The National Review has no idea why anti-gay adoption discrimination is a big deal

Long after Kim Davis’s work as a religious activist is over, religious conservatives will still be fighting for their right to discriminate. And one need look no further than this column in the National Review from David French to get a sense of where they’re going to draw their battle lines.

Taking aim at the Atlantic for characterizing a Christian adoption agency’s refusal to match orphans with LGBT couples as “discrimination,” French argues instead that, since these couples all eventually wound up adopting children via other, secular adoption agencies, they weren’t discriminated against at all. As he writes:

…the “discriminatory” Christian agencies aren’t actually blocking gay adoptions. Gay couples looking to adopt or foster children just have to seek out one of the many secular organizations willing to serve them. Under current law in most states, Christian adoption agencies are able to place children — according to the dictates of their faith — with the mother/father families they favor, while gay couples are able to foster and adopt through other agencies. Where, exactly, is the oppression? Isn’t that exactly the kind of “win/win” solution that allows pluralistic democracies to survive and thrive?

French then goes on to repeat an argument that Kim Davis tried (and failed) to make: That she wasn’t discriminating against same-sex couples by denying them marriage licenses because they could just go one county over to find a different county clerk who didn’t think they were damned to Hell forever and ever amen:

No gay couple in America has been denied a photographer, a florist, or a baker. In the handful of cases where Christian business owners declined to participate in same-sex weddings, plenty of other vendors were willing to step in. Kim Davis could not block a single gay person from getting married. Even at the height of her stand, frustrated gay couples could drive a short distance and get a marriage license from any neighboring county.

Setting aside for the moment the fact that Kentucky requires couples to obtain a marriage license in the county in which “the female” lives (a problem in and of itself), making Davis’s and French’s supposed “accommodation” illegal, the problem here isn’t that alternative options are available. The problem is that the organizations in question are performing secular functions in a place of public accommodation. What’s more, for the county clerk and the adoption agency, they are doing so with the government’s endorsement.

Pizzerias, county clerks and adoption agencies are much different than religious leaders performing wedding ceremonies. A rabbi can’t be forced to preside over a Christian wedding ceremony, but an adoption agency can’t exempt themselves from interacting with people who don’t share their religious beliefs. The function they’re performing isn’t religious. This is even more the case when the adoption agency in question is taking advantage of tax breaks afforded to religious non-profits. If you’re endorsed by the government, you have to abide by the government’s policies — especially those that deal with non-discrimination.

A same-sex couple with their adopted child, via Wikimedia Commons

A same-sex couple with their adopted child, via Wikimedia Commons

And while public accommodation protections for LGBT people currently only exist at the state level, they form the basic premise of the Equality Act, which would apply the non-discrimination protections currently afforded on the basis of race, religion and sex to sexual orientation and gender identity. What’s more, given the rationale the Supreme Court used to decide Obergefell v Hodges, it isn’t unreasonable to think that such protections could be added by the courts if (when) legislation stalls.

This is the issue the debate is going to turn on until at least one branch of the federal government weighs in. After all, the only reason the LGBT couples highlighted both by the Atlantic and by French were denied adoption by Christian agencies in the first place is because state governments in question carved out special exemptions for them — exemptions based on the religious belief that it is better for a child to have zero parents than it is for them to have two parents of the same sex.

While the government is required to respect this belief, it is specifically prohibited from endorsing it. That’s a slight distinction, but an important one nonetheless: Let’s say that the federal government doesn’t weigh in or, worse still, affirms that places of public accommodation are allowed to discriminate on the basis of sexual orientation and gender identity. Religious adoption agencies, at least the ones French is concerned with, still have a weak case for continuing to refuse service to same-sex couples on the basis of their religion.

At least, as long as they continue to be endorsed by the government.

As I’ve written before, I don’t have a huge problem with religious institutions acting religious, so long as they keep me and my tax dollars out of it. If a Catholic school doesn’t want to employ a lesbian teacher, or if a therapist wants to embed religious gospel into her practice, that’s a shame, but I’ll go along with it — as long as those organizations are completely divorced from government funding and sponsorship. You can be a religious bigot if you want, but you have to be one with your own money.

In a similar vein, your deeply held religious belief that gay parents are worse than no parents is irrelevant if you want the government’s help running your shop. As soon as the government steps in to support your adoption agency, you’ve got to drop the idea that the body of Christ compels you.

Seems like a reasonable accommodation to me, no?

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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