On Friday, the Department of Health and Human Services proposed to rescind some regulations issued in the final days of the Obama administration that required recipients of HHS program funds to observe nondiscrimination on the basis of sexual orientation and gender identity.
The move, which now enters a public comment period, is being covered in the press as an issue of religious accommodation: should church‐affiliated agencies be allowed to participate in federally funded adoption and foster care placements even if they decline to serve same‐sex couples as clients? And that is indeed one of the hotly contested issues.
But it is worth a moment to examine how the latest HHS initiative might also be grounded in two other values, the rule of law and pluralism, including that characteristically American contribution to pluralism known as federalism.
From the start, the Obama regulations had a problem, which was that they proposed to enforce as regulation a body of federal law that… doesn’t exist. Congress has had many chances to attach funding strings of this sort requiring LGBT nondiscrimination of federal aid recipients. It hasn’t done so.
Likewise, the Supreme Court could have taken some of the principles involved in Obergefell and run with them to develop follow‐on doctrines about government expenditures. It hasn’t. So on what basis does a federal department begin enforcing such rules anyway? Because appointees decide it would be a nice idea? (The rules apply to a range of HHS programs including elder care, refugee resettlement, youth services, and others.)
As I emphasized in my remarks at Cato’s conference on these topics last year, adoption has flourished in the United States in part because there is no centralized national legal regime governing it. Instead, the tone has been “relatively decentralized and pluralist,” with a “wide variety of both private and public actors helping to match children with families.”
That leaves room for, at present, a wide range of local approaches; some states and localities, like Massachusetts and Philadelphia, enforce strict anti‐discrimination rules even if that means that some long‐established religious agencies that are proficient at their jobs drop out. Other states and localities are highly accommodating to religious objectors. The Obama rules do not quite manage to impose uniformity since some corners of the child welfare world still escape the federal dollar, but they are a big step in that direction.
Then there is the question of what is in the best interest of kids needing placement. Both sides express sincere interest in this, but the arguments are often made by simple assertion. Quoted in this CNN account, for example, an officer with the Family Equality Council says rescinding the Obama rule will “allow child‐placing agencies to reduce the pool of qualified potential foster and adoptive parents.”
Yet opponents can counter by rewording that formula only slightly: leaving the Obama rule in place would reduce the pool of child‐placing agencies that recruit and serve qualified potential foster and adoptive parents. (So far as I know, in every state there are agencies that participate in public adoption and foster care placement that are happy to work with gay parents.)
This weekend, after months of animated and often vicious campaigning, Slovaks will vote in a referendum on same‐sex marriage, adoptions, and sex education. Interestingly, the referendum has not been initiated by the proponents of gay rights, which are not particularly numerous or well‐organized, but rather by the social‐conservative group Alliance for Family. The goal is to preempt moves towards the legalization of same‐sex unions and of child adoptions by gay couples by banning them before they become a salient issue. Overturning the results of a binding referendum would then require a parliamentary supermajority and would only come at a sizeable political cost.
However, in spite of all the heated rhetoric, it seems unlikely that the threshold for the referendum’s validity will be met. Also, as I wrote in International New York Times some time ago, Slovakia is slowly becoming a more open, tolerant place – something that the referendum will hopefully not undo. However,
[i]n the meantime, the mean‐spirited campaigning and frequent disparaging remarks about gays and their “condition” are a poor substitute for serious policy discussions and are making the country a much less pleasant place, and not just for its gay population.
Another disconcerting aspect of the referendum is its geopolitical dimension. For some of the campaigners a rejection of gay rights goes hand in hand with a rejection of what they see as the morally decadent West:
Former Prime Minister Jan Carnogursky, a former Catholic dissident and an outspoken supporter of the referendum, noted recently that “in Russia, one would not even have to campaign for this — over there, the protection of traditional Christian values is an integral part of government policy” and warned against the “gender ideology” exported from the United States.
We will see very soon whether the ongoing cultural war was just a blip in Central Europe’s history or whether it will leave a bitter aftertaste for years to come. Here is my essay on the referendum, written for V4 Revue. I also wrote about the referendum in Slovak, for the weekly Tyzden (paywalled), and discuss it in a video with Pavol Demes (in Slovak).
When Congress passed legislation this month establishing permanent normal trade relations with Russia, it included travel and financial sanctions against Russians accused of gross human rights violations, particularly those involved in the suspicious death of anti‐corruption whistleblower Sergei Magnitsky. At the time, I counseled against “poking Russian officials in the eye with sanctions.” The Russian legislature is currently contemplating its response to that poke, and it doesn’t look good.
Having made clear its intention to retaliate in some way for the Magnitsky bill, which it deemed a national insult and intrusion into domestic affairs, Russia has decided to target America’s own human rights abusers — adoptive parents of Russian orphans. Russian media have been fueling a controversy over abuse by American parents of adopted Russian children, and the Magnitsky bill gave the legislature in Moscow an opportunity to kill two birds with one stone. At first, Russian leaders called for a travel ban on specific people accused of abuse in an obvious parallel to the U.S. sanctions. The current proposal under consideration is to ban all adoptions by American citizens.
Russia has an impressive surplus of orphans and is one the most common countries of origin for international adoptions in the United States. Thousands of children will be denied access to loving families. Not all the blame lies with Congress and its attempt to be a global human rights cop, but the end surely condemns the means.