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Posted at 4:27 PM ET, 12/11/2009

How Catholic Charities could live with gay marriage

By editors

By Nancy D. Polikoff

Catholic Charities is misleading the public about the impact of the D.C. bill authorizing same-sex marriage. It can maintain its city contracts while extending the most important benefits only to the different-sex spouses of its employees, and it does not need an exemption in the legislation to do so. It just needs to follow in the footsteps of Catholic Charities of Maine.

In 2001, Portland passed a law requiring city contractors to give equal benefits to heterosexual spouses and same-sex domestic partners. Catholic Charities refused to sign a contract including such a provision, sued the city and won. Here’s why:

The health and pension benefits offered by private employers are regulated only by federal law, under the Employee Retirement Income Security Act (ERISA). Federal law does not require employers to recognize same-sex domestic partners or spouses, and therefore private employers cannot be compelled to treat same-sex and different-sex couples equally. Nor can non-9discrimination in employee benefits be a condition of receiving a government contract.

Churches are permitted to “opt out” of ERISA. If they do so, they are subject to local law. I do not know whether Catholic Charities of D.C. has opted out, but if it has, it can opt right back in. That’s what Catholic Charities of Maine did. It’s wrong that private employers in states recognizing same-sex couples are allowed to discriminate in their employee benefits programs. But that’s a problem with the federal law, and it has nothing to do with religion.

On a recent radio program, I confronted D.C. Catholic Charities President Edward Orzechowski with the fact that ERISA gives his agency a way out of providing benefits to same-sex spouses. He responded by saying, “We want to abide by all the laws. ..... We don’t want to come under the guise of another law and still believe as others might that we are in violation of local law.” This is nonsense. Private employers can choose whether to grant employee benefits to same-sex couples. That’s the law, and it means that Catholic Charities has no basis for demanding a special religious exemption.

Given the ease with which Catholic Charities can achieve its stated goals — maintaining its city contracts and extending benefits only to different-sex spouses — I have to wonder why it insists that there is an irreconcilable conflict. Two explanations seem plausible. The church may want the most prominent platform possible for both opposing same-sex marriage and urging an overbroad religious exemption; it gets this by threatening to cut social services. Alternatively, Catholic Charities might be planning to cut its programs anyway because they cost the archdiocese so much money, in which case the same-sex marriage bill provides a convenient scapegoat.

Catholic Charities’ other objection — that marriage equality would require it to place adoptive and foster children with same-sex couples — is truly a red herring. D.C. law already outlaws discrimination on the basis of sexual orientation and marital status. The city apparently has looked the other way at Catholic Charities’ discrimination in adoption and might have kept doing so had the agency kept quiet. But the church seems to have gambled that it could get a provision in the current bill exempting it from laws it already violates. It lost. Fortunately, other agencies that don’t discriminate can step in; Council member David A. Catania (I-At Large) determined that last year Catholic Charities handled only six adoptions in conjunction with its city contracts.

I am proud that my city council is standing firm. Now it’s time for widespread acknowledgment that marriage equality in the District creates no justification for Catholic Charities to sever its contractual relationship with the city. Just look at Portland.

The writer is a professor at American University Washington College of Law.

By editors  | December 11, 2009; 4:27 PM ET
Categories:  D.C., HotTopic, same-sex marriage  
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Unfortunately, there ARE a lot of companies and even labor unions that have taken advantage of ERISA to take advantage of same-sex couples. But, as Ms Polikoff has pointed out, it may be scummy but it IS legal. Given the numerous other practices that are both unsavory and criminal that the Catholic Church has actively condoned over the years, I see no reason why it cannot take advantage of what used to be called jesuitry to deny same-sex couples the rights that opposite-sex couples do.

Posted by: edallan | December 12, 2009 2:06 AM | Report abuse

What a bizarre opinion piece. All I have read on these pages is how horrible Catholic Charities are, how they are really not needed, and how their contracts just line their pockets, how criminal they are, and how much better off we would all be without them. Now I read this piece on how to go through legal hoops to retain Catholic Charities' D.C. contracts. Which one is it guys? Do you want these horrible Catholic Charities to go or stay? Why don't you just muster the courage to let them go and do the charities with their own money?

Or is the real agenda you don't want D.C. to step up and pay for the services with tax revenues that you know Catholic Charities performs much more cheaply and effectively. You want to force them to do it your way because you don't want to have to pay for the courage of your own convictions.

