A Possible Compromise on SSM

David Blankenhorn and Jonathan Rauch have written the following proposal in the New York Times

[W]e agree that the time is ripe for a deal that could give each side what it most needs in the short run, while moving the debate onto a healthier, calmer track in the years ahead.

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.

(HT Dale Carpenter at Volokh)

I think their proposal is a good start, but it misses out on one of the key issues of this debate, which is a due respect for democracy, and opposition to judicial trampling of the rule of law.  So I offer the following proposal:

  1. For the purpose of the Act, the phrase “Same Sex Union” shall be taken to refer to Same Sex Civil Unions and to Same Sex Marriages.
  2. Whereas no State Constitution currently in existence actually grants a right to any sort of Same Sex Union, and Whereas the Federal Constitution does not grant such rights either, nothing in the rest of this Act shall apply to Civil Unions or Marriages awarded in States where the Courts forced the State to create or recognize any kind of Same Sex Union.  Same Sex Unions from such States will continue to be covered by the 1996 Defense of Marriage Act.
  3. If a State where the State Supreme Court has ruled that the State Constitution required / recognized Same Sex Unions wants its Same Sex Unions to be covered by this act, then either the State Supreme Court must first reverse the ruling that created Same Sex Unions, and issue a final judgment saying that the State Constitution does not require the State to honor, recognize, or create any sort of Same Sex Union, or a State Constitutional Amendment must be passed that overturns the State Supreme Court’s ruling creating the Same Sex Unions, and the State Supreme Court must have acknowledged that Constitutional Amendment as being superior to its previous ruling.  After that is done, any Same Sex Unions created by the proper democratic process will be eligible to be covered by this Act (pursuant to part 6 of this Act).
  4. Non-severability and non-reviewability:  Per article 3, Section 2 of the US Constitution, this law is not appealable to State or Federal Courts.  If any part of this Act is struck down, for any reason, then the entire Act becomes null and void, and the 1996 Defense of Marriage Act resumes being the law of the land with respect to Federal and State recognition of Same Sex Unions.
  5. Federal Religious Freedom and Liberty: Neither the IRS, nor any other element of the Federal Government, may deny tax exemption, the awarding of contracts, or any other government benefit to religious organizations that refuse to support, honor, or otherwise recognize Same Sex Unions, nor may any element of the Federal Government grant any benefits to any organization because of that organization’s support for or recognition of Same Sex Unions.
  6. State Religious Freedom and Liberty: States that wish their Same Sex Unions to be recognized under this Act must have laws in effect that prohibit any element of the State government from punishing a religious group for refusing to acknowledge, honor, or support Same Sex Unions, and that prohibit any element of the State government from rewarding any organization because of that organization’s support for or recognition of Same Sex Unions.  In particular, no religious adoption agency may be forced or required to place children with unmarried couples, or required to consider same sex couples to be married (even if the State has granted that couple a marriage license).
  7. Federal Civil Unions: Same Sex Unions awarded by States that meet the above criteria will be considered Federal Civil Unions.  The members of such Unions will be entitled to the same Social Security survivor benefits, tax-free inheritance, spousal immigration rights and protection against mutual incrimination in Federal Court that they would be eligible to receive if they were married to a partner of the opposite sex.

(Note: Article 3, Section 2 of the US Constitution says “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  This implies that Congress can keep the Courts for meddling in an issue, and is the basis for part 4.)

This is a compromise I could, and would, support.  It would get the judiciary out of an issue where it has no business, place SSM in the political arena (which is where it belongs), and give same sex couples the chance to have the government benefits of marriage, without giving gay activists a club they can use to pummel those who disagree with them.

This last bit is, of course, the reason why gay activists will oppose my proposed compromise: they don’t really give a damn about getting “married”, they’re simply looking for a club to use against those who disagree with them.

While I’d be happy to be proved wrong about that, I’m not going to hold my breath.

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