that passage of the law could make Catholic Charities ineligible for city contracts.
The archbishop, who has refused to provide employee benefits to same-sex partners, or facilitate adoptions for homosexual couples, issued a neutral response to the vote, signaling that he still hoped the impasse could be resolved without reducing services.
“Religious organizations have long been eligible to provide social services in our nation’s capital and have not been excluded simply because of their religious character. This is because the choice of provider has focused on the ability to deliver services effectively and efficiently,” declared a statement issued by the archdiocese.
“We are committed to serving the needs of the poor and look forward to working in partnership with the District of Columbia consistent with the mission of the Catholic Church,” the statement continued.
Catholic agencies in the district serve tens of thousands of residents, with volunteer support and donations from parishioners improving the quality and cost-effectiveness of their programs.
Yet several City Council members shrugged off the prospect that needy residents might be left in the lurch, and critics accused the Church of unjustly issuing “threats.” After the vote, the Human Rights Campaign, the nation’s foremost homosexual-rights group, attacked the archbishop for using “marriage equality as an excuse to hurt thousands of homeless and needy people in Washington, D.C.”
The San Francisco Option
Critics assert that Archbishop Wuerl has exaggerated the threat same-sex “marriage” poses to religious liberty. While such laws have forced Church adoption agencies to close their doors in at least two states, the issue of spousal benefits for same-sex couples has been resolved — in some cases — without canceling government contracts.
In the district, Georgetown University now provides benefits to one other member of an employee’s household, an attempt to avoid explicit approval of same-sex unions. That policy — dubbed the “San Francisco option” — has already been quietly adopted by at least one Catholic health-care provider in the district.
Archbishop Wuerl has rejected this approach as a legitimate solution to the impasse, and some legal experts think he’s right to force a more extensive debate on religious freedom.
The “San Francisco option” refers to a 1997 decision by Archbishop William Levada of San Francisco, in response to the city’s domestic-partnership law, which required agencies with city contracts to offer benefits to same-sex partners and included no religious exemption.
A similar standoff had previously occurred in New York City, ultimately resulting in an exemption for church-run agencies, and, initially, Archbishop Levada threatened to sue the city of San Francisco.
But the archbishop, who is now a cardinal and prefect of the Congregation for the Doctrine of the Faith at the Vatican, reversed course and advanced his plan to provide employment benefits to one individual residing in an employee’s household. Cardinal Levada’s initiative fueled considerable criticism. He defended his policy as the best solution to a complex problem and contended that it also advanced the Church’s goal of expanding health-care coverage.
“The idea was to broaden the applicability of our benefits program, rather than specifically targeting same-sex partners. This decision was unique to San Francisco, a U.S. city with a large gay and lesbian population and many single people without families,” recalled Maurice Healy, a spokesman for the San Francisco Archdiocese and editor of its newspaper, Catholic San Francisco.
Subsequently, a 2006 Vatican directive banning adoptions for same-sex couples forced the San Francisco Archdiocese to close its adoption services, even as it publicly acknowledged that its adoption program had previously placed some children with homosexual couples.
In an attempt to stay involved in adoption placements, and to expand the pool of families prepared to accept hard-to-place children, Cardinal Levada’s successor, Archbishop George Niederauer, agreed to a controversial plan that “loaned” Catholic Charities staff to assist with placements at a secular adoption agency, Family Builders by Adoption. Jill Jacobs, executive director of Family Builders, described her agency as possessing “a long history of serving the gay, lesbian and transgender community.”
Two years later, the San Francisco Archdiocese chose not to renew its contract with Family Builders, but the employee-benefits policy remains in place. However, both policies underscore the problems with adopting partial compromises that delay but don’t resolve the conflict between homosexual rights and religious freedom.
Healy acknowledged that the collaboration with Family Builders “was not satisfactory to everyone, but it was executed within the context of Church teaching. Family Builders was a legitimate provider that also worked with traditional families.”
