It’s the Thought that Counts

A week ago, a group of ministers supported by the Alliance Defense Fund (which, by the way, is every bit as idiotic as the vagueness of its name would imply) made political endorsements in their sermons as part of the “Pulpit Initiative”.  This is something they’re not allowed to do under the regulations that come with their tax-exempt status.  The goal is to create a test case with the standing to challenge the constitutionality of that regulation.

I should say, first of all, that they have a legitimate argument, and I don’t believe the lawyers involved should be punished.  Yes, the lawyers told their clients to break the law, but with standing requirements what they are, this kind of thing is common in the US when people want to challenge laws.  That’s maybe unfortunate, but as long as the lawyers made very clear to these pastors what it was they were getting themselves into, I have no ethical complaint against them.

That said, it’s pretty clear to me that there is no ground for their suit.  Churches are in no way required to have tax exempt status.  It would actually be a constitutional violation to single them out for it, as it would be government sponsorship of religious activities.  The law ignores whether a given organization is religious.  What it does pay attention to is whether it’s a non-profit.  Non-profits, because society has decided they are worth encouraging, are given tax-exempt status, and donations to them are tax-deductible.

Non-profits in general, not just churches, are required to live by certain regulations if they want tax-exempt status.  One of these is a lack of overt campaign activities and endorsements.  (They’re allowed to talk about specific political issues, advocate for a bill, and a variety of other related things.)  The main reason for this is that making an organization tax-exempt costs the government money, and the country has decided it doesn’t want to subsidize these activities.  Also, allowing this would create a loophole a mile wide in campaign finance reform laws.  (And any attempt to add the regulations necessary to prevent that would subject churches to a huge amount of additional regulation.)

So what about free speech?  Don’t they have a right to make political endorsements?  The individuals do, and the clergy are free to engage in politics in their own time.  The organizations also do, but they don’t have a right to tax-exempt status.  When the government gives favors, it can attach strings.  There are limits of course, but this one is reasonable.

The real point here is a larger one.  When religious organizations get favors from the government, they get entangled with the government.  The separation of church and state is as much about protecting the church from the state as it is the reverse.  As soon as a religious organization becomes accustomed to government favors of some kind, it loses its independence.  The government can attach conditions to these favors that it would never be able to impose on the churches directly.  Even without the formal conditions, the religious groups have to be wary of doing politically unpopular things, since part of the backlash could be the removal of those favors.  If you think it’s important that government not dictate limitations on religious practices, then you should also think it’s important the religious groups get no special favors.  And those religious organizations that are so unhappy about the endorsement rules should think twice about demanding a faith-based initiative that allows the government to directly fund may of their activities.

Tags: free speech, law, politics, religion, religious freedom

This is exactly the kind of attitude I was hoping to see from a former constitutional law professor.

Referring to Obama at the RNC, Sarah Palin said, “Al-Qaeda terrorists still plot to inflict catastrophic harm on America and he’s worried that someone won’t read them their rights.” It gave me chills and made me have to step away from the TV, but Obama has responded like the educated and intelligent person he is.

Calling it “the foundation of Anglo-American law,” he said the principle “says very simply: If the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ And say, ‘Maybe you’ve got the wrong person.’”

The safeguard is essential, Obama continued, “because we don’t always have the right person.”

“We don’t always catch the right person,” he said. “We may think it’s Mohammed the terrorist, but it might be Mohammed the cab driver. You might think it’s Barack the bomb-thrower, but it might be Barack the guy running for president.”

It might defy our instincts. It might be a bit nuanced. It might require us to read something — and for a few of us, require the assistance of a dictionary. (Who would have expected a presidential candidate to throw around Latin phrases like habeas corpus as though he knows what they mean?!) But it’s exactly those qualities that make me proud of this speech. Rather than play to our fears and herd mentality, Obama is inviting us to think about why our laws say what they say, and why laws shouldn’t be disregarded whenever we feel hysterical. I think he deserves a lot of praise and attention for taking the intellectual stance in a time when “intellectual” is almost as dirty a word as “liberal.”