Posted by: dspwilson | December 12, 2009 2:18 PM | Report abuse

There is absolutely nothing that bars Catholic Charities from continuing to perform its services without city money.

Posted by: edallan | December 13, 2009 9:49 AM | Report abuse

It is not only bizzare but completely inaccurate.
It really is true: those that can do - those that can't teach.
Go do some basic research teacher.

Posted by: yowza1 | December 13, 2009 3:49 PM | Report abuse

I am afraid that I have to agree with those cited by dspwilson's comment. I think it would be an added benefit of the new marriage law if Catholic Charities were to leave the District. They are not a true charity. They are government contractors who use the opportunity to have the government fund their indoctrination programs. If they want to really practice true charity, they could do it with their own money and continue to discriminate against gay people.

I do have a question, however. Under ERISA, could they discriminate against the spouses of divorcees or of people who have been married in other churches. I.e., marriages that they supposed don't recognize? Probably not. But then the Catholic Church is really lying when they say they have doctrinal reasons for discriminating against gay people. They want to discriminate against gay people just because they dislike gay people.

Posted by: JayJonson | December 14, 2009 9:14 AM | Report abuse

I am hoping that the Catholic Church dies with or without gay marriage.

They should have no say in it. It is not as if they are a government body, or that they have done anything worthy of respect.

Exploring ways to appease a human-rights denying organization is appeasement itself.

Only the gullible follow the Catholic Church.

(Waiting for a goober to point out that there are a billion such gullible people)

Posted by: HumanSimpleton | December 14, 2009 2:25 PM | Report abuse

hmmmm... it always amazes me how people can be upset with how the catholic church runs/deals with people/believes and then in the same note attack catholics for being catholic. gullible, huh. ok.... sure. and you are gullible for believing anything you ever have and continue to believe in for your entire life according to your rationale. i am catholic but that doesn't mean i go along with EVERYTHING they believe. i am a firm believer in human rights, including gays/lesbians having the right to be married and have that marriage acknowledged. period.

everybody has the right to their opinion about the catholic church, of course. but the bottom line is the organization is not called "Charities" or "Human Charities". It's called "Catholic Charities." so you cannot ask them to succomb to their own religious beliefs and teachings. On the other hand they are a social service organization (and suppost to help ALL people), and there in lies the problem.

Catholic church has done nothing worthy of respect?? Well Catholic Charities may have their issues but at this point they have probably hired more people than programs from the Recovery Act (and no, i don't know that for sure but i'm just saying). And aside from the economic issues of today, the # of services they provide particularly in DC are of tremendous amounts.

a goober?? alrighty then.

Posted by: cantsaymyname | December 15, 2009 11:35 AM | Report abuse

There is no doubt in my mind that being able to be with the person you love is a basic human right. But subjecting the Church's employees to ERISA means taking valuable rights away from innocent people. ERISA is a federal law used by insurers and self insureds, like some large corporations and unions, to take away health and pension rights from Employees. It has been used (in H&H Music v. McGann) to take away the very medical benefits a dying AIDS patient needed to fight his disease. Everyday patients in the US are denied healthcare arbitrarily thanks to ERISA. Dying for your rights is noble; killing innocent other people - not so much. Bad idea.

Posted by: rich22314 | December 15, 2009 11:38 AM | Report abuse

rich - Read what ERISA is before you comment.
Before ERISA, millions of employees were legally but wrongfully denied Pension benefits that they had earned. ERISA has singlehandedly provided a federal level of protection for those benefits since 1974.
For welfare plans it allows a large employer with mulitple locations to have one plan of benefits across all state locations and to not be subject to the endless state insurance mandates. The Welfare plans are STILL subject to all federal laws.
You are almost 100% backwards in your comments about what ERISA is and is not. Read up and recomment.

Posted by: yowza1 | December 15, 2009 4:15 PM | Report abuse

Rather than hiding our faces behind or before the constitutional rules or regulations one must purely look thing from the religion/teachings point of view. Acts which are universally accepted when it comes to sexual behavior must be regarded and respected. It is better to look upon the teachings of our Lord Jesus Christ in black and white rather than injecting our own thoughts and pleasures which will only bring shame to the Christian Community all over the world.

Posted by: aftab68 | December 16, 2009 2:52 PM | Report abuse

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