Head Start Leader: What number is this, Jeffrey?

Child: Six?

Leader: Six, good job.

BOB FAW, correspondent: Thousands of children in Illinois have been helped the last five decades by Catholic Charities. In Joliet, for example, the agency runs this Head Start program. It also shelters and nourishes children in need. Of 15,000 in the state’s foster care program, the agency takes care of more than 2000. Now though, as director Glenn Van Cura knows, Catholic Charities is in a bitter legal dispute with the state because when it comes to fostering or adopting children, the organization will take married and single people but will not accept same-sex or unmarried couples.

Wedding ceremony: I now pronounce you husband and husband and wife and wife.

GLENN VAN CURA (Executive Director, Catholic Charities Diocese of Joliet): The idea between a man and a woman and marriage is a sacred bond, and cohabiting, gay or straight—that’s not that sacred bond. It’s not stable.

FAW: It’s in violation of church doctrine?

VAN CURA: Right.

ROBERT GILLIGAN (Executive Director, Catholic Conference of Illinois): We will continue to say that children are best raised in the situation where there is a loving home and a mother and a father, and that will be true as long as we’re able here to articulate it. It’s the truth, and that’s what the church is about is trying to speak the truth to these very sometimes controversial social questions.

FAW: Last year Illinois enacted a law recognizing same-sex unions. Now couples like Michelle Mascaro and Corynne Romine have the right to foster or adopt children.

MICHELLE MASCARO: The church can decide whether or not they want to marry a couple. That’s a church religious right, but the state has created ways for families to come together, and they’ve said, you know, that you can come together through adoption, and it doesn’t matter what that family constellation looks like. Are you fit to be a parent?

FAW: Does it anger you, what’s—because that clearly is…..

CORYNNE ROMINE: It doesn’t make me feel second-rate, because I’m not. It does make me angry, yes.

Mascaro (speaking to children): Okay, David, it is going to be your turn…

FAW: Michelle and Corynne have adopted three children, David, Joseph, and Emma. Because Emma was adopted through a religious agency, the two women felt they had to hide their true relationship.

MASCARO: And they might say no, you can’t have this baby who was our baby. You know, she came right from the hospital home with us.

FAW: Catholic Charities says it’s a matter of religious freedom and that if civil law and church doctrine collide doctrine takes precedence and gives it the right to discriminate. Bob Gilligan is with the Catholic Conference of Illinois, which is the public voice of the Catholic Church in the state.

(speaking to Robert Gilligan): When it comes to gay couples, then, they are excluded. Is that not discrimination?

GILLIGAN: There is a form of discrimination there, sure. We don’t accept the application of an admittedly unmarried or same-sex couple.

FAW: Now the state of Illinois is in the process of cutting off the nearly $4 million it funnels annually to Catholic Charities because it says discrimination against gay or unmarried couples who want foster children is illegal and short-sighted. Kendall Marlowe is with the Illinois Department of Children and Family Services.

KENDALL MARLOWE (Deputy Communications Director): I grew up in a family that took in foster children, and I’ve been a foster and an adoptive parent myself as an adult, and if I’ve learned anything it’s that what helps a child succeed is that unconditional love and guidance, and in both my experience and in the research literature that has been produced on this issue, there’s no indication that sexuality, sexual orientation has anything to do with parenting.

FAW: Child advocate from the ACLU Benjamin Wolf insists Catholic Charities’ policy harms children.

BENJAMIN WOLF (Associate Legal Director, ACLU of Illinois): We need everybody. It’s hard enough to provide good homes for abused and neglected children without imposing additional discrimination on the pool of foster parents.

VAN CURA: There’s not one example that they can show that a child has not been placed in a home.

GILLIGAN: They’re not excluded. There’s 47 other private child welfare agencies in the state. There’s many other agencies that they can go to.

MASCARO: It’s not okay to say to people like us if we lived in a part of southern Illinois or in Peoria to say, oh, you can go to some other agency, because Catholic Charities has the lock on it. They’re the only agency out there.

FAW: Despite the fervently held beliefs on each side, the legal situation is anything but clear-cut. Catholic Charities, for example, argues that the Illinois law on religious freedom permits the agency to discriminate.

GILLIGAN: The title of the bill is the Illinois Religious Freedom Protection and Civil Unions Act. Where’s the freedom? Where is the protection for religious entities? It’s in the bill itself. There’s a section in there that says that the bill should not infringe upon religious practice, religious ministry.

MARLOWE: Every faith-based organization in the state of Illinois has the full capacity and the full right to pursue their religious freedom. The question is what happens when you are paid with taxpayers’ money, state money, to provide state services? And in those cases we have to insist that those agencies comply with Illinois law.

