IGF's Jonathan Rauch has joined the anti-gay marriage proponent David Blankenhorn in the New York Times to come up with a fascinating compromise on DOMA: The federal government would recognize same-sex relationships contracted in those states which approve of them (whether as marriage, civil unions or domestic partnerships, though the federal government would call them all "civil unions"), but only if the recognizing state has "robust religious conscience exemptions" that would assure religious believers who oppose homosexuality their church would not have to recognize or honor the unions.
The compromise tests the veracity of the claim that religious believers worry civil recognition of same-sex relationships will invade their belief system through the enforcement of civil rights laws which require gays to be treated equally. The right has been able to scare up a few anecdotes about this misuse of civil rights laws: a wedding photographer forced to photograph a lesbian wedding; a same-sex couple who wanted to take advantage of a church-owned gazebo, which the church offered for use to the public; and churned them into a froth of paranoia about governmental intrusion into religion.
I'm with Jon in offering this proposal up publicly. I am happy to let the right know that we are dedicated to stopping this cascade of anecdotes. If they want additional assurance that the first amendment's separation of church and state means what it says, I will be on the front lines to add a statutory "and we really mean it" clause.
But I don't think anyone will take us up on this offer, since I don't think this is really their worry. It is not the first amendment they are concerned with, it is the fourteenth. It is equality that is the problem for them. Any government recognition at all of same-sex couples is more equality than they can bear.
The key, I think, can be found in this statement from the proposal: "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." What makes Jon and David think that religious groups want to have a "less contentious" national debate? It is heated controversy they crave and thrive on.
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.
21 Comments for “Testing Tolerance — DOMA edition”
posted by BobN on
No way. In exchange for federal recognition of civil unions and marriages where they exist — something not quite as over the horizon as the authors assert — we would accept permanent discriminatory status in huge areas of the country and, in those areas where we could get CUd, we would constantly face the whims of the religious in our interactions with the government.
What exactly would a religious exception for federal employees mean, anyway? Park rangers refusing to rent a camp site? No weddings at military chapels if the post commander says so?
This proposal doesn’t pass the traditional smell test. Substitute the word “gay” with “black” or “jewish” and reread the proposal.
Personally, I could live with religious exemptions, but only if they applied in reverse, as well. In fact, the only fair approach would be to completely repeal religious-discrimination law. Something tells me that wouldn’t fly (outside of Utah and large areas of the South, where it would be welcomed).
Oh, and the tedious, repeated assertions that anyone familiar with the issues and “of good faith” would agree with the plan is just plain manipulative and indicative of a lack of confidence in the plan’s points.
posted by David Link on
BobN:
I can only speak for myself here, but I certainly have confidence in the plan’s virtue. My cynicism is only with the more extreme right, who I think use religious arguments as an excuse for deeper anti-gay sentiment. There are people on the right (Blankenhorn is obviously an example) who could think this is a fair compromise. More important, this has appeal to people in the center. They are the ones, I think, who take the religious discrimination arguments seriously without, themselves, holding so narrow a view. It is moves like this, and the package of laws in Utah, that can tease them out over time.
I accept your point that calling marriages “civil unions” has a bit of a stink to it, but if that gets federal equality for domestic partnerships and civil unions as well, it’s a kind of discrimination that is imposed, not by government, but by politics — and particularly the toxic politics of the right when it comes to cultural issues. You think this would be permanent, but I think that getting over the initial hurdle of complete federal non-recognition will, in time, lead to exactly the equality we deserve. I don’t see how we can get it in one large gulp, and smaller bites is fine by me.
posted by Jorge on
Read the article. I almost like the idea. To be honest I consider religious exemptions mandatory myself. But I think it will be opposed on both sides and I don’t think the middle is strong enough. It is an attempt to divide the conservative/religious right, which it seems to me has become very resistant to being divided. It is an attempt to divide the gay community, which more often than not divides left.
And when I talk about dividing communities, I mean that I don’t think most organizations or their leaders will go for this. So it will have to be populist. There are pressures on each side to dig in.
But I do not like the federal government telling the states how to write their marriage laws. I would rather have the federal law directly overrule the state laws in some way, even if the only way is through a court case. The First Amendment is a constitutional guarentee.
Given the choice between attacking religion and interfering with state laws, I’d choose the latter.
posted by BobN on
“I accept your point that calling marriages “civil unions” has a bit of a stink to it”
My post wasn’t clear. The stink is that my California CU would continue to mean nothing in, say, Florida and that hospital administrators there could keep me away from my dying partner. Worse, California would have to trade in its strong anti-discrimination laws in order to secure federal recognition for us, so I would face the same hospital situation in, say, Orange County.
posted by TS on
“Oh, and the tedious, repeated assertions that anyone familiar with the issues and “of good faith” would agree with the plan is just plain manipulative and indicative of a lack of confidence in the plan’s points.”
Yeah, if this compromise actually addresses a majority-switching number of our opponents’ concerns, then I am rapturously happy and say full steam ahead. I just know it doesn’t.
posted by TS on
“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.”
