“neither common sense nor justice”: religious...

“Neither Common Sense Nor Justice”: Religious Matching & Adoption A Protestant child shall not be committed under this Part to the care of a Roman Catholic society or institution and a Roman Catholic child shall not be committed under this Part to a Protestant society or institution, and a Protestant child shall not be placed in a foster home with a Roman Catholic family and a Roman Catholic child shall not be placed in a foster home with a Protestant family, and, where a child committed under this Part is other than Protestant or Roman Catholic, the child shall be placed where practicable with a family of his or her own religious faith, if any.

For the purposes of this section, a child shall be deemed to have the religious faith agreed upon by the child’s parent, but where there is no agreement or the court cannot readily determine what the religious faith agreed upon is or whether any religious faith is agreed upon, the court may decide what the child’s religious faith is, if any, on the basis of the child’s circumstances.1

I was surprised to find out that these stipulations are still part of the Act. I was

particularly surprised to note that a court may decide what a child’s religious identity

should be. How did we get here? These passages are from the most current (1990)

Ontario Child and Family Services Act, taken from Chapter C.11 of the Act. This chapter

is meant to provide a historical context to looking at adoption and religion, and shows

how the two have been intertwined for over a century in Canada. Drawing from adoption

scholar Ellen Herman, I ask: “Who would make authoritative decisions about the

legitimate borders of legally sanctionable kinship?”2

1 "Ontario Child and Family Services Act, R.S.O. 1990," (Ontario Provincial Government).

This chapter looks at how, why, and

which authorities saw themselves as sanctioned to make these decisions. Using archival

sources, I examined the historical response of the public to religious matching. Is it

appropriate to possibly deprive a child of a family for the sake of her religious identity?

Can a child or infant have a religious identity?

2 Ellen Herman, "The Difference Difference Makes: Justine Wise Polier and Religious Matching in Twentieth-Century Child Adoption," Religion and American Culture 10(2000): 58.

“Neither Common Sense Nor Justice”: Religious Matching & Adoption in Canada Jenny Gilbert, University of Toronto, [email protected]

2

In today’s adoption discourse broad racial and cultural categories have

overshadowed discussion of a child or parent’s religious identity. Before racial and

cultural categories were up for discussion, religious identity was a significant issue for

children’s aid societies, adoptive parents, birth parents, and the greater community. Ellen

Herman notes that: “religious factors in adoption provoked the earliest dialogue about

difference and its denial in family formation….” this dialogue addressed “the appropriate

role of government in adjudicating religious identity in a constitutional system devoted to

freedom of conscience and separation of church and state.” 3

Religious identity and adoption have played out in various ways in Canadian

adoption practices—from couples looking to adopt, to birth parents seeking to place their

child, to the child herself— ostensibly the most important aspect of the equation. At one

time in Canada parents who adopted children were selected based on their religious

identity, with Catholic children’s aid societies supplying the Catholic community with

adoptable children, Jewish associations finding homes for Jewish children, and the

Protestant children’s aid societies matching Protestant and “other” children with

appropriate parents. Drawing on questions of identity, social difference, religion, and the

separation of church and state, I will examine the notion of religious matching in

adoption from a historical perspective.

Religious Matching & Adoption

According to Karen Balcom, during the first half of the twentieth century

“children were considered both in law and in the practice of social agencies to have an

inborn religious identity which the state and social workers had a duty to protect.” 4

3 Ibid.: 57.

4 K Balcom, ""Phony Mothers" And Border-Crossing Adoptions: The Montreal-to-New York Black Market in Babies in the 1950s," Journal of Womenís History 19, no. 1 (2007): 109.


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Babies born to unwed mothers were considered to have the religion of their mothers,

children that came to orphanages from married women, were considered to have the

religion of their fathers.

For much of the twentieth century social welfare organizations—including

orphanages and homes for unwed mothers—were run by religious organizations. Social

welfare work was influenced by the Christian missionary fervor of the nineteenth and

early-twentieth centuries, with foster and adoptive parents seen as being ‘inspired and

directed by the Christian missionary spirit.”5 When foster parents came to replace

orphanages in caring for unwanted, unadopted children, moral regulation was evident in

the criteria that foster parents were good Christians, and child welfare workers and

volunteers visiting foster homes would make note of whether or not the foster child was

receiving an appropriate religious education.6

Up until the late sixties and seventies, adoption practitioners sought to “match”

children to their adoptive parents—from race and religion, to hair or eye colour, and

potential musical or artistic ability. It was common practice for adoption practitioners and

adoptive parents to deal with difference by denying, or attempting to smooth out its

existence.

In this way religion and adoption have

been connected for over a century in Canada.

7 Adoption was meant to mirror biology, in the words of Judith Modell, to

“replicate the biological relationship… and uphold[s] a cultural interpretation of

biological, or genealogical, kinship.” 8

5 Xiaobei Chen, Tending the Gardens of Citizenship: Child Saving in Toronto, 1880s-1920s (Univ of Toronto Press, 2005), 24.

Only recently, following scholars like David H.

