The San Francisco Solution

Copyright (c) 1997 First Things 75 (August/September 1997): 17-19.

In a pair of side-by-side op-ed pieces last April, the San Francisco Chronicle presented a double critique of the "compromise" worked out to allow the Archdiocese to comply with a new city ordinance that requires any business or agency doing business with the city to offer to domestic partners the same benefits it offers to spouses.

In one column a local Catholic chastised me for compromising Catholic moral principles by "blurring the definition of spousal benefits, [recognizing] a morally deviant relationship, and legitimizing domestic partnership by silently funding it." In the other, a local gay man lamented that our agreement allows "opponents of domestic partnerships to avoid recognizing such unions altogether, leaving same-sex couples back where they started---in a society that does not give their relationship the same standing that married heterosexuals have."

These vastly different perspectives illustrate the importance of context when looking at an issue, and the difficulty of providing an adequate explanation---or a justification, or even a moral evaluation—in today’s sound-bite spaces. In San Francisco, another context is relevant too. It is estimated that about 15 percent of the population is homosexual. When rallied to a cause, they represent far more than 15 percent of the vote and the political clout in this city. It is a given in San Francisco, I am told, that politicians concerned about their future weigh very carefully the impact of their speech and actions on the gay and lesbian voters.

In a city-wide referendum in 1990, San Francisco voters narrowly adopted a new law giving legal recognition to domestic partnerships. This law was opposed by Archbishop John Quinn and a part of the city’s divided ecumenical community. While registered domestic partners under the law can be either heterosexual or homosexual, the great majority are in fact gay or lesbian. What a domestic partner may not be under the law is a relative or just a friend.

Near the end of 1996, the eleven-member San Francisco Board of Supervisors adopted a new ordinance requiring businesses or agencies contracting with the city to extend the same benefits they provide to spouses to domestic partners, the category of persons defined by the referendum of 1990. The new legislation was passed unanimously with virtually no reported public hearings or debate, and was widely advertised as "pioneering" legislation that will end discrimination against homosexuals because it guarantees to domestic partnerships the same benefits typically made available to the spouses of married persons. The city had already put in place this same policy for its employees. A few major companies such as Levi Strauss, IBM, Apple, and Disney had done so voluntarily. City officials now thought the time had arrived to increase the slow pace of such voluntary compliance with a new step in the broader campaign for the recognition of same-sex marriages, to make San Francisco a "model" city that would show the rest of the nation the way in this experiment in social engineering.

In the absence of a suitable public process at which I might register my difficulties and opposition before this law was adopted, I sought an exemption for our Catholic agencies. I pointed out that the ordinance as written created a problem of conscience for agencies of the Catholic Church (and perhaps others), because it required that we change our Church’s internal benefits policies to recognize domestic partnership as equivalent to marriage.

This requirement, I argued, amounted to government coercion of a church to compromise its own beliefs about the sacredness of marriage, and seemed to violate the First Amendment protection guaranteed to religion by our Constitution. I further noted that a substantial amount of the contract funds in question involved city "pass throughs" of federal and state funds, which carried no such restriction.

The Archdiocese’s position was subjected to a barrage of criticism. We were told that if we were going to accept city monies for the work of Catholic Charities, we should "play by the city’s rules." We were lectured that our charitable agencies were prevented by the "wall of separation between church and state" from appealing to religious principles when public monies were involved. We were given moral instruction about the "discrimination" involved in preventing homosexuals from accessing benefits equivalent to those enjoyed by married couples.

There were no visible alliances to whom we might appeal. Nonprofit agencies often provide benefits only to their employees; in these cases the new law does not apply. This is the case, for example, with the Salvation Army, which would share our religious opposition to this ordinance and administers many excellent programs with city contracts, but is already in compliance because it gives no "spousal benefits." Businesses typically looked at the impact on their "bottom line," or, if they were worldwide operations like United Airlines, at the complications this law might entail for their network of union contracts, other state and foreign governmental regulations, etc.

In a thorough public statement I set forth clearly the moral principles in question from our Catholic perspective, and presented what I think is a reasonable case why the Catholic Church should not be required to comply with this ordinance. I further outlined the reasons I would be prepared to challenge the law in court should the city not provide us with an exemption, or a means of compliance that does not violate our moral principles.

In making my case, I particularly called attention to the inadequacy of the city’s argument about discrimination against homosexuals.

These excerpts from my statement, which was well covered in local media and sent to all the Catholic households of the Archdiocese, give some indication of how I saw this situation as an important teaching moment for our church to address a new and serious social debate in our society. Shortly afterward, Mayor Willie Brown asked me to meet with him and four Supervisors to explore a mutually acceptable solution to the problem. As a result of our agreement, the city has codified regulations to recognize that a business or agency which "allows each employee to designate a legally domiciled member of the employee’s household as being eligible for spousal equivalent benefits" would be in compliance with the law.

I believe that it became clear to city officials that their argument about discrimination against domestic partners who do not receive "spousal equivalent" benefits does not stand up under public scrutiny when challenged. I further believe that by refocusing the targeted population for expanded benefits away from domestic partners, the rationale for using "discrimination in benefits" as a step toward the recognition of same-sex marriages has been largely removed. Even though some large companies and local governments may choose to provide such domestic partner benefits, I think it unlikely that this new San Francisco ordinance will become the "model" for the rest of the country that its proponents originally touted it to be. As the Chronicle commentator remarked, our solution changes the focus from domestic partners and thus removes the primary purpose of the original legislation for many of those who promoted it.

Our solution is not without its critics, and I would not want to discount their objections. But to those like my local Catholic critic who say that we implicitly give recognition to domestic partnerships by not excluding them from benefits, I must demur. Under our plan, an employee may indeed elect to designate another member of the household to receive benefits. We would know no more or no less about the employee’s relationship with that person than we typically know about a designated life insurance beneficiary. What we have done is to prohibit local government from forcing our Catholic agencies to create internal policies that recognize domestic partnerships as a category equivalent to marriage. I agree with moral theologians like William May who see no compromise of Catholic moral principle in this practice.

Some have suggested that Catholic agencies should not be involved in any use of public monies, since it will inevitably involve them in the compromise of principles, if not sooner then later. I recognize that vigilance is required, since loss of funding could be the basis to justify even formal cooperation in evil. But I do not grant that such is the case here.

Others have lamented that I did not challenge this ordinance in court. Surely the city did not want a court challenge. But then neither did I relish the prospect of a lengthy, expensive legal challenge with an uncertain outcome, while making adversaries of city officials with whom we should be working on questions that will help address many pressing social needs.

In defending my action in this matter, it may sound as though I am proposing this course for others to emulate. Far from it. We chose a course in which acceptable and practical options had been reduced to the minimum. This solution will no doubt be costly and difficult to implement, although with more large companies like Bank of America adopting our solution, costs may come down. I am satisfied that in San Francisco we have achieved a notable success by shifting the debate so that what was intended by proponents of the legislation as a requirement that all employers accept an equality of status between domestic partnership and marriage has now become a situation where employers can expand health care benefits, while not being forced to recognize that marriage and domestic partnership are equivalent. But it would be my hope that our experience here would provide good reasons why any proposal elsewhere for similar legislation on domestic partners should be defeated.

William J. Levada is Archbishop of San Francisco.