Snowball fight in Hell! (I agree with David Blankenhorn.)

David Blankenhorn and Jonathan Rauch have written the week’s most talked-about op-ed, “A Reconciliation on Gay Marriage.” It’s an eye-catching byline, because Blankenhorn – a marriage equality opponent I’ve criticized once or twice in the past — and Rauch, one of the country’s leading marriage equality proponents — seem unlikely bedfellows.

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.

Pam, who I usually agree with, has misunderstood what the proposal is:

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.

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 marraige equality proponents should take this deal, if it becomes a real legislative possibility.

First of all, Federal recognition of same-sex marriages and unions is worth a lot, even though the fight for full marriage equality would still go on. The benefits for couples currently torn apart by unjust and bigoted immigration laws, for example, would be incredibly important, and that’s just one example — there’s also tax law, social security, etc..

Second of all, the anti-marriage-equality movement relies on saying “booga-booga! Teh gays are coming to take away your religious liberties!” in order to drum up donations and votes. This bill could be an enourmous boon to us, because it would let equality proponents say “not only is that not true, it’s against a Federal law that was passed just last year — and the law was originally proposed by the guy who wrote the book on opposing equal marraige!”

Would that, alone, be a game-changer? Would it stop some marriage equality proponents from lying about what marraige equality would do? Of course not. But it would help. Not a guaranteed win, but also not nothing. As David Link writes,

The compromise tests the veracity of the claim that religious believers worry civil recognition of same-sex relationships will invade their belief system through the enforcement of civil rights laws which require gays to be treated equally.  The right has been able to scare up a few anecdotes about this misuse of civil rights laws: a wedding photographer forced to photograph a lesbian wedding; a same-sex couple who wanted to take advantage of a church-owned gazebo, which the church offered for use to the public; and churned them into a froth of paranoia about governmental intrusion into religion.

I’m with Jon in offering this proposal up publicly.  I am happy to let the right know that we are dedicated to stopping this cascade of anecdotes.  If they want additional assurance that the first amendment’s separation of church and state means what it says, I will be on the front lines to add a statutory “and we really mean it” clause.

In fact, the B/R compromise doesn’t go far enough. Can we also add another “and we really mean it” clause, saying that parents have the right to withdraw their children from any class in which the teacher is teaching about same-sex marriage?

Because if those two clauses had been federal law a year ago, I very much doubt Proposition 8 could have passed.

* * *

There is a danger here, as Nan Hunter points out:

…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.

I wondered about this too, and emailed Rauch asking about it. Rauch told me that he’s imagining broad federal guidelines, with freedom for states to make their own religious exemption rules within those guidelines.

That’s conforting, in a way. If the “robust” exception for religious belief would mean that Massachusetts can set its own standards, then Massachusetts wouldn’t have to accept Catholic hospitals refusing to acknowlege same-sex marriages.  Of course, homophobes in states like Florida would use the exemption to screw over same-sex couples — but that’s already happening, so it’s not clear how the B/R compromise would make things worse.

Assuming it doesn’t become a trojan horse for eviserating anti-discrimination laws (as Kate Harding thinks is Blankenhorn’s intention), I’d like to see this compromise become law. It could provide substantial benefits for same-sex couples nationwide, and also blunt one of the anti-equality side’s favorite attacks. And I think that the more experience the country has with legally recognized same-sex unions, the better the odds of reaching full marriage equality. (Maggie Gallagher agrees with me, although in her case it’s something she fears.)

Curtsy: Eve at the Marriage Debate blog.

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9 Responses to Snowball fight in Hell! (I agree with David Blankenhorn.)

  1. 1
    PG says:

    I share Kate Harding’s Trojan horse concern, because I found it telling that the proposal doesn’t mention that existing anti-discrimination law already exempts religious institutions: the Civil Rights Act of 1964 didn’t mean that the Mormon church had to accept black priests, nor the Catholic church female ones, because it included an explicit provision saying it didn’t apply to such entities. If sexual orientation ever gets added to federal anti-discrimination law, there’s no reason to believe that it would get more protection than race, sex, national origin, religion, etc. do — I’ve never seen a suggested inclusion of orientation in anti-discrimination law that would gut the long-standing exemptions for religious groups.

    I would hope that B & R know enough about federal anti-discrimination law and its effect on religious entities to know that. So what are religious groups going to get out of this trade-off of federal marriage recognition for an exemption for churches? I doubt it’s going to be just allowing religious institutions to have the same exemption from anti-discrimination law that they’ve always had, because SSM opponents would be stupid to give up on DOMA to get something they have now and would continue to have in any foreseeable future.

  2. 2
    Robert says:

    It’s an interesting proposal, but the solution probably won’t be found in Federal legislation. Constitutionally speaking, marriage/civil unions have always been left as a state issue. The only way you can push it into the realm of Federal regulation is by making a relatively complex argument under the Commerce Clause (Affectation Doctrine, blah blah blah). Even if a Federal statute were passed, SCOTUS is likely to strike it down on review b/c, again, marriage/civil unions are, constitutionally and traditionally, a state issue.

    The alternative is to amend the Constitution, but that is also a relatively lengthy and complex process that requires the approval of the States.

