Same-Sex Marriage and Religious Liberty: A Brookings Institute Panel Discussion

intro:

In a recent New York Times op-ed, Brookings scholar Jonathan Rauch and co-author David Blankenhorn argue that linking federal civil unions to guarantees of religious freedom is a way to head off a long-term, scorched-earth debate over gay marriage and religious liberty.

On March 13, Rauch and Blankenhorn discussed their proposal at a forum moderated by Brookings Senior Fellow William Galston. Robin Wilson, editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts, discussed the church-state conflicts that same-sex unions may engender. Nathan Diament and Lara Schwarz offered thoughts from religious and gay rights perspectives.

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You can listen at that link, or read the full transcript here (PDF).

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

posted by Imapp Staff at 5:42 AM EMAIL SHARE PRINT

WHY GAY COUPLES ARE LIKE STRAIGHT COUPLES: John Corvino

at 365Gay.com:

...Anderson and Girgis instead propose the following: “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 …In return, traditionalists would agree to support federal civil unions offering most or all marital benefits.” But these unions “would be available to any two adults who commit to sharing domestic responsibilities, whether or not their relationship is sexual,” provided that they are “otherwise ineligible to marry each other.”

In other words, there would be federal civil unions for gays--but also for other domestic pairs: elderly widowed sisters, for example, or bachelor roommates.

At first glance, their claim that Rauch and Blankenhorn base their proposal on “the presumption that these relationships are or may be sexual” seems strange. After all, Rauch and Blankenhorn never mention sex, and the state neither knows nor cares (nor checks) whether people are having sex once they’re married or “civilly united.”

On the other hand, people generally assume (with good reason) that marriages and civil unions are sexual, or more broadly romantic. Romantic pair-bonding seems to be a fundamental human desire--for straights and gays--and part of what marriage does is to acknowledge pair-bonds. It does so not because the government is sentimental about such things, but because it recognizes the important role such bonds have in the lives of individuals and the community.

Anderson and Girgis are correct that there are other important bonds in society, and we may well want to extend more legal recognition to them. There is no reason that two cohabitating spinsters shouldn’t be granted mutual hospital visitation rights if they want them.

But the question remains whether we want to extend “most or all” federal marital benefits to any cohabitating couple otherwise ineligible to marry, as Anderson and Girgis propose.

And this question prompts additional ones: why limit such recognition to couples? Mutually interdependent relationships don’t only come in twos. Oddly, Anderson and Girgis seem to have more in common with radicals who seek to move “beyond marriage” than they do with anyone in the mainstream marriage debate.

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Labels: beyond marriage, civil unions, David Blankenhorn, gay/straight differences, Jonathan Rauch, Ryan T. Anderson, Sherif Girgis

posted by Eve at 12:26 AM EMAIL SHARE PRINT

Can We Find Common Ground on Gay Marriage?: John Corvino on Blankenhorn/Rauch

at 365Gay.com:

...Certainly, the proposal deserves a rigorous discussion from all sides. In order for that discussion to be more productive, I’d like humbly to suggest some guidelines:

Rule #1: Do not criticize the proposal by saying, “The other side is not going to like it because…” Let the other side speak for the other side.

Rule #2: Do not respond to an admirable attempt at peaceful negotiation by immediately ratcheting up the rhetoric. For example, at the National Review Online Maggie Gallagher writes, “From where I stand, it looks like the progressive/democrat position states: If you believe marriage means a husband and wife, you are not just wrong, you are downright wicked and deserve to have your home address put up on the internet so strangers can harass you.”

Oy. That violates Rule #1 and Rule #2—in one sentence!

Nobody doubts that there has been excessive rhetoric on both sides. There are advocates who claim that anyone who opposes marriage equality is a hateful bigot; there are opponents who hold that gays by their very existence offend God.

But thankfully, there are also those like Blankenhorn and Rauch who are interested in moving us past such conversation-stoppers. Let’s take the cue.

Rule #3: If you don’t like the proposal, suggest a better idea.

Note: “Give us full marriage equality!” is not what I mean by a better idea. Sure, that’s what would happen in my ideal world. Rauch’s too. And no one is saying that we should stop making the case for it.

But in the meantime, there’s a proposal on the table that would provide federal rights and benefits to those in state-issued same-sex unions. Moreover, it’s a proposal that one major same-sex marriage opponent has endorsed.

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

posted by Imapp Staff at 9:41 PM EMAIL SHARE PRINT

CONTINUING CONVERSATION ON BLANKENHORN/RAUCH EDITORIAL

(and please do send me more links if you have 'em)

Barry Deutsch:

...But the compromise doesn’t cede the word “marriage.” Blankenhorn and Rauch aren’t trying to end debate over the word “marriage.” What the B/R compromise (as I shall now call it) attempts to do is put aside two sub-debates associated with marriage, while leaving the primary debate — over formal marriage equality — untouched and ongoing.

I think marriage equality proponents should take this deal, if it becomes a real legislative possibility.

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Jonathan Rauch on the Andersen/Girgis counterproposal:

...So we'd go from today's world, where one side demands full marriage rights and the other side rejects even minimal recognition of gay couples, to a world where same-sex couples got federal civil unions—which they'd have to share with a few nuns and aging sisters—but gays agreed not to ask for more. States, presumably, could continue to tussle over gay marriage, but the federal debate would be over.

There's much to think about here, but one practical question strikes me as a likely show-stopper: How could any agreement not to pursue changes in DOMA bind future activists and politicians? A gentlemen's agreement wouldn't be enforceable, and a constitutional amendment would be both difficult as a political matter and unacceptable to SSM advocates, who will see it as writing inequality into the Constitution—the nuclear option, from our point of view.

That's just a first-blush reaction, though. I think the most important thing about Anderson-Girgis is its willingness to reach out and try to do something for same-sex couples, as well as something to ameliorate the culture wars. It should be received by SSM advocates as a good-faith gesture, and it deserves to be broadly and respectfully discussed. And it's another sign that maybe, just maybe, the ice is beginning to thaw around the frozen gay-marriage debate.

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Labels: civil unions, David Blankenhorn, gay marriage, Jonathan Rauch, religious liberty, Ryan T. Anderson, Sherif Girgis

posted by Eve at 2:00 PM EMAIL SHARE PRINT

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?

more (and he's been posting a bit about the Anderson/Girgis piece as well, if you scroll about here)

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

posted by Eve at 1:33 PM EMAIL SHARE PRINT

A RECONCILIATION ON GAY MARRIAGE: David Blankenhorn and Jonathan Rauch

in the New York Times:

IN politics, as in marriage, moments come along when sensitive compromise can avert a major conflict down the road. The two of us believe that the issue of same-sex marriage has reached such a point now.

We take very different positions on gay marriage. We have had heated debates on the subject. Nonetheless, we agree that the time is ripe for a deal that could give each side what it most needs in the short run, while moving the debate onto a healthier, calmer track in the years ahead.

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

For those not immersed in the issue, our proposal may seem puzzling. For those deeply immersed, it may seem suspect. So allow us a few words by way of explanation.

Whatever our disagreements on the merits of gay marriage, we agree on two facts. First, most gay and lesbian Americans feel they need and deserve the perquisites and protections that accompany legal marriage. Second, many Americans of faith and many religious organizations have strong objections to same-sex unions. Neither of those realities is likely to change any time soon.

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

posted by Eve at 12:10 PM EMAIL SHARE PRINT