“In order to enhance diversity, it was necessary to suppress it,” Walter Olson writes at Overlawyered.com, referring to a transgendered Californian who is suing a Catholic hospital for refusing to perform a breast augmentation procedure. As usual in legal attempts to override religious and moral objections, the plaintiff, Charlene Hastings, cites antidiscrimination law and consumer rights. The state’s Unruh law guarantees full services regardless of one’s sex, race, color, ancestry, or disability. The hospital, Seton Medical Center in Daly City, has not clearly explained its position, but it apparently views breast enlargement in this case as part of a sex-change process that it objects to on moral grounds. In a written statement, a spokeswoman said that the hospital “does not perform surgical procedures contrary to Catholic teaching, for example, abortion, direct euthanasia surgery or any of its related components.” The procedure is elective and surely not an emergency, and there is no shortage of hospitals in the San Francisco area willing to increase the plaintiff’s hormone-assisted breast size. Yet the case is likely to be framed as a bias violation, with little attention paid to the right of voluntary service institutions to operate by their own moral rules.
The 2006 controversy over gay adoptions in Massachusetts is the classic example of how antidiscrimination law is used against religious institutions. In the conventional liberal narrative, the refusal of Boston Catholic Charities to approve gay adoptions was a simple issue of discrimination. Generally absent from the discussion was this question: Under what conditions can the state force churches and religious agencies either to violate their own principles or to quit providing social services altogether?
In effect, Massachusetts used its licensing power to bring the Church to heel—no gay adoptions, no license to conduct any adoptions. Acting on traditional social principles—that one father and one mother are best for children—became bias. Rather than capitulate, Catholic Charities retired from the adoption field after 103 years, leaving other agencies in the state with an enormous new caseload. Catholic Charities had shouldered 31 percent of the state’s special-needs adoptions—children who were abused, neglected, disturbed, or handicapped—almost entirely at its own cost. Very little was at stake for gays wishing to adopt, since all other agencies in the state approved gay adoptions. All gays lost was access to adoption through a Catholic agency.
John Garvey, dean of the Boston College Law School, argues that the most pressing concern should have been religious freedom, not who was right about gay families. “When freedom is at stake, the issue is never whether the claimant is right,” he writes, any more than freedom of the press requires publishers to guarantee that everything they print is true. “Freedom of religion is above all else a protection for ways of life the society views with skepticism or distaste.”
Pressure is increasing on churches and believers to accept dominant secular norms. The pressure includes laws requiring Catholic institutions to provide medical plans offering “morning after” pills to female employees, attempts to force religious hospitals to approve abortions and abortion training, and campus efforts to force Christian evangelical groups to allow sexually active gays into leadership positions.
Jean Bethke Elshtain, a professor of social and political ethics at the University of Chicago Divinity School, calls this establishment pressure “liberal monism.” She means that those who talk the most about diversity and pluralism are often the most willing to mandate that all private and religious institutions conform to one ideological framework. Liberals, she says, are eradicating the differences needed to make tolerance a viable practice. In order to enhance diversity, it is necessary to suppress it.