Sunday, February 22, 2009

Marrying morality and practicality: a compromise on gay marriage?

There are two Op-Ed pieces in the NY Times this weekend that are well worth reading.

The title for this post comes from an article from Will Saleton, who discusses "two truths that the left and the right don’t want to hear: that morality has to be practical, and that practicality requires morals."

But the piece I want you to read particularly was written by gay-marriage activist Jonathan Rauch and opponent David Blankenhorn and entitled A Reconciliation on Gay Marriage.

In this piece, the authors suggest
a deal that could give each side what it most needs in the short run, while moving the debate onto a healthier, calmer track in the years ahead.

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.

They go on to suggest that churches and faith-based groups would get, along with their tax exemption, the right NOT to provide same-sex spousal benefits or any other formal recognition of gay marriages, the right not to allow gay marriages on their property, etc.
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.

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.
Yes, I am very uncomfortable with giving basic civil rights a religious exemption. And, what happens to gay people who live in viciously anti-gay states? Even DP benefits have been outlawed in Michigan for example. Do they have no access to this? (That would become an equal protection issue, I would think). What happens to gay couples married in one state who move to another state that outlaws gay partnerships?

BUT, if the idea is to find a compromise, a starting place, and if it can bring together such disparate views as the authors', I think it has merit, at least for discussion.

Because I would rather have a federal civil union than what I have now, which is, federally speaking, absolutely nothing.

18 comments:

JCF said...

Slightly off-topic:

Yay, Sean Penn! He really preached it in his Oscar acceptance speech: (para.) "Those of you who continue to stand against marriage equality, will make your grandchildren ASHAMED of you." (Uff da).

*****

Haven't read either article yet, but wanted to add my "Ick" to the name David Blankenhorn. He's the one who tries to look oh-so-reasonable, as the "liberal, secular side of opposing gay marriage."

I saw him on one of the newstalk shows, and he literally seemed to have built his ENTIRE case on the fact that he was saw (or heard about) a little girl at a Gay Pride family event, wearing a t-shirt which said "My Daddy's Name is DONOR" (Because two lesbians going to a spermbank is the End of Civilization!, doncha know?)

Blech.

JCF said...

From the article:

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?

I'm uncomfortable that there's room for "church-creep", in something so basic as spousal benefits (which is a positive benefit to society, not just the couple involved!).

Could any "faith-based" homophobe {cough} Marriotts {cough} declare that the business they own is now a "church-auxiliary"?

[That's on top of the concerns IT expressed---esp. as I live in Michigan!]

Surely, if this is to be a "compromise", then that compromise has to BEGIN in the most restrictive states, and NOT (say) Massachusetts!

IT said...

I find it interesting that Blankenhorn's main interest is in churches not being sued.

I also think that were this to become policy, the naked discrimination it would entail would be so obvious as to shame the participating churches and expose them for their bigotry.

Anonymous said...

Churches can hire and fire employees based on religious beliefs - as long as those employees are directly participating in specifically religious functions - clergy, parish, diocesan, or denominational administrators, teachers of religious doctrine, and so on. So nothing would change here - a Lutheran-MO synod or Roman Catholic parish always had the right to not hire a gay administrative secretary, to refuse to perform any rite for any person not conforming to doctrine.

The ability of church-affiliated educational and social service institutions to discriminate is diluted by the non-religious content of such activity. I don't know the case law, but currently there is some limit to the discrimination possible within IRS non-profit status. (Bob Jones Univ. SCOTUS case, circa 1975) Here's where it is important to get the details spelled out as to what is allowable discrimination. Certainly, the chaplain at a Catholic hospital can be required to adhere to Catholic doctrine (though in practice, many hospitals have Protestant chaplains as well). The people providing secular services, the IT folks, janitors, medical personnel, food service, security, etc - they should not be subject to discrimination, simply because their jobs are indistinguishable from jobs at similar secular institutions, and involve no doctrinal training in order to perform their jobs. (OK, the institutional kosher kitchens need an observant Jew as director, though every other food service worker under the director just needs to follow instructions).

NancyP

Göran Koch-Swahne said...

What Nancy P said.

And yes this is just a last hill do die on...

In 50 years people will be ashamed that this could be proposed...

Jeanie said...

Let me ask a question. In various points in this discussion the LGBT community has told us that "their civil marriages will have no effect on anyone else's", "that churches won't be forced to perform nor recognize same sex marriage", and that "the first amemdment protections work both ways". Now we have a proposal that would take what the LGBT community has been saying and codify it into law. It would also give them some rights at the federal level which is even better than what a state level marriage would provide. Yet I hear LGBT people coming out against it.

Just as the LGBT side does not want someone's religious beliefs imposed on what they see as a civil right, others do not want this civil right imposed on their religious beliefs. If SSM is to become a reality, there must be concrete protections for churches and religous instituions who cannot recognize these unions.

As for employment, the last post covers that pretty well when the employment is of a non-religious function.

As for allowing any marriages on church property, churches should take the approach ours does. If you are not a memeber of this church, you do not get married here.

IT said...

I encourage people to read the op-ed. The point of the article was not just employment, but benefits, and it was explicitly NOT limited to religious functions.

Everyone agrees that no church should be forced to marry anyone of whom it does not approve. No arguments at all on that.

The thornier questions, and where it becomes uncomforatble, is the more peripheral issues. The janitor, for example. If SSM is recognized, then he is entitled to same sex spouse benefits under law. The proposal is to allow a religious employer to deny him those benefits even though his is not an explicitly religious function.

