A useful compromise on gay marriage?

An op-ed in the New York Times proposes a compromise on gay marriage, which might be swell if it didn't smack of "separate but equal."

By Kate Harding

Published February 23, 2009 3:42PM (EST)

In a New York Times op-ed, David Blankenhorn and Jonathan Rauch propose a compromise between proponents of gay marriage and those who oppose it on religious grounds. "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."

Interesting, but doesn't the First Amendment provide a "robust religious-conscience exception" already? Or did I just miss all the stories about, say, the state forcing Catholic churches to marry previously divorced people, or threatening to withhold tax-exempt status from religious institutions that won't perform or recognize interfaith marriages? Blankenhorn and Rauch acknowledge that the First Amendment makes it "unlikely" that churches would ever be legally required to marry gay couples but argue that more protection is needed. "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?"

Oh, now I get it. The First Amendment is actually about preventing religious discrimination, so that's not helpful here. These hypotheticals are not about whether any given church has to formally recognize a particular marriage, but about whether it would have to comply with laws that protect the civil rights of all citizens equally. It's not enough for the state to recognize the right of religious institutions to define the parameters of a sacred rite on their own terms. A government of the people, for the people, and by the people must also recognize and defend their right to treat some human beings as second-class. Gotcha.

Other bloggers have already taken down Blankenhorn and Rauch's proposal better than I ever could, so I'll leave you with their words. Pam Spaulding writes, "The flawed premise of this op-ed is that both sides of the issue have equal power; that's illogical. The side on the status quo in this case holds the power and doesn't want to cede any of it, obviously, because it sees that granting the power of civil equality is threat to its vision of the country and the existence of marriage as they understand it. The side of social change always has the uphill battle, and the law leads, not follows the people when it is a contentious issue. " And Mustang Bobby at Bark Bark Woof Woof sums it up:"[T]his idea has 'separate but equal' written all over it, and I think we have a pretty good idea in this country how well that theory of social engineering has worked in the past."


Kate Harding

Kate Harding is the author of Asking For It: The Alarming Rise of Rape Culture--and What We Can Do About It, available from Da Capo Press in August 2015. Previously, she collaborated with Anna Holmes, Amanda Hess, and a cast of thousands on The Book of Jezebel, and with Marianne Kirby on Lessons from the Fat-o-Sphere. You might also remember her as the founding editor of Shapely Prose (2007-2010). Kate's essays have appeared in the anthologies Madonna & Me, Yes Means Yes, Feed Me, and Airmail: Women of Letters. She holds an M.F.A. in fiction from Vermont College of Fine Arts and a B.A. in English from University of Toronto, and is currently at work on a Ph.D. in creative writing from Bath Spa University

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