The Gospel according to the state: an analysis of Massachusetts adoption laws and the closing of Catholic Charities adoption services.

• Author: Clark, Matthew W.

"Just as the identity of Catholic Charities is firmly rooted in the teaching of its Church, the identity of this nation is based on a respect for religious beliefs.... At a time when so many of our nation's children and families need organizations like Catholic Charities more than ever, we continue to depend upon government at all levels to respect our religious beliefs and protect our freedom to serve the communities in which we live." (1)

1. INTRODUCTION

   The Massachusetts Constitution declares the equality of all people and the right of all people to practice religion as they see fit. (2) In article XVIII, the Massachusetts Constitution also declares it unlawful for the state government to pass any law that prohibits an individual's right to the free exercise of religion. (3) The state's desire to protect both the equality of people and the practice of religion does not always play out harmoniously and recently, the Catholic Church found its religious views regarding homosexuality and morality in conflict with state adoption laws. (4)

   In 2003, the Vatican responded to the debate over gay marriage with a statement entitled "Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons." (5) In addition to unequivocally opposing homosexual marriage and unions, the statement set forth the Church's position against homosexual adoptions. (6) The Vatican declared that homosexual adoptions violate church doctrine and are contrary to a child's best interests. (7) This statement created serious questions about the ability of the Church's social-service agency, Catholic Charities, to continue offering adoption services in Massachusetts in light of state adoption laws prohibiting discrimination on the basis of sexual orientation. (8)

   In Massachusetts, the first case recognizing the legality of adoption by same-sex couples dates back more than a decade. (9) Further, in order to offer adoption services for special-needs children, any potential agency must receive licenses from the Department of Early Education and Child Care and the Massachusetts Department of Social Services, both of which have regulations forbidding licensees to discriminate on the basis of sexual orientation. (10) Prior to the Vatican's statement, the Boston branch of Catholic Charities placed a small number of children with homosexual couples since receiving its license in 1987. (11) However, in light of the official statement and increased media attention, and despite any objections from disagreeing members of the branch, church officials decided adoption services could only be offered in accordance with church teaching. (12)

   Shortly thereafter, Massachusetts Governor Mitt Romney filed a bill allowing for a religious exemption to the state's antidiscrimination laws. (13) The proposed bill did not curtail the functions of any agency allowing adoptions to gay couples. (14) Instead, the bill permitted religious organizations to act in accordance with their doctrinal beliefs, provided they did not discriminate against potential adoptive parents on grounds triggering strict scrutiny judicial review under the federal or state Equal Protection Clauses. (15) The bill received little support from state legislators and organizations supporting gay and lesbian rights. (16) Following the bill's failure, the Catholic Church found itself at an impasse with state laws and decided it could not continue offering adoption services in Massachusetts. (17)

   In the wake of these events, little commentary has focused on the antibias provisions of the Massachusetts adoption laws that essentially forced the Catholic Church to choose between faithful service to its God or to the state. (18) While some may characterize the Catholic Church's beliefs as intolerant and archaic, considerations of religion and morality have long played a judicially recognized role in adoption proceedings. (19) If, in the name of equality, state laws require churches to choose between community service and deep-seated doctrinal beliefs, Massachusetts may see an exodus of faith-based organizations and find its ability to serve the best interests of its needy children severely crippled. (20)

   In Part II, this Note discusses constitutional principles and developments concerning church and state separation as well as Massachusetts state principles of Establishment and Free Exercise. (21) Part II then addresses Massachusetts adoption laws, specifically the roles played by religion and sexual orientation in the best interests of the child standard. (22) Additionally, Part II examines the history of Catholic Charities and its relation to the Catholic Church and its teachings, focusing on adoption services as an essential manifestation of Catholic worship and practice. (23) Finally, Part III argues that an exemption for religious organizations in Massachusetts adoption laws would not violate current principles of the Establishment and Free Exercise Clauses. (24) This Note suggests that by declining to provide an exemption for religious adoption agencies, the Massachusetts legislature has chosen to protect the interests of a small group of potential parents with only a state-created, and not fundamental, right to adoption. (25) Ultimately, this Note concludes that, under the guise of promoting equality, Massachusetts has lost its most successful adoption agency and contravened the central principle of its enacted adoption laws: to serve the best interests of the child. (26)

2. HISTORY

   1. Basic Constitutional Principles of Church and State Separation

      Balancing the influence of religion with the ideals of secular democracy has been a challenge in the development of American law and government. (27) Thomas Jefferson proposed a model of complete disestablishment, envisioning a "wall of separation" whereby religion would remain "solely between a man and his God," and the state would neither aid nor focus its laws toward religious purposes. (28) John Adams took a decidedly different position, proposing a "mild and equitable establishment of religion," in which a state established, by law, an ideal of itself reflecting common values and beliefs. (29) In other words, Adams believed a state could not disestablish itself from religion and morality because they alone "establish the principles upon which freedom can securely stand." (30) Ultimately, neither complete disestablishment, nor mild establishment received full acceptance. (31) Nonetheless, the federal and state governments have historically acknowledged and endorsed religious beliefs. (32)

      The United States Supreme Court took a more forceful approach to separation of church and state when it joined the First Amendment religion clauses to the Fourteenth Amendment's Due Process Clause. (33) In Cantwell v. Connecticut, (34) the Court struck down a state law requiring procurement of a license to solicit aid in support of one's religion. (35) The Court stated that the liberty protected by the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment, combining freedom to believe and freedom to act. (36)

      Similarly, Everson v. Board of Education (37) firmly applied the Establishment Clause against state laws. (38) Here, the Court upheld a state law providing reimbursement to parents of school--related transportation expenses regardless of whether the school was public or parochial. (39) The majority opinion invoked Jefferson's "wall of separation" language, indicating both state and federal governments must maintain strict religious neutrality, taking care not to favor or dissuade belief in any one religion. (40) Nonetheless, despite their strong separationist attitude, the majority did not want to prohibit a state from extending its general laws to all citizens regardless of their religious beliefs. (41) Because the law applied generally to aid all parents in getting their children to school, and because the state did not contribute any money or support directly to the parochial schools, the Court did not find a breach in the wall of separation. (42)

      More recently, the Court held that a law restricting religious practice does not need to be justified by a compelling governmental interest if it is neutral and generally applied. (43) In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (44) the Court affirmed the ability of states to pass neutral laws resulting in restriction of religious practices, and also held that, though a law may be facially neutral and generally applicable, it must satisfy strict scrutiny if it singles out religious conduct for restriction. (45) Here, the Court struck down an ordinance prohibiting animal sacrifices in public and private rituals because the ordinance's central purpose was to restrict the Santeria religion. (46) Though the text of the statute appeared neutral and did not single out the Santeria religion, the Court looked to the "real operation" of the ordinance as evidence of its purpose. (47) Despite legitimate governmental concerns regarding animal sacrifice, the design of the ordinance resulted in a "religious gerrymander," only functioning to curb actions of Santeria devotees. (48)

      On the other hand, the Court reached a different conclusion in Locke v. Davey, (49) upholding a state scholarship program which restricted use of state scholarship funds to nontheological degrees. (50) The Court distinguished the scholarship program from the ordinances in Lukumi because the scholarship program neither imposed criminal or civil sanctions on religious services or rites, nor required students to choose between receiving a government benefit and following their religious beliefs. (51) The majority stated that the treatment of religious vocational education reflected federal and state views favoring free exercise while opposing establishment and did "not evidence ... hostility toward religion." (52)

      In Mitchell v. Helms, (53) the Court examined whether the...