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Hook for the Union Label
In a New York Times op-ed piece, prominent gay marriage opponent David Blankenhorn teams up with prominent gay marriage advocate (and Reason contributor) Jonathan Rauch to suggest a compromise: federal recognition of same-sex "civil unions," tied to state and federal protections for religious organizations that choose not to recognize such unions. Federal recognition would confer advantages such as "Social Security survivor benefits, tax-free inheritance, spousal immigration rights and protections against mutual incrimination." Meanwhile, Blankenhorn and Rauch argue, the "religious conscience" exception would reassure social conservatives who worry they will be compelled to recognize and accommodate domestic arrangements that offend their moral values.
It seems to me this proposal moves in the right direction: toward evenhanded legal treatment of gay and heterosexual unions and, ultimately, getting the government out of the "marriage" business altogether. Let private institutions decide what constitutes a marriage (as they did through most of human history), with the government's role confined to enforcing contracts and policing the various legal prerogatives currently associated with civil marriage.
Last week I noted that Utah's governor has endorsed same-sex civil unions, a development that suggests Blankenhorn and Rauch's plan is not completely unrealistic. In a December column, I urged distinguishing between public and private treatment of gay unions, a principle that jibes with their proposal.
Angry Sam|2.23.09 @ 1:15PM|#
Would this so-called "religious conscience" exception allow hospitals to deny access and POA privileges to the partner of an incapacitated person?
|2.23.09 @ 1:20PM|#
Angry Sam,
Presumably the exception is so that a Baptist minister doesn't have
to officiate a gay union, but of course what you suggest will
happen if the law is not clarified. Hell, even if it is, it will
probably be challenged by someone, earning a SCOTUS case in the
process. Yay.
|2.23.09 @ 1:21PM|#
So can we now ditch the " domestic partner" benefits that piss away millions each year?
zoltan|2.23.09 @ 1:23PM|#
Yeah, let's get rid of these marriage and dependent tax cuts. As a single, non-child-haver, I'm sick of subsidizing their shit.
Hayekian Dreamer|2.23.09 @ 1:32PM|#
I think there are too many problems with this proposal to be any
more than a distraction from the main issue. First, how does the
exception apply to states like Massachusetts that already allow gay
marriage but arguably don't have "robust religious conscious
exception"? Why should this exception only apply to marriages with
gay couples? How is this different from the exception that is
currently in place, and if it isn't then why does it need to be in
the bill?
Also, regarding Massachusetts, would marriages between same sex
couples performed in Massachusetts be recognized as such by the
federal government? as a civil union? Not at all? What about
couples from New York that got a SSM in Massachusetts? Is their
"religious exception" statute "robust" enough?
This proposal is a problem looking for a solution. Just as, for
example, a Catholic church and it's diocese are never required to
hire and train female priests or recognize spousal benefits (or the
existence of a relationship at all) for a person that was divorced
and remarried no church currently is required to provide benefits
to same sex couples or any sort of recognition for their
relationship or any other.
I do agree that ultimately the ideal solution is to get the
government away from recognizing marriages entirely, but short of
that there's no rational reason to create a new wholly parallel
system to marriage except to create a new class of people to
express moral disapproval. As for creating a whole new class of
people with the same rights and one exception whose purpose is not
clear and probably redundant (at least on the surface) there's even
less reason for any side to agree to it.
Other Matt|2.23.09 @ 1:41PM|#
Would this so-called "religious conscience" exception allow
hospitals to deny access and POA privileges to the partner of an
incapacitated person?
Don't go to a Catholic hospital might be one solution.
Overall, sounds like steps in the right direction for me also. Get
the govt far out of marraige, let it be a religious thing.
Obamatarian|2.23.09 @ 1:47PM|#
|2.23.09 @ 1:49PM|#
The solution is to have two types of partnerships: civil unions and marriages. The state recognizes civil unions for the purposes of taxes, inheritance, etc. Then if you want to get married, it's a you go see a priest, preacher, ordained atheist, ship captain, etc. Separate the legal from the social.
|2.23.09 @ 1:57PM|#
Overall, sounds like steps in the right direction for me
also. Get the govt far out of marraige, let it be a religious
thing.
Marriage is two seperate things. A state enforced contract between
two people that generally merges assets and responsibilities for
children, and a religious ceremony (Catholics call it a sacrement,
Dunno about the heretics Protestants/Hindus/Muslims et
al).