Meanwhile, some legal scholars question whether the “San Francisco option” remains a viable approach for Catholic agencies that hope to avoid a direct collision between homosexual rights and religious freedom.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, welcomes the arrival of legal same-sex “marriage” in the District of Columbia, but argues against the “San Francisco option” as a workable solution.
“The problem with this approach is that religious organizations have opposed it as a way of circumventing the issues at stake. We will have to deal directly with the fact that religions are by definition exclusionary, based upon their faith,” argued Turley.
Indeed, when the Vatican issued its directive prohibiting the placement of children with same-sex couples, the Archdiocese of Boston promptly closed its adoption program, a signal that Cardinal Sean O’Malley could identify no other acceptable solution.
In Massachusetts, the 2004 Goodridge v. Department of Public Health decision cleared the way for same-sex “marriage”; a subsequent archdiocesan-led effort to put the issue on the ballot was stymied by the state’s powerful Democratic leadership.
“Catholic Charities had facilitated a number of adoptions to homosexual couples going back to the 1990s,” explained Father J. Bryan Hehir, secretary of Health and Human Services for the Archdiocese of Boston. “After the Vatican issued its directive, I thought we could get a religious exemption, or we could raise the necessary money privately. But Catholic Charities has to be licensed by the state to facilitate adoptions. In order to be licensed, a provider has to sign a nondiscrimination pledge, which includes sexual orientation.”
Father Hehir, for his part, questions the necessity of making that tough call. Catholic Charities had previously supervised 31% of public adoptions, and only about “seven or eight involved placements with homosexual couples. It was a deeply difficult decision, but we were faced with an absolute conflict between the Holy See’s position and state law.”
Some dioceses in states with legal same-sex “marriage” have been spared this struggle, as antidiscrimination statutes and religious exemptions vary widely. In New Hampshire and Vermont, for example, the Church doesn’t facilitate public adoptions, and both states gave the Church wide berth to maintain its distinctive institutional practices.
“A religious exemption was written into Vermont’s law from the beginning,” reported Father Daniel White, vice chancellor and moderator of the curia at the Burlington Diocese.
“We wouldn’t be coerced into performing ceremonies,” Father White said. “We were free to hire and provide benefits as we saw fit. All things considered, we have as good a situation as we could hope for.”
However, Father White acknowledges that individuals who don’t want to accommodate same-sex unions — such as justices of the peace and owners of bed-and-breakfast businesses — do not receive such an exemption.
Like many Church officials in states with legal same-sex “marriage,” Father White is far from optimistic about future court rulings that could gradually narrow or even suppress the religious freedom of churches, their agencies and individual believers.
“There’s great doubt whether our religious exemption will stand the test of time,” said Father White. “At some point, an employee at a Church-run institution will enter into a same-sex ‘marriage,’ and they will end up filing a lawsuit against the diocese. The case will go to the courts, and the exemption will be ruled unconstitutional.”
Indeed, legal scholars predict that conflicts over homosexual rights and religious freedom are likely to escalate. Some suggest it is past time to establish a formal framework for balancing the concerns of both camps.
“A lot of people of good will understand that some kind of religious exemption should be provided,” argued Robin Wilson, a professor of law at Washington and Lee University who also testified at the D.C. Council hearings on same-sex “marriage.”
But Robert Destro, a professor at the Columbus School of Law and founder/co-director of The Catholic University of America’s Interdisciplinary Program in Law and Religion, doubts whether any moderate accommodation would placate homosexual-rights activists. “They seek total affirmation,” Destro asserted, something Catholic Church leaders cannot provide.
A national debate on the proper balance of homosexual rights and religious freedom may soon be forthcoming if the D.C. bill sparks a fight in Congress. But, for now, Archbishop Wuerl must wait for the City Council to make the next move.
“We have not made any formal provisions for a cancellation of the contracts because we want to serve as many as we can,” reported Susan Gibbs, a spokeswoman for the archdiocese. “We will have to see how we can partner with the city in a manner consistent with our Catholic faith.”
Joan Frawley Desmond writes from Chevy Chase, Maryland.
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