Just HOW BAD is Romney’s gay adoption bill?

It is SO BAD that even in the incredibly unlikely event that it were to become law, it might not give the bishops what they want.

Why is that?  Let’s look at what this ghastly bill actually says (pdf).  (I called the Governor’s office to get a copy, but they wouldn’t supply one.  Fortunately, the good people at GLAD were kind enough to assist.)  The bill would add the following language at several points in the relevant statutes (emphasis mine):

Notwithstanding the provisions of any general or special law, regulation or requirement to the contrary, it shall be lawful for any religious or denominational institution or organization, or any organization operated for charitable or educational purposes which is operated, supervised or controlled by or in connection with a religious organization, to take any action with respect to the provision of adoption or foster placement services which is calculated by such organization to promote its religious principles and which does not discriminate among prospective adoptive parents on the basis of race, creed, national origin, gender, handicap or any other classification triggering judicial review under a strict scrutiny analysis under either the Equal Protection Clause of the United States Constitution or the Constitution of the Commonwealth.

I know, it’s a lot of legal mumbo-jumbo.  For present purposes, the only parts that matter are the ones shown in bold (the fact that the bill would prohibit discrimination based on “creed” renders it a transparent exercise in gay-bashing, but I’ve already talked about that).

First, the exemption applies only to activities that are “calculated” to “promote” the religious principles of the organization seeking an exemption.  Let’s assume that placing a child with a gay couple might be contrary to a Catholic adoption agency’s religious principles.  That, to me, is not at all the same thing as saying that not placing a child with a gay couple actually promotes Catholic principles, much less that it is “calculated” to do so.  Someone with more knowledge about Catholic doctrine should feel free to correct me, but I find it hard to imagine that those who shape Catholic doctrine sit around “calculating” that a good way to “promote” Catholicism is to not place kids with gay couples.  It seems completely topsy-turvy to me, and a judge reading this language literally (as judges are wont to do) should insist on a showing that the activity in question actually promoted religious principles, not that the opposite of the activity was contrary to those principles – the two are not the same.

Perhaps more important is the second passage shown in bold, which says that the exemption is not available for any “classification triggering judicial review under a strict scrutiny analysis” under either the federal or state Constitution.  “Strict scrutiny,” for those of you unfamiliar with the minutiae of constitutional law, is a very exacting standard of review that is applied to certain highly suspect classifications – most commonly, those involving race.  (Several major Supreme Court cases have been about whether affirmative action, because it involves race-based classifications, should be analyzed under “strict scrutiny.”)

The “strict scrutiny” language in this bill is a huge blunder by Romney’s crack legal team for two reasons.  First, it’s a tactical blunder.  By stating that discrimination on the basis of classifications that trigger “strict scrutiny” is forbidden, the bill leaves it up to the courts to decide which kinds of discrimination are OK and which are not – but I thought the whole point of this bill was to create a legislative exemption from the state anti-discrimination laws.  Moreover, by saying that a classification triggering “strict scrutiny” under the state as well as the federal Constitution cannot be the basis for discrimination, the bill leaves it up to the Massachusetts Supreme Judicial Court – the same court that decided Goodridge – to decide whether it’s OK for religious adoption agencies to discriminate on the basis of sexual orientation.  If this bill became law and the SJC decided the following week that discrimination based on sexual orientation should be analyzed under strict scrutiny – which is assuredly not out of the question – that’d be the end of the bishops’ exemption.

Second, it’s a philosophical blunder.  Romney’s filing letter declares it “a prerequisite to the preservation of liberty, that government not dictate to religious institutions the moral principles by which they are to carry out their charitable and divine mission.”  Nice words.  But of course, the bill does precisely the opposite – it gives to the courts, rather than to religious organizations (or, for that matter, to the legislature or the executive branch, which would at least be somewhat predictable), the power to decide when a religious organization may or may not discriminate.

Luckily for Romney, this bill apparently has no hope of going anywhere, so these pitfalls are likely never to come to pass.  Nonetheless, I find it amusing that his big sop to the bishops is so incredibly poorly drawn.

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