Here we go again. Every presidential year since 2004, gay marriage winds up in the middle of the national political crossfire. This November, it could be on the ballot in six states; just this past week, Gov. Chris Christie called for a statewide vote in New Jersey, and gay-rights activists delivered signatures for an initiative in Maine. Though same-sex marriage is gradually gaining ground, it will remain a bitterly contested, polarizing issue for years to come.

Imagine an alternative dimension where both sides of the American culture wars come together to reduce strife and polarization. Not in our galaxy? Certainly not in Washington. But in Utah? Maybe. ...

Enter Ben McAdams and Derek Brown. And a new idea.

McAdams is a 37-year-old Utah state senator, a Democrat (and straight). In 2009, working for the mayor of Salt Lake City, he helped pass an ordinance adding sexual orientation to the city’s employment discrimination law. In a breakthrough, the Mormon church supported the measure. Today 12 other Utah cities have followed suit, and most Utahans favor nondiscrimination coverage for gays. But the state Legislature balked last year at McAdams’ bill banning anti-gay job discrimination statewide.

So this month he proposed something different. A new version of the bill bars employment discrimination based not only on sexual orientation but also on political speech or activity (provided the politics is outside the workplace and unrelated to work).

“I wanted something that could bring the community together,” McAdams said. “This changes the dialogue from the angry dialogue of accusation to a respectful dialogue. If we want respect, we need to give respect.”

The bill is bipartisan. Its co-sponsor is a 40-year-old Republican state House member, Derek Brown. “Both principles are worthwhile,” he said, “and both are concepts I would vote for in and of themselves, but when you pull them both together in one bill, it’s a much more powerful statement that we don’t discriminate, period. Bringing the two sides together where we can focus on the similarities is the only long-term answer we have.”

Labels: discrimination law, freedom of speech, Jonathan Rauch, Utah

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Ours is an unusual friendship. One of us is a gay man who has written a book in favor of gay marriage. The other is a straight man who has written a book opposing gay marriage.

One of us argues that the advent of gay marriage could help to strengthen marriage as a social institution. The other warns that accepting gay marriage is likely to weaken the institution for everyone. Not much to agree about.

But here’s an interesting thing: Both of us are married, and both of us live or work in political jurisdictions -- New York state and Washington, D.C. -- that define marriage as the union of two persons. So we recently asked ourselves a question: What does it mean for us to disagree about gay marriage, now that gay marriage is the law where we make our homes and pursue our livelihoods?

For David, the opponent of gay marriage, what seems most important as the shouting stops is conciliation. His side must confront and reject anti-gay bigotry. Is opposition to gay marriage by itself proof of bigotry? No. But is far too much of the opposition largely fueled by prejudice? Yes. Looking to the future, is it important for all of us to understand and affirm the equal dignity of homosexual people and of homosexual love? Yes.

For Jonathan, the proponent of gay marriage, what seems most important as the shouting stops is getting marriage right, for all people. Winning the legal right is important for same- sex couples, but it’s hardly the end. Over the long run, will same-sex marriage shore up marriage’s privileged social status, or diminish it? Gay Americans and their communities all have an interest in establishing that their right to marry can support and perhaps even strengthen American commitment to the institution that is now open to them.

Supporting the Gift

What has always mattered most, to David, regarding marriage law is what he calls the gift: the possibility that a child will be raised in love by both biological parents -- the two people, the man and the woman, whose sexual union brought the child into the world. In states where gay marriage is the law, can he continue to advocate and work for that gift? Might Jonathan support him? The answer to both questions is yes.

Labels: adoption, culture, David Blankenhorn, domestic partnership, donor conception, gay marriage, homosexuality, Jonathan Rauch, Marriage, religious liberty, single parenting, unmarried parents

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I'm a gay marriage advocate and a polygamy opponent. And, yes, my positions make sense together. Polygamy is bad social policy for exactly the reason gay marriage is good social policy: everyone should have the opportunity to marry. Broad access to marriage important not only for individual wellbeing but for social stability. And, to oversimplify only a little, when one man gets two wives, some other man gets no wife. There's no better path to inequality, social unrest, and authoritarian social structures than polygamy. Read the fine print here.

