IGF CultureWatch

Recently I wrote about a proposed compromise by David Blankenhorn, who opposes gay marriage, and Jonathan Rauch, who supports it.

On the Blankenhorn/Rauch proposal, the federal government would recognize individual states' same-sex marriages or civil unions (under the name "civil unions") and grant them benefits, but only in states that provided religious-conscience exemptions, allowing religious organizations to deny married-student housing to gay spouses at a religious college, for example, or to refuse to rent out church property for gay-related family events.

The Blankenhorn/Rauch proposal has prompted much discussion, including a counter-proposal from Ryan Anderson and Sherif Girgis at the conservative website thepublicdiscourse.com.

Anderson and Girgis-who unlike Rauch and Blankenhorn, come from the same side of the debate-reject the original proposal as granting "too much to revisionists and too little to traditionalists." As they see it, traditionalists don't merely seek to secure their own personal religious liberty, but to promote what they see as "a healthy culture of marriage understood as a public good."

They believe that the Blankenhorn/Rauch proposal undermines that public good, because

"it treats same-sex unions (in fact, if not in name) as if they were marriages by making their legal recognition depend on the presumption that these relationships are or may be sexual. It thus enshrines a substantive, controversial principle that traditionalists could not endorse: namely, that there is no moral difference between the sexual communion of husband and wife and homosexual activity-or, therefore, between the relationships built on them."

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.

Also, why limit such recognition to couples "otherwise ineligible to marry"? Can't an unrelated man and woman have an interdependent relationship that's not sexual/romantic?

Anderson and Girgis write that, "Our proposal would still meet the needs of same-sex partners-based not on sex (which is irrelevant to their relationship's social value), but on shared domestic responsibilities, which really can ground mutual obligations."

And there's the crux: Anderson and Girgis assume that sex has social value only when open to procreation. But that's just false, and most Americans know it. We acknowledge sexual/romantic relationships not merely because they might result in children, but also because of their special depth. Sex doesn't merely make babies; it creates intimacy-for gays and straights alike.

The problem is that Anderson and Girgis divide couplings into two crude categories: (1) married (or marriageable) heterosexuals, and (2) everyone else: committed gay couples, elderly sisters, cohabiting fly-fishing buddies, what have you. They then implausibly suggest that those in column two are all of equal social value.

As David Link writes at the Independent Gay Forum, "The authors of this proposal are quite honest that they find it impossible to view same-sex couples in the category of marriage. But if these are the two categories offered: aging sisters or married couples, I'm betting more Americans who don't already have an opinion, would view same-sex couples as more like the married couples than the sisters. With apologies to the traditionalists, the days when a majority of Americans simply closed their eyes to the loving-and sexual-relationships of same-sex couples are coming to an end."

As they should.

On March 5, the California Supreme Court heard arguments about whether Proposition 8, which banned same-sex marriage in the state, is valid. Even if you oppose gay marriage, and even if (like me) you support it but question last May's decision declaring a right to it, there's good reason to invalidate Prop 8. That's because the root issue in the case is deeper than same-sex marriage. It goes to the heart of what it means to live in a democratic polity whose decisions are both substantively and procedurally bounded by a constitution.

The California Constitution recognizes two types of changes: "revisions" and "amendments." A "revision" can be enacted only through approval by two-thirds of each state house, followed by a majority vote of the people. "Amendments" can be enacted by simple majority vote of the people, without prior legislative approval. The harder process to enact a revision suggests that it is reserved for extraordinary matters requiring more deliberation and social consensus than an ordinary amendment. If Prop 8 was actually a revision, it cheated the constitutional design by going through the comparatively easy amendment process.

So which is it? The California state constitution itself tells us nothing about which route must be followed for a particular proposed change. The distinction between revision and amendment is rare in state constitutions, and completely foreign to the U.S. Constitution.

History offers little guidance. The easier amendment route was created in the early 20th century as a populist, progressive reform to combat the power of wealthy corporate interests over the California legislature. Whatever else can be said of them, neither side in the gay-marriage debate is controlled by robber barons. While the people obviously wanted a method of constitutional change that avoided the legislature, it's equally obvious that some changes still require prior legislative approval.

The court's own precedents don't directly answer the question. In the past, the California Supreme Court has said that a proposed change can be so voluminous that it requires the more laborious revision process. Prop 8 added only 14 words to the state constitution.

