Should There Be "Federal Civil Unions"?

Posted on February 22nd, 2009 by Kip

David Blankenhorn and Jonathan Rauch seem to think so:

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.

Two hasty stitches:

First, I don’t see “bestow the status of civil unions” — or, for that matter, “bestow the status of marriage” — listed among the enumerated powers of the federal government. The limitations of Article I may seem a frivolous irrelevancy to Blankenhorn and Rauch, but some of us still care about such things.

I remain adamant in my view that being a consistent libertarian and being a consistent full-equality-demanding gay are in no way inconsistent. I can make the case that the only consistent political orientation for a full-equality-demanding gay is to become a consistent libertarian.

Any approach to achieving full marriage equality that circumvents the proper role of a legislature is just as much an abomination as an approach to denying full marriage equality that circumvents the proper role of the judiciary. All else is rank ends-means Machiavellianism.

Second, as I have repeatedly blogged, in several contexts, there is simply no such thing as First Amendment “separation of hospital and state” or First Amendment “separation of adoption agency and state” or First Amendment “separation of parochial school and state.” Why, exactly, are Blankenhorn and Rauch taking as an axiom that such absurdities must be conceded ex ante?

If we are going to have anti-discrimination laws — a noble debate in its own right — and if we are going to offer a “church and state exemption” to such laws — another debate always worth having — then such an exemption should apply to the church qua church, and to nothing else.

(Incidentally, if theocratic bigots have a presumed prerogative to refuse to accommodate me on First Amendment grounds, then do I have a reciprocal prerogative as an atheist to refuse to accommodate them? I can assure you that I find them at least as offensive as they find me.)

In short, as a question of normative statecraft, Blankenhorn and Rauch’s proposal is a total non-starter. But what about as a reality-based strategic compromise? Gays get their rights, bigots get their bigotry, and non-gay non-bigots can stop hearing about it all the time.

The problem I have with that is the same problem I have with people, including gay and gay-friendly, who still somehow subscribe to the “too much, too soon” school of thought.

We have gone from a nation where gay marriage and gay civil unions existed exactly nowhere to a nation where gay marriage exists in two states, near-marital alternatives in five other states, not-near-marital alternatives in four others, and at least one state (probably more at this point) that recognize gay marriages from outside the state.

That’s mighty bizarre “proof” that gays demanded “too much too soon.”

I’m not sure what a “federal civil unions” compromise (and remember, this proposal is a compromise of our principles and not just our politics) accomplishes that continuing the current (morally superior) strategy —