Kirk, have adoption practitioners come to realize that that difference should be

6 Ibid., 124. 7 Herman, "The Difference Difference Makes: Justine Wise Polier and Religious Matching in Twentieth-Century Child Adoption," 57. 8 Judith S. Modell, A Sealed and Secret Kinship : The Culture of Policies and Practices in American Adoption (New York: Berghahn Books, 2002), 3.


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emphasized and be open for discussion, rather than ignored. In her article on the

paradoxes of modern adoption, Ellen Herman writes:

In their eagerness to reduce the stigma and increase the authenticity of kinship made socially, many participants in modern adoption held that institution up to the mirror of biogenetic nature, denying what is surely the most obvious thing about adoption: it is a different way to make a family. The matching paradigm stipulated that parents who acquired children born to others should look, feel, and behave as if they had conceived those children themselves.9

Because religious matching was one of the first legal matching requirements in adoption,

it was also one of the first to be subject to be challenged in the courts, and debated in the

popular media, long before race and ethnicity were up for discussion.10

Beginning in the late 1950’s and early 1960’s, religious matching was under

increased scrutiny, with critics noting that it wasn’t in a child’s best interest to languish in

an institution, or in a series of foster homes, instead of being placed with a family, on the

basis of religion. This period saw newfound confidence in the idea of adding “cultural

and racial strangers” to the family, which, as Veronica Strong-Boag notes, was “variously

rooted in faith, notably among religious liberals” whose “colour-blind” sympathies

motivated them.

Much of this kind

of debate around identity and adoption in today’s discourses around adoption has now

shifted from religion to race.

11

9 Ellen Herman. “The Paradoxical Rationalization of Modern Adoption.” Journal of Social History. (Vol. 36, No. 2, Winter, 2002): 340.

As Strong-Boag notes, “what liberals hailed as the triumph of

tolerance and equality,” members of the Catholic community saw as the transfer of

10 Ellen Herman. “The Difference Difference Makes: Justice Wise Polier and Religious Matching in Twentieth-Century Adoption,” Religion and American Culture (10, Winter 2000): 57. Note: though Herman is writing about the American context, her assessment of the controversial nature of religious matching is true in the Canadian context as well. 11 Veronica Strong-Boag. Finding Families, Finding Ourselves : English Canada Encounters Adoption from the Nineteenth Century to the 1990s. (Don Mills, Ont.: Oxford University Press, 2006): 110.


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children from a vulnerable, religious minority to a more powerful religious majority.12

Religious leaders were concerned that their children were being “spiritually

kidnapped.”13

Religious Matching in the Courts

One result of this debate was an increase in cases going before the courts to

challenge the law. In discussing religious matching in the courts, I draw on Avigail

Eisenberg who notes that:

Debates about “identity” are the favoured terrain of much abstract theorizing, but the problems and conflicts underlying these debates are far from abstract and often involve difficult concrete political choices. That’s why so many scholars who study identity and cultural politics take into account both theoretical and practical dimensions of the issues. While abstract theories provide different ways of conceptualizing conflicts, practice-focused analysis, including case studies, addresses the particular choices people confront and the specific reasons they adopt the political strategies they do.14

This quote from Eisenberg emphasizes why it is important to look at people’s lived

experiences. Looking at individual cases, to see how a judge responded, to see how the

public responded, to see how members of different religions responded, is an important

approach to understanding why religious matching was and is understood to be a good, or

a bad thing.

A religious matching case in British Columbia, saw the courts concluding: “a

difference in religion is no bar to adoption.”15

12 Veronica Strong-Boag. “‘Today’s Child’ Preparing for the ‘Just Society’: One Family at a Time,” The Canadian Historical Review (86, 4, December 2005): 676.

A significant landmark in the debate was

the case of Re Lamb, in 1961, wherein an Ontario district court approved the adoption of

13 Veronica Strong-Boag. Finding Families, Finding Ourselves : English Canada Encounters Adoption from the Nineteenth Century to the 1990s. (Don Mills, Ont.: Oxford University Press, 2006): 115. 14 Avigail Eisenberg. “Reasoning about Identity: Canada’s Distinctive Culture Test.” In Diversity and Equality: The Changing Framework of Freedom in Canada, edited by Avigail Eisenberg. (Vancouver: UBC Press, 2006): 34. 15 Quoted in Ibid. 115.


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a Roman Catholic child by Protestant parents, who, through the Children’s Aid Society,

had been caring for the child as foster parents for almost five years, since the boy was

several weeks old. 16 The Protestant parents had been allowed to care for the boy because

there had been a shortage of Catholic foster homes. Judge Walter Little, in his decision,

cited the section of the Child Welfare Act that sets forth that an adoption order “will be in

the best interests of the child,” arguing that the adoptive parents are the only ones the

child has ever known and he argued that “to deprive a child of the advantages which

adoption would give him simply because the applicants though Christian are of a

different denomination would, in my view, be a denial of natural justice.” 17 The section

of the Child and Family Services Act that relates to religion—specifically the sections

that specify that Roman Catholic and Protestant children should not be placed in foster

homes or institutions of the opposite denomination, was cited by the Judge who argued

that this aspect of the law only applied to placing children in foster care and made no

reference to adoption. The judge argued that the Legislature did not intend a limitation to

adoption, otherwise the Act would have been more specific, and furthermore, he argued,

to interpret otherwise, that the Act would deprive children of a permanent home because

of denominational differences in religion, would be “neither common sense nor justice”

and “would be to attach a religious tag to the word justice—which its very meaning

denies.”18

Finally, the court ruled that: “It is not a condition precedent to the adoption of

children in Ontario that the applicants for adoption must be of the same religious faith as

the child. The presence or absence of a spiritual or religious influence in the lives of those

16 "Judgment Sets Ontario Precedent: Allows Couple to Adopt Child of Another Faith," Globe and Mail, November 16, 1961, 8. 17 Ibid., 1. 18 Ibid.


