Washington Archdiocese has "deep concerns" over D.C.'s marriage-equality legislation, but are they misplaced?

11/1/09 Catholic News Agency / ADF Alliance Alert:

On October 26th and November 2nd, the D.C. Council's Public Safety and the Judiciary Committee heard testimony on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The Washington Blade reports on the October 26th hearing here.

At the October 26th hearing, the CEO and general counsel of the Washington Archdiocese’s Catholic Charities said that the organization may sue D.C. over the legislation if the Committee fails to expand religious-liberty protections. Yet it's unclear why the Catholic Charities representatives would threaten a lawsuit in this instance, when it would have no less cause to challenge D.C.'s public accommodations law, which appears to bar the organization from discriminating against gays and lesbians.

The Catholic News Agency reports that in written testimony, the "archdiocese voiced 'deep concerns' that the bill would restrict religious freedom if it is passed as drafted" and would jeopardize Catholic Charities' service to the poor. As the archdiocese understands the bill, Catholic Charities may be unable to deny gay and lesbian couples access to adoption placement, "shelter, food, counseling, medical and legal assistance" - services that the organization otherwise provides the general public. I add underscoring to the following legislative language to clarify the nature of the problem:

Notwithstanding any other provision of law, a religious organization, association or society, or a nonprofit organization which is operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, facilities or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage, that is in violation of the entity’s religious beliefs, unless the entity makes such services, accommodations, or goods available for purchase, rental, or use to members of the general public.

D.C.'s Human Rights Act (HRA) protects gays and lesbians against discrimination based on sexual orientation( and marital status), but it has an exemption for religious organizations like Catholic Charities:

§ 1-2503. Exceptions.

(b) Nothing contained in the provisions of this chapter shall be construed to bar any religious or political organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious or political organization, from limiting employment, or sales, or rental of housing accommodations, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by such organization to promote the religious or political principles for which it is established or maintained.

This is the only exception that might apply to Catholic Charities, and it's a stretch to extend the exception to Catholic Charities' specific services. But suppose that the exception did somehow apply. Even then, it might not survive a test of the "notwithstanding any other provision" clause of the quoted marriage-equality bill, if enacted. A court would have to decide whether a law drafted as the bill now reads would prevail over HRA's "exceptions," even if a court broadly interpreted them to apply to Catholic Charities. Regardless of this issue, the bill, as drafted, would bar Catholic Charities from denying public services to married, same-sex couples. It would likely take a First Amendment lawsuit to test whether the organization can discriminate on the basis of marital status.

But why does the Archdiocese limit its "deep concerns" to whether its religious freedom entitles it to discriminate against married, same-sex couples in provision of public services? Even without the proposed marriage-equality law, the Archdiocese should now have the very same concerns about the scope of the HRA, which prohibits discrimination based on sexual orientation. Despite its exceptions, the HRA appears to already bar Catholic Charities, and other licensed service providers, from discriminating against gays and lesbians (and therefore against same-sex couples). So the HRA should also be within the Archdiocese's sights for a First Amendment challenge.

In March 2006, Catholic Charities in the Archdiocese of Boston announced that it was withdrawing adoption services from Massachusetts, because the state's anti-discrimination law would prevent it, and other adoption licensees, from denying these services to gay couples - whether married or not. In fact, the state's public accommodations law (M.G.L. 272, Section 98) has no exemption for religious organizations. In that instance, Catholic Charities decided not to bring a First Amendment lawsuit.