False Compromise on Same-Sex Marriage

In Sunday's New York Times, David Blankenhorn and Jonathan Rauch present what they call “A Reconciliation on Gay Marriage,”

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.

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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.

But the question they avoid is: Do we really want those cases that have come before the court to be decided a different way? Do we really want a religiously-affiliated hospital associated to have a get-out-of-court-free card when it refuses to honor a Health Care Power of Attorney for a same-sex couple and prevents a woman from visiting her dying partner’s room?

Do we want physicians to be free to deny care to gay men and lesbians simply because of their status as gey people on the basis of a religious exemption.

When Rauch and Blankenhorn write: “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?” they are clearly referring to the case in Ocean Grove, NJ, which religious apologists have been demagoguing about for months. Certainly churches should not lose the tax exemption they receive for being a religious organization, but that’s not what was at stake in Ocean Grove. Religious ownership of a place of public accommodation should not exempt the place from the anti-discrimination law with regard to same-sex couples, and tax exemptions extended on the basis of treating the property as a public accommodation should be at risk if the property is not open to all members of the public on an equal basis.

Rauch and Blankenhorn write: “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?” But why should some but not all employees of a charity be protected by, for instance, federally mandated family leave protections simply because that charity is associated with a church?

Ultimately, though, the bill proposed by Blankenhorn and Rauch is an attempt to short-circuit debate rather than an attempt to facilitate it and make it more civil, as Blankenhorn and Rauch claim. We should simply repeal the Defense of Marriage Act (DOMA), as our new president has recommended, and let the states fight it out.

(This post originally submitted in a similar but less developed form as a comment on The Volokh Conspiracy blog.)