I like the dash of self-deprecating humor as well. It nicely underscores the ridiculousness of those smears.

Tags: barack obama, habeas corpus, law, politics, sarah palin

Due to some scheduling freedom, I’ve lately become a bit nocturnal, and I’ve found myself watching a lot of late-night/early-morning TV. This has given me the opportunity to reflect on the ridiculous ads that companies save until we are maximally sleep-deprived and hopefully stupid enough to believe the crap that they are shoveling. Frankly, it is unbelievable.

I wanted to write something all about Dr. Frank’s No Pain Spray, because I’ve seen about nine zillion commercials for that. But once you get over the fact that it’s an oral spray that looks like a breath freshener but that’s supposed to provide all the way up to post-surgery level pain relief (no, I’ll take the Percocet, please), the fact that it claims not one but ten different homeopathic ingredients (slightly increasing the probability that a single non-water molecule might exist in the spray), and the fact that it’s only advertised at 3 AM (not a good sign for credibility), there’s really not a lot more to mock. Borrr-ing. Besides, someone else has done it more thoroughly than I would care to.

However, I think it’s important to say something about a more general problem I have with this class of advertisements. All these diet pills, “male enhancement” tablets, and so on make their claims of widespread success, then display the tiny text: “This product has not been evaluated by the FDA.” Is that enough to meet our legal standard for truth in advertising?

The Federal Trade Commission has this very clear FAQ about false advertising on their website. In particular I think it’s worth highlighting this one.

What makes an advertisement deceptive?
According to the FTC’s Deception Policy Statement, an ad is deceptive if it contains a statement - or omits information - that:

— Is likely to mislead consumers acting reasonably under the circumstances; and
— Is “material” - that is, important to a consumer’s decision to buy or use the product.

It goes on to explain the process the FTC uses to investigate claims of false advertising, and uses the particular example of a mouthwash that claims to prevent colds. The FTC looks from the point of view of a “reasonable consumer” and evaluates both “express and implied claims,” checking to see if the advertiser has enough proof to back them up. In the particular example of medical or other scientific claims, the advertiser is expected to have “competent and reliable scientific evidence.”

I also found a page on the FTC’s website called Dietary Supplements: An Advertising Guide for Industry. It has a lot of important and relevant information, and in particular in section II.C.3 mentions the Dietary Supplement Health and Education Act (DSHEA) disclaimer, “that the statement has not been evaluated by FDA and that the product is not intended to ‘diagnose, treat, cure or prevent any disease.’” DSHEA doesn’t explicitly apply to advertisements, but this document does say that it’s a good idea to include the disclaimer “to prevent consumers from being misled about the nature of the product and the extent to which its efficacy and safety have been reviewed by regulatory authorities.” I was glad to see this example used to illustrate the issue:

Example 34: An advertisement for an herbal supplement includes strong, unqualified claims that the product will effectively treat or prevent diabetes, heart disease, and various circulatory ailments. The advertiser does not have adequate substantiation for this claim, but includes the DSHEA disclaimer prominently in the ad. In face of the strong contradictory message in the ad, the inclusion of the DSHEA disclaimer is not likely to negate the explicit disease claims made in the ad, and will not cure the fact that the claims are not substantiated.

This is a good standard to have. There are two prongs to the DSHEA disclaimer; I’ve usually only seen the first half used (in small and hard-to-read print, no less). The second half, that the product is not intended to provide any actual medical service, would seem ridiculous when compared to the explicit claims of medical service made over and over again in the ad. Of course it’s intended to diagnose, treat, prevent, or cure something! The first half of the disclaimer, though, is even less effective at offsetting the false advertising. The lies may not have been evaluated by a regulatory agency, but that doesn’t make it okay to lie. It’s the advertiser’s job to make sure what’s in the ads is true, and this feeble attempt to displace blame is laughable.

