Family Law

Common Ground?

by John Corvino
First published in 365gay.com on February 27, 2008

There is something very satisfying about ideological purity and the righteous indignation that often accompanies it. It can be fun to paint one's opponents as crazy and stupid (and sometimes they make it all too easy to do so).

Less fun, yet potentially more productive, are attempts at common ground. As much as I enjoy a good zinger, I'm a conciliator by nature. And so I was intrigued by a recent proposal by Jonathan Rauch and David Blankenhorn seeking compromise on same-sex marriage.

Rauch is one of gay marriage's sharpest defenders; Blankenhorn, one of its ablest critics. The two have clashed on multiple occasions. If I had to recommend only two books on this subject, one from each side, they would be Rauch's and Blankenhorn's.

In last Sunday's New York Times, the pair co-authored a surprising proposal. The crux is 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."

Currently, various states offer some sort of legal recognition to same-sex couples. The idea would be to provide federal recognition to these arrangements while allaying opponents' fears that doing so would erode their religious liberty.

So under the proposal, no church would have to rent out its parish hall for a lesbian wedding; no religious college would have to provide married student housing to a gay couple, and so on. Any state that insisted on such requirements would be ineligible for federal civil union recognition.

Let's be clear on what the proposal would NOT do. It would not create legal statuses for same-sex couples in states that did not already have them.

It would not prevent gay-rights advocates from continuing to press for full marriage rights, or gay-rights opponents from continuing to make the case against them.

Nor would it "downgrade" Massachusetts and Connecticut same-sex marriages to civil unions. States would continue to recognize same-sex relationships in whatever ways they choose—as long as they don't require religious organizations to do so. But the federal government, which currently recognizes NONE of these statuses, would recognize them all under the common name "civil unions."

What the proposal would do is allow the federal government to say, "If your state recognizes you as a couple, so do we." It thus takes federalism seriously, with the federal government deferring to the states on the issue of who's legally united—as it usually does.

The proposal has already generated a good bit of discussion in the blogosphere. Some of it simply misunderstands the proposal; much of it—not surprisingly—is critical.

Certainly, the proposal deserves a rigorous discussion from all sides. In order for that discussion to be more productive, I'd like humbly to suggest some guidelines:

Rule #1: Do not criticize the proposal by saying, "The other side is not going to like it because…" Let the other side speak for the other side.

Rule #2: Do not respond to an admirable attempt at peaceful negotiation by immediately ratcheting up the rhetoric. For example, at the National Review Online Maggie Gallagher writes, "From where I stand, it looks like the progressive/democrat position states: If you believe marriage means a husband and wife, you are not just wrong, you are downright wicked and deserve to have your home address put up on the internet so strangers can harass you."

Oy. That violates Rule #1 and Rule #2—in one sentence!

Nobody doubts that there has been excessive rhetoric on both sides. There are advocates who claim that anyone who opposes marriage equality is a hateful bigot; there are opponents who hold that gays by their very existence offend God.

But thankfully, there are also those like Blankenhorn and Rauch who are interested in moving us past such conversation-stoppers. Let's take the cue.

Rule #3: If you don't like the proposal, suggest a better idea.

Note: "Give us full marriage equality!" is not what I mean by a better idea. Sure, that's what would happen in my ideal world. Rauch's too. And no one is saying that we should stop making the case for it.

But in the meantime, there's a proposal on the table that would provide federal rights and benefits to those in state-issued same-sex unions. Moreover, it's a proposal that one major same-sex marriage opponent has endorsed.

I don't doubt that the proposal prompts some legitimate concerns on both sides. But if we can discuss those concerns with the same spirit of cooperation that Blankenhorn and Rauch have demonstrated, we might actually make some progress.

Full post as published by Independent Gay Forum on March 04, 2009 (boomark / email).