So why do I agree with Steve Chapman—one of the country's best columnists, imho—that polygamy should be decriminalized? Because sometimes the best way to stop a fire is with a firebreak.

Right now, no state recognizes plural marriages. You can only have one marriage license at a time. But Utah goes further, deeming it a criminal offense to act or talk as if in a plural marriage. A man can live with two women and call them his girlfriends, and that's not a problem. He can marry one of them and call the other his girlfriend, and that's not a problem, either. But if he calls them both wives, he could go to jail.

Years ago, when states had an unquestioned right to ban contraception and racially mixed marriage and consensual oral sex, this was legally sustainable. But in today's world, where lifestyle choices have been broadly deregulated, throwing people in jail for speech and expressive behavior (wearing wedding rings without a license, for example) is too legally vulnerable on too many fronts to stand up for long. Worse, making criminal cases out of so-called polygamists brings them attention and martyrdom. Better to ignore them and relegate them to the fringe.

Labels: culture, Jonathan Rauch, Marriage, polygamy

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I have to say, I envy what Sherif Gergis, Robert George, and Ryan Anderson (GGA) have accomplished in their recent article (available here) and several follow-on posts (the latest is here). They have at last brought 100 percent epistemic closure to their opposition to same-sex marriage.

Their article is long and full of stuff, and it has generated an interesting discussion (many posts thru Jan. 3 are here, and GGA’s latest includes links to some more recent ones), but the verbiage is really all a gloss on this proposition: “Same-sex couples can’t marry because the capacity to have heterosexual intercourse is the sine qua non of marriage.” Or, to put it even more concisely: “Same-sex couple can’t marry because they’re not opposite-sex couples.”

Remember all that talk about marriage being “ordered (or oriented) to procreation”? As the new article and especially this follow-up make refreshingly explicit, “ordered to procreation” actually means “synonymous with heterosexuality.” Whether or not couples can actually procreate has nothing to do with it. If they can have penile-vaginal sex, they can accomplish the good of marriage. If not, not. ...

Theirs is, in my own view, an impoverished, incomplete, and significantly wrongheaded view of marriage—and, what’s more important, it’s the whole wrong way to talk about marriage, which is a social institution, not a Platonic abstraction. But I see why it appeals to GGA: it allows them to absent themselves from all of the difficult questions in the gay-marriage debate….

Labels: gay marriage, Jonathan Rauch, Marriage

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After New York Times columnist Frank Rich questioned his work and linked him to a notorious anti-gay figure in three columns this past spring, David Blankenhorn had had enough.

The founder and president of the Institute for American Values (IAV) recruited 13 college professors to attest to his credentials in a 12-page letter he sent to the Times asking the paper’s public editor to weigh if Rich’s columns were “consistent with the Times’ standards.”

Among the 13 were two University of Minnesota professors who support gay marriage, including Dale Carpenter, who is openly gay. Another gay marriage supporter from the Brookings Institution, a think tank, signed on as well.

While Blankenhorn backed civil unions for gay and lesbian couples in 2007, he gained greater attention this year when he testified in favor of Prop 8 during the federal trial over that 2008 amendment to California’s constitution that banned same-sex marriage. That more public stance has cost him.

“I’m losing friends, being told I’m on the wrong side of history, I’m like Bull Connor,” he said, referring to the top Birmingham, Alabama law enforcement official who in the 1960s used police dogs and fire hoses to attack pro-integration protesters. Blankenhorn has been mocked in the gay blogosphere. ...

In Blankenhorn’s view, the gay marriage debate shows “goods in conflict.” Same-sex couples and their children would benefit from marriage, but this beneficial institution could be harmed by admitting them, he said. He opts to exclude gay and lesbian couples from marriage while creating a parallel framework that has many of the same benefits.