The problem, then, is not that we don’t have a good standard delineating what’s false advertising, bur rather that the standard is not being enforced. These advertisements aren’t just stupid, they’re nefarious — they’re lies told only when viewers are expected to be at their weakest emotionally and blurriest rationally.The FTC needs to step it up and get these cranks off the air.

Tags: health, law, pseudoscience, science

I’ve been thinking about American patriotism, particularly my own.  (Blame July 4th.)  Americans are obviously very patriotic, especially compared to Europeans, Canadians, and others in what we would think of as similar countries.  I don’t believe in blind obedience to one’s country.  Maybe “because that’s where I’m from” is a good reason to root for a sports team, and some sort of superficial patriotism can be justified on that ground, but I think deeper patriotism really is irrational without a better reason.  There are a lot of things that cause people to be patriotic that I really think are horrible reasons for caring about the US, but I still feel very patriotic, and I’ve been thinking about what exactly makes me feel that way.  I would be very interested to hear what other people think of these, or what reasons you have.

First, let me eliminate some things from consideration.  There are a lot of good things about the US that aren’t particularly unique.  (It’s a democracy, capitalist, has a generally not corrupt government, and so on.)  These things are good, but inspire in me more a sense of general satisfaction than real pride.  There are also a huge number of admirable historic achievements.  These are quite impressive - first modern democracy, moon landing, arguably saving the world in both the second world war and the cold war, etc.  I don’t want to downplay these at all.  They’re huge.  Nevertheless, I’m really interested in what it is about the US as it exists today that makes me proud of my country, and “it did something great a couple decades ago” just doesn’t do it.

That said, there are a couple things (and I could easily be missing some) that I really am proud of.  One, overly generalized, is the level of rights given to our citizens.  For all the controversy over the Patriot Act and other moves in the opposite direction, the US still has much greater levels of civil liberties (broadly defined) than most places.  For example, take the amount of time someone can be held without charges.  In the US, it’s 48 hours.  In France, it’s 6 days.  In Ireland it’s 7.  Britain just extended it to 42 days (!!), though there are some extra safeguards after 28 and it’s very controversial.  Even with the deep impact of terrorism, the US remains judicious here.  (Good analysis here, hat tip to UK Liberty.)

Another good example is freedom of religion.  Many modern, liberal democracies still have established religions.  I have my problems with the Pledge of Allegiance, and there are plenty of current threats to this, but as it stands the US government is very separate from religious matters.  At the same time, the actions that many “secular” governments take around the world (think of things like headscarf bans in France, Germany, and Turkey) would be totally anathema to almost all Americans.  This is related to a larger point about social acceptance and a sense in which the government stays out of things in a good way.  While France bans headscarves, Britain is having a debate over allowing people to opt into Sharia law.  France and Canada use legislation to carefully protect the French language.  Other countries seem to be having a lot of difficulty with how to deal with this whole category of issues, while the US seems to have, for the most part, figured it out.  General laws and regulations apply to everyone, regardless of culture/religion, and the government generally stays out and lets assimilation occur on its own, gradually, like it should.

Probably the most important thing to me in this category is free speech and political participation.  The US respects a level of free speech unheard of in the rest of the world, where hate speech is routinely banned.  (The NYT had an excellent article on this.)  Extremist political parties are also frequently outlawed.  This seems utterly insane to me, but would surprise almost no one anywhere else in the world.  In most modern liberal democracies, there is a belief that there are some basic ground rules and foundational beliefs that you have to accept before engaging in political debate - things like the equality of all people and the support of democracy as a form of governance.  It’s not that Americans don’t believe in those things being supremely important.  It’s just that we don’t believe the way to deal with those who don’t agree is to silence them.  We let them speak and then outvote them.  This seems clearly better to me.  If those who think these crazy things are a small minority, letting them vote doesn’t hurt.  If they’re a majority, it just fails to make any sense.  The idea of a democracy governing a country where most are opposed to the rules of governance is self-contradictory.

