Civil Liberties

Hook for the Union Label

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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.

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  1. Would this so-called “religious conscience” exception allow hospitals to deny access and POA privileges to the partner of an incapacitated person?

  2. Yeah, if those hospitals were dicks.

  3. 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.

  4. So can we now ditch the ” domestic partner” benefits that piss away millions each year?

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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).

  11. 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.

  12. 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.

  13. “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

  14. 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.

  15. 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?

  16. is there an existing situation where a religious organization, group or church would be forced to perform a marriage?

  17. 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”?

  18. “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 🙂

  19. MM,

    I’m firmly in the gaggle, so no apologies necessary.

  20. 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.

  21. 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.

  22. 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?

  23. 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.

  24. 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’.

  25. 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.

  26. 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.

  27. ‘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.

  28. 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.

  29. ‘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.

  30. 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.

  31. 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.

  32. 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.

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. Add regarding communication with your spouse to my last.

    Write that into a contract that holds up in court.

  38. 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.

  39. 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

  40. 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.

  41. communication with your spouse

    Speaking of oral contracts, if communication is going into it….

  42. 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.

  43. Eric,

    Marriage is a religious ceremony that government nosed their way into, not vice-versa.

  44. That doesn’t actually matter, robc.

  45. 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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