Tuesday, March 1, 2011

Positive Liberty Versus Negative Liberty - UK Foster Parents Case And Gay Rights

The Houston Chronicle on their Religion site is highlighting this UK case. See Discrimination based on religion v. discrimination based on sexual orientation.

I agree with Kate Shellnutt that FOR NOW such a ruling seems bizarre in the USA. I also am not prepared to go well if it happens in the UK then foster parents that do no believe in homosexual acts are not going to be able to have kids here. Lets face it a ton of Christians that believe in the "traditional" viewpoint on that subject adopt kids and are foster parents. I don't for see any replacement for them in the future.

However the 1st amendment might not offer the protection some think .

I go back to my post I did a week ago. See When Did Liberals and Progressives Quit Caring About Conscience .

Let me post this small part of what the Law Prof Said:

A closely related development is a shifting view of professional licenses. Generally the state’s licensing authority has been viewed as a means by which to ensure a provider’s competence. As access to goods and services becomes an essential dimension of meaningful liberty (in progressives’ eyes), there is a stronger justification for viewing licensed providers as quasi-public officials, and the license becomes a means of ensuring that governmental objectives are met.

Progressives are quick to rally to the defense of a student forced to violate her conscience by participating in the pledge of allegiance. Few progressives have rallied to the defense of pharmacists required by state law to sell the morning-after pill. In my view, this is a progressive blind spot that stands in tension with the overarching progressive commitment to freedom from state coercion in matters comprising a person’s moral identity and integrity. Progressives have shown a steady shift in their willingness to accept incursions on conscience in order to further other socially desirable goals. Progressives may eventually come to regret this shift – state power unbounded by conscience protections is not necessarily captive to progressive causes – but so far there is very little indication of remorse. President Obama’s foray into the debate, though certainly not a disastrous turn of events, shows little indication that the partisan presumptions about conscience will change anytime soon

Now I know that occupational licenses and foster parents are different things for the most part. But one cannot but to help to notice that perhaps there is a similarity here in this case.

These children are currently in guard of the State. The state will give guard over these children to foster parents with of course supervision and requirements by the State. Are they not quasi public officials or at least in some ways employees?

I have not done a lot of research on this but I expect radical white Supremacists are not likely approved to be foster parents in most places. "The Bible says the races must be separate" and that is what we teach. Though based on a religious reason I am not sure in the balancing of "rights" and policy the first amendment would come to their aid. I am not saying it should.

Now that seems like a radical extreme example and no doubt it is. However when a quite vocal part of the USA population thinks that all opposition to gay marriage is based on bigotry or is "evil" then it bears watching. To many opposition to gay marriage for instance is JUST LIKE opposition to interracial marriage.

I do not for see such a UK decision in the USA in the immediate future. However if gay marriage is enshrined one day as a fundamental right then well yes you might start seeing this issue in State Courts in certain jurisdictions. It would be the logical consequence of such a action.

In the end in the background of the UK case is the that ever so still controversial U.S. Supreme Court case Bob Jones University v. United States.

Bob Jones University v. United States, 461 U.S. 574 (1983), was a decision by the United States Supreme Court that held that the Internal Revenue Service could, without the approval of the United States Congress, revoke the tax exempt status of organizations that are contrary to established public policy.

Wikipedia's overview of the case is correct when they say that. The problem is when did it exactly become the "Public Policy"of the United States to weigh in on the merits of interracial dating.

True the Court in the Loving case said that the State could not forbid such a marital union .But before Bob Jones it would be hard to find any document establishing that the "public policy" of the United States was to sanction those people that were against it. Again when something is seen as a " Fundamental Right" then a whole new regime of laws come into play to support it.

So why not foster parents?

I am not making an argument in this post of what should be the outcome. Just in 1o to 15 years don't be shocked that such an issue might not be in play here. The issue of State policy on welfare of Children might very well come into conflict with 1st Amendment issues.


Anonymous said...

If you want to make a point, why don't you try learning how to spell correctly, how to complete a sentence and how to actually present facts that explain your viewpoint. This is the worst essay I have ever read. I am not even sure what your viewpoint is!

James H said...

Sorry for the Grammar

My point is that this is a logical extension of making something a Fundamental Right in this case.

Now if it should or should not be made a Fundamental right is not the point. However when something is Fundamental right a whole new regime of laws come in to reinforce it. Coupled with the waives of anti discrimination laws that meet private conduct plus and expansion of positive liberty over negative liberty its bound to happen.

I am just forecasting the likely litigiation