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seeking to adopt may be a factoring determining the child’s best interests. However, the

particular denomination to which an adoptive applicant belongs should not be a bar to

adoption.” 19

Public Response to Re Lamb

The response of the Welfare Minister of Ontario, who was a Catholic, was to say

that the Lamb case was “strictly an exception” and “the adoption of children of one

religious denomination into the family of another denomination will continue to be

generally barred.”20 Calls for the defense of the rights of unmarried mothers came from

unlikely quarters: a Catholic Bishop called for an amendment to the law to “provide the

unmarried mother with some measure of protection.”21

The case of Re Lamb provoked a flood of letters to the Globe and Mail, most of

them, like the letter that saw the case as a “one of those rare instances in which justice, in

the truest sense of the word, has triumphed,” were positive.

Rather then framing his argument

as one against the “spiritual kidnapping” of Catholic children, a bishop—not traditionally

one to defend the rights of unwed mothers—cloaked his argument in an apparent concern

for their rights.

22 One reader was angered at

the Bishop of Peterborough’s statement about protecting the birth mother, wondering

what right a woman should have who has no intention of being responsible for her

child.23

19 Ibid.

Another reader wrote in that the ruling was “a hammer-blow directed against all

the religious, racial, color, national and ideological bars which have kept men apart in the

past...” and argued that “one of the greatest hopes of our world… is the mixed marriage,

20 "Catholic Bishop Calls for Change in Adoption Act.," Globe and Mail, November 18, 1961, 10. 21 Ibid. 22 "Letter to the Editor, Edmond B. Feldman," Globe and Mail, November 21, 1961 1961. 23 "Letter to the Editor, William Philip Rowley," Globe and Mail, November 21, 1961.


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the inter-religious adoption serving to break down prejudices in the very personal terms

of simply living with and caring for another human being.” 24

Several letters were critical of the judgment, such as this Catholic adoptive father,

who argued that “to permit a Catholic child to be brought up in a non-Catholic home and

atmosphere—no matter how much good-will is intended—is almost in the realm of

premeditated theft; the future theft of that child’s most precious possession—his faith.”

25

Another wrote both in response to the articles that had been published as well as the other

letters to the editor that “the most important consideration in the adoption of a child is his

spiritual, and not his physical, well-being.”26

Two years later an article appeared in the Canadian Register, the official

newspaper of the Catholic Church in Canada. The article, written by Archbishop Pocock

about a proposed change in the Child and Family Services Act in regards to religion, calls

the proposed changes “a throwback to paganism.”

27 The Archbishop, refers to the

“despotic power of the State over human life and argues that changing the law to

“deprive a child of one religious affiliation and give it another” is “selling our children to

statism, to a ‘parents patriae’.”28

In general, the concern of the portion of the public that opposed religious

matching was often that there were surpluses of children belonging to one religion that

were deprived of homes because there were not enough applicants of their particular

Rather than adopting the argument used by other

Catholics—that children were being spiritually kidnapped, the Archbishop took a

different approach, arguing for less state involvement in regards to families and children.

24 "Letter to the Editor, Joan Mackenzie," Globe and Mail, November 23, 1961. 25 "Letter to the Editor, Frank P. Mckernan," Globe and Mail, November 23, 1961. 26 "Letter to the Editor, John B. Cluff," Globe and Mail, November 25, 1961. 27 Philip F. Pocock, "Children’s Rights Must Be Protected by the State," The Candian Register, September 14, 1963, 1. 28 Ibid.


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religion. In her study of cross-border adoption between the US and Canada, Karen

Balcom notes that a consequence of having segmentation in religious child welfare

agencies was that there were “localized ‘shortages’ and ‘surpluses’ of children of a

particular religious identity.”29 This was often manifested in a surplus of Catholic

children, a shortage of Protestant children, and an extreme shortage of Jewish children.

Many of the readers who wrote in to the Globe and Mail about the Lamb case were

concerned that religious matching meant: “a situation where there have been children in

need of homes and couples anxious to adopt and both were frustrated by interpretation of

the law.”30

Religious Matching & the Charter

Religious matching was seen by many as not in the best interests of the child.

In 1985 Catholic and Jewish welfare agencies became concerned that the Charter

of Rights and Freedoms would infringe on their mandate to place children with Catholic

or Jewish families when Queen’s Park sent all Ontario child welfare agencies a letter

indicating that they would face legal action from rejected potential adoptive parents if

they continued using discriminatory screening practices that infringe on applicant’s rights

under the Charter.31

29 Balcom, ""Phony Mothers" And Border-Crossing Adoptions: The Montreal-to-New York Black Market in Babies in the 1950s," 109.