In a sharply divided debate, Blankenhorn is still searching for a third way. He and Jonathan Rauch, a senior fellow at Brookings, have convened a series of meetings with 20 peers titled “Achieving Disagreement” that they hope will produce a document that will define the debate.

Labels: civil unions, culture, David Blankenhorn, gay marriage, Jonathan Rauch

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...Contrary to what some of my friends in the gay-marriage movement believe, however, homophobia is far from the only reason for opposition. Another group, which I think is at least equally large, feels threatened—less by the normalization of homosexuality than by the abnormalization, so to speak, of the conventionally defined family. “Nothing personal, do what you want,” they tell us, “but leave the definition of family—of marriage—alone!”

One way to see that more is going on than homophobia is to reflect, for a moment, on a peculiar fact: gay marriage is far more controversial in America than either same-sex adoption or same-sex child custody.

Think about that. Isn’t it odd? The care of children, by definition, involves third parties who often have little or no choice about their situation. If there is a case for harm, one would think it would be strongest here—not in the union of two mutually consenting adults. In fact, the other side has a very hard time articulating any concrete harm at all that gay marriage would do. Yet efforts to make a political issue of gay adoption have consistently failed, while, wherever it appears, gay marriage finds it cannot not be a political issue.

What is behind the alarm raised by gay marriage?

To answer this question, I think one must widen the aperture and look at same-sex marriage in the context of a much larger cultural battle over the nature of family, of marriage, and even of adulthood: a debate over what it is that constitutes, and should constitute, the template for “normal” in all of those areas.

Labels: contraception, culture, divorce, economics, gay marriage, Jonathan Rauch, June Carbone, Marriage, men, Naomi Cahn, out-of-wedlock births, poverty, Red Families v. Blue Families

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Can it be? One of the oddest paradoxes of modern cultural politics may at last be resolved.

The paradox is this: Cultural conservatives revel in condemning the loose moral values and louche lifestyles of "San Francisco liberals." But if you want to find two-parent families with stable marriages and coddled kids, your best bet is to bypass Sarah Palin country and go to Nancy Pelosi territory: the liberal, bicoastal, predominantly Democratic places that cultural conservatives love to hate.

The country's lowest divorce rate belongs to none other than Massachusetts, the original home of same-sex marriage. Palinites might wish that Massachusetts's enviable marital stability were an anomaly, but it is not. The pattern is robust. States that voted for the Democratic presidential candidate in both 2004 and 2008 boast lower average rates of divorce and teenage childbirth than do states that voted for the Republican in both elections. (That is using family data for 2006 and 2007, the latest available.)

You can do a good job of predicting how a state will vote in national elections by looking at its population's average age at first marriage and childbirth.

Six of the seven states with the lowest divorce rates in 2007, and all seven with the lowest teen birthrates in 2006, voted blue in both elections. Six of the seven states with the highest divorce rates in 2007, and five of the seven with the highest teen birthrates, voted red. It's as if family strictures undermine family structures.

Naomi Cahn and June Carbone -- family law professors at George Washington University and the University of Missouri (Kansas City), respectively -- suggest that the apparent paradox is no paradox at all. Rather, it is the natural consequence of a cultural divide that has opened wide over the past few decades and shows no sign of closing. To define the divide in a sentence: In red America, families form adults; in blue America, adults form families.

Cahn and Carbone's important new book, Red Families v. Blue Families: Legal Polarization and the Creation of Culture, from Oxford University Press, is too rich with nuance to be encompassed in a short space. But here is the gist.

For generations, American family life was premised on two facts. First, sex makes babies. Second, low-skilled men, if they apply themselves, can expect to get a job, make a living, and support a family.

Labels: abortion, contraception, culture, divorce, economics, Jonathan Rauch, June Carbone, Marriage, Naomi Cahn, out-of-wedlock births

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In a recent newsletter, the National Organization for Marriage cites a new government study as evidence that gay marriage will hurt kids, because the research finds that kids suffer less abuse with married biological parents than with a single parent, a parent living with an unmarried partner, or a parent and step-parent.

