By David Blankenhorn and Jonathan Rauch
From The New York Times, February 22, 2009
IN POLITICS, as in marriage, moments come along when sensitive compromise can avert a major conflict down the road. The two of us believe that the issue of same-sex marriage has reached such a point now.
We take very different positions on gay marriage. We have had heated debates on the subject. Nonetheless, we agree that the time is ripe for 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.
For those not immersed in the issue, our proposal may seem puzzling. For those deeply immersed, it may seem suspect. So allow us a few words by way of explanation.
Whatever our disagreements on the merits of gay marriage, we agree on two facts. First, most gay and lesbian Americans feel they need and deserve the perquisites and protections that accompany legal marriage. Second, many Americans of faith and many religious organizations have strong objections to same-sex unions. Neither of those realities is likely to change any time soon.
Further sharpening the conflict is the potential interaction of same-sex marriage with antidiscrimination laws. The First Amendment may make it unlikely that a church, say, would ever be coerced by law into performing same-sex wedding rites in its sanctuary. But religious organizations are also involved in many activities outside the sanctuary. 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?
Cases of this sort are already arising in the courts, and religious organizations that oppose same-sex marriage are alarmed. Which brings us to what we think is another important fact: 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.
Gay couples have concerns of their own. Most, of course, want the right to marry, and nothing less. But federal recognition of same-sex marriage — leave aside what you think about the merits — is not likely in the near future. The federal Defense of Marriage Act forbids it. Barack Obama and most other Democratic presidential candidates opposed gay marriage. And most Americans continue to oppose it.
At the same time, federal law links many important perquisites to marital status, including Social Security survivor benefits, tax-free inheritance, spousal immigration rights and protections against mutual incrimination. All of these benefits are currently denied to same-sex couples, even those living in states that permit same-sex marriage or civil unions. But these same benefits could be conferred by federally recognized civil unions.
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. For example, a PBS poll last fall found that 58 percent of white evangelicals under age 30 favor some form of legal same-sex union.
Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.
In all sharp moral disagreements, maximalism is the constant temptation. People dig in, positions harden and we tend to convince ourselves that our opponents are not only wrong-headed but also malicious and acting in bad faith. In such conflicts, it can seem not only difficult, but also wrong, to compromise on a core belief.
But clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it.
David Blankenhorn is president of the Institute for American Values and the author of “The Future of Marriage.” Jonathan Rauch is a guest scholar at the Brookings Institution and the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America.”