As I read this, a Baptist church would be able to provide employere
benefits based on the Baptist religious definition. AFAIC, they
(and any other non-goverment organization) can discriminate all
they wish. Including against gays, blacks, atheists, polka dancers
and the Irish if that's what revs their engine.
robc|2.23.09 @ 2:06PM|#
J sub D,
A marriage MAY be two separate things, but I see no need for the
first. That can be handled with a lawyer and contracts. Heck, with
all the pre-prepared legal stuff that now exists, you could
probably download a standard legal union package that would have
all the documents a couple (or more) would need to handle assets
and children (also known as liabilities).
We heretics dont call it a sacrement. (Southern) Baptists have two
"ordinances" (not as sacred as a "sacrement"): Baptism and
Communion. The other 5 catholic sacrements are just things that
happen (or dont, as the case may be).
|2.23.09 @ 2:07PM|#
Brandybuck, I suspect that the evangelicals would go ballistic if you threatened to change the legal term from marriage to civil union. Rationally, this shouldn't matter to them, since they can have whatever type of religious ceremony they want, but evangelicals are definitionally not rational actors.
robc|2.23.09 @ 2:07PM|#
BTW, If I ever decide to get married and the chick is willing
and we can find a willing minister, Im all for getting married ONLY
in a church and not bothering with the state at all.
Probably a bad idea.
|2.23.09 @ 2:09PM|#
"The solution is to have two types of partnerships: civil unions
and marriages. The state recognizes civil unions for the purposes
of taxes, inheritance, etc. Then if you want to get married, it's a
you go see a priest, preacher, ordained atheist, ship captain, etc.
Separate the legal from the social"
100% in agrement with that
I'd go further to agree with the "libertarian Paternalist" Richard
Thaler
he suggested complete privatisation of mariage so Its just a
contract draw up by lawyers that can be entered into by any
consenting adult
Religious groups can choose what contracts they choose to
recognize, but it can't stop the koran/bible/torrah crowd from
shitting on peoples rights
robc|2.23.09 @ 2:09PM|#
I suspect that the evangelicals would go
ballistic
Nope. Ive been suggesting getting rid of state sponsored marriage
for 20 years at least. Of course, I dont want civil unions
either.
evangelicals are definitionally not rational actors
Bah.
|2.23.09 @ 2:21PM|#
robc,
I think you should consider yourself an outlier for the evangelical
community. Look at the gaggle of foul-mouth atheists you hang out
with around here.
How are your house repairs coming?
dhex|2.23.09 @ 2:23PM|#
is there an existing situation where a religious organization, group or church would be forced to perform a marriage?
|2.23.09 @ 2:30PM|#
Would it still be limited to just two people? If so, that is a serious flaw. Don't you know that "Love Doesn't Count"?
|2.23.09 @ 2:32PM|#
"Look at the gaggle of foul-mouth atheists"
haha apoligies for the rants! I just disapprove of the type that
try to get involved in other peoples business
I personally believe in the giant cat goddess but she doesnt care
much about what humans get up to as she's busy fucking about with
the laws of physics chasing super strings :)
Seward|2.23.09 @ 2:58PM|#
Jacob Sullum,
I personally have no problem with gay marriage (or polyandry, etc.
for that matter!). However, I wonder what falls under the rubric of
the term "religious organization?" Does that include the bake shop
who care not to sell their goods to gay couples (or straight!) who
plan to be wed? The article mentions non-profits and the like, but
what about for profit enterprises?
I write with the realization that as with a lot of things in the
U.S. there will be (lamentably) a lot of self-segregation, no
matter what the government does.
LarryA|2.23.09 @ 3:10PM|#
A marriage MAY be two separate things, but I see no need for
the first. That can be handled with a lawyer and contracts. Heck,
with all the pre-prepared legal stuff that now exists, you could
probably download a standard legal union package that would have
all the documents a couple (or more) would need to handle assets
and children (also known as liabilities).
You're talking about the same thing. Any legal contract must be
written according to the law, and is therefore "state sanctioned."
Lawyers-R-Us can't produce a "standard legal union package" until
either Congress or your state Legislature defines what a "legal
union" is, and is not.
The alternative is to go through what privileges a marriage
currently grants, and write separate contracts for each issue,
which would generate something the size of the Stimulus bill.
Mike Laursen|2.23.09 @ 3:36PM|#
Is there a whole lot of Federal-level marriage law right now? I
thought marriage law is mostly at the state level.
I'm not a purist libertarian who thinks the only acceptable
solution is to get government out of recognizing marriage, but why
would a libertarian suggest getting the Federal government involved
in defining marriage when it isn't already involved?
|2.23.09 @ 3:50PM|#
is there an existing situation where a religious
organization, group or church would be forced to perform a
marriage?
