The Liberty Papers

David Blankenhorn and Jonathan Rauch, who come from totally opposite sides of the same-sex marriage debate, offer this compromise in a New York Times Op-Ed this morning:

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.

(…)

Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.

The first problem with this proposal seems to be rather self evident to me. Namely, where in Article I, Section 8 of the Constitution is Congress granted the power to regulate marriage ? Some might argue that Section 5 of the 14th Amendment creates such a power to the extent that marriage is a “privilege or immunity” contemplated by Section 1 of that Amendment, or that depriving homosexuals of the rights and benefits of civil marriage constitutes a deprivation of life, liberty, or property, without due process of law; or that it denies them equal protection of the laws. However, that argument would run head-on into the fact that there’s little evidence that the framers of the 14th Amendment intended it to be such complete a usurpation of state’s rights as this argument would contemplate. Moreover, such an interpretation of the 14th Amendment would effective mean that the 10th Amendment had been repealed by it’s ratification; and there’s no evidence that was the intention back in 1865.

So, at the very least, we’ve got a significant federalism problem that shouldn’t be dismissed.

A second problem with this proposal is that it continues with the idea of creating two separate statuses. What, exactly, would be the difference between marriage and these civil unions ? Unless the differences are in name only, then we’re not talking about real equality. Would heterosexual couples be able to enter into these civil unions instead of marriages ? If not, then you really are creating two different classes of people. And, finally, what would be the rules regarding dissolution of a civil union ? Would it be easier ? Harder ? Would traditional domestic relations law apply ?

If the only difference between “marriage” and “civil union” is the name, then what’s the point of having two different institutions ?

A final problem with this proposal is that it raises what is clearly a straw man in this whole debate. Except in the mind of the truly wacko, the idea that same-sex marriage poses any serious threat to religious liberty. Modern marriage is a civil institution governed by the state, so long as that is the case then the state has no right to discriminate against people when it decides who is and is not entitled to claim the benefits of that relationship. Churches, on the other hand, are free under the First Amendment to confer their religious marriages under any circumstances they deem fit.

The problem, of course, is that marriage today is still a hybrid institution.

Is it a civil relationship governed by the state, or a religious one governed by the laws of whatever deity(ies) you happen to worship, or, is it a combination of both ?

The solution, as I’ve mentioned before, seems rather obvious:

If that’s what you believe a marriage is, the union of a man and woman before God and man, then what does the state have to do with so fundamentally a religious institution ? Why does the state need to recognize it at all and why does it need to grant that religious institution preferntial benefits in the form of tax breaks and a protected legal status that is not available to unmarried persons ?

Kellie and I were married in the Roman Catholic Church, which has requirements for marriage that exceed, and are different from, those of civil marriage. That wedding ceremony is what made the marriage official in the eyes of God, not the little piece of paper we got from Cuyahoga County, Ohio the day before.

Here’s my proposal. Get rid of civil marriage licenses entirely. Let people decide for themselves what they believe about marriage and let them, if they wish solemnize that union in a church of their choice. We are hundreds of years past the day where the state was involved in religious affairs, it doesn’t need to be involved in this matter either.

It’s really not as radical an idea as you might think. Contrary to what some of the “traditional marriage” advocates would have you think, state involvement in marriage is a relatively recent thing historically:

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

That practice carried over to the American colonies and, later, the United States, where marriage licensing laws quickly became a way to prevent socially disapproved inter-racial marriages and to limit the rights of women:

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.

So, the idea that the marriage must be something defined by the state isn’t as historically grounded as some would have you think.

And what about the supposed threat to religious liberty if homosexuals were allow to declare themselves married ?

Well, it ain’t there:

[N]obody is saying that your church has to approve or consecrate same-sex unions. Heck, you could have a religion that said people with different hair colors can’t get married if you wanted to, just don’t make it the business of the state to codify your religious prejudices.

Exactly.

Blankehorn and Rauch make a good effort at trying to find some middle ground on this issue. And that alone I take as a sign that the rigid opposition to same-sex unions that we’ve seen in the past is melting away far quicker than anyone anticipated (just look at Utah for more proof of that assertion). As a practical, Constitutional solution to the problem, though, I’m afraid they’ve fallen short.

Originally posted at Below The Beltway