Illinois Charities Fight Back
Suit Filed Over Civil-Unions Law
BY Matthew A. Rarey
June 19-July 2, 2011 Issue | Posted 6/10/11 at 6:50 PM
SPRINGFIELD, Ill. — Catholic Charities branches of three Illinois dioceses have filed a lawsuit against the state of Illinois in order to continue operating according to Catholic principles — by providing foster care and adoption services only to married couples or non-cohabitating singles.
The suit was filed June 7 in response to the state’s new civil-union law — formally called the Religious Freedom Protection and Civil Union Act — which was passed last December by the lame duck, Democrat-controlled state Legislature along a party-line vote and took effect June 1. That law threatens to prohibit agencies such as Catholic Charities from performing foster care and adoption services with state funds if they refuse to place children with unmarried couples, including those in civil unions, whether homosexual or not. The new law essentially views couples in civil unions as married couples, with many of the same rights and privileges, and bars discrimination against them.
The Catholic Charities branches associated with two Illinois dioceses already have stopped providing such services: the Archdiocese of Chicago back in 2007, mainly due to prohibitively expensive liability insurance, and the Diocese of Rockford on May 26, just a week before the new law took effect. The latter cited “the Illinois Legislature’s failure to enact an amendment to the new civil-union law that would allow Catholic Charities to refer unmarried, cohabitating couples, whether same-sex or opposite sex, to other agencies so as to not violate the teachings of the Catholic faith,” according to the diocesan newspaper.
However, the three dioceses whose Catholic Charities branches still do — Springfield, Peoria and Joliet — are fighting the new law, maintaining that their policies actually are in accord with Illinois law. They are being represented by the Thomas More Society, a public-interest law firm based in Chicago that bills itself as “defend[ing] religious liberty, marriage and the sanctity of human life in courtrooms across the country.”
“When the Religious Freedom Protection and Civil Union Act became effective, the dioceses had all these legal questions that folks on the other side [including the American Civil Liberties Union of Illinois and homosexual-rights organizations] had raised about whether dioceses could continue providing child-placement services only to married couples or non-cohabitating singles,” said Peter Breen, executive director of the Thomas More Society. “So the decision was made to seek a definitive declaration from the court that Catholic Charities are in the right and have a sound legal position.”
Breen said the lawsuit was necessary in part because the Illinois attorney general’s office would not meet with Catholic Charities to resolve questions of discrimination before the law took effect. In March, the attorney general’s office issued a letter stating that it had “received notice that Catholic Charities … discriminates against Illinois citizens based on race, marital status and sexual orientation” in the provision of foster care and adoption services. Despite Catholic Charities requesting a meeting in an April 25 letter, the attorney general’s office delayed responding until June 2, the day after the law took effect.
“It’s the role of the attorney general’s office to ensure that all organizations in the state follow the law, including the civil-rights laws,” said attorney general’s office spokeswoman Natalie Bauer. “Organizations that receive taxpayer funding to provide public services must comply with the law. Unfortunately, instead of working with the state to ensure compliance with child protection and civil-rights laws, the dioceses have opted to go to court.”
Saying the attorney general’s office was still reviewing the lawsuit, she would not respond to the Thomas More Society’s contention that Catholic Charities is in compliance with state law on two grounds.
Breen contends that organizations such as Catholic Charities already are exempted from prosecution under the Illinois Human Rights Act, the state’s non-discrimination law. This act, he said, was specifically amended to exempt prosecution of sectarian adoption agencies that have religious objections to placing children in non-traditional family arrangements.
Also, noting the full title of the new law — the Religious Freedom Protection and Civil Union Act — Breen said that “it isn’t intended to interfere with the religious practices of any religious entity. That was described in the floor debate, where there were repeated statements that this law wouldn’t impact the religious practices of anyone. But after it became law, our opponents are trying to impinge upon religious practices.”
The bill’s sponsor in the state Senate, David Koehler, did not think it was necessary to amend the bill to explicitly allow organizations such as Catholic Charities to continue their existing policies. He agreed to co-sponsor such an amendment, however, “after the attorney general opened an investigation into allegedly discriminatory practices and all these lawyers on the other side said the law doesn’t provide an exemption,” said Breen. When Koehler was asked by the Illinois Catholic Conference to back such an amendment, he complied because it backed the original intent of the bill.
Despite strong lobbying by the Catholic Church in a state where all the major office holders are Catholic — Gov. Pat Quinn, House Speaker Michael Madigan, Senate President John Cullerton and Attorney General Lisa Madigan, the speaker’s daughter, all of them Democrats — the amendment failed to pass a Senate committee in April.
