Epstein: "Religious Liberty vs. Civil Unions"

Religious Liberty vs. Civil Unions
Richard A. Epstein
Defining Ideas
June 14, 2011

The Illinois Religious Freedom Protection and Civil Union Act, which went into effect on June 1, 2011, grants to same sex couples under state law all the rights of married couples. Passed after much political deliberation, the law was widely hailed as a major step forward for civil liberties in Illinois. On June 7, 2011, Catholic Charities filed a lawsuit, demanding that Illinois allow it to continue to receive public funds in order to run its own programs for foster care and adoption, even though the Church refuses to place children with unmarried gay or heterosexual couples. Catholic Charities has been in business since 1921. The use of state funds helps it care for about 20 percent of foster children in the state of Illinois. In times of financial stress, it is not quite clear who would step up to take Catholic Charities’ place.

The Church initiated the lawsuit after the Office of Illinois Attorney General Lisa Madigan sent a letter to the Catholic Charities Diocese of Springfield on March 8, 2011. The letter insisted that Catholic Charities would no longer be able to participate in the state’s foster care and adoption program so long as its conduct continued to violate the state’s antidiscrimination law by drawing distinctions on the basis of either sexual orientation or marital status.

There is, of course, an evident tension between the new Illinois law and the current lawsuit—a tension between religious liberty and civil unions. Even the law’s title—the Religious Freedom Protection and Civil Union Act—indicates that its drafters had to strike a delicate balance in order to secure its passage. The purpose of the statute is to confer equal dignity and parity under state law to both same-sex and opposite-sex couples in a civil union. The Act contains 27 different subparts dealing with everything from property and probate, to name changes, to surrogate decisions, taxation, welfare benefits, employment regulations, the protection against violence, and much more.

Faculty: 
Richard A. Epstein