The “Big But” Theory

Does a recent ruling in Massachusetts support the “Big But” theory?

I hope Christians noted a ruling last week in Massachusetts. A Christian couple, Michael and Kitty Burke, was deemed unfit for a foster-care license. Michael served in Iraq as a Marine, Kathy is a former paraprofessional for kids with special needs. They sought to adopt through The Massachusetts Department of Children and Families’ foster-care program.

The Burkes were willing to accept children of any race, culture or ethnicity, as well as some special needs. They would even take siblings. And the state, in its assessment of the Burkes, acknowledged that “Kitty and Mike are devoutly Roman Catholic and not only attend church with regular frequency, they both also work for local churches as musicians.” The author of their license study called the Burkes “lovely people,” but decided they “would not be affirming to a child who identified as LGBTQIA.” The author of their study added that “their faith is not supportive and neither are they.” So the Burkes were rejected.

Hit Pause. Years ago, I coined the “Big But” theory. It holds that whatever someone says after “but” is what matters most. Example: “You’re a nice guy but often act like a jerk.” What someone says before “but” is false flattery to soften the blow that’s coming.

Take the Burkes. “Lovely people,” but unfit for a foster-care license.

What a difference eight years make. In 2015, the Supreme Court ruled in Obergefell v. Hodges that states could not deny marriage licenses to same-sex couples. Justice Kennedy allowed that many who opposed same-sex marriage did so based on “decent and honorable” premises, and that their First Amendment rights still stand.

Justice Samuel Alito wasn’t so sure. In his dissent, he warned that Obergefell “will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women… The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

Justice Alito wasn’t finished. “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” Sound like the Burke’s case?

Fortunately, there’s one more “but.” The Burkes were rejected, but have filed a lawsuit in federal court, claiming that their First Amendment rights to free exercise of religion have been violated. William Mumma, chairman of Becket Law, which defends religious liberty, is representing the Burkes. Becket Law has an excellent record of prevailing in these cases.

I close with a comment on dissent. For two thousand years Christians have differentiated between church and civil government. Augustine’s two cities recognized church and government as two different domains, each with a proper function. Over the ensuing centuries, the church was imagined as a garden, the state as a wilderness. A “wall” kept government weeds from encroaching on the garden.[1] Dissenters often kept the state’s weeds in check when they encroached on the church.

As devout Catholics, the Burkes dissent. They respect LGBTQIA people as made in God’s image. But they cannot affirm a child who identifies as LGBTQIA. There’s a big difference between respect and affirmation, and the Burkes’ First Amendment rights to free exercise of religion allow to dissent when the two are treated as identical. They’re not, but what does it tell us that Becket Law has to step in to ensure that the Burkes’ rights are not violated?

The “Big But” theory tells me the state’s weeds are becoming more invasive. If this is the case, faithful Christians will be required to dissent with increasing regularity in the coming years. Stay tuned.

[1] Philip Hamburger, Separation of Church and State, (Harvard University Press, 2002).