FAW: Catholic Charities of Illinois has placed thousands of children in homes over the past 50 years. Eighty percent of its foster-care budget comes from the state. Even if it loses that money, says Bob Gilligan, Catholic Charities will continue with adoption and foster care.

GILLIGAN: It’s part of our mission, it’s part of our teachings, it’s part of what we do as Catholics. But we have to do it in honoring our own tenets and our faith that call us to do this. If we can’t do it in a faith-filled mission, then we can’t do it using public money. We’ll do on our own terms.

MARLOWE: We don’t want to see them leave this work. But if that is what’s going to happen, the Illinois child welfare system that they helped build is more than capable of taking on this transition. There are other agencies bound by the exact same regulations that Catholic Charities is that are ready to step up and take on this work.

FAW: Gay adoptive parents like Michelle and Corynne think that history is on their side, that eventually Catholic Charities’ policy of exclusion will go the way of earlier social practices, like the 1950s when black Americans were denied public accommodations.

MASCARO: It harkens back to just say you can’t eat in this lunch counter, go eat at one down the street. We know that in every other aspect that’s not right. It’s not legal. It’s not sanctioned in this country. Why is it still allowed or could it be allowed in adoption? This is an abuse of what they perceive as their religious freedom.

WOLF: There were agencies 30 years ago, 20 years ago, that didn’t want to place children in homes of interracial couples. I mean, the world is changing.

FAW: So the issue in Illinois, now focused on gay couples, comes down to this: when anti-discrimination laws and church doctrine clash, which should prevail?

GILLIGAN: This is an emerging conflict in our society. As you enact antidiscrimination laws, to what degree does a religious institution have to comply with it? We do a lot of things in the public square. Is the Catholic Church in compliance with all the rules and policies and laws of the state if we won’t do certain things against our conscience? It’s a good question.

FAW: And as the definition of the modern family continues to change, will church doctrine also have to change?

For Religion & Ethics NewsWeekly, this is Bob Faw in Chicago.

DEBORAH POTTER, guest anchor: As we mentioned earlier, another presidential nominee is in the spotlight this week, Sonia Sotomayor. The news of her nomination to the Supreme Court has dominated headlines, along with the California Supreme Court’s decision to uphold a ban on same-sex marriages. Joining us now to discuss those stories are Dan Gilgoff, senior writer at U.S. News & World Report, and Tod Lindberg, research fellow at the Hoover Institution. Welcome to both of you. Dan, you’ve described the nominee’s record on abortion as “inscrutable.” What do we know about her record on that particular issue?

DAN GILGOFF (Senior Writer, U.S. News & World Report): Not much. She’s ruled on a handful of cases related to abortion, but none of them directly related to Roe v. Wade. The one case that some in the pro-life community are citing as a hopeful sign for their cause is that she ruled against plaintiffs who are seeking to overturn the Mexico City policy, which bans federal funds from going to family-planning providers abroad that either endorse or promote abortion. Other than that she seems to be, you know, a black box on this issue, which is kind of fitting, because David Souter, the justice who she’s replacing, was also promised to be a conservative when George H.W. Bush appointed him to the Court in 1990, then of course voted to uphold Roe v. Wade a couple of years later. And so what’s happening this week is that some abortion rights groups are getting rather nervous. That’s kind of unexpected.

Dan Gilgoff

POTTER: Well, Tod, is this actually good news for conservatives who may have been concerned that the president would nominate a true liberal to the Court?

TOD LINDBERG (Research Fellow, Hoover Institution, Washington, DC): Well, I think that it’s still very much up in the air. It’s hard to see at this point. We all know that people who are hoping to be nominated to the Supreme Court are very cautious about what they say in their private lives and in their public writings, apart from what they are doing on the bench with regard to the abortion issue. I know people who aspire to be judges who would tell you, “I would absolutely never discuss that with you” for that precise reason. You want to be opaque, because if you have a position, I mean a discernable position, then you put yourself at substantially greater political risk. It’s kind of kabuki drama in its own way, but it’s one that we’ve been playing in Washington for a long time.

POTTER: And yet Hispanic voters traditionally are sort of much more anti-abortion than the rest of, say, the Democratic electorate. Is that — does that give you any clues, that fact that she’s Hispanic?

Mr. LINDBERG: You know, you’re talking about making a conclusion based on statistical evidence, polling, etc. and applying it to a particular person. It’s just not going to work for us. We’re not going to be able to know that. The test will be once she’s confirmed, and I think everybody assumes that she will be, when the cases arrive.

