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Sunday Happenings
The new and improved (?) Supreme Court dropped a decision yesterday that has a ton of relevance to the Boston area, ruling that it is constitutional for Congress to require law schools to give access to military recruiters, even if the schools have a general policy banning employers who, like the military, discriminate against homosexuals. The law schools' theory was that a rule requiring them to let bigots on campus forced them to endorse the discriminatory message, in violation of their First Amendment rights. The Supreme Court reasoned that while some forced association is equivalent to forced speech, this particular association is more hands-off and doesn't give the impression that the schools are endorsing the hate.
The case is important here in the Commonwealth for a number of reasons. First, the organizer of the lawsuit was BC law professor Kent Greenfield. Second, and perhaps more importantly, Massachusetts has a ton of law schools, many of which were parties to the suit, and this ruling will actually affect how job recruiting happens there (for more on that, see the Globe's story about the decision). Third, and most interesting to Bostonist, this decision sheds some light on the debate over Catholic Charities' recent attempts to get an religious freedom exemption from the Mass. rule prohibiting discrimination in adoption placements on the basis of sexual orientation (because the Catholic church thinks placing children with gay couples is sinful).
(What follows after the jump is boring unless you're into law things. You've been warned.)
What makes yesterday's decision relevant to the gay adoption question is that the Supremes had to place the law schools' situation along a spectrum of cases in which some organization's policy of discrimination ran up against a public law prohibiting discrimination. A famous case along these lines involved the right of the organizers of South Boston's St. Patrick's Day Parade to ban a gay and lesbian group. The parade organizers won, on the theory that a gay-themed parade float would be highly expressive (making it equivalent to speech), and the parade organizers constituted a private organization with a right not to endorse homosexuality in any way. There was a similar result when a gay scoutmaster tried to challenge Boy Scouts of America's ban on gay members. On the other hand, a private shopping mall lost when it tried to challenge a law requiring it to allow signature-gathering on its property. It's not hard to see how Catholic Charities' position - that state anti-discrimination law forces it to adopt a position it does not wish to endorse - is related (even though it involves the First Amendment right of freedom of religion, not freedom of speech).
We haven't the time (and you, no doubt, haven't the interest) for a long analysis of constitutional law as it relates to conflicts between state law and religious freedom. (The general rule, by the way, is that the right to religious freedom "does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional.") But we think the Court's analysis of the intersection of free speech rights and governmental regulatory rights provides a good way to look at the Catholic Charities situation: Does the Massachusetts anti-discrimination policy force the Church to violate its religious doctrines, or is it a general regulation aimed not at religion but at adoption, which affects only a voluntary Church activity and doesn't affect religious practice one way or another? If all this legalistic rambling makes any sense, dear readers, we'd love to know what you think. But please don't tell us that gay adoption is sinful. We know it's sinful. And we know that legality and morality don't always line up. But we only want to talk about legality right now, OK?
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You mean "adoption placements," right?
Right. Adoption placemnts, not "abortion placements," as I erroneously wrote. I'm fairly certain Catholic Charities isn't doing any of those.