A Matter of Conviction: Moral Clashes over Same-Sex Adoption
Brigham Young University Journal of Public Law, Vol. 22, Issue 2, Article 8
25 Pages Posted: 18 Oct 2018
Date Written: March 1, 2008
In 2004, Michael and Rich Butler sued Adoption.com after it refused to post their profile as prospective parents for viewing by expectant and placing parents. When the Butlers asked the service why it would not post their profile, they were told that Adoption.com ―allow[s] only individuals in an opposite-sex marriages to post profiles. Imagine the Butlers’ shock and dismay. Adoption had been open to same-sex couples in California for years. Not surprisingly, they sued, claiming the refusal violated California’s Unruh Civil Rights Act, which prohibits businesses from discriminating against their customers on a variety of grounds. Adoption.com argued that no laws were violated because the company is domiciled in Arizona, a state which does not prohibit discrimination against people on the basis of marital status or sexual orientation. The parties ultimately reached a settlement that required Adoption.com and related organizations would not post profiles of Californians “unless the service is made equally available to all California residents qualified to adopt.” Put to the choice to make its services available to all or to none, Adoption.com chose to exit the California market. This case tests whether there is a duty to facilitate same-sex adoption or a right to refrain from participating in an adoption. It highlights poignantly what is at stake when we require one party to assist another with a deeply personal and morally freighted matter like same-sex adoption. Some states have long invited same-sex couples to parent, either through adoption or assisted conception. Same-sex couples have filled a void in the lives of tens of thousands of children. These couples have dignitary interests in being treated like any other prospective adoptive parents, and the state and children awaiting adoption have a stake in their ability to adopt as well. On the other hand, this case shows that when an organization or individual asks not to be involved, they sometimes are put to an all-or-nothing choice. For entities like Adoption.com, the price of “saving [one‘s] conscience” takes the form of a lost opportunity to profit in a particular market. This essay seeks to mine the healthcare experience after Roe v. Wade for the lessons it can offer in finding a live-and-let-live solution to moral clashes over same-sex adoption. It seeks to acknowledge the dilemmas facing both organizations and individuals who, as a matter of conviction, feel that they can neither support nor participate in same-sex adoptions. It argues that conscience clauses offer one way to navigate the recurrent but predictable collisions over same-sex adoption. This essay, however, is not about who should be permitted to adopt—it does not address the merits of including same-sex couples among potential parents as this topic is amply explored elsewhere. Instead, this essay asks whether adoption agencies and other professionals should be able to decide whom they will serve.
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