Non-sectarian child welfare agencies were also in a similar situation

since they usually tried to place children with adoptive parents of the same religion as the

birth mother. The section of the Charter that agencies were infringing upon was section

15: “Every individual is equal before and under the law and has the right to the equal

protection and equal benefit of the law without discrimination and, in particular, without

30 "Editorial," Globe and Mail, November 18, 1961. 31 Dorothy Lipovenko, "Charter May Undercut Faith as Adoption Factor Jewish, Catholic Criteria in Doubt," Globe and Mail May 31 1985, 1.


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discrimination based on race, national or ethnic origin, colour, religion, sex, age or

mental or physical disability.” The Globe and Mail article noted that:

The Government's directive said the prohibited grounds of religion and marital status “are of particular concern to sectarian child welfare agencies.” But it advised that “in general, a difference in religion between child and prospective foster or adoptive parent should not be a bar to placement.”32

The article also noted that a lawyer for the Metro Catholic Children’s Aid Society

observed that Ontario’s child welfare law conflicts with the Charter, since the child

welfare law specifies that a child’s religion must be taken into account when placing the

child for adoption.33 While the child welfare agencies were concerned, in 1985 there was

not the same public response to this article as to Re Lamb, by now publicly debated

adoption discourse had shifted to the topic of race. The Charter placed religious or,

conversely, non-religious potential adoptive parents in a unique situation, in that they

were now legally protected from discrimination by adoption agencies when attempting to

adopt. In the 1960’s an agnostic couple were turned away from the Children’s Aid

Society, and were told that if they came back and declared themselves Unitarian, their

application would be accepted.34

Religious Matching and Identity

By the 1980’s, because of the Charter, agnostic and

atheist potential adoptive parents could not be turned away.

Much of this debate around religious matching is related to identity. What does

identity mean in our society” Do children have a right to a certain identity? Anita Allen-

32 Ibid. 33 Ibid. 34 Patricia Madely Chaikoff, "Adoption in Ontario: An Agnostic’s Perspective," Osgoode Hall Law Journal 3, no. 14 (1964-1965): 23.


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Castellitto answers no. 35

skeptical of the assumption that children have a right, or morally important need, to a certain identity simply because of their ontological reality. It seems to me that the popular assumption that a child is owed a specific identity reveals as much or more about the needs and privileges of adults than about the needs, rights or ontological reality of human young. In particular, this assumption reflects adults’ own socially created needs for contexts that do not deeply threaten their own wishes for communities of like-minded persons who can share and appreciate their identities.

Her opinion is worth quoting at length, in part because she is an

African-American woman arguing against racial matching in adoption. She states that she

is:

36

She goes on to argue that having a family is more important to a child than any claim to a

certain identity.37 Allen-Castellitto makes an important point when she argues that

matching policies are a result of certain societal concerns and constructs. But what does

this mean for people of certain religions, who believe that, for example, a child baptized

Catholic is Catholic, and that if they are not raised in that religious tradition they will be

denied “the one true faith”? 38 What does it mean for people who state: “we believe our

faith is the most precious gift we have to pass on to those entrusted in our care”? 39

Avigail Eisenberg notes that identity is defined as how an individual understands

herself, and she notes that some critics are concerned when identity claims are framed as

follows: “X ought to be protected because it is important to my/our identity.”

40

35 Anita L. Allen-Castellitto, "Does a Child Have a Right to a Certain Identity?," in Families by Law: An Adoption Reader ed. Naomi R. Cahn and Joan Heifetz Hollinger (New York: New York University Press, 2004), 212.

Statements such as this are personal and difficult to assess—they cannot be disproved. If

identity is “normatively inscrutable” by public institutions, does this make identity an

36 Ibid. 37 Ibid., 214. 38 "Letter to the Editor, Mary Mantle," Globe and Mail, November 25, 1961. 39 Ibid. 40 Avigail Eisenberg, "Reasoning About Identity: Canada's Distinctive Culture Test," in Diversity and Equality: The Changing Framework of Freedom in Canada, ed. Avigail Eisenberg (Vancouver: University of British Columbia Press, 2006), 38.


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“unsuitable and inappropriate subject for public reasoning”?41

Which brings me to an important point. As one writer who weighed in on the

topic noted: “the onus should rest squarely, and nowhere else, upon the churches and

those individuals who feel that a child’s religious training is important and that the

adoptable child’s best interests also include his religious upbringing.”

I think (and I think

Eisenberg would agree) the answer is no. Identity can be described and defined in many

ways, including using historical documents, personal testimonies, etc. What is at risk here

is that members of a religion make claims on behalf of parent-less children that they

themselves are unwilling to take responsibility for. It might be acceptable for someone of

faith to declare on a philosophical level that children of that faith should find families

with parents of that faith, but if this is not possible, on a practical level other decisions

need to be made.

42

Religious Matching and the Public Sphere

And yet one

thing I found interesting in all the arguments for religious matching is that nowhere were

any writers making any mention of exerting pressure on their religious communities to

take responsibility for the waiting children belonging to their religion.

