Orthodox Look at Gay Nups Proposal

By Rebecca Spence

Published March 18, 2009, issue of March 27, 2009.
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As the cultural divide over gay marriage deepens, two public intellectuals on opposite sides of the debate are floating a new proposal that could bridge the gap between religious conservatives — including Orthodox Jewish groups — and advocates for same-sex marriage.

The compromise, proposed by Jonathan Rauch and David Blankenhorn, would grant federal civil union status to state-sanctioned gay marriages and civil unions, but it would link that new status to guarantees of religious liberty. Rauch and Blankenhorn first laid out this formulation in a New York Times opinion piece and then discussed it at a robust but largely civil March 13 forum at the Brookings Institution.

Some religious groups — among them, the Orthodox Union, America’s largest Orthodox Jewish umbrella group — fear that the drumbeat toward same-sex unions could compromise their religious liberties and leave them vulnerable to discrimination lawsuits. At the same time, proponents of gay unions contend that to deny gays and lesbians the right to marry is to compromise their civil rights. Tensions have flared most recently around Proposition 8, California’s anti-gay-marriage initiative that is now being weighed by the state’s Supreme Court and prompted nationwide protests when it passed last fall. Enter Rauch, a pro-gay-marriage journalist and Brookings guest scholar, and Blankenhorn, the anti-gay-marriage president of the Institute for American Values.

“In the wake of Prop. 8, I started getting more worried about the rising temperature of this issue, and I’d also become more conscious of the hardship of not having any federal recognition for same-sex couples,” said Rauch, who is both Jewish and gay, in an interview with the Forward. “Finally, I had become more and more aware of religious groups’ genuine alarm that gay marriage would be forced on them.”

Blankenhorn was unavailable for comment.

So, might Orthodox groups eventually warm to such a proposal? And would liberal-leaning Jewish groups, which represent the pro-gay rights views of the majority of the American Jewish population, accept a deal in which gays and lesbians are not granted full marriage rights? The purported representatives for each side don’t appear in any mood to compromise, but that hasn’t stopped Rauch and others from seeing the possibility.

According to Marc Stern, an Orthodox Jew who is acting co-executive director of the American Jewish Congress, the Orthodox community would be well served to accept such a compromise. “It’s acknowledged that this is something that’s going to come,” Stern said, referring to gay marriage. “And we might as well get the best deal we can, as opposed to continuing to fight it,” he said in a phone interview, speaking from his personal perspective.

In 2004, in fact, Stern laid out a similar argument in an article titled “Gay Rights and Orthodox Response,” published in Tradition, the Rabbinical Council of America’s journal of Orthodox Jewish thought. Stern’s article argued that the Orthodox should stop trying to beat back the tide of gay rights — not only in regard to marriage — and instead work to shore up religious liberties.

But Nathan Diament, director of the O.U.’s Institute for Public Affairs and a participant in the Brookings panel, said that it was premature for the Orthodox community to take a stance on the compromise proposal.

“Before we get to the issue of marriage with a capital ‘M,’ or even civil unions, there are already on the public policy agenda a number of key issues that have nothing to do with marriage or civil union recognition, but where gay rights and religious liberty issues intersect,” Diament said. “And to date, all we’ve done is develop mistrust and oppose one another between the gay rights camp and the religious liberty camp.”

Diament also expressed concern that religious organizations or their affiliated institutions could lose their tax-exempt status. “Is every traditional church, synagogue or parochial school going to be turned into Bob Jones University because of their view on homosexuality?” he said, referring to the Christian college that lost its tax-exempt status because of its racial discrimination.

Proponents of gay marriage argue that such fears are vastly overblown. According to David B. Cruz, a professor at the University of Southern California Gould School of Law, California has had anti-discrimination laws protecting people on the basis of sexual orientation and from religious discrimination, and no religion has lost its tax-exempt status. “The tax-exempt issue is completely ridiculous,” he said.

Cruz added that he does not support the compromise proposal, since most states do not allow gays and lesbians to join in marriages or in civil unions. “So to many gay and lesbian people, the so-called compromise offers nothing,” he said.

When compared with other religious groups, Jews are overwhelmingly supportive of gay rights, including same-sex unions. According to a 2007 study by the Pew Research Center, 79% of American Jews believe that “homosexuality is a way of life that should be accepted.” Moreover, California’s Jews voted in droves against Prop. 8, with more than three-quarters of Los Angeles’s Jews opposing the gay marriage ban, according to the results of an exit poll conducted by Loyola Marymount University.

Despite objections from those on both sides of the debate, Rauch said he was hopeful that his proposal could gain some traction. “The advocacy groups can’t lead,” Rauch said. “You can’t be a gay civil rights group and come out for something short of full gay civil rights, but it would be a question of finding political entrepreneurs who would say let’s try to move forward.”

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