Try a complete religious exemption: dis-establish religious marriage

by on July 31, 2009  •  In Marriage, Religion

The following post to the Social Science Research Council page is by Janet Jakobseen and Ann Pellegrini, authors of Love the Sin, a great read on the relationship between sex and religion:

This notion that religion and sexuality are somehow in opposition is one of the few beliefs shared by opponents and supporters of gay rights. Yet it has significant policy implications, particularly in recent moves to enact far-reaching “religious exemptions” as a condition of passing state laws permitting same-sex marriage. In New Hampshire, Governor John Lynch threatened to veto same-sex marriage unless state legislators also passed a bill framed as “protecting” religion and extending “religious liberty,” but that in practice exempt religious organizations and their employees from otherwise applicable state anti-discrimination laws. (Legal scholar Nan Hunter has predicted that the New Hampshire language could become a model for same-sex marriage laws nationally.)

In our 2003 book, Love the Sin: Sexual Regulation and the Limits of Religious Freedom, we offer an extensive argument that religious freedom and sexual freedom are actually interdependent rather than oppositional. Unfortunately, the impact of “religious exemptions” like those included in the New Hampshire law is to codify a narrow version of religious freedom in which religious liberty and sexual freedom can only be seen as mutually exclusive. This is not just a loss for sexual freedom; it also significantly narrows the parameters of religious freedom offered by the US Constitution.

If there is a “religion problem” posed by gay marriage, it is not that some religious organizations might be “forced” to provide secular benefits to same-sex couples, such as healthcare or equal access to residential housing; it is rather the entanglement of the state with the business of any couple’s religious marriage. The problem here is that the state legitimates religious marriages, performed by members of the clergy, rather than only civil unions performed by representatives of the state, thus entangling, rather than separating, state and religious practice. When such entanglements are maintained in law, religious practice is not “protected” from the state any more than citizens are “protected” from the imposition of religious convictions they do not share. New Hampshire and other states could actually “protect” both religious practice and those who are not religious (or who are differently religious) by providing civil unions on the basis of equality and letting religious bodies provide for religious marriages. No secular benefits would then flow from religious marriage, and the secular benefits that follow on civil unions would be separated from religious debates over homosexuality….

In a recent issue of the Nation, Lisa Duggan highlighted Equality Utah’s proposal for an Adult Joint Support Declaration, which would allow a legal framework for caretaking—medical decision-making, health insurance benefit designation, and inheritance—among adults who are not necessarily related by sexual or romantic partnerships. Such a proposal separates secular benefits not just from marriage but from sexuality as well, further removing the current entanglement between state benefits and religious debate over sexual practice. As Duggan points out, such a measure could spark unexpected political alliances as well as expand the support for caretaking in our society well beyond the question of marriage or domestic partnership, getting, in her words, “the AARP on board to lobby for medical next of kin, tax and inheritance rights for ‘Golden Girls’ households, or attract libertarians who want to take the state out of the business of ‘recognizing’ sexual or romantic relationships entirely.”

This shift in framework—from gay rights to the basic ground of freedom and equality—would do much not only for gay people and for the Obama administration’s standing with the oft-invoked “gay community;” it could significantly alter how controversial issues are approached in American public life. We might move beyond the identity politics of rights-based movements, even as we preserve the ability to act on identity- and rights-based claims. Who knows, but we might even create the basis for one of the most promising possibilities invoked by the early Obama campaign: not just change we can believe in on given political issues, but the possibility of creating a “new majority” that goes beyond individual issues to larger questions and practices of liberty and justice for all. Achieving this new majority cannot happen if we trade off some people’s sexual freedom for some other people’s religious freedom (or vice versa).


One Response to Try a complete religious exemption: dis-establish religious marriage

  1. Prup (aka Jim Benton) July 31, 2009 at 1:44 AM

    I usually agree with you, and I have written you as to how much i respect you, but this is an awful idea. It keeps coming up in blog comments, and in discussions — even my wife (I am a heterosexually married bisexual) has suggested it, and she is web-averse to the point she won’t even read my own writings. But if there were any attempt to actually push for this, it would be disastrous.

    Right now, there is a wave of slowly growing support for gay marriage throughout most of the country. More and more states are moving towards it, and I wouldn’t be surprised if other states who passed Constitutional Amendments against it are regretting them. (I disagree as wel with your post suggesting that the “Repeal Prop. 8″ Amendment should be delayed. I don’t think the opponents would have the resources to fight it again, I think many Californians who voted that way would be reluctant to do so again, and I think a substantial part of the vote against — maybe enough to have swung the vote — came from the confusing nature of the question.)

    A federal repeal of DOMA and a ‘full faith and credence’ extension to the field of marriage both have some chance of success. But this would be a whole different path, and a very dangerous one. Right now, one of the strongest answers to the conservative argument “Gay marriage is an attack on the idea of marriage” is simply for straight (or bi) supporters to ask “In what way does gays getting married affect my (heterosexual) marriage?” And, now, there is no answer to that.

    This idea would give opponents their answer. “See, gays really do want to do away with heterosexual marriage, just as we’ve been claiming.” (True, no, but again, when has that ever stopped them, and it would rekindle the prejudice of many people who had overcome theirs.)

    It would be throwing away the progress we are already making, at a time when the entangling death-grip of the racists, birthers, and other groups is strangling what remains of the Republicans, and is leaving the chance of a new liberal movement in this and other areas. And for an idea it would take decades to sell, and which would be fought against even more strongly by those gays (probably a majority) who are also ‘believers’ and want their marriage solemnized by the church, synagogue or temple they attend.

    I don’t see the automatic constituency for it you see. Rationally it may make sense, but people are not primarily rational. There are states which attempt to provide ‘all the benefits of marriage without the name.’ Most comments I’ve seen on these states comes from gays who claim ‘we are still second-class citizens’ because they are still prohibited from marrying. And they don’t want to ‘pull other people down to their status’ they want to have what their parents had. (In my case, because I am a 63 year old man who was raised in a lesbian household in the ‘OzzieAndHarrietLand’ of suburban New Jersey, I have the additional desire for other same-sex couples to have what my parents didn’t have and couldn’t have dreamed of having in the 35 years they lived together before Claire died.)

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