Sunday, February 17, 2019

Lessons in a ten-year-old NYT op-ed against same-sex marriage

Happy tenth anniversary to this bizarre op-ed, "A Reconciliation on Gay Marriage" (David Blankenhorn and Jonathan Rauch, New York Times, 21 Feb 2009).

Update: In 2022, I wrote a longer essay on Medium, "Yet Another Pro-Discrimination Argument." It's a 12-minute read.

Believing in 2009 that "federal recognition of same-sex not likely in the near future" (surprise: that recognition came just four years later), the authors said they wished to avoid "a scorched-earth debate" and to seek instead a "sensitive compromise" between those who supported the right of same-sex couples to marry and those who cited religious reasons for discriminating against those couples.

The authors laid out what they saw as the argument for discrimination:

"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?"

Here's their solution to appease religious organizations who may face these hypothetical problems:

1. Same-sex couples should receive "most or all of the federal benefits and rights of marriage," but those partnerships wouldn't be called a "marriage" but rather a "civil union." Apparently the term makes a big difference for some reason. Apparently certain religious organizations want the government to refer to opposite-sex couples as "married," even if those couples are secular and the marriage was performed in a courthouse, and to same-sex couples as having "civil unions," even if those couples are religious and their partnership is ceremonially recognized in a house of worship. Of course they do! That privileges gay-hostile religious organizations in determining what marriage is, and it takes the same power away from gay-friendly religious organizations. Meanwhile, gay couples still have "most" of their benefits and rights. Are you still with us?

2. The federal recognition of the partnership should apply only if the civil union was performed in a U.S. state with "religious-conscience" laws that allow religious organizations to refuse to recognize the civil union. Not sure how this would play out. Why wouldn't same-sex couples just travel to a state that offers civil-unions-plus-state-level-discrimination to obtain the civil union that is recognized by the federal government, then choose to live in a state that has better state-level recognition? Opposite-sex marriages aren't treated differently by the federal government based on the state the marriage is performed in, and I don't know how the origin of the marriage would even be tracked, in practice. And what if a state has "religious-conscience" laws at the time someone's civil union is performed but then revokes those laws; would the federal government withdraw its recognition of the existing civil union? This is one reason why it makes no sense for the federal government to treat gay people based on how a particular U.S. state currently treats religious organizations.

3. "The federal government would also enact religious-conscience protections of its own," they said. So, clearly the federal government does not accord same-sex couples "all of the federal benefits and rights of marriage," emphasis mine, if it simultaneously implements exemptions. "Religious-conscience protections" means, again, that some people in some contexts are going to be allowed to discriminate against same-sex couples. Removing the teeth from nondiscrimination rules (whether federal law, or departmental policy, or...?) in a way that targets same-sex couples is inconsistent with giving them all their federal benefits and rights.

But do let them explain why this a righteous solution.

"We believe," they said, "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..." This is too beautiful. A newly engineered type of discrimination will not hurt gay people because they already endure similar discrimination. So let's just pile on more of same! Awesome. But don't gay people object to this? Yes and no, they say. Existing religious-conscience laws haven't attracted much attention — they "are for the most part uncontroversial, even among gays" — and therefore the authors question the expressed concern by "most gays" against the idea that new religious-conscience laws would permit discrimination against marriage specifically. (Who's being inconsistent here: the unattributed gay people who only object strenuously to one flavor of discrimination against them while accepting other flavors, or the op-ed writers who can't decide whether gay people do or don't object to being hurt?)

I find this ten-year-old op-ed perennially instructive, even more so in hindsight because it was a proposed "compromise" (cough cough: an under-bus-throwing) that did not have to happen.

Nor should any of us write such under-bus-throwings, about anyone, in the future.

Discrimination is actually hurtful.

Same-sex marriage has been federally recognized in the United States since Supreme Court cases in 2013 and 2015.

No one needs the right to discriminate against same-sex married couples. They do not need to attempt to downgrade these marriages by relabeling them "civil unions" and treating them differently. They do not need to discover "religious" or "conscience" or "religious-conscience" objections inside themselves to the gender of their employees' spouses. They are still asking for this in 2019, yes. But they can stop.

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