REACTIONS TO RAUCH/BLANKENHORN COMPROMISE

...a mighty link round-up! (I'm posting this now, unfinished, because I'm worried that my computer will crash--will keep adding to it. EDIT: Computer did crash, but I've now fixed this post, so there will be no new additions.)

First, here's their op-ed again, "A Reconciliation on Gay Marriage."

Ryan T. Anderson and Sherif Girgis:

...But as we see it, this proposal grants too much to revisionists and too little to traditionalists. Revisionists get the substantive (if not linguistic) treatment of homosexual unions as marriages; traditionalists get conscience protection (of unspecified scope). But traditionalists’ primary concern is not simply to secure an enclave of personal liberty to regard marriage as they see fit. Rather, it is to promote a healthy culture of marriage understood as a public good that also fulfills spouses and the larger communities of which they are members. ...

But even people who hold differing views on marriage could agree that there is no special reason to extend recognition only to romantic same-sex unions. If hospital visitation rights and Social Security survivor benefits are appropriate for two cohabiting men who have demonstrated long-term commitment and care, does it matter whether they are sexually involved with each other? Wouldn’t those benefits just as well serve, say, two elderly, codependent brothers?

That brings us to our alternative proposal: The revisionists would agree to oppose the repeal of the Defense of Marriage Act (DOMA), thus ensuring that federal law retains the traditional definition of marriage as the union of husband and wife, and states retain the right to preserve that definition in their law. In return, traditionalists would agree to support federal civil unions offering most or all marital benefits. But, as Princeton’s Robert P. George once proposed for New Jersey civil unions, unions recognized by the federal government would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual. Available only to people otherwise ineligible to marry each other (say, because of consanguinity), these unions would neither introduce a rival “marriage-lite” option nor treat same-sex unions as marriages. Their purpose would be to protect adult domestic partners who have pledged themselves to a mutually binding relationship of care. What (if anything) goes on in the bedroom would have nothing to do with these unions’ goals or, thus, eligibility requirements.

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Josh Becker at NYU Local:

This is called separate but equal. Ask your local civil rights leader what he or she thinks of a separate-but-equal policy.

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Dale Carpenter:

My initial and very tentative reaction, as a same-sex marriage supporter, is that the Blankenhorn-Rauch compromise probably gives little away since SSM was never really a threat to religious liberty anyway. As a practical matter, gay families gain a lot in very important federal benefits in exchange for what appears to be barring lawsuits that either weren't -- or shouldn't -- be available. The devil is in the details -- what exactly do "robust religious-conscience exceptions" cover? -- but the op-ed starts a conversation about federal legislation that might be politically achievable in the near future.

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Maggie Gallagher:

...I have two big questions, one practical and one political:

1. Can Congress provide effective religious-liberty protections? Could Congress really tell the Massachusetts court or the California court it must provide — or must accept the legislature's provision of — substantive religious-liberty protections? The California court has just declared that orientation is a protected status just like race. And racial equality trumps religious liberty in our system of government. What would the language look like? Lawyers, please discuss.

2. Is anyone over at Human Rights Campaign and Marriage Equality seriously interested in this compromise?

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Good as You:

Here again, we have church fears and desires casually tossed around as if they, in terms of American government, are interchangeable with testaments toward civil fairness. And once again the tone suggests that just because churches desire something, that they are automatically deserved of it. That's a very dangerous concept. And not only for LGBT people, but also for any group that might at any time find themselves within cross-wielding crosshairs. ...

Okay, first off: Yes, we still have work to do to get the president and the American public fully on our side. But you know how not to do that? By ceding ground on a matter that we know within our loving hearts and learned minds is nothing short of right! That would be to our movement's great peril. Especially when you consider that we, despite our setbacks, have made CONSIDERABLE gains in the past few years (with more potentials in the near-to-immediate pipe).

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Kate Harding at Salon:

...Interesting, but doesn't the First Amendment provide a "robust religious-conscience exception" already? Or did I just miss all the stories about, say, the state forcing Catholic churches to marry previously divorced people, or threatening to withhold tax-exempt status from religious institutions that won't perform or recognize interfaith marriages? Blankenhorn and Rauch acknowledge that the First Amendment makes it "unlikely" that churches would ever be legally required to marry gay couples but argue that more protection is needed. "What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner or else face legal penalties for discrimination based on sexual orientation or marital status? What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property?"

Oh, now I get it. The First Amendment is actually about preventing religious discrimination, so that's not helpful here. These hypotheticals are not about whether any given church has to formally recognize a particular marriage, but about whether it would have to comply with laws that protect the civil rights of all citizens equally. It's not enough for the state to recognize the right of religious institutions to define the parameters of a sacred rite on their own terms. A government of the people, for the people, and by the people must also recognize and defend their right to treat some human beings as second-class. Gotcha.

