How Catholic Charities could live with gay marriage
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.
| December 11, 2009; 4:27 PM ET
Categories: D.C., HotTopic, same-sex marriage
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