That was the passage I meant to quote, not the other one!
posted by David Link on
BobN:
Your first point, about Florida’s nonacceptance of your California DP raises the question of why current law is better? As of right now, both Florida law and federal law ignore your legal relationship. If DOMA were changed, Florida law would still suck, but at least federal law would be better. Isn’t that a step forward.
As for your second point, California’s antidiscrimination laws already have religious exemptions, which I know for a fact because I worked on many of them. I don’t read Jon’s proposal as going much further in general, though it could require a bit deeper exemptions than we now have. But I don’t think it would involve much more than we already do, and we do it, not only because the right demanded it, but because the first amendment does as well. Telling Lou Dobson that we’ll give him what he wants because (in this case) he was asking for something every state is required to give anyway was very little give on our part at all. I think it’s a fine idea to follow the dictates of the constitution, and am quite happy to reiterate constitutional obligations in statute. In that sense, I really don’t believe California would be giving up much of anything in this proposal, and we’d be getting an awful lot in return. Even if DOMA is only symbolic as a practical matter (since states can choose to recognize one another’s CU’s or marriages right now), getting rid of it is a better symbol than leaving it on the books as is.
posted by mgh on
please tell me why we’re creating more “gay-only” exceptions to anti-discrimination laws?
there’s a long history in this country of balancing the need for a non-discriminatory public sphere and religious freedom. why should homosexuality challenge that? why are we so different?
why are you giving them fodder to further the “gay exception”?
posted by BobN on
David,
I’m all for steps forward, and I’ve grown to accept steps backwards as part of the process, but I’m quite leery of steps backwards that involve cementing my feet at that point.
I’m not as convinced as you are that the religious exemptions are minor and similar to what is already enshrined in, say, California law. Prop 8 notwithstanding, most citizens of this state already support same-sex marriage. It has passed the Legislature twice (if not three times… I forget). We have laws that protect us from the religious beliefs of doctors, restaurateurs, and inn keepers.
I could be convinced, I suppose to give that up if someone could point to a similar accommodation made for another group. I honestly can’t think of any.
posted by BobN on
“why are we so different?”
Indeed!
There are no conflicts looming because of gay equality that do not apply to cases based on religious discrimination law. I’m as willing to have my rights restricted as a gay man as the Buddhist gardener of the (right-wing fundamentalist) Baptist Church down the street is. I think this is very generous of me. After all, I just sleep with men. He violates a Commandment.
posted by David Link on
mgh (and BobN):
A religious exemption to civil rights laws doesn’t apply only to sexual orientation — it’s part of the normal first amendment accommodation that’s an intrinsic part of any law. These provisions are articulated in the context of sexual orientation, but they apply to any law — for example, compulsory high school education, which is not so compulsory for the Amish since their landmark first amendment constitutional challenge. Not every religious practice has to be accommodated, and there’s no bright line. Discrimination against women is accommodated (by not requiring Catholics to hire women priests) but not discrimination based on race.
The issue here for us is more similar to gender discrimination than race discrimination only in the sense that no respectable church any more wants to discriminate based on race. If one did, they would certainly be able to file a legal challenge. Few current churches have the same sense of shame about their discrimination against women or gays. Maybe someday. . .
posted by BJ on
I don’t think it will work simply because the some of the “fundagelical” religious want a scapegoat. They have used ignorance to develop fear; they have used confusion of civil marriage and the sacrament of marriage. It would simply take too much explaining to correct it. They would have to admit that this was about manipulating fear to consolidate power and had nothing of the Gospel message about it.
posted by BobN on
argh! Long post lost!!!!
“A religious exemption to civil rights laws doesn’t apply only to sexual orientation — it’s part of the normal first amendment accommodation that’s an intrinsic part of any law.”
I know that. What I do not — cannot know from the article — is how those exemptions would be expanded under this “compromise”. I do know that they don’t seem to be proposing that intra-religious questions be dealt with by the same exemptions. Just us. Seems like we’ll finally some “special rights” we’ve been fighting for, just not the ones we were hoping for.
posted by Arthur on
Civil Unions for all, and marriage is a religious moniker left up to the individual sects.
posted by DMH on
Aw, David and Jonathan! I love the irony.
posted by Richard J. Rosendall on
I agree with David Link that right-wing religious groups (let’s remember that there are gay-welcoming religious groups) are unlikely to accept such a compromise. Gay rights groups at the local and national level have already been accepting religious exemption language in gay-rights bills for decades. During the U.S. House debate on ENDA in November 2007, supporters of the bill (the gay-only version introduced by Barney Frank after it became clear that the trans-inclusive version lacked sufficient votes) accepted two different amendments making it explicitly clear that the bill had nothing to do with same-sex marriage and would confer no marriage rights on anyone; yet the Republicans still were not satisfied, and insisted on a motion to recommit to look into that bogus concern further, purely as a means of killing the bill. That motion failed, because Barney was on the floor. But the right wing, while claiming only to be concerned about marriage, in fact opposes any legal recognition of or protection for gay couples. This is proven after the passage of anti-gay ballot measures, when the same proponents of the measures who during the campaign insisted they were only about marriage, changed their tunes and said the measures also forbade any legal recognition including civil unions or domestic partnerships. They have not acted in good faith and should not be expected to start now.
