Civil Unions and Religious Liberty

The Illinois legislature will soon act on the Religious Freedom Protection and Civil Union Act, which would legally recognize civil unions in Illinois. The legislation provides that "persons entering into a civil union" will have "the same obligations, responsibilities, protections and benefits" as married persons. Civil unions would be available to adults "of either the same or opposite sex." Traditional "marriage," however, would remain available only to persons of the opposite sex.

Such legislation is currently supported by the vast majority of Americans. Recent polls show that Americans favor the legal recognition of civil unions by an extraordinary ratio of 60 percent to 34 percent.

There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Hispanics, Asians, Jews, Catholics and gays, all of whom have been the victims of cruel discrimination.

The legal recognition of civil unions represents an important step forward in the continuing moral progress of the United States. It is, of course, a compromise, but it is a reasonable compromise at this time in our history.

The most vocal opponents of this bill argue that their religious freedom would be impaired by the recognition of civil unions. It is important to consider this concern carefully and respectfully, for it is no doubt heartfelt and sincere. So, the question is: How does the legal recognition of civil unions threaten the religious liberty of those who oppose the legislation?

The most obvious tension arises out of the fact that some religious people believe same-sex relationships are inherently sinful and immoral. They therefore insist that the state should not legitimate such relationships. The problem, though, is that in a society that values the separation of church and state, religious doctrine cannot be the source of our secular law. The framers of our Constitution certainly embraced this principle, and as the Supreme Court recognized almost 50 years ago, the state cannot constitutionally use its "power to aid religion." It is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them.

There is, however, a more modest version of the religious liberty objection: that people with sincerely held religious beliefs should not be compelled by the state to act in violation of those beliefs. This is a reasonable position. And it is why the pending Religious Freedom Protection and Civil Union Act expressly provides that nothing in the legislation "shall interfere with or regulate the religious practice of any religious body" and that any religious body "is free to choose whether or not to solemnize or officiate a civil union."

This provision accords very broad protection to religious liberty and to the interests of religious institutions whose beliefs and practices are incompatible with the recognition of civil unions. Indeed, this protection goes far beyond what the Supreme Court has held is required by the 1st Amendment. This is a respectful and very substantial acknowledgment of legitimate religious liberty interests, without running roughshod over the fundamental interests in fairness, decency and common humanity that motivate the legislation.

As a compromise for our times, the proposed civil-union bill strikes a thoughtful balance between the compelling interests of those who seek to share the joys and responsibilities that come with permanent and stable personal relationships and those who are sincerely concerned about the preservation of religious liberty. It is a wonderful example of groups in a self-governing society finding common ground, where each side acknowledges and respects the interests of the other. It should be enacted quickly and enthusiastically, for it reflects the American spirit at its very best. As President Barack Obama has said, "this issue is about who we are as Americans. It's about whether this nation is going to live up to its founding promise of equality by treating all its citizens with dignity and respect."

Comments

[johnbdonovan]

This has nothing to do with recognizing anyone's common humanity and everything to do with recognizing and honoring the unique value of a mother to a child and the unique, irreplaceable value of a father to a child, and every member of the human race has that in common -- being raised in some way and having his life determined to an important degree as a result of that. Gender matters. You can't just take a baby that has just popped out and put him into the hands of two men and expect the same result. There was a comedy along those lines 20 years ago but the huge success of that just shows how ridiculous the reality is.

[StevenKeirstead]

Well, you are proven wrong by scientific studies indicating that kids from two mother and two father homes perform just as well in school and life as kids from "traditional" two heterosexual parent homes. Kids in single parent homes are the ones who are more likely to have trouble, so it is two loving parents that matter, not their gender.

See: Gartrell, N., Deck, A., Rodas, C., Peyser, H., & Banks, A. (2005). The National Lesbian Family Study: 4. Interviews with the 10-year-old children. American Journal of Orthopsychiatry, 75(4) 518-524. and other studies. Abstracts of this and many more at: http://www.apa.org/pi/lgbc/publications/lgpstspec.html

[SUIGENEROUSLA]

I don't expect the same result. I expect a different and perhaps better result. It all depends on the individual parents. You lump all g a y people, into the bad parents category by definaitio­n.........­nice.

