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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  • GayEGO

    Thank you for clarifying your previous comment. Frankly, I believe in humanity as good people. I am just tired of hearing the negative hoopla in general.

  • goulo

    I think you misunderstood my post, as you seem to think that you need to defend gay parents in response to me… I assure you that I have no problem with gay parents. :)

    I was just warning that a sentence like “No parents are better than gay parents” (intended meaning = gay parents are bad) and “No food is better than Thai red curry” (intended meaning = Thai red curry is wonderful) is confusingly ambiguous in its syntax.

    That’s all.

  • ComradeRutherford

    Conservatives really miss discriminating against people.

  • GayEGO

    So far I have not seen news about gay parents leaving their kids in hot cars, filthy houses, or murder them e.g. Bella Bond. But like most studies show, their has been no real difference found in children raised by LGBT parents or straight parents.

  • GayEGO

    Well of course the Catholic Charities made a fuss about taking children away from them, they would not be able to molest them! :>)

  • Of course, the answer to the “they can go down the street” argument is: Why should they have to? That, in and of itself, is discriminatory.

    And in Illinois, at least (and I suspect other states), when Catholic Charities was making a fuss about placing children with same-sex couples (a problem that only arose when Illinois instituted civil unions), it turns out that 70% of their budget for adoption services was coming from the state. That’s a bit heftier than a “tax break.”

  • goulo

    “You can believe that no parents are better than gay parents…”
    Amusing & unintentionally confusing ambiguity there, I think. (I.e. at first glance, it sounds like believing that gay parents are the best, not that gay parents are terrible.)

    Compare its syntax with e.g. “No food is tastier than Thai red curry.” :)

  • Bob Conti

    Why would any institution, religious or otherwise, think receipt of government funds wouldn’t come with certain strings attached?

  • cinorjer

    Yes, besides being illegal, the “go to the next business or county” argument is nothing but segregation rearing it’s ugly head. What if that other county clerk also doesn’t want to serve gays? If Davis has the right to discriminate, so do the rest of the clerks. Also the judges. Same with even private businesses. If a black couple had to go to another town to get a wedding cake, people would see what the problem is with segregation being once again made the law of the land. Either a gay couple has the same rights to be served by the same people who serve this old white man, or it’s not equal rights.

    Oh, and in many locations, religious institutions have exclusive contracts with the various foster and adoption services and a gay couple would have no ability to go anywhere else.

  • Don Chandler

    National Review is more of a recruitment center than a place of ideas. People supporting Kim Davis kept saying go to the next county to get your marriage license. But when you need police assistance, do you call the next county? When you pay taxes, do you send them to the next county? When you report a fire, you don’t call the next county. When you want to debate, you don’t go to the National Review–non-existent. Another bad place is NewsBusters.

  • jjgrandisland

    This is the problem. Certain religious institutions want to take money from the government trough and use it to evangelize their faith. This must stop. Unfortunately, they have been doing this for so long that they believe this is their “right”. I truly want to see all these children adopted. Unfortunately, these religious institution want to place them with parents who believe as they do. And if they cannot they would rather let these children “rot” in the system. How incredibly sad. Does this mean these Christian adoption agencies can deny Jewish parents? Buddist parents? Muslim parents?

  • Although there’s room for debate (and raising potential issues of abuse), it’s generally considered the parents’ right to raise their kids with a particular set of religious beliefs.

    I do take issue, however, with religious institutions taking ownership (and I use that word deliberately) of orphaned children and then doing the same thing. And absolutely, it ought to be obviously unconstitutional for any religious organization to be receiving taxpayer funding for any function, but especially for something like this, running an adoption agency. Functions which ought to be secular, not religious.

    Can you just imagine the howls of Christianist outrage if they learned that a Satanist organization was applying for federal and state funding to run an orphanage? One where they explicitly said they would not place children in homes that failed to uphold Satanist beliefs and ideals?

    As for the Christianists trying to play the “Well they can go elsewhere card” — that was tried before. When people of a certain racial background were told they could simply eat at a different restaurant, shop at a different grocery store, or live in neighborhood that wasn’t whites-only. They were told there was no unfairness in the discrimination because a white person technically was barred from using a Colored Only drinking fountain and couldn’t use the Colored Only movie theater entrances and seats.

    As for this marriage equality situation, where a straight person can use ANY government facility, whereas gay and lesbian couples can only use a less than 100% portion thereof — that’s discrimination. And it ought to be illegal.

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