The whole argument about gay-rights measures being a threat to religious organizations is a big fat red herring. If the First Amendment did not clearly forbid any such interference in religious practices, people like Maggie Gallagher would not have to invoke horror stories from Canada and other countries lacking America’s First Amendment protections. I have looked at the New Jersey case involving a seaside pavilion owned by a church which refused to rent it to a gay couple. The pavilion had nothing to do with the church’s religious function, and was simply a property that they used to generate income. If it were connected to their religious function, I myself would defend their refusal to rent it to anyone of whom they disapproved. But in fact churches routinely say such sidelight business ventures are entirely secular when it suits them, and then change their story at whim when it suits them to do so. In other words, they are acting in bad faith.
Religious exemptions are nothing new, and do not placate the anti-gay right, which only uses claims of religious persecution as a ruse. As the Blankenhorn/Rauch article itself notes, “a PBS poll last fall found that 58 percent of white evangelicals under age 30 favor some form of legal same-sex union.” In other words, we are gradually winning. And when we do, no one’s religious freedom will be impinged in any way–unless by “religious freedom” one means religious freedom for one’s own group and no one else.
posted by mademark on
There’s nothing fascinating about it, and it’s not comproise, it is capitulation. It’s an unworkable solution that solves nothing. So the lesbian secretary at a Catholic hospital has to find another job to get her partner insured? Let’s see what other indignities we can think of. For one thing, it would only apply to states that already grant some form of domestic partnership, leaving out the many that do not (and the rush to pass more constitutional amendments making sure of it can be anticipated). It would create what could be seen as a privileged glass of gay person, living in states where we would benefit from this, while millions were denied it. It would also require states to enact ‘conscience’ clauses. How about my conscience? The idea stinks of Apartheid, with the good Christians running the joint. No thank you. And to suggest that a large number of Christians think something ‘compassionate’ is okay, that we homo dogs are worth a little slim bone, is insulting beyond belief. Fascinating? Dehumanizing is more like it. Better to let time run its course. I’ll likely die before full equality comes, but it will come. At least they’ll be dead, too.
posted by Regan DuCasse on
This isn’t ANY kind of compromise, and as pointed out in the other posts, stinks ultimately OF bad faith all the way around.
It’s the religious exemptions canard that exclusively puts gay couples at the top of the slippery slope, but it’s ONLY gay couples who end up getting PUSHED down that slope and out of legal scrutiny.
Which religious groups ACTUALLY use their exemptions for ANYONE else?
Except the strictest or at least more inclusive of compromises, that is CONVERSION to the religion one wants to marry into.
I see VERY little exercise too of exclusion based on divorce, for example.
And this is STILL something that very few if any, heterosexuals are FORCED to challenge in the first place.
1. They already have all manner of federal and state protections in marriage.
This is just another way of keeping gay couples at arm’s length from the 14th amendment.
When it’s all said and done, hetero couples are given MUCH choice and even MORE freedom to not have to focus on religious exemptions whatsoever.
Regardless of how MANY marriages they are on, how many divorces, how many times or children they went on about things WITHOUT marriage at all.
With so many excruciatingly incremental problems, state and federal: this issue goes beyond marriage as we all know.
Gay men and women are the only ones whose biological attribute, not their STATUS, is the only discriminatory basis left, OTHER than status, whether you’re religious or not.
When the most devout among us themselves don’t use the religious restrictions against heterosexuals to frame their religious argument in the state and federal law, then they don’t have a case against gay people for that reason either.
posted by Jorge on
Here’s how I see it.
Sexuality is I think static and mostly predetermined. But for thousands of years religion has socially (and legally) enforced the expression of sexuality. And reproduction.
Contrary to what some posters are stating, Catholic and other religious organizations attempt to enforce a plethora of sexual and reproductive rules, inclduing prohibitions against adultery, sex before marriage, pregnancy outside of marriage (which is not always the same thing), and of course abortion. They further are empowered to do so by religious exemptions to nondiscrimination laws, not all of which are about identity categories. In most jobs you simply can’t fire a person for having sex outside of marriage or having/siring a bastard child.
With gay people, the rules are much simpler and more draconian: be celebate. But that is still a regulation of sexual behavior, of how sexuality is expressed, not of sexuality itself.
As long as religion is empowered to regulate the sexual behavior of straight people, however right or wrong that is, I think religion should be empowered to regulate the sexual behavior of gay people within the same contexts.
posted by Regan DuCasse on
Hi Jorge,
Which, if I understand you, would mean that gay people should be able to marry, to channel that sexuality in as responsible and legally binding way as possible, the same as hetero couples.
Right?
posted by jimmy on
No deal. Our nation’s trajectory towards a more perfect union has been powered by sweeping legislation or Supreme Court decisions, not pusillanimous compromises like this. I think David is right when he says that equality is what these folks lose sleep over. That’s we have to go all the way.