This is a late commentary on this OpEd by David Blankenhorn and Jonathan Rauch, published last weekend in NYT. Everyone seems to have taken a swipe at it, but I haven't seen a full-scale take-down. It purports to lay out the case of "compromise" on the issue of same-sex marriage, and needless to say, I find it lacking in important respects. It starts:
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.
There's a basic question here that, as far as I am concerned, blows this whole piece out of the water: why would anyone expect a minority to compromise on an issue of fundamental rights? I'll come back to this later, because it actually impacts a couple of points in this OpEd.
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.
We start with the "separate but equal" fantasy, coupled with redundancy to protect freedom of conscience. The "robust religious-conscience exceptions" are already embodied in the First Amendment, and in practice, no church is required under any law to recognize or perform weddings that violate church doctrine. This seems to be a red herring born of a straw man, which is a major flaw in this whole exercise. This proposal also awards the term "marriage" as the sole prerogative of heterosexual couples on the federal level, which is a major bone of contention. Do you begin to see which way this "compromise" is heading?
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.
This is a mischaracterization, as far as I'm concerned: the conflict is not between religious objections to same-sex marriage and those who want to be married, but between those who want a fundamental civil right and those who want to impose their religious views on civil law. If it were merely a matter of some people objecting to same-sex marriage, the answer is simple: don't marry someone of the same sex. I know it sounds smart-ass, but that's what it boils down to: do what you wish and mind your own business.
Further sharpening the conflict is the potential interaction of same-sex marriage with antidiscrimination laws. The First Amendment may make it unlikely that a church, say, would ever be coerced by law into performing same-sex wedding rites in its sanctuary. 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?
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.
Here's another misrepresentation. The reference here to a "faith-based nonprofit" losing its tax-exempt status seems to be to the Ocean Grove Beach Pavilion case in New Jersey, which Timothy Kincaid has dealt with quite judiciously here and here. This one has been a favorite scarecrow of the anti-gay right, and has quite consistently been presented in pretty much the same terms Blankenhorn and Rauch present it here, when the truth of the matter is that the pavilion was a public facility and the tax exemption was granted on the basis of it being available to the public, which it had been -- including wedings for couples of many faiths -- until a lesbian couple tried to rent it for a commitment ceremony.
Double-whammy:
Gay couples have concerns of their own. Most, of course, want the right to marry, and nothing less. But federal recognition of same-sex marriage — leave aside what you think about the merits — is not likely in the near future. The federal Defense of Marriage Act forbids it. Barack Obama and most other Democratic presidential candidates opposed gay marriage. And most Americans continue to oppose it.
President Obama has pledged the repeal of DOMA -- it is, after all, a statute, not the Eleventh Commandment, and can be repealed. And while Obama opposes same-sex marriage personally, he also opposes laws and constitutional amendments forbidding it. He, at least, understands the difference between personal belief and civil law.
Yes, most gays are opposed to the idea that religious organizations could openly treat same-sex couples and opposite-sex couples differently, without fear of being penalized by the government. But we believe that gays can live with such exemptions without much difficulty. Why? Because most state laws that protect gays from discrimination already include some religious exemptions, and those provisions are for the most part uncontroversial, even among gays.
This one starts off with flat assertion that I think requires some back-up. There's no evidence that most gays have any such attitude. In fact, the prevailing attitude seems to be "believe what you like, and keep it off the law books." (Update: It occurs to me that Blankenhorn and Rauch are probably trying to slide this one past us by using "religious organizations" to include any outfit that has even the most tenuous relationship with a church. For decades, churches that wanted to get government grants to do humanitarian or other charitable work spun off separate, more or less secular entities -- such as Catholic Charities -- to take care of that and preserve the separation of church and state. In the past twenty years or so, these have suddenly become "religious organizations" for the purpose of avoiding antidiscrimination laws. They don't admit it, but that's the case. And I'm sure that Blankenhorn and Rauch are buying into that wholeheartedly in order to make this point, which otherwise is poppycock.) Yes, there are always those spoilers who are prepared to litigate on the slightest pretext, and the gay community (-ies?) has its share. They deserve to get slapped down in court if their cases have no merits. (As a sidelight to this, Blankenhorn and Rauch fail to mention those organizations that suddenly became "religious" organizations, such as Catholic Charities and the Salvation Army, when it looked like they could avoid complying with civil rights laws that way. Do we see a little bit of duplicity here?) They also point out what I pointed out under the section abouit "robust religious-conscience exceptions": those already exist. Everyone's fine with them.
And while most Americans who favor keeping marriage as it has customarily been would prefer no legal recognition of same-sex unions at either the federal or the state level, we believe that they can live with federal civil unions — provided that no religious groups are forced to accept them as marriages. Many of these people may come to see civil unions as a compassionate compromise. For example, a PBS poll last fall found that 58 percent of white evangelicals under age 30 favor some form of legal same-sex union.
Another flat assertion that the authors then proceed to demolish on their own. It's also a bit misleading: those who favor keeping marriage as it has customarily been happen to be those opposed to gay rights in general, and yet that very population, or the core of it -- white evangelicals -- now support some form of legal recognition for gay families. Having your cake. . . .
Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.
"Reasonable people of good will" seem all to be on the pro-marriage side. It is not the gay civil rights movement that has started this war, and it's not reasonable people of good will who produced, for example, a campaign of lies and deception to pass Proposition 8. This is either a case of staggering naivete or butter-wouldn't-melt-in-your-mouth mendacity. I'll let you decide which.
But clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it.
The point is, there is no threat to religious freedom inherent in legalizing same-sex marriage. None. It's a favorite scare-mantra of the anti-gay right, but in reality, there's no there there. The threat is to those who want to enforce their sectarian beliefs on the rest of us being told in no uncertain terms that there are limits. Let's face it, there are limits on the exercise of every right, from free speech on down the line, which are necessary if we're to be able to live together at all. And need I point out that there are religious denominations that support same-sex marriage? What of their religious freedom, and the freedom of conscience of their followers? And once again, to characterize the insistence on our ability to participate in what not only the California Supreme Court but the United States Supreme Court has determined to be a fundamental right as "scorched earth" is ludicrous: what other position is possible? What other group would be asked to "compromise" on the exercise of its basic rights?
And did you notice that all the "compromise" takes place on the side of same-sex marriage here?
This is really no surprise coming from David Blankenhorn, whom I do not regard as a reliable commentator. In Blankenhorn's case, it's also worthwhile to look at who pays his bills. I have to say I'm somewhat disappointed in Jonathan Rauch -- I had thought that, even though he hasn't impressed me as a particularly incisive commentator, he had some respect for factual accuracy and honest representation. (Sorry, but I consider Rauch to be one of the prime exponents of the "please, kick me again" school of gay commentators. No sympathy to that point of view, I'm afraid.)
Note: Pam Spaulding has posted a series of commentaries on this OpEd, beginning here. If you search the Blend under "blankenhorn," you can pick up the rest.
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