In a pluralistic society characterized by a separation of church and state, what

does it mean for the state to have the responsibility of religious matching? In 1964, the

Osgoode Hall Law Journal published a series of articles under the heading “Interfaith

Adoption: A Symposium,” offering interfaith perspectives on religious matching in

adoption in Ontario. One of the articles, written by Rabbi W. Gunther Plaut, asks: “How

far may the state proceed with the shaping of a child’s religious future, when admittedly

41 Ibid. 42 Darren L. Michael, "The Religious Factor in Adoptions," Osgoode Hall Law Journal 3, no. 14 (1964-1965): 22.


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religion is a private matter and, as far as the State is concerned, can only be of

administrative, but not of substantive concern?” 43 The article goes on to point out that:

“Once the law enters into religious definitions, it is on shaky and difficult ground, for it

tries to combine the uncombinable, and reconciles that which is often by tradition or

religious conviction irreconcilable.”44 Another contributor questioned whether or not the

“future happiness, development and preparation of tomorrow’s citizens should be

sacrificed or at the least endangered by the state for reasons that are not relevant to the

prime concerns of the state?”45

One way of looking at the issue of religious matching is to examine in-depth, how

both sides of the argument come to their understandings of the situation. Drawing on

Hannah Arendt, law scholar Jennifer Nedelsky makes a case for the enlarged mentality—

to put oneself in the position of another to examine an issue from another perspective—

this includes another religious or spiritual perspective as well. Nedelsky argues that “two

of the most important tasks of the legislature in a constitutional state are collective

deliberation on the common good and participation in the ongoing evolution of core

constitutional values.”

What role should the state have in this situation? On the

one hand, the rights of the child to a certain religious identity should be protected, but

then so should the right of the child to a family.

46

43 Rabbi W. Gunther Plaut, "The Child’s Rights in the Adoptive Process," Osgoode Hall Law Journal 3, no. 14 (1964-1965): 33.

Nedelsky argues that these functions require “taking the

perspective of others into account in the formation of one’s judgment. These perspectives

44 Ibid. 45 Darren L. Michael. “The Religious Factor in Adoptions.” Osgoode Hall Law Journal, 3, 14, (1964 1965): 22. 46 Jennifer Nedelsky, "Legislative Judgment and the Enlarged Mentality: Taking Religious Perspectives," in The Least Examined Branch: The Role of Legislatures in the Constitutional State, ed. Richard W. Bauman and Tsvi Kahana (Cambridge: Cambridge University Press), 93.


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must include those who see policy issues in religious terms.”47 Nedelsky’s point is the

enlarged mentality should be exercised even in situations where the perspectives that are

taken into account are exclusive and universalistic and that may be offensive or

incompatible with the point of view of others.48

If we look at religious matching and the law from the perspective of those who

are religious, we can see that it would not be appropriate to implement a wholly non-

sectarian approach to adoption since it would be discriminatory towards members of

religious groups who feel that children belonging to their religion must be raised in that

tradition.

This means that even though it might

seem offensive to those who would argue that it is against the common good to deprive

children of a family if one of their own religion cannot be found, they still need to take

the perspective of those who believe that is the common good.

Habermas argues that “a liberal political culture can expect that the secularized

citizens play their part in the endeavors to translate relevant contributions from the

religious language into a language that is accessible to the public as a whole.”49

47 Ibid.

This is in

keeping with Nedelsky’s point that taking the enlarged mentality allows people to

understand the perspective of others. Habermas places the cognitive burden of translation

on the nonreligious members of society, and demands that non-believers “identify self-

critically the relationship between faith and knowledge, on the basis of what all the world

knows. This is because the expectation that there will be continuing disagreement

between faith and knowledge deserves to be called ‘rational’ only when secular

knowledge grants that religious convictions have an epistemological status that is not

48 Ibid., 112. 49 Jürgen Habermas, "Pre-Political Foundations of the Democratic Constitutional State?," in Dialectics of Secularization: On Reason and Religion (San Fransisco Ignatius Press, 2006), 52.


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purely and simply irrational.”50 Habermas argues that citizens can be expected to

participate in public discourse, but not forced: “All one can do is suggest to the citizens

of a liberal society that they should be willing to get involved on behalf of fellow citizens

whom they do not know and who remain anonymous to them and that they should accept

sacrifices that promote common interests.”51

In regards to adoption, common interests are surely the best interests of the child.

How can we reconcile two ideas about what is in the best interests of the child if some

believers adhere to the notion that the child’s spiritual welfare is more important than the

child’s physical welfare, and other believers and non-believers adhere to the opposite

notion? Taking from Nedelsky, we can agree that we need to assume the perspective of

others in addition to our own, and that it is important to include a multiplicity of voices in

the legislative judgment. Habermas argues for the importance of including religion in the

public sphere, as Simone Chambers notes, “not on the grounds that it is the fair thing to

do, but on the grounds that religion contributes in important ways to the creation of

meaning.”

