Will Love Win Again: When Religious Organizations, Government Subsidies, Adoption and the Establishment Clause Collide?

29 Pages Posted: 6 Feb 2016

See all articles by Rodgrick Hickman

Rodgrick Hickman

University of Mississippi, School of Law, Students

Date Written: February 4, 2016

Abstract

Obergefell v. Hodges, plainly pronounces a clear and definitive ending to a legal battle over same-sex marriage. However, the court left many ongoing questions unanswered. One of those questions being, if marriage is a fundamental right, can religious adoption agencies receiving governmental funding discriminate against same sex couples in adoption decisions.

The First Amendment of the United States Constitution forbids among other things the establishment of a state sponsored religion. The Supreme Court has however, consistently interpreted the Establishment Clause to mean more than that, the Establishment Clause prohibits any law respecting the establishment of religion. Lemon v. Kurtzman, is the Supreme Courts first attempt to lay out a concise test by which to analyze alleged Establishment Clause violations. However, the Lemon test has been far from consistent and has produced a series of other test. Yet, the court has been almost silent on how government subsidies to religious entities effect the application of the Lemon test. This comment argues that the Establishment clause is violated when an agency receives funding from the government and is further allowed to discriminate because of deeply held religious views.

The court has been clear that religion cannot enjoy protections in the form of permissible accommodations that severely burden third parties. The court has also stated that laws that make minority religious practices feel that they are less than majority religions and religious practices cannot withstand the Establishment Clause. Therefore, this article makes the argument that religious adoption agencies receiving government subsidies should not be able to discriminate against same sex couples in adoption decisions because of deeply held religious beliefs because it burdens same sex couple looking to adopt.

Keywords: Same Sex Marriage, Same Sex, Adoption, Establishment Clause, First Ammendment, Same Sex Adoption, Gay Adoption, Religious Organizations, Religious Adoption

Suggested Citation

Hickman, Rodgrick, Will Love Win Again: When Religious Organizations, Government Subsidies, Adoption and the Establishment Clause Collide? (February 4, 2016). Available at SSRN: https://ssrn.com/abstract=2727934 or http://dx.doi.org/10.2139/ssrn.2727934

Rodgrick Hickman (Contact Author)

University of Mississippi, School of Law, Students ( email )

MS 38677
United States

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