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Nan Hunter:

...First, if federal law is going to continue to follow state law for the purpose of defining who is eligible when a federal program requires marriage, then it should recognize as marriages – not as civil unions – the Mass and CT and other same-sex marriages that are legal under state law. Following the status recognized by the state has always been the federal approach.

If that is going to change, as Blankenhorn and Rauch propose, then federal law should create a federal civil union status - independent of state law - as the eligibility requirement for federal programs. It would, as a federal status, be open to couples who qualify regardless of whether their state of residence recognizes civil unions. And note that I didn't say "gay couples" - a federal civil union status should be open to both straight and gay couples.

Second, satan is truly in the details of their proposal for a “robust” exception for religious belief. It was striking to me that the op-ed completely omitted any discussion of the impact when non-church (etc) entities – like charities or hospitals with a religious affiliation – accept public funds. When all of our tax dollars are supporting these organizations, then all of us have a legitimate concern about the services they provide.

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David Link:

I am in complete agreement with this proposal, and think anyone who is participating in this debate in good faith could support it. That, I am afraid, is why I’m so doubtful about its success.

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Amanda Marcotte:

The presumption that Blankenhorn, Saletan, Rauch, and pretty much all these dudes who think there’s a compromise point is that they can only make this argument by employing a false assumption, which is that since we’re all Americans (yes, these battles are worldwide, but they’re only speaking to Americans), we share a fundamental values system, and that the battles are about gradations of difference. Therefore we can all just move over a little and tah-dah! We all agree. That’s why Saletan thinks that it will be easy enough for anti-choicers to give up their hostility to contraception and for pro-choicers to give up our belief that an embryo’s value is defined strictly by the mother. And Blankenhorn and Rauch appear to think that the homobigots will be mollified by a few religious protections. And I sort of feel sorry for these dudes, because they are working under the assumption that everyone involved is arguing in good faith. By doing so, they encourage cultural conservatives to continue the strategy of lying about their motivations, because it’s so effective.

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Jason Mazzone:

...One aspect of the proposal, which might easily be overlooked, strikes me as fatal.

Read carefully. Under the proposal offered, Congress would deem marriages and civil unions between same-sex couples and recognized under state law to be federal civil unions.

Think about that. A couple married in Massachusetts would be downgraded to a civil union for purposes of federal law.

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John McGreevey at Commonweal:

One wonders — given the public opinion data showing very strong support for gay rights, generally, among people under 30 — if this will be a hot issue at all 20 years from now. In this sense the contrast with abortion — 36 years after Roe v. Wade – is striking.

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Pam Spaulding:

...OK. I have a problem with this already, though I see where they are trying to accomplish -- getting same-sex couples access to the rights and benefits of civil marriage and cede the word marriage to those who cannot decouple it from religious marriage in their heads. Obviously, Kate and I would take that considering we have no recognition in our state and won't unless action comes from the feds or SCOTUS, but Blankenhorn and Rauch's solution, by accommodating the "misunderstanding" about the word marriage -- rather than redefining it (something that has occurred countless times in the past), chooses to draw an institutionalized line of discrimination. Many of the same excuses for bans on interracial marriage revolved around religious objections to it, with scripture cited about the morality of race mixing. Would they have suggested an entire new federal civil institution be created to resolve the problem because the American people weren't ready?

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Glenn Stanton:

How many religious people or groups concerned about their religious freedom in the face of the political advances of the gay community would trust the current or future Congress (or any one of the past 20 years for that matter!) to protect their rights to robust religious freedom? It would nice to believe such a thing were possible, but if such religious beliefs are built on bigotry anyway – for this is precisely the script of most gay- and much mainstream-commentary on Prop 8 -- how rigorously can such rights be protected?

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Jacob Sullum at Reason:

It seems to me this proposal moves in the right direction: toward evenhanded legal treatment of gay and heterosexual unions and, ultimately, getting the government out of the "marriage" business altogether. Let private institutions decide what constitutes a marriage (as they did through most of human history), with the government's role confined to enforcing contracts and policing the various legal prerogatives currently associated with civil marriage.

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Rob Vischer:

So the federal government would support, not supplant, states' decisions on marriage and civil unions. For someone (like me) who believes that the legal treatment of same-sex relationships should remain a state-level responsibility, who believes that the law will (and should) do more to support long-term, committed relationships among gays and lesbians, and who is concerned that the rhetoric of "marriage equality" has shown a tendency to minimize the importance of religious liberty (especially institutional religious liberty), what's not to like about this proposal?

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Labels: civil unions, David Blankenhorn, gay marriage, Jonathan Rauch, religious liberty

posted by Eve at 1:33 PM | link

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