52 Avigail Eisenberg offers a structure that could be adopted that would require

religious groups to: “explain why their practices are important to them so as to generate a

public understanding of their importance.”53

50 Ibid., 50-51.

As well as show that their “practices are (1)

unharmful or that (2) they are important to a group’s identity, and showing that (3) they

are desirable…We might even adopt as a standard the requirement of mutual

understanding, which is similar to (2) above and would require that people be able to

51 Ibid., 30. 52 S Chambers, "How Religion Speaks to the Agnostic: Habermas on the Persistent Value of Religion," Constellations 14, no. 2 (2007): 213. 53 Eisenberg, "Reasoning About Identity: Canada's Distinctive Culture Test," 40.


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recognize the importance of practices that are not their own.”54

One way the dilemma of choosing between a child’s religious identity and finding

a family has been dealt with is to put a time limit on the search for an appropriate home.

In the late 1960’s and early 1970’s several provinces amended their Child and Family

Services Acts to indicate that “all reasonable efforts” would be made to match children to

adoptive parents of the same religion, but time limits—ranging from three months to a

year—were put on this law, so that children wouldn’t languish in foster care waiting

indefinitely for a ‘forever family’. An amendment of this nature leaves the state

responsible only for the temporal welfare of a child, while taking into consideration the

rights of religious members of society.

Eisenberg’s requirement

of mutual understanding is in keeping with the enlarged mentality, and the Habermas’s

argument regarding the importance of keeping religion in the public sphere.

Religious Matching Today

While most other provinces have eliminated any religious matching sections in

their legislation on child welfare, Ontario has kept theses sections in the Act. It might be

argued that, as Habermas notes, “it is in the interest of the constitutional state to deal

carefully with all the cultural sources that nourish its citizens’ consciousness of norms

and their solidarity.”55

In this case it would mean attempting to meet the needs of

children who need homes as well as members of the religious community who feel that

children of their community should be raised in their faith. This can be particularly

important for children who aren’t adopted as babies, but as older children.

54 Ibid. 55 Habermas, "Pre-Political Foundations of the Democratic Constitutional State?," 46.


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Through my interviews with adoptive parents, I came across a family that adapted

to their adopted child’s religion, rather than the other way around. This family was

unique in that rather than the parents finding religious meaning and significance in their

decision to adopt, their adopted child sees her experiences—with a birth mother who

couldn’t take care of her, several foster homes, and now finally with her adoptive

family—as being a spiritual path that God has put her on. Ali and her husband and

daughter live just outside Toronto. The couple chose not to have biological children—

they wanted to adopt, but they also didn’t feel that they needed an infant experience—so

they pursued the adoption of an older child. They requested a female, and that the child

not have significant special needs. Ali is very active in the adoption community, and

wanted to be interviewed in part just because she really supports research on adoption. In

fact, for a while I wonder why Ali agreed to be interviewed—her story is different than

the majority of my participants. Ali did not consider herself religious before she adopted

her daughter. Her husband was baptized as Catholic, but neither parent attended church,

or thought of themselves as religious people. Interestingly, it is Ali’s daughter who

brought a spiritual perspective to the family. Andrea, her daughter, is Catholic, and

specified to social workers that if she was adopted she wanted to maintain her Catholic

identity and continue attending Catholic school. This couple adopted an eleven-year-old

girl who specified that she wanted to go to parents who would allow her to attend a

Catholic school. This is in keeping with section 61 of the Ontario Child and Family

Services Act dictating that in regards to the placement of Crown wards: “The society

having care of a child shall choose a residential placement for the child that... takes into

account the child’s wishes, if they can be reasonably ascertained…” and “respects the


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religious faith, if any, in which the child is being raised.”56 Section 104 indicates that a

child in care: “has a right to receive the religious instruction and participate in the

religious activities of his or her choice.”57

Andrea was eleven when the couple adopted her. Interestingly, it is Andrea who

brings a religious meaning to her experiences with foster care and adoption. Unlike most

of the parents I spoke with, it is Andrea who believes that God matched her with her

adoptive parents. Ali tells me that she asked her daughter:

“Why do you think all this happened?” And she really does believe that it’s for a lesson for her mum, and a lesson for her, and that I came along to help her compensate for some of things that she didn’t learn when she was younger. And she really believes that this is kind of why it’s supposed to happen. I mean that’s over a series of conversations but that’s what her belief is.

Ali tells me that she thinks this is a very healthy way for her daughter to look at her

experiences. Ali says that while Andrea “recognizes that it’s a huge loss for her, I think

she sees it as a big master plan. I find that very fascinating.” Ali says that she would have

considered herself an atheist before Andrea joined her family, but in coping with a lot of

the anxiety and stress that came with adopting an eleven year old, Ali has “become much

more of a spiritual person than I was before. So, I think it's been very good for me in that

way…. I am probably more spiritual, in terms of just believing that there's something

more out there. I started meditating, just trying to understand myself and life in general.

So that's been the way that I have been able to cope with my anxiety.” Turning to

spirituality has helped Ali cope with what sounds like a very difficult first year after

Andrea came to her. Ali feels that her daughter has been the impetus for this

transformation but has also been a part of her spiritual journey. Andrea tells her she is

56 "Ontario Child and Family Services Act, R.S.O. 1990." 57 Ibid.