No, but the fundagelicals pretend there is and spend a lot of time
stressing over this hypothetical situation.
There was ONE case where a religious organization owned a gazebo
which they rented out for various functions to members of the
general public, ie operating it as a business under california law
and a place of public accommodation under US law. They turned down
a rental request from a gay couple who wanted to use the place. The
gay couple were NOT asking the church to officiate at the
marriage.
The church got badly spanked in court, but then whined that they
were being discriminated against.
JB|2.23.09 @ 3:54PM|#
Civil unions for all would make 80% of people happy. The 10% extremists on each side would be pissy, but tough titties. The state shouldn't have anything to do with 'marriage'.
|2.23.09 @ 3:54PM|#
Is there a whole lot of Federal-level marriage law right
now? I thought marriage law is mostly at the state
level.
IANAL, but my understanding is NO. AFAIK, the federal government
does not issue marriage licenses.
The federal government does recognize marriages for purposes of IRS
filing, social security survivor benefits, etc.
Mad Max|2.23.09 @ 4:09PM|#
I love how the authors say that the religious exemption
principle has worked so well in the case of abortion that it can
easily be used in the case of civil unions. As if there wasn't
currently a big political controversy (including a lawsuit) about
the scope of conscience protections in the abortion context.
I don't know what accounts for Blankenhor's Denethorian attitude,
but this is a typical New York Times-type 'compromise.' ('One
extreme wants to add a trillion to the national debt, another
extreme wants to add nothing, so let's compromise with adding 800
or 900 billion to the debt. Only an extremist could be against
this!')
A nice, gracious gesture to exempt 'religious organizations' from
state compulsion and allow them to decide whether to recognize
civil unions or not. I support freedom for religious organizations
as such, but I would ask, what about the rights of for-profit
businesses? By implication, the article suggests that there would
be no conscience protection for someone who operated a secular
business for profit (profit! Ewww!)
Thus, if a for-profit company has a spousal-benefit policy for
opposite-sex married couples, then states could force businesses to
extend the benefits of such policy to the parties to civil unions.
The only way out of this compulsion would be for the company to
stop providing spousal benefits to *anyone.* The religious
exemption would not apply, since most businesses are not religious
organizations, but are operated on the basis of dirty, filthy
profits.
'recognition would confer advantages such as "Social Security
survivor benefits" . . .'
Nothing about a conscience clause here - taxpayers will be *forced*
to provide these benefits.
|2.23.09 @ 4:20PM|#
'recognition would confer advantages such as "Social Security
survivor benefits" . . .'
Nothing about a conscience clause here - taxpayers will be
*forced* to provide these benefits.
Taxpayers are already forced to provide these benefits. This would
simply force them to provide them equally.
I know you like to frame your arguments as those of a fiscal
conservative opposed to any increase in entitlements, but everyone
else here sees through that.
|2.23.09 @ 5:50PM|#
I'm in favor of civil unions. Calling it 'marriage' will just
make the religious fundies get their panties in a wad. That will
come in time, after same-sex civil unions are legalized, when gay
people insist on calling their partners "husband" and "wife". It's
going to be a lot easier to make people use the word marriage after
the fact.
It is true that it'll probably be abused to obtain health-care. But
that will force changes in the laws regulating health insurance.
I.e. You may see insurers no longer being required to cover the
spouse without payment. Coverage will be individual - as it should.
We need to move away from the employer based model anyway. Almost
everyone agrees on that, even the left.
Mad Max|2.23.09 @ 5:50PM|#
'I know you like to frame your arguments as those of a fiscal
conservative opposed to any increase in entitlements, but everyone
else here sees through that.'
No, I am not 'opposed to any increase in entitlements,' I want to
*reduce* entitlements. Yes, that includes entitlements for straight
people.
To be sure, I'm not as hard-core a libertarian as many here (a low
bar to clear, anyway). I think that the prerogatives of private
business owners can be overriden if a clear public interest -
preferably by the states, but as a last resort by the federal
government. I disagree with various 'progressives' as to what
constitutes a clear public interest. I suppose I give the private
sector more of the benefit of the doubt than many other people
would.
But in the case of 'gay marriage' (excuse me, 'the moderate civil
union compromise which only extremists could oppose') the fact that
these laws would interfere with the decisions of private business
owners ought to have some relevance to those who talk up 'marriage
equality' as a step in the libertarian direction.
