“In order to enhance diversity it was necessary to suppress it,” Walter Olson wrote on Overlawyered.com. His reference was to a suit filed by 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, is citing anti-discrimination law and consumer rights. The state’s Unruh law guarantees full services regardless of 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 it objects to on moral grounds. In a written statement, a spokeswoman said the medical center “does not perform surgical procedures contrary to Catholic teaching, for example, abortion, direct euthanasia surgery or any of its related components.”
One blogger wrote: “I’ve gone over the Constitution and haven’t found the right for a transsexual to get breasts at a Catholic hospital.” The procedure is elective, 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 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 anti-discrimination law is used against religious institutions. In the conventional liberal narrative, the refusal of Boston’s Catholic Charities to approve gay adoptions was a simple issue of discrimination. The other frame, generally absent from the discussion, raised this question: Under what conditions can the state force churches and religious agencies to either violate their own principles or quit providing social services altogether?
In effect, the state used its licensing power to bring the Church to heel—no gay adoptions, no license to conduct any adoptions in Massachusetts. Acting on traditional social principles—that one father and one mother are best for children—was defined as bias. So rather than capitulate to the state, Catholic Charities retired from the adoption field after 103 years, leaving other agencies in the state with an enormous new caseload. Catholic Charities had been shouldering 31 percent of the state’s special needs adoptions, children who are abused, neglected, disturbed or handicapped, almost entirely at its own cost. Very little was at stake for gays wishing to adopt. All other agencies in the state approve 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 issue isn't whether the church or the state has the better of the debate over gay families; the issue is religious freedom. "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 , professor of social and political ethics at the University of Chicago Divinity School, calls this establishment pressure “liberal monism.” She means that the people who talk the most about diversity and pluralism are often the most willing to mandate that all private and religious institutions conform to one particular ideological framework. She says liberals are eradicating the differences needed to make tolerance a viable practice. In order to enhance diversity, it is necessary to suppress it.