19

concerned for her spiritual well-being—concerned that she won’t get into heaven because

she’s not a Catholic. Ali feels that having a religious daughter has been a gift. “I actually

never thought I would come to this. And it’s been an interesting journey too, because

Andrea is old enough to be a part of it. And not cutting down the fact that she’s Catholic,

but we can have interesting discussions based on our differing perspectives, so it’s been

an interesting journey.” Ali and her husband sought out adoption because they didn’t feel

a need or drive for biological children, and her husband strongly felt that there were so

many children in the world that needed a home. As Ali says: “We actually went into it,

not out of necessity but out of choice.”

Unlike some provinces, in Ontario private adoptions are legal. Thus, a birth

mother can approach an adoption agency, and through the agency, find a family for her

child. In Ontario there are several adoption agencies that still cater to members of certain

religious traditions. One such agency, called “Beginnings”, notes on their website: “We

do our best to honour the requests of birth parents, while ensuring the best interests of the

child. Since we are a Christian agency, most of the birth parents who come to us are

looking for families with Christian beliefs.”58

Another agency, “Jewels for Jesus”, states on their website that they are “a

Christian agency, committed to honouring a birth parent’s request that their child be

placed with a Christian family, and to assisting Christian families in building their family

through adoption.”

59

Applications will be accepted from Ontario couples with an approved homestudy. However, we want you to be aware of the fact that the majority of our work is with couples who have been married for at least

They also note that

58 http://www.beginnings.ca./adopt.html 59 http://www.jewelsforjesus.net/adoptInfo.html

http://www.beginnings.ca./adopt.html�

http://www.jewelsforjesus.net/adoptInfo.html�


20

three years, whose youngest child (adopted or biological) is 18 months or older and who are evangelical Christians.60

In their fee and services agreement “Jewels for Jesus” has applicants sign an agreement

stating that:

I/We understand that wherever possible, it is the practice of Jewels For Jesus Adoption Agency Inc., under Ministry of Children and Youth Services' guidelines, to honour the requests of the birth parents regarding the type of family the child will be placed with and, therefore, there is no guarantee that I/we will receive a child from the Agency.61

These agencies are able to avoid charges of discrimination under the Charter by pointing

out that it is up to the birth parents to choose a family, and that they usually choose a

Christian family. Theoretically anyone could apply to adopt from these agencies, but it is

clear that they would be unlikely to work with non-Christian families, or that non-

Christian applicants would not have much success. What is notable about these adoption

organizations is how they simultaneously meet the needs of religious adoptive parents

and religious birth parents, as well as adhering to the anti-discrimination laws of the

Charter. In a way, these organizations are akin to the model of Muslim family service

organizations Anver Emon proposes in his article on Sharia law in Ontario. Emon argues

that “before members of a liberal democratic polity can truly understand what the values

of liberty, equality and multiculturalism can and cannot accommodate, they must also

make an effort to understand the Other that seeks accommodation.”62

60 Ibid.

Again, this is in

keeping with Nedelsky’s description of the enlarged mentality, and Habermas’s call for

translation, as well as accommodation of citizen’s cultural and religious interests.

Because private adoptions are legal in Ontario, any adoption agency—pending licensing

61 http://www.jewelsforjesus.net/feesAndServicesAgreement.html 62 Anver M. Emon, "Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation " University of Toronto, Available at SSRN: http://ssrn.com/abstract=947149.

http://www.jewelsforjesus.net/feesAndServicesAgreement.html�


21

by the Ontario Ministry of Children and Youth Services, can open and operate in Ontario.

This means that agencies serving a range of religious communities can accommodate

their members, and—if they use caveats like those used by evangelical Christian

agencies—they can get around anti-discrimination laws.

Concluding Remarks

Ellen Herman notes that, in the American context (but also applicable to the

Canadian context), “attacks on religious matching were serious enough to shake the

foundations of the matching paradigm itself along with the prevailing assumption that

good adoptions were necessarily confidential and anonymous.”63 Many aspects of

adoption have changed over the past century. Open adoptions are much more common

than the traditional closed adoptions. International adoptions are much more common,

and those bring their own questions of identity surrounding religion, race and culture.

Significantly, most current debates surrounding adoption and identity relate to race. As

Veronica Strong-Boag has argued, “Canadians experience the critical national question of

plural persona close to home. Perennial negotiation of multiple identities finds

particularly intimate expression in the course of adoption.”64

Writing on kinship and adoption Judith Modell notes, “Dependence on categories

exists wherever the state plays the main part in transactions in parenthood, but the

categories themselves vary from time to time and place to place. North American

adoption history can be written around the virtually unchanging categories of race, class,

and gender.”

65

63 Herman, "The Difference Difference Makes: Justine Wise Polier and Religious Matching in Twentieth-Century Child Adoption," 58.

To this I would add religion. This chapter has examined the role of the

64 Veronica Strong-Boag, "Today's Child: Preparing for the 'Just Society' One Family at a Time," Canadian Historical Review 86, no. 4 (2005): 673. 65 Modell, A Sealed and Secret Kinship : The Culture of Policies and Practices in American Adoption, 192.


22

state in delegating parenthood to chosen individuals according to religious categories.