[M1]

Separate is not equal. This issue has nothing to do with the religious rights of others and to give validity to ignorance will only manifest more discrimination against gays.

This bill is not a compromise it is a fall back position for those whose days of discriminating against a vulnerable class of Americans is coming to an end. I would oppose such a Bill.

[roald]

I agree with you. Why can't we call the state-defined union, "marriage" and the church-defined union, "religious union"?

The question before us is whether to begin with a partial, flawed solution and work toward a proper resolution or hold out for the proper solution. The first approach has a good chance of achieving the first step, but having that success used to prevent or delay the second step. The second approach will take a lot longer to achieve, causing many to suffer longer.

[slowtono]

Your lack of comprehension of the statutes of religion towards marriage and the separation of Church and religion is not mentioned in the article. Many divorcees no longer attend church or attend the same church. Guilt. Churches still excommunicate individuals. The real reason for gay want of marriage is to bring the church down, to disenfranchise the church. Most laws such as the gay marriage decision in Iowa is a sham. No opposition a group of Homo's in one room deciding a law. Dictating. Yet as the Episcopalian Church recently found out there are millions who follow the heart of the Bible over and above all man made laws. To these, marriage of A-sexual's will always be non-accepted and to Gays that is why they must destroy the church.

[mercury613]

You flatter yourself and your church. We don't care what churches think. We just want them to leave us alone.

[Quislet]

There are churches willing to marry gay couples.

And allowing gay couples to civilly marry does not bring any church down. As always, each church is allow to marry or not marry any couple as per their religious beliefs.

[LeftRight]

Considering that they would be unable to bring a church down because the state suddenly granted them marriage rights, this makes NO sense!

[StevenKeirstead]

That is total bull. I support all religious people to believe, say and practice whatever they wish, so long as they do not interfere with other people's legal and civil rights. I do not expect any religion to recognize my legal marriage to Lansing Wagner in Massachusetts, but I do expect all government entities will eventually recognize our marriage.

I don't really care what any particular religion teaches, though I do like some aspects of Zen Buddhism, Zenga art, and I love some classical and baroque religious music like Monteverdi's Vespers of 1610, Alegri's Miserere Mei and Motzarts Requiem. I also am a dedicated agnostic, who thinks the existence or non-existence of a god or gods is unknowable, and the truth of that is certainly found in no book.

[Twopennygal]

It seems to me that they are being so careful of he religions that are against same-sex marriage and forgetting that there are some religions that are for it. As many have already said, government should get out of the marriage buisiness all together. I do however, believe that civil unions, as a contract between two adults, are important. It was mentioned that civil marriage was just for legitimizing children, but it's actually for much more, such as inhertance, sickroom visitation, etc. I can see how childcare could be handled in a separate contract (adoptions, step-parenting, etc.), but there's a lot more to a "marriage" than just children.

[TryToBeFlexible]

How about an eye for an eye, and a tooth for a tooth? Anyone who advocates suppress a human or civil right of another person should automatically have their own civil rights stripped from them.

[superstition]

The US Constitution, egad!

"Congress shall make no law respecting an establishment of religion"

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Given this, the only way it would be justified to discriminate -- in any way -- against gay people is for homosexuality to be some sort of impairment­/disorder. It's not. Dr. Evelyn Hooker, in the 1950s, was the first psychologist to study gay men with no history of treatment for mental illness. She, unlike her predecessors, avoided using a polluted sample to come to the illusory correlation between homosexuality and mental illness. She correctly said that homosexuality is not a disorder. It in no way lessens quality of life. What is a big problem, though, is homophobia. That is what needs to be cured.

So, given that there is no rational basis for discrimination against gay taxpayers, there is also no legal one.

[StevenKeirstead]

And don't forget the Equal protection clause of the 14th Amendment to the US Constitution, which is worded broadly enough to encompass gay rights and same sex marriage after Lawrence v. Texas (2003). As Antonin Scalia predicted in his dissent, Lawrence opens the door to Marriage Equality for same sex couples.