  3. 3
    Stentor says:

    Second of all, the anti-marriage-equality movement relies on saying “booga-booga! Teh gays are coming to take away your religious liberties!” in order to drum up donations and votes. This bill could be an enourmous boon to us, because it would let equality proponents say “not only is that not true, it’s against a Federal law that was passed just last year — and the law was originally proposed by the guy who wrote the book on opposing equal marraige!”

    Considering how many of the right’s objections to the stimulus bill were based on alleged provisions that they made up out of whole cloth, I’m dubious about the idea that what’s actually on the books will have an impact on the content of the rhetoric. At best, marriage opponents will just start saying that this compromise is the camel’s nose under the tent and soon enough the conscience clause will be repealed.

    More broadly, I think a lot of opposition to SSM is based on a feeling of aversion toward gayness as something polluting and disgusting. Talking about this pollution entering the most sacred realm of life certainly sharpens the issue — but even a conscience clause that marriage opponents truly trusted wouldn’t address the source or general application of the aversion.

    All that being said, I support this kind of conscience clause for religious officials on the merits apart from any gain by using it as a bargaining chip.

  4. 4
    PG says:

    At best, marriage opponents will just start saying that this compromise is the camel’s nose under the tent and soon enough the conscience clause will be repealed.

    I’ve heard this argument already. SSM opponents are extremely distrustful of the courts, and are convinced that any legislative compromise will just be gutted to conservatives’ disadvantage once it is litigated. The BOOGA BOOGA of SSM is equaled only by the general BOOGA BOOGA of those craaaazy judges. (Why conservatives think it worthwhile to legislate anything, given that it’s all up for grabs by those craaaazy judges who will do anything to help the liberal cause and destroy traditional values, capitalism and baseball, is something that I haven’t yet figured out.)

  5. 5
    chingona says:

    When we’re talking religious conscience exemption, would that mean religious-based institutions that offer benefits to opposite-sex spouses would not have to offer them to same-sex spouses of employees? Would a Catholic hospital not have to recognize the medical decision making powers of a same-sex partner in a federally recognized union? What are we actually talking about? Because they already don’t have to marry anyone they don’t want to marry.

    I understand what you’re saying when you say, basically, that something is better than nothing, but I share everyone’s Trojan horse concern. The right is trying to use these religious exemptions to push back against all kinds of rights. I also worry that codifying something that is less-than will actually make it harder to push for full equality. I think a lot of people will just want to leave well enough alone.

  6. 6
    Jake Squid says:

    I don’t understand why a “religious conscience objection” is necessary. The law doesn’t force Catholic churches/clergy to perform marriages for non-Catholics. Why would legalization of SSM force any church to perform SSM marriages? What am I missing here?

  7. 7
    Robert says:

    @Jake Squid:
    Well, even Title 7 has exceptions for religion (e.g. Catholic church doesn’t have to have female priests, etc). So it makes sense there’s one here. They’re not afraid of what the statute specifically says, but of subsequent broad judicial interpretations of the statute.

  8. 8
    sbg6 says:

    “Can we also add another “and we really mean it” clause, saying that parents have the right to withdraw their children from any class in which the teacher is teaching about same-sex marriage?”

    I just have to comment on this side-note because no, we can’t offer that. To give parents the right to withdraw their children whenever gay marriage is discussed would automatically closet every lgbtq teacher in the public schools. It could be argued (and has been, by several parents of my sixth grade class) that I discuss “my orientation” every two weeks or so, given that I call kids out on their use of the word “gay” (and explain why) and occasionally mention my wife as I interact with students.

    If we had some sort of strict notification policy, then I would have to send a letter at the beginning of each school year, outing myself and offering parents to transfer their children out of my class if they object to my honesty. This, of course, frames the issue in a negative and unnatural way. Or I could keep quiet, as many teachers are still told to do.

    Of course education is dangerous, and parents are rational in their fears that being exposed to different ideas may influence their child’s opinions. But their rights to educate their children in state-supported schools don’t infringe on my right to be a conscientious teacher and pour myself (wife, future family, and all) into my teaching. No compromise on marriage is worth implying that even discussing SSM is objectionable and immoral.

  9. 9
    marmalade says:

    It’s an interesting proposal, but the solution probably won’t be found in Federal legislation

    Well, the article proposes that the US Congress repeal (is that the right word?) the Federal Defense of Marriage Act. So, that’s a Federal legislation issue. Other than that I’d think it would mostly be administrative – for example, the Social Security Administration and the Federal judicial system would have to change policies and forms in order to make sure that they were recognizing all marriages performed by states and in other countries. Perhaps agencies could recognize civil unions administratively also, I don’t know.

    I really don’t know what was so groundbreaking about that NYT article – if religious people think they’re going to have queer people shoved on their congregations by legal fiat, then they’re swallowing too many lies from the hate mongers. I do love how the NYT header for all the reader responses today was “Is ‘marriage’ subject to compromise” . . . no, it’s not ‘marriage’ with patronizing little air quotes . . . it’s either marriage or it’s not.

    And if I were monarch I’d have my government provide civil unions for all couples to take care of the relatively-few legal issues that are specific to partnered people . . . and then all of the things that all people need regardless of partnership status (health care, social security, fairness before the law, etc.) would be between the gov’t and the individual.

    Having these things should not depend on having a partner – whether of the appropriate gender or not. It galls the hell out of me when I get my social security statement and it informs me that if I were to die tomorrow that my spouse (non-existant, since I’m not allowed to marry) would get more money a month from my death than I will if I retire at 62.