Nan Hunter

The new peace proposal on marriage

Filed By Nan Hunter | February 23, 2009 3:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: David Blankenhorn, federal law, gay marriage, marriage equality, marriage politics, New Jersey, New York Times, Rauch, same-sex marriage

In today's N Y Times, there is a jointly-authored proposal for a compromise on marriage by David Blankenhorn (self-described liberal anti-gay marriage advocate) and Jonathan Rauch (self-described gay conservative). It's likely to be the beginning of an effort to build support for this approach. Look for a panel on it later in the spring at Brookings, where Rauch is a fellow.

Blankenhorn and Rauch call for a federal law that would make these changes:

  • Recognize as civil unions all same-sex couples who have married or registered in their states for civil unions, and extend federal marriage benefits and duties to this group;
  • Condition this recognition on the states according "robust religious conscience exceptions" for religious organizations that object to same-sex marriage; and
  • Enact new federal provisions that shield religious organizations from federal law penalties if they refuse to recognize same-sex marriages.

First, credit where credit is due: this proposal will break the ice and hopefully start a useful conversation that focuses on a federal law geared to benefits. And, it cannot have been easy for these two voices to have reached agreement. I credit them both with good faith and good intentions.

That said, I've got problems.

As I've said before, I support federal recognition of civil unions as the best next step to take on relationship recognition. And I also support some degree of opt-out, in some situations, for churches/synagogues/mosques and the next concentric circle out of sectarian organizations. But there are two big pieces of this proposal that I can't go along with.

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 marriage - 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.

Constructing a fair op-out system should reflect the spectrum of American social institutions from the wholly religious faith group or congregation, on one end, to public agencies and the marketplace on the other. We need ways to allow for religious zones in a secular culture, but without imposing religious litmus tests on public functions.

The most important positive thing about the Blankenhorn-Rauch proposal is that it implicitly establishes what I agree is the right threshold for moving out of gridlock: support for civil unions that are materially equal to marriage, paired with some degree of opt-outs for entities that are thoroughly religious.

I also agree with creating a national legal landscape in which gay couples living in states that recognize marriage equivalents like civil unions can get the federal as well as state equality as to the material aspects of marriage. LGBT rights advocates can still pursue access to marriage itself on equal terms, which I also support, since the difference in designation is obviously intended to function as a signaling device for communicating second-class status. But those battles would be fought against a background and baseline of having had the material benefits already equalized. The outcomes will continue to be different in different states until the Supreme Court weighs in. Don't hold your breath.

Of course, neither my nor their proposal does anything to deal with legal recognition for non-marriage-like relationships, like those found in extended families or when non-sexual partners make serious commitments to each other (often among elders). But I have come to believe that un-knotting the marriage issue is a necessary first step. For better or worse (sorry), I don't think that we will ever get to the other issues until after the frenetic sugar-high anxiety and emotion of the marriage issue seems more resolved than it is now. Once that happens, I think there will be more political and cultural space to think beyond marriage.

(Cross-posted at hunter of justice)


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I was going to post about this op-ed, but you and today's guest post already did! I still might do it since there were other aspects I wanted to comment on.

But I agree with your policy-level objections and think that, for the most part, the idea is pretty good. But the way they use "freedom of conscience" - a concept made up by conservatives for the express purpose of discrimination against minorities and subjugation of women - has me a bit on edge. The more we build up the idea that churches and any organization affiliated with them have the right to just no follow any laws they want to follow, the more we lose in the political battle for the separation of church and state.

This is just a trojan horse for more discrimination.

A "robust exemption" for religious belief sounds like it means you don't have to celebrate gay marriages in your church, but it's more likely to be that when your partner is brought to the ER, you aren't allowed to see them because the hospital is a subsidiary of a religious organization that refuses to recognize your marriage.

Equality is morally and Constitutionally right
and anything less is not.
It is as simple as that.

Anything less that we agree to or that anyone agrees to in our name will remain to keep us in a second class position for decades. We will be tacitly signing our own version of Jim Crow,

I am unwilling, heatedly unwilling to do so and I am just as heatedly unwilling to allow anyone to do so on my behalf

In addition, accomodating the social prejudice of an age has never worked. Nor has it been fair. Jim Crow, "Irish need not apply, "Juden Verbotten" all come to mind.

When do we get to stand up and say that this is a secular republic founded by Deists who in their private correspondence, Federalist and Republican alike, wanted the Churches out of lawmaking?

The Right will cite John Jay in their favour, but he is the exception that proves the rule...his vision of a "Christian" America excluded Roman Catholics from the vote and from office.

Abortion, Contraception, Equal Pay for Women, single parent rights are all actually on the table simultaneously with LGBT rights; a victory on the one strengthens their hand to take on the rest.

We need a strategic win, right now, to stop the perception of Right Wing undefeatability. Let's do it.

We also should be continuing the "Stonewall 2.0" protests and marches to make a show of strength, and to demonstrate that we will not simply be cowed, retreat and beg for crumbs...or will we do just that, as we always ultimately do?

And...there is too much of Edouard Daladier and Neville Chamberlain dismembering Czechoslovakia to appease the German government about this kind of thinking.

I am equal to any other citizen of the United States. My relationship is just as genuine, honest and decent as those of the right wing ministers who slander, demean and desire to criminalise it and who endeavour mightily to de-legitimise it.

If I compromise, if any of us compromise, we will be inherently denying our conception of ourselves and participating in an intellectually dishonest definign ourselves as "less than."

I am not less than.
I am equal.

The devil is in the details with this situation. That being said I'm not entirely opposed to this kind of deal. I would like to see all the practical results of such exemptions.

If medical institutions and groups which receive state and federal funding are required to treat civil unions as equal to marriage. I would then find it perfectly acceptable.

Without a provision like the above I don't think I could support this.

In some ways I may even prefer this sort of deal due to the fact that it could reduce the power of "marriage" as a term and institution. That would be a great boon for many people, I find marriage has far to much power and social capital for my tastes.

I worry whenever you exempt certain people from recognizing basic civil rights.

I just posted on Alex's thread re same issue, and Nan, I' glad to see that others, far more skilled in legal issues than I, observe that "the Devil is in the details." There is a whole spectrum of possible "exemption" rules that could be applied here, some are worthy of consideration, others are total show-stoppers. It's difficult to evaluate this proposal effectively when it is still ambiguous about exactly what exemption rules we are talking about.

Nan, thanks for moving the discussion forward.