They got it half right. Having two married biological parents is good for kids, and better than the alternatives the study examined. We here at IGF are all for it. But that doesn't make having, say, an unmarried mom and mom better than having a married mom and mom. As a correspondent points out:

Does NOM never, ever learn? These same figures indicate that for either two-adult family structure (both biological parents, or one biological and one step-parent) the chance of abuse to the child goes down drastically IF THE COUPLE GETS MARRIED. For the first kind of family, the risk drops 80 percent. For the second kind of family, the risk drops nearly 60 percent. Even for single biological parents, the child's risk drops by about 15 percent if that single parent finds and marries someone.

Labels: cohabitation, gay marriage, gay parenting, Jonathan Rauch, Maggie Gallagher, Marriage, NOM, parenting, remarriage, single parenting

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Last October, Bill Meezan, my cousin, left his home in Columbus, Ohio, for a business trip to Philadelphia. Bill is the dean of Ohio State University's College of Social Work, and he travels quite a bit. In Philadelphia, he thought he felt an old cold coming back. Then he developed a nasty cough. On October 31, he went to the hospital.

He remembers nothing of that day, but Mike Brittenback recalls sharply how doctors in Philadelphia called him in Columbus to say they suspected pneumonia. Mike, an organist and choirmaster, is Bill's partner of 30 years. A few hours later that Friday, they called back to confirm the diagnosis. Mike was concerned but not alarmed.

At 3 a.m. the next day, the phone woke him up. It was a doctor in Philadelphia. Mike needed to come to Philadelphia immediately. Bill had gone into septic shock and might not survive more than a few hours.

* * *

"Here's the key principle," Peter Sprigg, a gay-marriage opponent with the Family Research Council, said in an April radio interview on Southern California's KCRW. "Society gives benefits to marriage because marriage gives benefits to society. And therefore the burden of proof has to be on the advocates of same-sex marriage to demonstrate that homosexual relationships benefit society. Not just benefit the individuals who participate but benefit society in the same way and to the same degree that heterosexual marriage does. And that's a burden that I don't think they can meet."

Can't they?

Labels: culture, gay marriage, government interest in marriage, Jonathan Rauch

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...B. So your next book, Dancer from the Dance, is less well known. The reviews talk about it as very evocative, capturing the spirit of an age, Great Gatsby-esque. Lost souls wandering around at parties off Long Island Sound…

JR: In my twenties I began to understand that I was gay. I did not want to be gay. I fought it very hard. And the reason for that was not that I was prejudiced against gay people, or thought it was a sin. It’s that I did not want to live in what I thought was the dark underworld of homosexual life in the 70’s and 80’s. One of the first books I read in that period was this book, Dancer from the Dance, by Andrew Holleran – which is actually a pseudonymous name. It was published in 1978 and is a very powerful, very poetic, evocation of gay life in the 1970s, pre-AIDS. And what it highlights is the extreme unsettledness of gay life - the transience, the fluidity of relationships. They’re not even really relationships in many ways. Just a lot of sex. And to me that was very scary. I didn’t realize it at the time but in hindsight what Holleran was depicting so vividly is a world without marriage, a world without family bonds and family commitments.

B. So for you this book was not about a halcyon period for gay men -indeed it elicited rather negative feelings.

JR. It is a poetic book and it is, in many ways, an affectionate book. But it captures a moment in history when you’ve got the emergence of an entire culture of people for whom free love is legal, but marriage is unthinkable. And family is, in many cases, rejected as a kind of bourgeois obstruction. It struck me much more as a dystopia than anything else.

Labels: culture, gay marriage, Jonathan Rauch, Marriage

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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.

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

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...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.

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

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...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.

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

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...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.

...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.

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

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...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.

This is called separate but equal. Ask your local civil rights leader what he or she thinks of a separate-but-equal policy.

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.

...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?

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).

...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.

...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.

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.

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.

...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.

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.

...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?

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?

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.

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?

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

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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.

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

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