Marriage Licenses and Adoptions: The Newest Targets of Religious Freedom Laws

As a sort of follow up to my recent posts on the Indiana Religious Freedom Restoration Act, I want to take a brief look at the two newest “religious freedom” laws that have been passed, this time in North Carolina and Michigan.

First, let’s look at North Carolina’s law (which Republicans passed and then overrode the Governor’s veto, in part by scheduling the vote at a day and time when many opponents of the bill were going to be absent from the statehouse). Senate Bill 2 amends the provisions of North Carolina’s General Statutes to permit government officials to refuse to do their jobs on the basis of their religious belief. With the enactment of the new law, magistrates (I don’t know if they are appointed or elected) can refuse to solemnize a marriage on the basis of the magistrate’s sincerely held religious objection. Similarly, the register of deeds (who, apparently is responsible for issuing marriage licenses), can refuse to issue a marriage license on the basis of the register’s sincerely held religious objection. Here is the key point: The parts of the statute that authorize these refusals both talk about lawful marriages. In other words, even though the marriage is lawful, the government official can refuse to issue the license or solemnize the marriage.

Just think about that for a minute.

It’s worth noting that the statute doesn’t distinguish between heterosexual or homosexual marriages at all. It only talks about lawful marriages. Thus, under the new North Carolina law, a magistrate who doesn’t think that blacks and whites should be allowed to marry each other, who doesn’t think that Jews and Christians should be allowed to marry each other, who doesn’t think that divorced people should be allowed to remarry, or who doesn’t think that atheists should be able to marry at all, can refuse to solemnize the marriage by simply citing a sincere religious objection.

Do we really want state officials to be able to bring their own religious views into the performance of their duties? If you don’t want to perform lawful marriages for all people, then don’t become a magistrate!

Consider this: As far as I can tell, at least until passage of this new law, North Carolina did not permit a magistrate to refuse to marry a couple when one of the people was, say, a convicted sex offender and the other was the parent of a small child. A register of deeds who saw bruises on a woman’s face couldn’t (I don’t think), say, “Gee, I don’t think that this marriage is a good idea because he beats you.” Ah, but gays? Well, now that is something for which the magistrate or register of deeds should be able to use some independent (religious) judgment, right?

And what will be next? Will the register of deeds be permitted not to record a deed that would allow a black family to move into a white neighborhood? Will a judge be permitted to refuse to issue a divorce decree because his religion prohibits divorce? Will the fire department be permitted to let a mosque burn down because of Islamophobia?

Now, it’s important to note that the North Carolina law does have some important restrictions. First, if a magistrate or register of deeds wants to refuse to solemnize a marriage or issue a license, the official must give a written notice to the local judge and, once the notice is given, that official won’t be able to solemnize any marriages or issue any marriage licenses for six months. And the law includes a provision requiring that another official (through a potentially convoluted process) be made available to solemnize the marriage or issue the license. So this law won’t actually prevent people from getting a marriage license or actually getting married.

But it seems to me that our government — including (or especially) government officials — should be neutral toward religion and toward those who don’t share the prevailing religious view (or the religious view of the official) and should treat all citizens who come before them equally. The religious views of a government official shouldn’t determine the rights (or the ease of exercising rights) available to citizens. Neither the United States nor North Carolina are theocracies where the majority religion is able to dictate to minority religions or where those government officials are able to impose their religious views to prevent or hinder otherwise legal conduct.

On to Michigan…

So which is more important: The welfare of an orphaned child or the religious beliefs of those who care for orphaned children? I hope you answered the former. Unfortunately, Michigan’s Republican legislators apparently chose the caretakers over the children. Public Act 53 (which was signed by the Governor) permits private adoption agencies which are funded by the State of Michigan to refuse to place a child with a prospective adoptive family on the basis of the religious beliefs of the adoption agency.

Trying to balance the needs of children with the religious “needs” of organizations seems like an easy call to me. Even the Michigan legislature recognizes the importance of placing children with loving families:

When it is necessary for a child in this state to be placed with an adoptive or foster family, placing the child in a safe, loving, and supportive home is a paramount goal of this state.

Section 14e(1)(a). Yet, just a few sentences later, the Michigan legislature states

To the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency.

Section 14e(2).

Once again, forget about potential adoptions by same-sex families. Consider, instead, a child placed with a Catholic agency that refuses, on the basis of its religious views, to permit children in its care to be adopted by anyone who isn’t Catholic (even, I suppose, if the child isn’t Catholic). Could that adoption agency refuse to allow the child to be adopted by a woman who had previously been divorced? Or imagine an adoption agency that uses “religion” as a reason not to place white children into black homes (or vice versa). Might a religious adoption agency refuse an adoption to an otherwise qualified couple if that couple refuses to commit to raising the child in a certain religion or to making sure the child attends church each Sunday? Might a Jewish adoption agency refuse an adoption to an otherwise qualified couple if that couple refuses to have a kosher home or to commit to never allowing the child to eat pork or shrimp?

In other words, even though “placing the child in a safe, loving, and supportive home is a paramount goal of this state”, that paramount goal is subordinate to the religious views of adoption agencies.

Michigan really wants to find loving homes for its orphaned children … just so long as the loving homes don’t make some people say “ick!” on the basis of their religious views. And, as I keep noting in these “religious freedom” posts, why should that hypothetical Catholic adoption agency be able to refuse to allow an otherwise qualified same-sex couple adopt a child on the basis of the agency’s religious beliefs if the agency permits adoptions by previously divorced couples or couples who violate other tenets of the agency’s beliefs? Shouldn’t there be a requirement of consistency as opposed to simply deciding that certain groups of prospective parents are out-of-bounds? For my part, I’d really like to hear religious leaders explain why it is better for a child’s welfare to remain in an orphanage or foster care than be placed with a loving family; why the church’s “beliefs” are to be given more weight than the life of the child.

I will note that this law does include a requirement that the agency that refuses the adoption must inform the prospective parents of other agencies from which an adoption might be available. Let’s just hope, for the sake of Michigan’s orphaned children, that those other agencies don’t also decide to refuse adoptions on religious grounds.

The more I look at these sorts of laws, or Indiana’s Religious Freedom Restoration Act, the more they look like the temper tantrum of a petulant child who isn’t getting his way. Oh, perhaps a better way to look at these laws would be to recognize them as a last ditch effort by those who are desperately afraid of change and have an abject fear of those who are different (or think differently). More and more, the proponents of these sorts of laws begin to look like those who used religion as a basis to continue slavery, as a reason to keep women from voting, as a reason to try to keep African Americans from voting, and as a religion to prohibit interracial marriages.

We didn’t let “religious freedom” stop progress or equality then; we shouldn’t allow “religious freedom” stop progress or equality now.