Jonathan Rauch and David Blankenhorn have an interesting Op Ed proposing a compromise on gay marriage. Their compromise:
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.
Their goal strikes me as eminently reasonable, but I wonder why legislation such as they describe is needed. Indeed, I wonder if it wouldn’t create more problems than necessary in trying to reach a compromise. I think there’s a simpler, more elegant route to the same result.
If the Defense of Marriage Act were repealed (which I have always favored), then the question would naturally arise whether a same-sex couple united in civil marriage or a civil union was entitled to the Federally-conferred incidences of marriage (e.g., survivor benefits under Social Security). Indeed, my understanding was that the whole rationale begind DoMA was to make it clear that people in such unions were not entitled to such incidences. It would be very logical, then, for a court to interpret the repeal of DoMA as Congress expressing its intent that at least some such unions would confer these Federal benefits. The courts would then set out to determine which those were, and would, I imagine, proceed based on the intent of the state law in question – the most clear cases being situations where marriage itself was redefined.
That, it would seem to me, would be that. From a Federal perspective, marriage is mostly about money; all the interesting stuff (divorce, inheritance, age of consent, degrees of consanguinity) happens at the state level. Why do the Feds need to write a specific law creating a Federal concept of civil unions, and enmesh itself in marriage law, when that has always been a state matter?
So far as I can tell, the only reason to do so is to coerce the states into adopting these “freedom of conscience” provisions. But why do we need to engage in coersion? There’s this wonderful provision in the Constitution – the free exercise clause of the First Amendment – that would seem to be adequate to address this problem. If Congress wanted to make it clear that, in its view, those First Amendment protections prevented the states (much less the Congress, which directly bound by them rather than indirectly through a doctrine of incorporation) from using anti-discrimination law to force religious institutions to violate their own tenets (a pretty clear infringement on free exercise, it would seem to me), then Congress could pass a law to that effect. Free exercise of religion may be problematic in and of itself but as long as we’re working with it as a framework, it seems to me we don’t need to single out gay couples in any way; we need to make it clear that religious freedom trumps anti-discrimination law (at least within some bounds).
My proposed alternative – repeal DoMA, pass a law clarifying how religious institutions are exempt from certain anti-discrimination laws, and let the courts sort out the rest – doesn’t single out gays, Federalize marriage law, coerce the states, or usurp the proper role of the courts. It also, incidentally, avoids the potential problem of non-recognition of same-sex marriages performed abroad – since the proposed law specifically limits recognition to unions formalized in states with specific protections for religious institutions, and Congress has no power to coerce foreign legislatures – which I’m sure was not something the authors were aiming for.
(As an aside, there’s a piece of mine making the case against same-sex marriage from my old blog from back in 2003 or so that is still getting passed around. I don’t really have a probem with any of the arguments I made then (though I don’t agree with all of them anymore), but I do have a problem with the tone of some of the piece, a kind of breathless, panicky rhetoric that still embarrasses me whenever I’ve re-read it. In any event, I owe the readers here some explanation of how my views have evolved since then, but I haven’t had the time to do it justice. I should note that, notwithstanding that I was arguing against same-sex marriage in that piece, at that time I favored: the repeal of don’t ask don’t tell; the repeal of DoMA; some kind of civil unions laws (at the state level); and (not that it’s relevant for a discussion of civil marriage law), the ordination of gay rabbis and some kind of Jewish religious reckoning with the reality of gay sexuality. Objectively, you’d have to have placed me on the “liberal” side of the spectrum at the time I wrote the piece, but for a variety of reasons (not the least that it was structured as an argument against a “liberal” proposal, and proceeded from some pretty conservative premises) I’ve wound up being classified as one of the “right-wingers” on this subject. Which is interesting, I guess.)