POTTER: Dan, what do we know about her record on issues of religious freedom, separation of church and state — other issues that really matter to voters of faith groups?

Mr. GILGOFF: Well, we know that she has a record of siding with those who are alleging violations of their religious liberty. And I think that’s been another bright spot for conservatives. It’s interesting in that conservatives came out roundly against her as soon as her nomination was announced this week, and at the same time, I mean, in the analysis that they were releasing before Obama made his choice, she kind of received the warmest treatment. And I think some of that was because of her rulings over the religious liberty cases.

Mr. LINDBERG: I think you’d also have to draw the distinction between the conservative commentary crowd and actually the members of the Senate, who have taken a very cautious view of this. I mean they promised, the Republicans promised full scrutiny, full assessment, but certainly no one has leapt out to be an opposition figure. Certainly no one has said this nominee is unacceptable where it really matters, which is in the Senate.

POTTER: So the presumption at this point is that she will be confirmed?

Tod Lindberg

Mr. LINDBERG: I think the presumption is exactly that, in the absence of some unknown, unexpected revelation or disclosure.

POTTER: And that would leave us with six justices out of the nine being Catholics for the very first time. Is that important? Does that have significance?

Mr. GILGOFF: I think that it really speaks to the diversity ideologically of the Catholic community in this country. I mean, you talk as though, or people talk as though there’s a Catholic voting bloc, for instance. But Catholics really have voted for every winning president going back to Richard Nixon, and so it’s hard to see them — you know, they’re conservative Catholics and liberal Catholics — as a distinct bloc. But so far on the Court they’ve supplied the conservative side — the [five] Catholics are voting with the conservatives on the Court. So what I think this will do is kind of reflect more broadly the Catholic diversity that exists in the country on the Court. I also think it tells us something important about the administration politically in that they’ve taken the Catholic community very seriously. This is really a nod — Sotomayor — to the new Latino complexion of the United States. I mean, the Catholic Church is losing, you know, four Catholics for every person that’s signing up for the Church, and if it wasn’t for this huge infusion of immigration, the Church would have a real problem on its hands, and I think they’re really acknowledging that in this pick.

Mr. LINDBERG: I think the conclusion that we have to draw from this six-out-of-nine thing is that Catholic is always a plus in terms of your political calculation of who you are going to put on the Court.

POTTER: Now, let’s talk a little bit about the ruling in California that upheld a ban on same-sex marriage there.The Republicans, I gather, put out some talking points this week on Sotomayor, and one of their talking points was that she could impose a federal right to same-sex marriage. Does that have the chance of holding water, that argument, or no?

Mr. GILGOFF: I don’t think so, and I also think that the timing of this is actually very serendipitous for the White House. There was even some speculation that the White House expedited the announcement of Sotomayor to get ahead of the California Supreme Court ruling, because had the California Supreme Court struck down Proposition 8 you would have had this conservative uproar, largely directed at the Court, saying this is really the threat. The threat is that there will be Court-imposed same-sex marriage.

POTTER: Activist judges?

Mr. GILGOFF: Exactly. And so I think that the California Supreme Court ruling was really a lucky break for the Obama Administration in getting, you know, in sort of clearing a path for Sotomayor.

POTTER: What do you make of the next steps for the opponents of same-sex marriage? What do they do now? Where is their next step?

Mr. LINDBERG: Well, you know, I think there will be a continuation of initiative kind of processes. It is also interesting to look at what, you know, the next steps for the proponents are going to be. I think there’s a pretty strong indication that they do not want this matter, really, in the federal courts at this point. They would rather spend some time building up a case both politically and in terms of kind of the state court rulings that they’re able to obtain with the hope that California is more of an outlier than an indication of the trend, and take that then eventually into the federal courts. So I think, you know, conservatives will be looking to try to win in state courts where possible to show, however strongly, you know, the emotions run on this issue, that there is a principled case for defense of marriage as between a man and a woman, and that that is where most of the American people are.

POTTER: Are the statutes in the 29 states that have already banned same-sex marriage basically safe, because you’d have to go after them through some kind of referendum process, which is really hard to do?

Mr. LINDBERG: Well, safe is — no. I mean, I think if there’s ever a majority on the Supreme Court that wants to change the law on this then those statutes are precisely not safe, and I think that everybody’s aware of that and what the stakes are. But, you know, what I don’t see is a quick resolution of this issue. I think it’s one that unfolds over possibly ten years or maybe longer.

POTTER: Alright, thank you both very much. Thank you to Tod and thank you to Dan for joining us for that conversation.