I’ve also decided that I’m pretty proud of our foreign policy.  This is obviously going to be a controversial choice.  There is no shortage of stupid American foreign policy.  It’s important to remember, though, that after the Cold War the US was left as a superpower unrivaled by any other power on earth.  This won’t be the case forever.  Europe will unify, and China and India will grow.  For the time being, though, the US is really alone in this position.  The old “power corrupts” saying isn’t totally wrong.  A country with the power the US has will always tend a little towards the pushy side.  There will always be unnecessary wars.  They’re bad, but if they are wars against tyrannical dictators that then establish (or at least try to establish) democracies in their place, there’s at least a bit of silver lining.  If you really think having the US as a global superpower is awful, imagine what would have happened if the USSR had won the Cold War or a rising China supplants the US.  Extraordinary rendition would be the least of your concerns.  For all the shortcomings, I think the US has been a lot more responsible with it’s power than almost any other country on earth would have been.  It’s easy to say “Wouldn’t it be great if it was Sweden that had massive power?”, but that power would instantly transform Sweden into a somewhat different country.  Given all the corrupting influences and temptations that power has, I think the US has done a pretty good job remaining a responsible international player whose presence benefits the world.

There’s obviously a ton here.  Each thing I mentioned really is worthy of at least a full post on its own.  I’m also sure I missed some things.  Nevertheless, I think this is a reasonably good start.  I’d be curious to see what others think.

Tags: civil liberties, foreign policy, free speech, law, patriotism, religious freedom

Yesterday in Ohio, Obama delivered a speech on faith where he outlines his views on his version of Bush’s Faith-Based Initiative. (Policy statement here.) I have a lot of mixed thoughts on this, and some serious concerns about it.  I should say up front that the separation of church and state is an issue about which I care very much, but I definitely recognize the complexities of this situation.

There is a large category of government actions that, similarly to this program, seem to put the Free Exercise Clause and the Establishment Clause in conflict.  Anyone who hasn’t spent much time thinking or reading about constitutional law probably assumes that these two things, the freedom to your own religious choices and the separation of the government from religious matters, are two parts of the same thing.  In many ways this is true.  However, there are a lot of situations where the two are somewhat contradictory.   For example, the government funding religious education/indoctrination in a particular set of religious beliefs seems obviously unconstitutional.  However, the government is clearly on solid ground when it gives out Pell grants for people to attend college, and they sometimes attend religious universities or, in the more extreme example, study to become members of the clergy.  Would the government be unacceptably supporting religion by funding the training, or would it be unfairly discriminating against religion by not funding it?  Both things seem true, but they’re obviously contradictory.  (For what it’s worth, the Supreme Court has come down on the side of funding the education.)

Funding for faith-based charities is a similar problem.  I’m going to assume, for the purposes of discussion, that everyone agrees that funding groups that actively distribute material seeking converts or in other ways pushing their faith towards people they serve, or who mix the charity with religious practice (by say, asking the homeless to say grace with them before getting their food) should not get government funds.  I know not everyone agrees with that, but I think it’s pretty obvious.  So let’s talk about the groups that are willing to insulate the charitable arm from the rest of the organization with separate bank accounts, different hiring practices, and a complete lack of overt religious practice and proselytizing.  In that case, it seems unfair to deny a charity funding in favor of a secular charity that is otherwise equivalent because of its religious affiliation.  I can understand why people find the idea upsetting and refer to it as “discriminating” against those who are religious.

That said, I have serious trouble imagining that any of these charities are really, truly isolated.  Money, of course, is fungible.  If religious organizations are channeling money to a charitable arm already, they have no need to use the actual dollars from the government if they want to use its funding for religious activities — they could just reduce their other support for the charitable activities by the same amount and get an identical effect.  I also think there is just a subtle form of advertising and pressure going on here.  Imagine the summer classes that Obama wants to focus the program on happening in a church.  The kids go there, into an obviously religious building, see religious imagery around, and take classes from a group run by Catholic Charities or something.  They know the religion is there, get exposure to it, and the religious group gets free press for good activities that are really being done by the government.

