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Taking Government Out Of The Marriage Business

For hurling same-sex marriage back into the Op/Ed cycle, we owe thanks to gay marriage supporter Jonathan Rauch and gay marriage opponent David Blankenhorn, the joint authors of a widely circulated New York Times piece which seemed to steer the naturally polarized dialogue toward more civil waters. In it, they claim to have reached a "reconciliation" on same-sex marriage, an agreement they believe will pacify the culture war until it reaches "a healthier, calmer track" at an undetermined point in the future.

Here, in relevant part, is what they came up with: "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."

There are a number of questionable assumptions at work here, none more so than the idea that the fate of a reconciliation might somehow turn on added layers of protection for religious conscience.

Such protections, remember, would come on top of those already supplied by the First Amendment, which has a thing or two to say about states meddling in the affairs of religious organizations. Indeed, under no reasonable reading of the First Amendment could a state require a church to recognize a same-sex marriage. Rauch and Blankenhorn admit this much, but their concern is with the less contentious, more everyday interactions between law and religion: "What if," they surmise, "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 can't speak for both sides of the conversation, but this hardly seems like a deal-breaker. What Rauch and Blankenhorn have done here is to un-stick a sticking point which until now existed only in their imagination. It's argumentative slight of hand, and if the articles' reception among liberal bloggers is any indication, it didn't work.

But if it's a grand bargain we're after, consider an alternative federal law prohibiting states from attaching legal significance to an individual's marital status. The law would define "marital status" narrowly to include an individual's relationship with a significant other as recognized by a religious organization. Likewise, the law would define "marriage" as the spiritual union of two individuals. Under this regime, legal benefits or obligations which traditionally flow from marital status would do so no longer. Instead, states could recognize and regulate healthy, stable interpersonal relationships by way of civil union, provided they do so equally and on a secular basis. Left for churches and other religious organizations are the religious and moral dimensions of "marriage." Religious organizations will have autonomy over those aspects of matrimony in which they claim historical or divine province. That is, churches would be left to govern the sacred principles associated with the institution, and to ordain whichever marriages they see fit without fear of legal repercussion.

By unpacking "marriage," by separating the religious and moral elements from the civil, this reconciliation offers three benefits over competing proposals. First, it anticipates gay marriage opponents' most prominent argument, which is that state recognition of same-sex marriage deprives the sacred ritual of much of its meaning. This might be true of a law requiring states to bring same-sex couples under the umbrella of traditional marriage, grounded as it is in spirituality and religious ritual. But the same can't be said of a law which strips states of the authority to define marriage, which confines them to a strictly civil role while preserving for religious groups conceptual control of the institution. Here, opponents will argue that to secularize the state's treatment of marriage is to undermine our traditional conception of the institution. This argument gets weaker the further it is pressed. That is, the deeper the institution's roots in religion, the shakier the state's constitutional grounds for backing it. If a secular approach to marriage seems a contradiction in terms, perhaps that is all the more reason to stand behind it. The state's secular interests in promoting healthy and stable families should be of no consequence to a religious organization. To the extent opponents relied on such recognition to add legitimacy for their own definitions of marriage, they did so misguidedly.

Second, by stripping everyone of state and federal marital status, this proposal escapes equal protection challenge. This is no small matter. Whatever its form, a legislative compromise must be built to withstand scrutiny in the courts. Like similar proposals of their kind, Rauch and Blankenhorn's solution would provide same-sex couples the rights of marriage without the official designation. Such a compromise may seem reasonable, but for many in the gay community, it is all too redolent of "separate but equal."

Finally, as Rauch and Blankenhorn point out, both sides of the dispute would get along better "if religious groups can be confident that they will not be forced to support or facilitate gay marriage." If the goal is to inspire such confidence, demarcating the state's interest in regulating marriage from those of religious organizations would accomplish just that.


Sam Singer is a third-year law student at Emory University and a resident of Northbrook. You can reach him here.


Posted on March 10, 2009

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