SUMMER 2009
So now what? Skirmishing will continue in the states, but before long Washington will weigh in. As a candidate, President Obama favored federal recognition of civil unions. In due course, congressional Democrats will introduce legislation to that effect. What will happen then is anyone’s guess, but it seems unlikely either that Democrats would have the votes to enact gay marriage or that Republicans would have the votes to block all action. At that point, both sides could gain by tying federal civil unions to religious-liberty guarantees. Democrats would win Republican votes and the political cover those votes would provide; Republicans would win religious opt-outs in exchange for civil unions that might have passed anyway. Both sides would walk away with something concrete and bankable—land for land, not land for promises, as they say in the Middle East—without requiring either side to relinquish its core principles. And the public would be grateful for a rare display of bipartisanship on a particularly intractable issue.
A
nother reason this kind of swap would appeal to Congress: the concept has been successfully market-tested. In April, Vermont’s legislature attached substantial religious-liberty protections to its gay-marriage bill. Other New England states followed suit. The particulars vary, but the basic formula that Blankenhorn and I suggested, linking same-sex unions to religious opt-outs, has proven its political viability. If I emphasize tactical politics, that is only because the fundamentals have not changed since we wrote our article. Make no mistake: in my view, the Blankenhorn-Rauch compromise, or something like it, is no mere tactical maneuver. I support it because it is good for our country, not just good politics. First, because gay couples, and their children, are today legal strangers to each other under federal law, and sorely need the multitude of protections and tools which only federal legal recognition can provide. (No, those are not available by private contract. Try asking your lawyer for immigration rights, Social Security survivor benefits, tax-free inheritance, protection from having to bear witness against your spouse, and on and on.) Second, because freedom of religious conscience is the 79