It was crystal clear to the authors of the US Constitution that the English experience in having established a state-favored religion caused unending mischief and bad public policy to the detriment of those who did not belong to the Church of England. Hence the First Amendment’s ban in plain language that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” was enacted. Despite the seeming clarity of the language separating church and state, both Congress and many state legislatures have adopted public policy measures that create unnecessary conflicts. Sometimes, it’s difficult to appreciate what it is that legislators are unclear about.
The “no law respecting an establishment of religion” rule was cited up to 1990 by SCOTUS, holding that “a person may not defy neutral laws of general applicability” even as an expression of religious belief. “To permit this,” wrote Justice Antonin Scalia, citing an 1878 decision, “would make the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself.”
The RFRA was the basis for reliance by SCOTUS in the Hobby Lobby case, decided in 2014, under which a closely held for-profit corporation was exempt from a federal regulation determined by its owners to be antithetical to their religious or moral beliefs…. Justice Ruth Bader Ginsburg, in dissent, repeated the Court’s historical precedent and challenged the majority’s unprecedented view of a for-profit corporation’s expressing religious reservations to escape the law.
However, in 1993, Congress adopted the Religious Freedom Restoration Act (RFRA), introduced by then-Congressman Chuck Schumer, that “ensures that interests in religious freedom are protected.” The RFRA was the basis for reliance by SCOTUS in the Hobby Lobby case, decided in 2014, under which a closely held for-profit corporation was exempt from a federal regulation determined by its owners to be antithetical to their religious or moral beliefs. Scalia abandoned his earlier position to join in Justice Samuel Alito’s majority opinion upholding the right of a corporation to avoid a restriction it claimed violated its religious convictions.
Hobby Lobby gave birth to the concept that corporations are people, capable of personal values that cannot be transgressed by the law. Justice Ruth Bader Ginsburg, in dissent, repeated the Court’s historical precedent and challenged the majority’s unprecedented view of a for-profit corporation’s expressing religious reservations to escape the law. Applying reason to the First Amendment, she asserted that the exercise of religion is characteristic of natural persons, not artificial legal entities.
The germ of the notion that corporations are people was presaged in 2011 by then candidate Mitt Romney at the Iowa State Fair. In response to a question about taxation, the Utah candidate said:
“Corporations are people, my friend.” When challenged, he rejoined, “Of course they are. Everything corporations earn ultimately goes to people. Where do you think it goes?” Thus, it would seem logical that Romney believes that the wealth of profit earned or retained by shareholders is proof of the ultimate recipients – people.
Not to be left behind, in 2012 a Republican-dominated Virginia General Assembly adopted legislation to create what lawmakers characterized as a “conscience clause” in adoption laws that permits adoption and foster care agencies the right to refuse any placement that “would violate the agency’s written religious or moral convictions or policies.”
Not to be left behind, in 2012 a Republican-dominated Virginia General Assembly adopted legislation to create what lawmakers characterized as a “conscience clause” in adoption laws that permits adoption and foster care agencies the right to refuse any placement that “would violate the agency’s written religious or moral convictions or policies.” Some of the Commonwealth’s most active agencies are faith-based. The exception was adopted due to pressure from groups that sought to have the state’s social services board revoke licenses from agencies that engage in discrimination, particularly against LGBTQ clients.
Now Democrats, with Republicans in opposition, are sponsoring legislation to repeal the exemption, opening the door for funding for faith-based agencies to be reduced without license revocation. The gravamen of the debate is, of course, whether private, faith-based organizations chartered by the state may discriminate for religious or moral reasons. Are such agencies’ people entitled to discriminate as a matter of law and public policy? The answer seems to be reasonably clear – except to the Supreme Court of the United States and Sen. Mitt Romney.
The combatants in this instance seem to have abandoned focus to the extent that the citizens served in adoption and foster care are children. They are the primary beneficiaries of the state’s public policy to create opportunities for care and education offered by willing individuals and couples. Adoption and placement agencies insisting upon restricting their function for religious reasons must be appreciated as creating an establishment of religion not in favor of the children but in their own interests.
If one pursues the Romney analysis to a logical, absurd conclusion, it would mean that employees of faith-based organizations could be exempted from driving ordinances where a religious or moral rationale might be offered. Creating conflict where none ought to exist says more about the vision of legislators than about the principles alleged to be at stake. The religious or moral objections of private, state-chartered organizations simply do not apply in the public domain, except to ensure that every citizen has the personal right to religious practice free from government intervention. No faith or religion can be favored by exemption or exception because such intrudes upon the freedom of all.
For this reason, the General Assembly must repeal the exemption (“conscience clause”) and subject faith-based adoption and placement agencies to the rule of law that applies equally to every Commonwealth citizen, as Justice Scalia opined.
For this reason, the General Assembly must repeal the exemption (“conscience clause”) and subject faith-based adoption and placement agencies to the rule of law that applies equally to every Commonwealth citizen, as Justice Scalia opined. Attempts by legislators – Republican or Democrat – to appease imperatives urged by or upon religious principles leads only to more divisive conflicts, creating discord where none should exist. Denying adoption or placement services to individuals whose sexual lifestyles are different is, by definition, discriminatory. In this case, only the children are punished by a statute that, for no good end, reasonably ought not to exist.
A final observation: Do the faith-based agencies offer the children any choice as to whether their adoption or placement matters to them in connection with the religious persuasion of the persons who are offering care? Are the children voluntary members of the religions that sponsor the agencies? If not, then, the so-called “conscience clause” is, in itself, discriminatory toward the children.
An excerpt from the website of Catholic Charities adoption agency seems to support this nondiscriminatory principle:
Catholic Charities offers a domestic adoption program for the placement of infants. Birth parents and their families are offered counseling as they make a decision for their child. If they choose to, birth families are able to select and meet the adoptive family who they wish to place their child with. At that point the two parties can discuss the type of adoption that both parties wish to have. Confidentiality is maintained as identifying information is not shared between the two parties unless they decide to do so.
How, then, may a faith-based agency determine whether a client identifies as LGBTQ without inquiring? In order to claim the religious exemption, at least one party – the agency – makes a judgment concerning personal information. Does the “type of adoption” include religious preference by the client or the parents? Corporations, even not-for-profit ones, are not people entitled to freedom of religion. To hold otherwise is to violate the principle of freedom from religion. It is time for Virginia to abandon its attempt to be King Solomon in regard to the welfare of children and youth.