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February 22, 2009

The Blankenhorn-Rauch peace proposal on 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). There's probably a good chance that you've already read it, given the placement and the strange bedfellow authors; if not, you should. The op-ed is 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 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.

Consructing 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, without imposing religious litmus tests on public functions.

The most important aspect of 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 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 unknotting 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, there will be more political and cultural space to think beyond marriage.


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I'll take your concerns to the next (i.e., truly libertarian) level:

First, I don't see "bestow the status of civil unions" -- or, for that matter, "bestow the status of marriage" -- listed among the enumerated powers of the federal government. The limitations of Article I may seem a frivolous irrelevancy to Blankenhorn and Rauch, but some of us still care about such things.

Second, there is simply no such thing as First Amendment "separation of hospital and state" or First Amendment "separation of adoption agency and state" or First Amendment "separation of parochial school and state." Why, exactly, are Blankenhorn and Rauch taking as an axiom that such absurdities must be conceded ex ante?

If we are going to have anti-discrimination laws -- a noble debate in its own right -- and if we are going to offer a "church and state exemption" to such laws -- another debate always worth having -- then such an exemption should apply to the church qua church, and to nothing else.

As to your first point, I don't think there is an Article I problem so long as the federal civil union status is simply an eligibility category for purposes of federal programs and laws.

Why not just adopt the European model that churches do not solemnize civil marriages? Everyone who wants benefits get a civil marriage from civil officials. Religious marriage is handled by the church and is independent of any civil status. Americans seem incapable of separating civil and religious marriages at present, but a European model would make the difference far more obvious.

We may see the California Supreme Court move to exactly that solution suggested by Debra in California tomorrow.

I'm a strong supporter of the position that Debra suggests; I just don't see that happening in conservative sections of the U.S. for a really (!) long time. I hope that Mad Professah is right, and that California ends up there.

hi friends Rauch peace proposal on marriage is a perfect post, I would like get more information about this!

i suppose that the European model would be satisfatory for everybody ! If you want a traditional marriage maybe you should reconsider, but if you are so open minded, than adopt a civil marriage and that's it !

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