The only property issue is one of where the property is not strictly speaking, private but is public property managed by a faith entity. The case from back east was one such. Does the manager of a public property have the right to deny a member of the public access to the property?

David |Dah • veed| said...

There is no federal marriage currently in the USA. All federal benefits accrued to marriage are based upon the marriages which are allowed under the laws of the individual states and territories which make up the USA. There is no federal registry office where anyone goes to receive a federal license to marry.

Religious institutions in the US are free to discriminate in just about every capacity regarding their religious beliefs; religion, race, gender, disability, etc. What they have not been able to do previously was discriminate while receiving public support, whether public money or in kind support such as free or discounted use of public property. For example, religious placement agencies were not allowed to discriminate against placement of children with gay/lesbian foster/adoptive parents in states were gay/lesbian fostering/adopting was legal, if they received government funds to assist them in offering their services to the public. A Methodist church was allowed to develop and manage a wedding gazebo on city owned property but was told it could not discriminate against a lesbian couple who wished to use the gazebo for their wedding ceremony. Etc.

In the past religious institutions had a choice; continue to discriminate, based on their religious tenets and not receive government assistance of any sort or not discriminate and receive government assistance in their provision of services.

(I believe that this bright line of demarcation began to be eroded as you lot experienced the constitutional abuses of the Bush 2 administration.)

It appears that this compromise proposal would be a wholesale bargaining away of the status quo in return for federal recognition of gay/lesbian partnerships and the extension of benefits equal to those of married couples. The religious institutions can have their cake and it it too.

JCF said...

the LGBT community has told us

Helpful hint: Jeanie, if you're trying to have a respectful, open discussion where people do NOT become defensive, this is not such a good way to begin it?

Anonymous said...

Well described, DahVeed.

Now, employment law provides certain protections from discrimination. The next step to consider is whether (if you think this is a reasonable compromise action, and I'm not saing it is or isn't)), would it be legitimate for a church with other beliefs to deny similar benefits to any other class of pepole?

For example, if your church disapproved of inter-racial marriage? could you deny spousal benefits to your janitor if he was married to an African American? What if your church is anti-semitic--could you deny beneifts if he married a Jew? or a Muslim?

When is religious belief sufficient to allow discrimination against a class of people and when isn't it?

IT

Erp said...

Same-sex marriages vis a vis religions that disapprove should be treated the same way as other marriages that some religions don't recognize (e.g., marriage of divorced people). Religions and other organizations should not have a greater leeway to discriminate against same-sex marriages than against other marriages they don't recognize.

Anonymous said...

Good point, Erp. Are Catholics entitled to deny spousal benefits to employees who were divorced and remarried?

Grandmère Mimi said...

Did you hear about this?

Arkansas Presbyterians have endorsed a church constitutional amendment that would allow non-celibate homosexuals to serve as ordained ministers, elders and deacons.

Yay for Sean Penn!

Anonymous said...

Another take from a Daily Kos diary:

We are fighting for a right that has been recognized as so basic, convicted murderers are entitled to exercise it; our opponents are a tax-exempt movement of anti-American extremists. They will not accept that their dogma is merely one set of beliefs that deserves respect from a pluralistic society.....

And anyone who is asking for the state to single out my family to be mistreated, because their God doesn't recognize my marriage, is engaging in discrimination of the foulest kind. They've identified our families as acceptable to stigmatize, unlike single parents, divorced parents, adoptive families or infertile couples--all of which are equally debased by extreme interpretations of Christianity.


IT

Cany said...

I cannot put my finger on exactly what is making my brow wrinkle, but I think IT hit on it:

"When is religious belief sufficient to allow discrimination against a class of people and when isn't it?" (case: Janitor marries SS, or Janitor marries someone of faith which his church/religious-based employer opposes. Can Janitor's spouse be denied benefits on these grounds?)

It gives me an icky feeling in the pit of my stomach and that usually means a resounding no for me. But I'm not slamming the door.

The fact is that the lgbt community has to make their decision on this matter despite what my beliefs may be. I realize that won't be whole cloth... which is why only equality through marriage makes sense.

I just don't know.

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Anonymous said...

The religious right doesn't like it either. Andrew Sullivan quotes the Family Research Council: :

Civil unions are a Trojan horse for homosexuals' ultimate goal of marriage. Once a national civil union law is in place, denial of marital status would be almost impossible to defend. Far from a "compromise," Blankenhorn's position surrenders on the core question of whether the relationship involved (homosexuality) can be recognized as a social good. If it can be, the ability of other institutions to deny it recognition will be on a path of extinction. Their proposal also confines religion to specifically religious institutions or para-religious institutions. But any religion worth its salt (and light) demands moral behavior in all realms of life, so all sorts of freedoms will necessarily suffer curtailment under this regime.

IT

Anonymous said...

Shorter FRC: We should be able to discriminate against anyone, at any time, in any setting including business and "public accommodation" (sale of services, housing, club membership, drinking fountains, etc). This argument is made by many conservative fundagelical preachers/pundits on syndicated Religious Right radio and tv - that a business should be able to hire only Christians (ie, their kind of Christians), because they are harder working and more honest than non-believers. I can't help but think that there's a lot of racial dog-whistle here as well, because the movement has roots in segregationism (Falwell, for instance; "Christian" private schools founded in the South after Brown v. Board of Ed, to accommodate white flight).

It's not for nothing that the anti-gay political activists generally are white and more often than not from a Southern state or Northern / Midwestern / Western "sundown town/suburb" background.

NancyP