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February 23, 2009

A Gay Marriage Proposal

This has been bouncing 'round the tubes for a few days. It's a gay marriage compromise from two guys who don't want to see the gay marriage issue get locked into perpetual culture war by the courts the way abortion was. David Blankenhorn is a well-known and widely-read opponent of gay marriage. Jonathan Rauch is a gay marriage supporter who wrote the book Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America. Their suggestion:

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.

It's an interesting proposal, read the whole thing.

The heart of the compromise is what they term "religious-conscience exceptions" which would ensure that faith-based organizations can discriminate against gays and lesbians on the sole issue of recognizing marriages and civil unions. As we saw during the Prop 8 campaign, religious institutions are convinced that churches will be forced to perform gay marriages. This is currently against the law, so gays give up nothing by enacting that particular religious-conscience exception.

The real meat is that the exception would be extended not just to religious organizations performing religious acts (where they have First Amendment protections against imposition of antidiscrimination laws), but to the rest of their institution. As Blankenhorn and Rauch put it:

But religious organizations are also involved in many activities outside the sanctuary. 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? [This happened recently in New Jersey. -Gabe]

Cases of this sort are already arising in the courts, and religious organizations that oppose same-sex marriage are alarmed. Which brings us to what we think is another important fact: Our national conversation on this issue will be significantly less contentious if religious groups can be confident that they will not be forced to support or facilitate gay marriage.

So make it happen. Churches and other religious institutions get protection (they should have it anyway and if you really want to get serious about it a federal amendment isn't out of the question). On the other side, married gays or gays with civil unions get federal recognition. Currently, only two states allow gays to marry, two more allow civil unions, and three states have domestic partnerships which are substantially similar.

The catch is that several of those states currently recognizing gay unions do not have a residency requirement. Which means that Adam and Steve could travel from Oklahoma to Massachusetts to get married and then receive federal recognition of it back home in Oklahoma. Why should Oklahoma care? Many state consequences flow from federal marriage recognition. Off the top of my head, the income tax regulations would need a quick re-write, since they require spouses who file a joint federal return to file a joint state return (with one exception). Other areas of consequence include hospitals and schools where, due to funding sources, the line between state and federal control has blurred. Those concerns will have to be ironed out before gay marriage opponents can be expected to sign on.

In any case, folks should have no illusions about the proposal. Federal recognition for gay marriage is an undeniable symbolic victory for gay marriage, one that will have far-reaching consequences. For individuals like myself who want to see churches and faith-based groups get protection from gay marriage discrimination lawsuits the proposal does not actually represent a compromise. For me it would be win-win. However, I recognize that isn't the case for people who want to put gays back in the closet, on the one side, or for radical gays who want to change or prohibit certain religious beliefs, on the other. Either side will be unhappy with this deal.

There is another outcome, however, that should encourage both sides to at least consider a compromise of some sort, even if the Blankenhorn and Rauch proposal comes up short. As the issue stands, we are on course for another Roe v. Wade. Just as with abortion before Roe, the states have been fashioning their own solutions to the gay marriage issue. It's possible that all of that will get swept away, like many state abortion laws, if the federal courts get to doing what they do.

We've already seen the courts take a slow, but steady trend toward extending protections to gays and lesbians. Cases like Romer v. Evans and Lawrence v. Texas might be this generation's Griswold v. Connecticut, the privacy case which paved the way for Roe. I believe a court-imposed solution will be worse than anything we could get out of Congress, not only because it is much harder to modify a Supreme Court decision than it is a federal law. But having the judiciary force the issue may cement it as a permanent component of the culture war between the left and the right.

Both parties already impose an abortion litmus test on candidates. With Chief Justice Roberts and Justice Alito we saw some groups asking pointed questions about their stance on gay marriage. Will we be happy when marriage is an element of every judicial confirmation hearing? And here's an interesting thought: although President Obama opposes gay marriage it is likely that the kind of judges he appoints to the bench will not.

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posted by Gabriel Malor at 10:06 AM

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