[Soundofthunder]

Guess what, people: ALL marriages are civil unions, meaning a legally binding union that connects two heretofore unconnected persons. What ever religious or ceremonial constructs you wish to add to that are just window dressing. This entire argument (marriage vs. civil unions) is semantics gone terribly out of control. In any case, give homosexuals the right to give half their stuff away if things don't work out, because when you think about it, gay-cists (I'm trying out a new portmanteau word), it's kind of a mean thing to do. So get behind it from that vantage, ANYTHING to get the law passed and be done with yet another dark chapter in America's history of denying civil liberties.

SOT

[LeftRight]

The problem with your comment (which on the whole is a VERY good one!!!) is that the civil union portion of the marriage that many people have is ALSO called marriage. So even though they should know that there is no connection between a marriage license and a church, they associate that marriage with the church. So they are thinking that the gays will take away their religious freedom to discriminate against them!

[Soundofthunder]

It's been established that the Boy Scouts of America, which receives PUBLIC funding, is allowed to discriminate on the basis of religious beliefs or sexuality, so churches, supported privately, have nothing to fear. Gay people cannot force them to perform a ceremony any more than atheists can. So, relax, religious right. Your long standing traditions of exclusionism and anti-egalitarianism are safe.

SOT

[ProudLiberalDan]

The answer here is to strip churches of the right to grant civil marriages. Make all couples straight and gay have to get a civil marriage.

If couples on top of that wish to have a religious ceremony along with the civil one, that is between them, their understanding or non-understanding of God and their church.

As a liberal I am passionate about separation of church and state. Anytime the two are mixed it turns out disastrous for both.

Perhaps if "civil marriage" was left to civic institutions, then people might take "religious marriage" a little more seriously when they stand before their house of worship.

Strip clerics of their right and authority to grant "civil" marriages. Problem solved and no one harmed. Render unto Caesar what is Caesar's.

[KPinSEA]

The answer is for the State with a big S to not discriminate on the basis of marital status: it should recognize no difference between single and married persons. That makes 'marriage' an entirely ceremonial affair conducted within the rules of your local church, synagogue, temple, or leafy bower, and leaves the State out of the marriage business, which it has no business being in.

If there were ever a reason for the State to care about marriage, it was to validate the legitimacy of offspring. Since we can do that through DNA testing now, there's no legal purpose for the State being cognizant of marital status.

[roald]

There is so much more to a union/marriage than deciding whether a child is legitimate. It is a contract between people and, as such, subject to contract law, within the purview of the State. The State has to deal with the effects of a broken contract.

[SD Indy]

Actually in one way I think this is a semi-good idea. Semi because they should have discontinued allowing marriage recognition in the state altogether and have the state only recognize civil union. And then if the church wants to "bless" the union and call it a marriage, so be it.

Had they done this it would have FORCED the federal government to sign into law some sort of civil unions law because it doesn't recognize civil unions whatsoever. Could you imagine the Christian-Taliban going apesh*t when they file their taxes and surprise, they can't file "married filing jointly"?

[JohnJames]

What both amazes and discourages me is that this June the state of Massachusetts will have been marrying same-sex couples for five years now. One of the virtues of federalism is that it allows the states to function as social laboratories of sorts. Unfortunately, we don't seem to pay any attention to the experiment. None of the horrors predicted by the religious right have come to pass in Massachusetts. In particular the autonomy of religious organizations that oppose gay marriage has in no way been compromised. You'd think in this proposed and unnecessary compromise legislation Illinois were venturing forth into uncharted territory. I don't get it. As I said - amazing and discouraging.

[TryToBeFlexible]

The whole basis of religion is believing in stuff that is not true, cuz it feels good to believe it. The religious right likes to feel like the etermal victim, so no matter what, they will go to their grave believing that if gay marriage comes to their state, they will go to hell, the earth will open up and swallow them, or some such drivel. No evidence to the contrary allowed.

Like the "evolution vs. creationsism debate".

[Paulied]

Good compromise - separate but equal has always worked out so well for us in the past!

[TryToBeFlexible]

Yes, it is so fair. The hate mongers get the real deal, and the fairly powerless and innocuous minority they hate, for no reason, gets the shaft. That is a really moral compromise.