Religious matching today plays out in a very different context than it once did. Varying

approaches to religious matching appear to have replaced the rigidity of the past.

Sectarian adoption agencies still exist, but they are not the only options for prospective

adoptive parents, who legally can no longer be turned away for their lack of religion, or

the different-ness of their religion. Yet, matching religious children to adoptive parents

who may or may not be of the same religion, but who are open to helping their adopted

child continue to practice her religion, does happen, which in some ways seems more

about what is in the child’s best interest than anything else.

Ultimately, it is the best interests of the child that are at stake here. If it is in a

child’s best interest to be matched with a parent or parents of a certain religion, then

efforts should be made to do so. If matching a child’s “identity” insofar as a child can

have an identity is more in the interest of a specific group than the individual child’s

interest, matching should not take place. The courts seem to agree with this; while some

provinces have removed religious matching requirements from their legislation related to

adoption, others have not. However, courts have resoundingly agreed that religious

matching should only take place when possible, and should not preclude a child from a

loving family. This does not mean that adoption agencies and birth parents have not

found ways to continue to practice religious matching. What all parties involved in

adoption need to be cognizant of is not making the “child into an isolated ‘object,’ a

property that belongs to someone,” or some religion.66

66 Barbara Katz Rothman, Weaving a Family: Untangling Race and Adoption (Beacon Pr, 2005), 47-48.


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Allen-Castellitto, Anita L. "Does a Child Have a Right to a Certain Identity?" In Families by Law: An Adoption Reader edited by Naomi R. Cahn and Joan Heifetz Hollinger. New York: New York University Press, 2004.

Balcom, K. ""Phony Mothers" And Border-Crossing Adoptions: The Montreal-to-New York Black Market in Babies in the 1950s." Journal of Womenís History 19, no. 1 (2007): 107-16.

"Catholic Bishop Calls for Change in Adoption Act.". Globe and Mail, November 18, 1961, 1.

Chaikoff, Patricia Madely. "Adoption in Ontario: An Agnostic’s Perspective." Osgoode Hall Law Journal 3, no. 14 (1964-1965): 23-26.

Chambers, S. "How Religion Speaks to the Agnostic: Habermas on the Persistent Value of Religion." Constellations 14, no. 2 (2007): 210.

Chen, Xiaobei. Tending the Gardens of Citizenship: Child Saving in Toronto, 1880s-1920s: Univ of Toronto Press, 2005.

"Editorial." Globe and Mail, November 18, 1961, 1. Eisenberg, Avigail. "Reasoning About Identity: Canada's Distinctive Culture Test." In

Diversity and Equality: The Changing Framework of Freedom in Canada, edited by Avigail Eisenberg, 34-53. Vancouver: University of British Columbia Press, 2006.

Emon, Anver M. . "Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation " University of Toronto, Available at SSRN: http://ssrn.com/abstract=947149.

Habermas, Jürgen "Pre-Political Foundations of the Democratic Constitutional State?" In Dialectics of Secularization: On Reason and Religion, 19-52. San Fransisco Ignatius Press, 2006.

Herman, Ellen. "The Difference Difference Makes: Justine Wise Polier and Religious Matching in Twentieth-Century Child Adoption." Religion and American Culture 10 (2000): 57-98.

"Judgment Sets Ontario Precedent: Allows Couple to Adopt Child of Another Faith." Globe and Mail, November 16, 1961, 1,8.

"Letter to the Editor, Edmond B. Feldman." Globe and Mail, November 21, 1961 1961, 6.

"Letter to the Editor, Frank P. Mckernan." Globe and Mail, November 23, 1961, 6. "Letter to the Editor, Joan Mackenzie." Globe and Mail, November 23, 1961, 6. "Letter to the Editor, John B. Cluff." Globe and Mail, November 25, 1961, 6. "Letter to the Editor, Mary Mantle." Globe and Mail, November 25, 1961, 6. "Letter to the Editor, William Philip Rowley." Globe and Mail, November 21, 1961, 6. Lipovenko, Dorothy "Charter May Undercut Faith as Adoption Factor Jewish, Catholic

Criteria in Doubt." Globe and Mail May 31 1985, 1. Michael, Darren L. "The Religious Factor in Adoptions." Osgoode Hall Law Journal 3,

no. 14 (1964-1965): 14-22. Modell, Judith S. A Sealed and Secret Kinship : The Culture of Policies and Practices in

American Adoption. New York: Berghahn Books, 2002. Nedelsky, Jennifer. "Legislative Judgment and the Enlarged Mentality: Taking Religious

Perspectives." In The Least Examined Branch: The Role of Legislatures in the Constitutional State, edited by Richard W. Bauman and Tsvi Kahana, 246-62. Cambridge: Cambridge University Press.

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"Ontario Child and Family Services Act, R.S.O. 1990." Ontario Provincial Government. Plaut, Rabbi W. Gunther "The Child’s Rights in the Adoptive Process." Osgoode Hall

Law Journal 3, no. 14 (1964-1965): 31-35. Pocock, Philip F. "Children’s Rights Must Be Protected by the State." The Candian

Register, September 14, 1963, 1. Strong-Boag, Veronica. "Today's Child: Preparing for the 'Just Society' One Family at a

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