Accidental Blogger

In a New York Times op-ed, the co-authors (one for same-sex marriage, one against) propose the obvious compromise: replace the federal Defense of Marriage Act with something slightly less beastly, and moderately less constitutionally infirm.  Basically, federal civil-union or domestic-partnership law.  Same-sex couples still can't get the name marriage for federal purposes, but they can get the civil benefits offered by the federal government if they are given marriage or civil-union status under state law.  (To be fair, the more obvious compromise [still beastly, but less so, and no longer constitutionally infirm] would be full-fledged federal civil-union law: same-sex couples are guaranteed the right to create civil unions, period.)

Anyhow, I support same-sex marriage because I'm not a horrible person, but as a political matter, federal recognition of civil unions is certainly worth talking about, and is a plausibly reasonable compromise.  What bugs me about this op-ed is that they think federal legislation here should include a "condition":

This seems to come up a lot: "We need protection for religious freedom, laws creating same-sex marriage could force churches to change religious doctrine!"  This is flatly ridiculous.  I believe it's what you would call a red herring, although I could be wrong on that — my philosophy days are long behind me.  My law days, however, are not, and it's clear that discussion of religious-freedom exceptions both distracts from real issues and gets people worrying about something which is actually impossible.

The First Amendment protects the freedom of religion, forbidding state establishment of religion as well as state infringement on the free exercise of religion.  As a factual matter, I am not aware of any state with same-sex marriage which has purported to require religious recognition of same-sex civil marriages (nor am I aware of any state without same-sex civil marriage which recognizes, for civil purposes, same-sex religious marriage).  More important, as a constitutional matter, neither a state nor the federal government could do so.  If the First Amendment means anything, it means that religious organizations cannot be forced by government to recognize same-sex marriage.  (There are also judicial doctrines, such as the ministerial exception, which protect the freedom of religious organizations and preclude judicial inquiry on marginal issues such as employment discrimination.)

This type of sophistry, even if well-intentioned, in fact distracts from any real debatable issues and functions to get the socially conservative base riled up.  I'm sick of hearing about the need for statutory protection of religious freedom, which falsely makes it seem as if that protection is not existent and fully secure.  Church-state separation on this issue is probably as doubt-free as anything in the Bill of Rights.  So let's stop talking about it as if it's even debatably in need of aid, okay?