About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, February 23, 2009

Insensitive Compromise on Same Sex Marriage

In a Dharma and Greg episode, Greg was running for Congress in San Francisco, but knew he was going to lose when his opponent came out. Maybe, though MR was seen as a favorite by many, that explained by Sean Penn won as Best Actor -- in the business, playing a gay martyr is kind of like being in a Holocaust movie. Besides, he had a nice speech, funny and respectful to his peers. A few lesser awards -- as is often the case -- brought some nice speeches too. The Japanese Best Foreign Film looks like it might be interesting (it's quirky subject matter also favored it) and the English as second language sounding speech was charming too.
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.

-- A Reconciliation on Gay Marriage by DAVID BLANKENHORN and JONATHAN RAUCH

Sean Penn, of course, spoke out against Prop 8. Two conservatives, one for and one against same sex marriage, joined together to provide "workable compromise" to federal recognition of the same via a NYT op-ed. That is, they want to compromise constitutional rights (of course, at least one doesn't that way at all, the other very well might think the most important thing is extra-constitutional), and do so in such a way that very well might be counterproductive to one of them in the process. In fact, from some reading I have done from those arguing for same sex marriage from the conservative side (including Rauch himself), this is actually rather apparent. Some might see the "compromise" as a good thing, but we compromise basic rights at our peril.

Let us look at the proposal at hand:
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.

This is a slanted "compromise." The first provision is phrased as if it is pro-same sex marriage. The editorial is entitled "A Reconciliation on Gay Marriage," which reflects the subject matter, not just editorial labeling outside their control.* But, even if a state allows same sex marriage, the "compromise" will label them as civil unions. This puts a federal imprimatur** on inequality. Commissions in New Jersey and Vermont found civil unions, to the unsurprise of any heterosexual who is honest about it, as not the same thing as marriage. So, before compromising, the "gay marriage" side has to give something up. How very reasonable. This is reasonable, says the duo, because the federal DOMA (sic) law underlines just how unlikely equality truly is.

Why it doesn't therefore make sense for the federal government to accept what each state decides -- as it does if first cousins are married or divorce is liberally construed -- is unclear. Personally, I think the Constitution compels federal benefits be applied equally, not in a discriminatory way based on sex, sexual orientation, or some other invidious way. But, for the sake of "compromise," an honest proposal could be made to use a federalism approach. Certain conservatives who find same sex marriage as immoral opposed a federal marriage amendment on this ground, though many of them would not carry the courage of their convictions all the day as to (per a conservative on West Wing) oppose a federal DOMA.

And, even with DOMA, it is quite reasonable to think certain federal rights in the reasonable future will be applied in such a way to benefit same sex couples. It did per survival benefits after 9/11 in one newsworthy case and currently a lower court felt they did as applied to benefits for workers in a federal department. Areas such as bankruptcy and federal employment rules (Secretary Clinton was asked to address the matter for State Department employees) also are potential matters for true equality to be recognized even if our President selectively wants his moral beliefs to deprive certain people true equality. (In a very reasonable way, of course!) And, suddenly those conservatives -- like you know who -- who warn that allowing less strict alternatives to couples will encourage less restraints aren't so wary.
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?

Next, even this "compromise" might only apply to "most" rights. I do not know what "most" means, but doubt if it would only apply to the one area that they address, namely the second prong of the "compromise." The concern addressed in part arises because of scare tactics like those used in promotion of Prop 8. Some, including alleged serious people, raise the specter of churches having to carry out same sex marriages. Do churches have to carry out marriages if they think a couple is not truly "divorced" because of what the Bible says? Those of different faiths? The claim is absurd. To make it not ("may" be "unlikely" even if a "rite" is involved) only instigates the other side, confuses those who are honestly worried, even if they have no right to let it interfere with the rights of others. How dare someone who supports equality do that.

What the "compromise" wants to do is to favor anti-same sex marriage bigots. The word sounds harsh, but let's be clear here -- private bigotry is constitutionally protected in various ways, and this includes religiously motivated bigotry. And, this is what is at hand here, even if it is pragmatic to cushion the blow. Phrase it how you like, but what the compromise requires is that the religious concerns of some be favored over others. The federal government already has a religious freedom restoration act (RFRA) that provides a broad meaning to religious freedom, more than it is constitutionally compelled to do so under current doctrine. What this proposal would do is single out one religious belief for additional protection. Dubious broad based rules concerning "property" not used for religious rites per se or treatment of secular secretaries would be selectively allowed for anti-gay purposes, plus tax benefits would still be given too!

This dishonors true freedom of conscience in favor of selective benefit of those concerned about homosexuals. Many worried about the sanctity of marriage are more concerned about the Elizabeth Taylors of the world (multiple divorces) or those who marry without the right judgment of the sacrament involved. This includes match-ups that might seem uneven for some reason, perhaps one that the state itself could not block. Litigation covers them too. Some local anti-discrimination laws prohibit certain landlords from not renting to divorced couples or those who live together unmarried. But, this compromise will not address some (dubious) across the board concern, singling out those concerned about homosexuals. And, to add more insult, Obama supports anti-discrimination rules for faith based initiatives. Except if the secretary is gay?

It is noted that various state laws (and other nations) have exceptions in their anti-discrimination laws that cover same sex couples honoring religious concerns. And, in another context, "statutes allow Catholic hospitals to refuse to provide abortions." The breadth suggested here is more like those who want such hospitals to be able to avoid supplying morning after pills. Refusing to provide abortions is simply not the same thing as needing to pay insurance benefits for the secretary, who need not be a member of the religion in question or follow any number of its precepts. To the degree the states weigh religious freedom with equality in an across the board matter, that's fine. A federal law could do the same thing. But, the compromise here suggests singling out gays. This is wrong.

The suggestion that my opposition is misguided "maximalism" that lacks the "courage" necessary for required compromise is quite honestly annoying. Among other things. The duo wants to stack the deck out of some assumed need, dishonoring the alleged concerned parties in the process. Second class citizenship not based on good principle or very likely sound pragmatism either is not the type of "reasonable accommodation" we should take. It is not even the only first step we can take, the only compromise that forces each side to give something up.

I'm not sure how "sensitive" this lop-sided compromise truly is.


* The op-ed talks about "same sex" marriage, which is a better term, since you need not be gay to marry someone the same sex, and the term often tends to be imply men alone. But, we later learn that Jonathan Rauch wrote “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America,” which I assume is not just applicable to men.

** As referenced here, governmental marriage rights have three main purposes. There is the clearly illegitimate recognition that singling out heterosexual marriages reflects the religious traditions of the majority. This special pleading of what "marriage" means should be abolished in its current guise.

Second, it provides state benefits, which can be quite neutral in scope. Three, it provides a general blessing to the relationship. This means that even if all of the other many privileges and immunities of marriage are given to same sex couples, calling their relationship a "civil union" will still send a message that their union is separate, and yes, somehow unequal and probably inferior. Thus, an important benefit will be left out, which is separate and unequal by design.