“From our perspective, it seems the attorney general’s office has taken its cues from the ACLU. And that office has repeatedly accused Catholic Charities of racial discrimination and not complying with child-protection laws, accusations which are totally baseless and irresponsible,” said Breen. “Right now the plaintiffs are in a conciliatory posture, and we’re hoping for a negotiated resolution. We really are. But if we’re forced to continue proceeding in court, we will.”
According to the ACLU of Illinois, which a federal court in the 1990s approved as counsel to monitor the quality of foster-child services in the state, both publicly and privately administered with state funds, Catholic Charities is in the wrong.
“While applauding the great work Catholic Charities has done on behalf of children in the past, we disagree with them on this issue,” said Benjamin Wolf, associate legal director of the ACLU of Illinois. As director of their Children’s Initiative, he also is lead counsel representing all foster children in Illinois.
“We’ve worked collaboratively with Catholic Charities and all good agencies,” he said from his Chicago office. “This is the rare instance where I find myself in disagreement with an agency. I think, in this instance, the three Catholic Charities agencies are mistaken. In particular, they’re not acknowledging the harm their policies do to children. In our view, and I think in the view of Illinois law, the only consideration in placing children in foster care is that they get the home that will serve the child’s best interest. If the child is best placed with a loving aunt who happens to be a lesbian, that is the right choice.”
What about Catholic Charities’ policy of referring foster-care applicants that go against its policies to other agencies?
“Even if they’re referred to another agency, the child’s placement is delayed or possibly denied access to the best home,” Wolf said. “Our only issue should be what’s right for the child, not the religious values of any agency. We certainly respect the right of any religious agency not to solemnize or officiate a civil union, but that’s different from deciding to place a child in the best home on religious grounds. Also, if you exclude sinners as foster parents, we’re not going to have any at all.”
Wolf also believes Breen is reading the Illinois Human Rights Act special exemption for sectarian child-service agencies “too broadly.”
“Certainly there’s protection for religious doctrine,” said Wolf. “But when an agency performs a state function and screens homes for the purpose of getting a foster-care license from the state through the Department of Children and Family Services, they can’t do restrictions beyond what’s appropriate for state law.”
Wolf noted that over the years he has spoken with Catholic Charities case workers “who have designated as single persons foster parents who are actually living with same-sex partners, so they’ve gotten around Catholic Charities’ policies for a long time if they’ve thought such homes are best for children. This civil-union law makes things different because it requires licensing as couples those who get civil unions. In short, we’ve thought Catholic Charities’ discriminatory policies were illegal even before the civil-union law passed. We’re going to monitor this lawsuit, but we don’t yet know if we’re going to play a formal role.”
As representatives of the state of Illinois, the lawsuit names as its defendants Attorney General Lisa Madigan and Erwin McEwen, director of the Illinois Department of Children and Family Services. Asked for comment, DCFS spokesman Kendall Marlowe said, “In terms of the court action yesterday, discrimination has no place in child welfare” when using public money to perform a state function. “The civil-union law requires couples in civil unions to be treated the same as couples in marriage. [The plaintiffs] are choosing to make it a matter of interpretation [of the law]. The ACLU certainly believes it’s a clear violation of law.”
Father Robert Sirico, president of the Acton Institute for the Study of Religion and Liberty, a think tank dedicated to “integrating Judeo-Christian truths with free-market principles,” has an alternative take on Catholic Charities of Illinois’ dilemma. He suggests more attention to subsidiarity, allowing lower-level societal units the ability to establish foster care, rather than the state.
“What is it about foster care that necessitates a state-run system? Why can’t it be done on local levels?” he said. “Why can’t a city, municipality or affiliation of organizations do it and merely abide by standards set by the state? But when you have it monopolized, in effect, by the state [which uses organizations such as Catholic Charities as contractors to provide services], then you have the political-interest groups in control. … Let’s vigorously embrace subsidiarity.”
Nationwide, Catholic Charities receives about two-thirds of its funding from the government, approximately $1 billion a year, he pointed out. “There’s the threat that he who drinks the king’s wine sings the king’s song.”
“I think we need to separate the giving from the mechanism of the state,” Father Sirico continued. “I think there are ways to incentivize people to give that aren’t channeled through political and bureaucratic agencies. For instance, what if we had a tax credit to corporations or individuals that allowed their money to be used in a way that isn’t run through the state, but for services that they’re already obligated to pay the state to perform? For example, you have a tax obligation; but let’s say you’re allowed to take the portion going to social services and designate it to a specific charity you wanted to support. You don’t pay the state. The state reduces its involvement in that sphere. What you do is present the state with a documented receipt that you paid money to that charity.”
Matthew A. Rarey writes from Chicago.
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