The court has also said that a change can be so "qualitatively" significant that it constitutes a revision. A proposal to instruct the state legislature how much to spend annually on environmental protection is an amendment. But a proposal to limit the ability of the state courts to protect multiple rights of criminal defendants was held to be a revision. Prop 8 dealt only with defining marriage, which is certainly important, but leaves intact California's extensive gay-rights laws, including its comprehensive recognition of same-sex domestic partnerships.

So past cases have labeled changes "revisions" if they are voluminous or alter the basic structure of state government, including the court's own role in monitoring the protection of a broad swath of rights. But if the underlying concern is that some changes should require more deliberation and consensus, why limit the analysis to those narrow instances?

Critics will say that overturning Prop 8 would be unprecedented. And they're right. But that is only because Prop 8 itself is unprecedented in California - or in any other state. To see why, forget about same-sex marriage for a moment.

Suppose a majority of the people decide that Mormons are exercising disproportionate influence in the political system. So they change the state constitution to deny Mormons, and Mormons alone, the right to make contributions to ballot fights.

Or suppose a majority of the people decide too many blacks aren't taking marriage seriously. So they vote to deny blacks, and blacks alone, the right to marry. Putting aside the questionable validity of such changes under the federal constitution, would they be "amendments" or "revisions" to the California Constitution?

Back to Prop 8. Under the California Supreme Court's marriage decision, marriage is as fundamental for gays as it is for blacks and as important for them as political speech is for Mormons. Additionally, discrimination against gays is as judicially questionable as it would be against racial or religious minorities.

There are solid reasons to think last May's decision was judicial overreach. But unless the decision is reversed, which is unlikely, the conscientious constitutional objector is left to consider the larger implications of allowing a fundamental right to be stripped from a vulnerable minority.

Even rights that the objector agrees are fundamental could be taken away, and even groups that he agrees need special judicial protection could be assaulted, in a future constitutional amendment, by a simple majority. If it's acceptable in this case, it should be acceptable in future ones.

Neither side doubts that courts are empowered to determine whether a change is a revision or an amendment. When in doubt, perhaps the court should follow the "will of the people," as legal supporters of Prop 8 argue.

But which "will"? The will expressed by any simple majority at any given time on any issue of sufficient brevity or discreteness? Or the enduring will expressed by the people themselves in their constitution, as interpreted by their courts, requiring extraordinary procedures for extraordinary changes targeting three percent of the population?

Gay marriage can be banned in a revision to the state constitution. After all, the people are entitled to govern themselves. But only under the rules they have enacted. And the best understanding of those rules suggests they were violated by Prop 8.

This is a good time to take stock of the threats faced by LGBT people around the world. That's because on Feb. 25, the State Department released its Country Reports on Human Rights Practices for 2008. The Council for Global Equality a day later released its extract of sexual orientation and gender identity references for 190 countries. That and a list of "Top Ten Opportunities for the U.S. to Respond" are at www.globalequality.org. The dishonor roll includes Egypt, the Gambia, Honduras, India, Jamaica, Kuwait, Kyrgyz Republic, Lithuania, Nigeria, and Uganda.

The Council notes that many of the worst anti-gay abuses were committed by American allies, "including those that receive sizeable U.S. development or security assistance." Egypt was the third largest recipient of aid from the State Department and the U.S. Agency for International Development in 2008, while Uganda is a leading recipient of PEPFAR funding for prevention and treatment of HIV/AIDS. The Council believes that "the State Department must move beyond a reporting agenda to an affirmative 'protection agenda' that actively seeks to redress these serious and ongoing human rights violations."

There were plenty of abuses outside the "top ten," according to the documents. In Russia: "On June 1, gay pride activist Alexey Davydov was assaulted while addressing reporters at the Moscow Gay Pride event." In the Netherlands: The U.N. High Commissioner for Refugees "raised cases in which protection from return to unsafe countries appeared to have been violated..." In Cameroon (where homosexual activity can bring sentences of up to five years in prison): "homosexuals suffered from harassment and extortion by law enforcement officials." In the Bahamas: "In 2006 the Constitutional Review Commission found that sexual orientation did not deserve protection against discrimination."

One grim lesson the reports teach is that the sun never sets on anti-gay laws stemming from the British colonial era. Countries from Brunei to Zambia continue to criminalize acts "against the order of nature," despite England's having decriminalized homosexual acts in 1967. Human Rights Watch observed in December that, "the model British-era sodomy law made no distinction between consensual and non-consensual sex, or between sex among adults and sexual abuse of children. As a result, these surviving laws leave many rape victims and child victims of abuse without effective legal protection."

