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Sunday, February 22, 2009

A workable compromise on SSM/civil unions?

SSM opponent David Blankenhorn and SSM supporter Jonathan Rauch have co-authored a New York Times op-ed laying out a culture war "compromise." They propose::

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.

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?

Posted by Rob Vischer on February 22, 2009 at 11:24 AM | Permalink


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There's a lot "not to like" about the proposal, as I've outlined in more detail on my website (wordinedgewise.org). The authors don't spell out what religious protections would be appropriate, and the proposal, even were it clear, is substantively objectionable.

The federal civil union might be a good idea, though, for reasons I spell out on my website.

Posted by: John Culhane | Feb 23, 2009 1:23:32 PM

I'm sure the article is worthwhile but I'd prefer one without the first two words. How about a "compromise" that has an across the board religious exception?

As the first Joe notes, this probably would still be a problem. It also will probably raise some hackles -- tellingly so. But, it would convince me more than singling out one group since "religion" not only "religions that don't like same sex marriage" is what has to be balanced with liberty.

Posted by: Joe_JP | Feb 23, 2009 11:02:15 AM

For a good overview of the SSM/religious liberty conflict -- focusing primarily on hiring, speech, and tax exemption issues -- read "Same Sex Marriage and Religious Liberty" (D. Laycock et al. eds. 2008).

Posted by: Rob Vischer | Feb 23, 2009 9:22:41 AM

The "Joe" at 9:53 is not me, but I agree.

And, I could have added more states to my list.

Posted by: Joe | Feb 22, 2009 11:20:54 PM

What's not to like? One type of marriage, based on sex or sexual orientation, recognized by individual states, will on the federal level will be called "civil unions," which in the real world is simply not the same thing as "marriage." So said Massachusetts and those who studied the matter in New Jersey and Vermont. These might only have "most" of the federal benefits of marriage.

The religion exception favors certain religious groups. Some would oppose divorced individuals or the like. The favoritism is important given an example given -- a church secretary , that is, not a religious officer as such, could be discriminated against. Ditto use of its "property" (not church as such).

This is a rank violation of the First and Fourteenth Amendment in ways I wish not, even if I had the right, to "compromise."

Posted by: Joe | Feb 22, 2009 11:05:26 PM

As a legal matter, same-sex marriage would not interfere with the freedom of churches.

But some religious folk are scared it would, and there is precedent for it in European countries with hate speech laws.

Posted by: Jack Krevins | Feb 22, 2009 10:38:52 PM

It would arguably be more neutral as between the states to have the federal government provide federal benefits regardless of state, and to allow states to define state marriage (and unions, or not) for state-benefit purposes as they will. This proposal is certainly better than what we have with DOMA currently, of course.

I think the freedom-of-religious-organizations aspect is basically a diversion (or some sort of non sequitur), as discussed here. As a legal matter, same-sex marriage would not interfere with the freedom of churches. Further, "the rhetoric of 'marriage equality,'" to my knowledge, always pertains to civil--not religious--marriages. Can you point to an example of where this is not the case?

Posted by: Joe | Feb 22, 2009 9:53:45 PM

As a practical matter, there is no neutral position for the Feds to take, but on a formal level a rule that for federal purposes (tax, immigrations, benefits, etc.), the federal government will simply follow the rules of the states and accept duly enacted same-sex marriages and civil unions is a heck of a lot more "neutral" than the current DOMA-mandated deviance from the general rule of not looking behind state decisions to grant marriage licenses.

Posted by: Andrew Siegel | Feb 22, 2009 4:50:06 PM

Put another way, why isn't a situation where a state that wants to pass civil unions can, one that doesn't isn't forced to (at least, not unless its constitution or Judges say so - compare the New Jersey marriage case with the Rhode Island divorce case), and the feds are neutral, already a compromise? It's not what either side's more strident advocates want, so why isn't the status quo effectively a compromise?

Posted by: Simon | Feb 22, 2009 3:00:01 PM

Isn't there a problem that without any way to bind both sides, the
"compromise" becomes a ratchet, moving us a step or two in the direction of one side's preferred policy, thus establishing a new and more advanced forward base for future offensives?

Posted by: Simon | Feb 22, 2009 2:55:53 PM

Matt -- I assume the counterargument is that immigration policy is a fed question, unlike family law in general, but since they're already deferring to the state's judgment on marriage validity, I don't know why we shouldn't include same-sex relationships within the scope of deference. I need to read your paper -- thanks.

Posted by: Rob Vischer | Feb 22, 2009 11:57:24 AM

Rob- would you extend this to recognition of the unions for the purpose of immigration benefits? The basic federal rule is that a marriage is valid for the purpose of immigration benefits if its valid in the place of celebration. One glaring exception to this is with immigration benefits, mostly, but not only, because of DOMA. This strikes me as grossly unjust and unreasonable. (I've written some of this for anyone who is interested.) Because I think the right to form lasting and legal relationships with one's partner is a fundamental right I don't see the state-by-state option as fully acceptable, though I suppose this is moving in the right direction. But I'm curious as to whether, in your support for this program, would support extending federal immigration benefits to same-sex couples whose marriages are recognized by state law as well, since this is a federal benefit they are currently cut off from.

Posted by: Matt | Feb 22, 2009 11:45:03 AM

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