[roald]

Uh, you did detect the strong note of sarcasm and are simply agreeing?

[DinkSinger]

Civil union laws are unconstitutional. That was the decision of the Massachusetts Supreme Court, the California Supreme Court and the Connecticut Supreme Court. The government may adopt laws that discriminate between groups only if they met the "rational basis" standard, that is that the government action must be rationally related to a legitimate state interest. It can be argued (I think incorrectly) that limiting state sanctioned relationships to opposite-sex couples is a "legitimate state interest", but once the state decides to sanction relationships between same-sex couples with exactly the same provisions as those for opposite-sex couples, there is absolutely no legitimate state interest in calling this by different name. The only possible rational basis for such a decision is to promote (as the title of the Illinois act suggests) the beliefs of certain religious groups , but favoring one religion over another is clearly not a "legitimate state interest".

[Rrhain]

Especially since the civil union contract is available for both same-sex and mixed-sex couples while the marriage contract is restricted only to mixed-sex couples. Lawrence v. Texas and Romer v. Evans already pointed out that you can't single out gay people for disparate treatment under the law.

I've got a crazy idea with regard to California should the California Supreme Court decide that Prop 8 was a legitimate initiative: File suit to have all marriages declared null and void. Even if Prop 8 is legitimate, the IN RE decision still stands in that it points out that the California Constitution demands equal protection. To have an amendment flatly deny that equal protection means that something has to give:

If marriage is only allowed between mixed-sex couples and if it violates equal protection not to grant marriage to same-sex couples, then the contract of marriage must be disallowed in California.

[DinkSinger]

Just to get the facts straight, in Connecticut civil unions were and in California domestic partnerships are restricted to same-sex couples only. They are not available to opposite-sex couples. The same was true of the proposed civil union law that the Massachusetts court ruled unconstitutional.

[dananotech]

Exactly. This is just a way to codify discrimination. Geoffrey Stone is SO WRONG in advocating this "thoughtful balance". If religious people don't want to belong to a church that marries same-sex couples, they can go join a church that still discriminates. THAT is religious freedom. But to try to define one thing as marriage because some religious people want it defined that way and one thing as civil unions is just wrong. People that think that their marriage is somehow denigrated by someone else's marriage really need to chill out.

[DinkSinger]

And even more to the point, if religious people want to belong to a church that marries same-sex couples, the state cannot say to them "No, your church can't do that". That is also religious freedom.

In the Goodrich case the Massachusetts court put it well:
"[m]any people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors."

Bans on same-sex marriage prohibit the free exercise of religion in violation of the Federal 1st Amendment. The problem is the current United States Supreme Court can not be trusted to see it that way.

[LeftRight]

They didn't decide that civil unions were unconstitutional. What they decided was allowing straights to get married OR civil unions, but limiting gays to only civil unions was unconstitutional...

Don't know if that makes sense, so here ya go, Separate but Equal is inherently unequal.

[DinkSinger]

Civil unions are unconstitutional because they are separate and therefore unequal.

In California and Connecticut opposite-sex couples could not enter into civil unions (in California they are called domestic partnerships). In both states the "substantive attributes" of the separate institutions were identical, only the name was different. Neither court had to rule on the question of the constitutionality of not providing "an official relationship" for same-sex couples (as the Iowa court did) because the state legislature had already done that. The only question was if the state provides "an official relationship" for same-sex couples with the same "substantive attributes" can they call it something else? Both courts said no.

In Massachusetts after the Supreme Court ordered same-sex marriage, the Senate requested an advisory opinion, would be constiutional to call it civil union for same-sex and marriage for opposite-sex couples? The answer was no.

[Openeyes]

This is just a "separate but equal" argument, rejected by the U.S. Supreme Court decades ago.

If a civil union is the same as marriage, why isn't it "the same”? What's the point of not making marriage available to gays?

Your argument is no different than defending segregated schools, restaurants, and hotels as "a reasonable compromise at this time in our history."

