Is It Discrimination To Reject Gay Couples As Adopting Parents?

I’ve felt I’ve been missing something in the row that’s erupted over Catholic, and today Anglican, protests over the supposed fact that the Equality Bill – due to be passed into UK law in April of this year – would require Christian adoption agencies to accept gay couples as potential candidates to adopt a child. I’ve been unable to understand why this was thought to be the case, assuming that a sensible compromise would in practice be implemented, whereby local authorities would just not refer gay couples to Catholic agencies that they worked with in order to pre-empt any conflict of conscience from arising.

If a gay couple for some reason decided to approach a Catholic agency of their own volition, then the agency – after the law has come into effect just as before – is under no obligation to take anyone on if they don’t think they are suitable parents. If the reason that is given for a couple’s unsuitability is that they’re gay, then this would potentially come into conflict with the new law, as far as I can see. But why can’t the reason be given that it’s because the couple are unmarried, and that the Church believes it’s in the best interest for children to be brought up by parents in a stable marriage, an institution which in its view is limited to unions between a man and a woman?

I checked the website of the Catholic Church in this country, which prominently displays the open letter addressed two days ago by the leader of the Church in the UK – Cardinal Cormack Murphy O’Connor – to the government. It appears that it is indeed the policy of the Church that its agency accepts only married couples or, in limited cases, single individuals as potential adopters: single people are sometimes preferred, for instance, if children have been victims of abuse by parents of a particular gender.

So why is there a problem about stating that couples are not being rejected for adoption because they’re gay (which would be discriminatory under the terms of the law) but because they’re unmarried? That would be no more nor less discriminatory than under the prevailing legislation, and a strong argument could be made that the policy reflected the Church’s view about what was in the child’s best interests. And it’s these interests that should ultimately be paramount, something which is often lost from view in all the arguments centring on adopters’ rights.

Part of the problem appears to be political. Adoption is being used as another ‘test case’ for the bill in the same way that the right for hoteliers and B&B owners to turn away gay couples was advanced two weeks ago as an illustration of how the new law supposedly violates Christians’ freedom of conscience. In both cases, the examples in practice appear not to add up: Christian adoption agencies wouldn’t be obliged to take on gay couples because they could say they consider only married couples; Christian guest-house owners – before and after the new law is passed – wouldn’t be obliged to accept anybody they might consider unsuitable if it’s their property they’re denying access to – and on grounds of consistency, they ought to turn away unmarried straight couples for the same moral reasons. So these arguments are being brought forward as emotive, rhetorical illustrations of a conflict of conscience that in practice should hardly arise, in order to apply pressure for exemptions to be granted or modifications to be made to the bill.

However, on further examination, there does seem to be a more fundamental issue. As stated above, the Church on occasions accepts single people as adoptive parents. Gay individuals – whether in a relationship or not – are by definition single, according to the Church, which regards the idea of gay marriage as invalid. Therefore, it is conceivable that a gay person who approached a Catholic adoption agency on an individual basis – but who happened to also be in a stable relationship – could claim that (s)he was being discriminated against on the grounds of sexual orientation if (s)he was not taken on by the agency. By referring to gay couples rather than gay individuals in the letter, the Cardinal is distracting attention from this issue. But it’s ambiguous situations such as this that make it necessary for Christian agencies to be granted an exemption because then they are allowed in law to make sexuality an explicit reason for rejecting an application to become an adoptive parent.

So much for gay individuals. But another fundamental logical and philosophical / theological issue that appears to be at the heart of all this is the question of gay marriage. If it’s accepted that it’s discriminatory for gay individuals or couples to be denied access to goods and services on grounds of sexual orientation, then on principle it could also be held to be discriminatory that gay people were denied the right to marry. If gay marriage came into law, this would make it much more difficult for the Church to employ the argument set out above: that they accepted only married couples as adopting parents. This is why the Cardinal’s letter makes great play of the traditional Catholic concepts of marriage as essentially a union between a man and a woman, which creates the context in which a child can be most fully nurtured and brought up happy and secure. And this provides another explanation for the need for Church agencies to be granted an exemption that explicitly refers to a couple’s sexuality and gender as the reason for their not being accepted, rather than their marital status.

So what we have here are the opening salvos in a battle whose ultimate stake is the status and future of marriage itself. The examples of conflicts of conscience affecting hoteliers and adoption agencies only really make sense in this conflict: gay couples can be turned away without any legal consequences if that’s all they are – unmarried couples, disapproved of for that reason. But if gay marriage came into law, then it would be necessary to state explicitly that the reason for those couples being rejected was that they were gay.

But the fundamental question remains: is it discriminatory – in fact rather than in law – to reject gay individuals or couples as adopting parents because they’re in a gay relationship? And secondly, is it discriminatory to deny gay couples the opportunity to get married? I refer to rejecting gay people as adopters ‘because they’re in a gay relationship’, rather than ‘because they’re gay’, because it would surely be both discriminatory and contrary to Catholic teachings to dismiss single persons as adopters because of their sexual orientation: the Church does not teach that it’s wrong to be gay but only that it’s wrong to have gay sex; and, as stated above, it does consider single people as adoptive parents in particular circumstances.

I do not in fact think that it is discriminatory for the Church to uphold a particular ideal of the family into which they seek to place children through adoption. That’s being true to their faith mission and to their duty of care to the children as they see it. But, by the same token, one could say that this rule presupposes exceptions, or should I call them exemptions? In other words, there might be cases in which even Catholic adoption agencies could take the view that it would be in the best interests of a child to allow him / her to be adopted by a gay parent – even one in a relationship – if, for instance, the adopting parent were already that child’s main carer and they’d established a loving relationship. The Church, it seems to me, neatly side-steps these conflicts of conscience by referring such individuals or couples to agencies that will take them on. And Catholic adoption agencies must come across hundreds of similar cases where what appears to be in the best interests of the child does not quite fit the Catholic model of the perfect family. Perhaps the Church’s position would look a little less discriminatory if its agencies were allowed to show a little more discrimination (discernment) in differentiating between unsuitable and suitable gay individuals or unmarried couples (gay or straight) that might in fact make wonderful adoptive parents.

On the question of gay marriage as a case of principle – rather than as something that might cause practical problems when attempting to deny services to gay couples – I don’t think any credible case can be made out for regarding the Church’s denial of marriage to gay people as discriminatory. The Church takes a particular view, which is not that of the state and the law, about what marriage is and to whom it is available; and nothing would change about that if gay marriage was introduced as a civil institution. However, what the introduction of gay marriage would require would be a re-examination and re-formulation of what marriage means for secular society today, and in particular what rights and responsibilities towards others it should involve. One of those rights arguably being the right to adopt, so long as one is likely to make a good parent. In this context, the Church needs to examine the implications of what it is saying about gay people and parenthood. Are they in fact implying that gay people per se can’t be proper parents, in the psychological and spiritual sense of parenting that’s at stake in adoption?

In a forthcoming blog, I aim to discuss how we might redefine the institution of civil marriage, in part to take account of gay marriage.