My support for traditional marriage is a sufficient reason to
oppose these 'gay marriage' ideas (excuse me, 'moderate civil union
compromise ideas'), but please allow me to point out to
libertarians the real-world anti-libertarian implications of their
'marriage equality' notions.
Mad Max|2.23.09 @ 5:52PM|#
To be clear, most of the assault on marriage has been carried
out in the interest of heterosexuals. I speak, for example, of
unilateral divorce on demand.
The gay-liberationists are not the main culprits here. They simply
want to get in (belatedly) on the anti-marriage action.
robc|2.23.09 @ 5:54PM|#
How are your house repairs coming?
Got my check from the insurance company. That's a start.
Wood is all cut up, small stuff stacked (little stuff bundled by
street with everyone else's, they are saying it should be picked up
within 2 months). Big stuff is waiting for someone to come and haul
it off, Im not moving it twice.
Can handle the fence myself. Have someone who is going to rebuild
my deck. Need to get pros for new gutters.
robc|2.23.09 @ 5:57PM|#
You're talking about the same thing.
No, Im not. The only point of the state in my version is to exist
as a court system. The state doesnt define any of the legal
benefits of the union, the couple (or more) does.
robc|2.23.09 @ 6:00PM|#
operating it as a business under california law and a place
of public accommodation under US law.
Both of which shouldnt exist. If a private business wants to
discriminate, they should be able to. Public accommodation is
bullshit.
robc|2.23.09 @ 6:05PM|#
unilateral divorce on demand.
Ive stated before (and believe) that wedding vows should be treated
as a binding oral contract. As binding as any other oral contract,
which depends on the quality of the recorder. :)
That wouldnt prevent unilateral divorce on demand (which it
shouldnt) but would make people more careful about including "til
death do us part". As with any contract, it can always be broken,
there are just penalties to pay.
No fault divorce (unless agreed to as part of the marriage
contract) is antilibertarian.
|2.23.09 @ 6:07PM|#
I suggest the end of ALL govt recognition of 'marriage'. Marriage is rightly a personal or faith driven construct. Any and all 'rights' or 'benefits' accruing to marriage may be invested in contract with no govt intervention.
|2.23.09 @ 6:16PM|#
A marriage MAY be two separate things, but I see no need for
the first. That can be handled with a lawyer and contracts. Heck,
with all the pre-prepared legal stuff that now exists, you could
probably download a standard legal union package that would have
all the documents a couple (or more) would need to handle assets
and children (also known as liabilities).
Compelled testomony.
|2.23.09 @ 6:19PM|#
Add regarding communication with your spouse to my
last.
Write that into a contract that holds up in court.
|2.23.09 @ 6:47PM|#
Both of which shouldnt exist. If a private business wants to
discriminate, they should be able to. Public accommodation is
bullshit.
But they do exist in the here and now as very real features of our
legal environment, like 'em or not. Rule of law, reality and all
that.
Personally, I'd be ok as long as they advertised up front "No Homos
Need Apply," AND were taxed as a private business on the income
derived from the gazebo rental.
robc|2.23.09 @ 7:23PM|#
Personally, I'd be ok as long as they advertised up front
"No Homos Need Apply," AND were taxed as a private business
on the income derived from the gazebo rental. the 16th
amendment was repealed.
FTFY
robc|2.23.09 @ 7:24PM|#
But they do exist in the here and now as very real features
of our legal environment
Since we are talking about fixing the legal environment, I dont see
why any current part isnt fair game as part of the adjustment.
robc|2.23.09 @ 7:29PM|#
communication with your spouse
Speaking of oral contracts, if communication is going into
it....
|2.23.09 @ 8:00PM|#
That will come in time, after same-sex civil unions are legalized, when gay people insist on calling their partners "husband" and "wife". It's going to be a lot easier to make people use the word marriage after the fact.
Which is why if this idea got any traction, Reds would mobilize
against it, like they have other civil union proposals. They aren't
willing to separate the religious elements of marriage from the
civil - that would take an element of religion out of
government.
robc|2.23.09 @ 8:58PM|#
Eric,
Marriage is a religious ceremony that government nosed their way
into, not vice-versa.
Fitz|2.27.09 @ 12:07PM|#
Libertarian's Indeed
As old as noted the natural family as a bulwark against State
tyranny.
The government doesn't create marriage any more than it creates our
right to free speech or assembly; it merely recognizes the truth of
marriage as distinct.
If the government can re-define marriage it can re-define any of
our rights away.
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