The unsupported assertion (do your law students get away with that?) that this protects "religious liberty" is ludicrous. Religious institutions can refuse to officiate a ceremony that is not in keeping with their religious beliefs NOW. You can't force a church to marry you now, and you won't be able to if gay marriage is approved, so the “protection” argument is completely false.

This is just more of the “gradualism” you oddly claim "makes us great."

I fail to see how "gradually" coming to the realization that something is unjust and should be remedied makes us great, unless of course, one is arguing for a gradual compromise rather than actually remedying the problem. That is apparently your real position.

Didn't your law school teach you that justice delayed is justice denied?

[bannorhill]

First a man and a woman are not the same. I think we can agree on that. So therefore a marriage between a man and a woman is not the same as between two men or two women. They are not the same and can never be the same.

Then what is a marriage? Should any relationship between two people be allowed to be a marriage? Should a mother and her 21 year old son be allowed to marry? A father and his daughter? A brother and his sister? A man and eight women? Four men and four women? A great grandfather and his great grand niece? What is the point in not making marriage available to them?

Should we allow anyone or any number of people to be a married?

[Openeyes]

If you delete any requirement that marriage be between persons of opposite sex then it is the same.

That doesn't authorize bigamy or incest, so what is your point?

[rjmiller]

From a legal perspective, a man and a woman ARE the same.

As long as all participants are legal, consenting adults, the state has no right, or reason really, to limit marriage. The state needs to have a specific reason for limiting the rights of its citizens. There is no potential downside to allowing same-sex couples to marry, therefore they should be allowed to do so. Incest has a higher likelihood of mutations in procreation, however that is debatably discrimination against children with disabilities. In terms of group marriages, the marriage contract would need to be significantly changed so as to accomadate multiple partners.

I'd love to hear good reasoning against polygamy. It tends to be practiced by groups that institutionalize child abuse, but the basic idea of a multiple-partner marriage isn't unreasonable.

[LeftRight]

Wow.... I thought that we'd finally beat that argument out of the Conservatives.... It's been answered enough times!

The fact of the matter is that your point is ONLY valid if you decide that gays aren't worthy of the same of everything that straights are worthy of. If you remove that assumption, you will see that, in fact, gay marriage is as valid as any other marriage!!

[meko]

Gay marriages already happen in so many churches. Unitarians, the United Church of Christ, and more. Why do some faiths get to determine what is valid in other faiths? When did we create an official state religion?

[3in1]

The head of the Riverside Church Council is defending a more than $600,000-a-year package for the church's new senior minister - a setup that has sparked a court fight among members of the congregation. obama black supporter the Rev. Brad Braxton's pay is "in line with compensation packages of other religious leaders in Manhattan who minister to congregations of a similar size and scope," the council chairman, Billy Jones, said in a statement released through public relations guru Howard Rubenstein. Eric Holder and FBI should look into this.

[Clavis]

God doesn't exist; gay people do.

Stop protecting the sanctity of your fairy-tale boogeyman imaginary friend while stepping on actual, real, flesh-and-blood human beings.

[TryToBeFlexible]

Hear hear! Great response.

[bannorhill]

Really? Prove he does not exist.

[nicole44]

He can't prove it, that would require independent thought and a little bit of effort. Lazy people find it easier to say something doesnt exist because they either want to do what ever they want in their lives and convince themselves that there are no consequences and they are jealous that people live happy and fulfilling lives without being immoral. Or they are just lazy.

[meko]

Are we going to start getting into Flying Spaghetti Monster arguments? Because we can't prove that doesn't exist either. I can't prove there isn't a weightless invisible alien from outer space on my shoulder either.

There are lots of things that people once believed in that most people don't believe in today. Lots of gods too. Odin, Aphrodite, Isis. Most people would say that, outside of myth, they don't exist. Christians believe that thousands of gods from human history don't exist. The disbelief of atheists just goes one step further.

[LeftRight]

Since it's impossible to prove a negative, how about you provide even ONE SINGLE SHRED of evidence (Notice I'm not asking for proof!) that God DOES exist!

[NoOneSpecial]

Only if you can provide proof that invisible, extra-dimensional unicorns DO NOT always stand behind you and watch everything you do.