Gay rights groups were among the Non-Governmental Organizations (NGOs) that pressed efforts in many countries despite grave risks. They included the Blue Diamond Society in Nepal; Sangama in Bangalore, India; ACCEPT in Romania; Gemini in Bulgaria; and Rainbow Project in Namibia. NGO representatives were assaulted in Jamaica, Honduras, Croatia, Uganda, and India.

Prejudice and violence persist even in countries that have made great strides. For example, in South Africa, which legalized same-sex marriage in 2006, a Social Attitudes Survey by the Human Sciences Research Council found that homosexuality was widely considered "unAfrican" and gay sex was opposed by 80 percent of respondents. Also in South Africa, four men were charged with the rape and murder of lesbian activist and former soccer player Eudy Simelane east of Johannesburg. No arrests were made in the July 2007 murders of a lesbian couple in Soweto and a lesbian in KwaZulu-Natal.

There was some good news. Argentina's National Social Security Administration granted widowed same-sex partners inheritance rights to their partner's pension. Turkey's Supreme Court of Appeals on Nov. 28 overturned an Istanbul court ruling which had cited Turkish "moral values and family structure" in shutting down Lambda Istanbul, the country's oldest LGBT organization. The Lithuanian government paid 40,000 euros to a transsexual woman after the European Court of Human Rights ruled her privacy rights had been violated.

The reports for Iceland, Denmark, Sweden and the Netherlands mention their gay-inclusive laws against hate speech. These laws are double-edged swords, because they tend to blur the distinction between mere disagreeable speech and incitement to violence. Denmark's prohibition of blasphemy could place gay rights advocates afoul of the law if they mount a public response to, say, Islamist homophobia. Indeed, one cannot write about European trends in Islamist anti-gay intolerance without being called Islamophobic by gay leftists. But there is no safety in silence.

The State Department reports for 2008, while gathered during the Bush Administration, have a preface by Secretary of State Hillary Rodham Clinton. This underscores the continuity provided by the career foreign service officers who do most of the work. May their efforts continue and expand.

There is something very satisfying about ideological purity and the righteous indignation that often accompanies it. It can be fun to paint one's opponents as crazy and stupid (and sometimes they make it all too easy to do so).

Less fun, yet potentially more productive, are attempts at common ground. As much as I enjoy a good zinger, I'm a conciliator by nature. And so I was intrigued by a recent proposal by Jonathan Rauch and David Blankenhorn seeking compromise on same-sex marriage.

Rauch is one of gay marriage's sharpest defenders; Blankenhorn, one of its ablest critics. The two have clashed on multiple occasions. If I had to recommend only two books on this subject, one from each side, they would be Rauch's and Blankenhorn's.

In last Sunday's New York Times, the pair co-authored a surprising proposal. The crux is 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."

Currently, various states offer some sort of legal recognition to same-sex couples. The idea would be to provide federal recognition to these arrangements while allaying opponents' fears that doing so would erode their religious liberty.

So under the proposal, no church would have to rent out its parish hall for a lesbian wedding; no religious college would have to provide married student housing to a gay couple, and so on. Any state that insisted on such requirements would be ineligible for federal civil union recognition.

Let's be clear on what the proposal would NOT do. It would not create legal statuses for same-sex couples in states that did not already have them.

It would not prevent gay-rights advocates from continuing to press for full marriage rights, or gay-rights opponents from continuing to make the case against them.

Nor would it "downgrade" Massachusetts and Connecticut same-sex marriages to civil unions. States would continue to recognize same-sex relationships in whatever ways they choose-as long as they don't require religious organizations to do so. But the federal government, which currently recognizes NONE of these statuses, would recognize them all under the common name "civil unions."

What the proposal would do is allow the federal government to say, "If your state recognizes you as a couple, so do we." It thus takes federalism seriously, with the federal government deferring to the states on the issue of who's legally united-as it usually does.

The proposal has already generated a good bit of discussion in the blogosphere. Some of it simply misunderstands the proposal; much of it-not surprisingly-is critical.

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.

I don't doubt that the proposal prompts some legitimate concerns on both sides. But if we can discuss those concerns with the same spirit of cooperation that Blankenhorn and Rauch have demonstrated, we might actually make some progress.