These things are admittedly minor compared to most church-state infractions.  They are nowhere near the idiocy level of putting prayer or the Ten Commandments in public schools.  It’s easy to say that they are too minor to matter, or that they have no appreciable effect whatsoever.  But try imagining a similar situation.  Instead of a church and Catholic Charities, imagine an extreme and obviously dangerous religion.  I don’t mean, imagine Jews or Muslims instead of Christians.  I mean, imagine Heaven’s Gate.  You can call them cults or whatever else you want, but until they do something illegal they still get protection as a religion.  If the Heaven’s Gate Soup Kitchen opened up down the street, how would you feel?  What if it was government-funded?  If the dangerous views of the cult make you uncomfortable about the government funding its soup kitchen, it’s because you recognize that the government funding really does aid that religious group.

Of course, there’s another level of safeguards that could get rid of these concerns.  The group would have to be forbidden from putting its religion in its name, or holding its events at a place of worship, or in any other way doing anything that would make it clear to those receiving the service that the group had religious connections.  I just don’t think there’s any conceivable world in which that level of care will be taken.  Even if someone was to try, it’d never happen.  Even the more mild regulations are horribly difficult to enforce.  Is the government going to have undercover homeless people to check and see if anyone hands out pamphlets at the homeless shelter?  There is plenty of cause for the concern that many have expressed about Obama’s expanded version of this program.

That said, it’s also very clear that Obama’s version is much better than Bush’s.  As someone who spent a while reading through the guidelines the programs had for what religious activities were and were not allowed for a charitable group to get funding, I can personally vouch for the absurdity of the “protections” that existed.  (Read them for yourself.)  Calling them “loopholes” would be to massively understate them.  They seemed neither small nor unintentional.  Obama seems like he at least will have serious efforts to make sure the religious activities stay reasonably separate.

Maybe he’ll do a good enough job that the Establishment Clause concerns will be very minor, and the Free Exercise concerns will be more important and make the program worth having.  I’ve got to say, though, that any program that specifically tries to target faith-based groups seems automatically bad.  Even if it’s just training on how to apply for grants that already exist, the idea that this training would be targeted towards religious groups worries me.   If you really were just allowing the charitable arm of faith-based groups to have the same access as secular groups to funding for their secular activities, you wouldn’t need a special presidential council in order to do it.

Tags: barack obama, law, religion

In light of all the discussion of Heller I thought I’d talk about something that’s been on my mind for a while. I really think we should repeal the Second Amendment.  I see no reason for it to exist.  I am not actually trying to make an argument for gun control.  I’m generally for gun control, but it’s a tricky question.  The “then only the criminals will have guns” logic could apply in cases where enforcement is bad.  It might be a good idea some places and a bad idea others, or having that kind of hodgepodge could make all the rules unenforceable.  I have my opinion, but I can easily see grounds for disagreement.

That said, I don’t see why we have the Second Amendment — even assuming gun control is frequently dumb.  Of course, part of whether you agree with me depends on what you think the Constitution is for.  If it’s just a place where we ban laws that we are pretty sure are stupid, then fine.  I don’t think that really makes sense as a justification for a constitutional amendment, though.  After all, a constitutional ban is an anti-democratic thing.  Sure, we think a law banning free speech is dumb, but presumably if one were to pass it means that people at that time disagreed with us.  Who’s to say we know better what’s best at that time and place than they do?  Our whole government is based on the idea that a vote by the majority is both the most practical and most morally justifiable way to make laws, so you better have a good reason for something like a constitutional amendment, which says that even if everyone in the country wants a particular policy, it won’t happen.

There are a couple reasons I see for constitutional bans on types of legislation (as opposed to other constitutional provisions that determine government structure).  One is an assumption that a certain kind of act is necessary for a functioning democracy.  Free speech and freedom of the press seem to obviously qualify here.  Without them the method of government outlined in the constitution wouldn’t work, so it is in some sense an extension of the government structure provision.  To undermine free speech would be as big a change to how the country is governed as changing the apportionment method of the legislature.

It seems obvious to me that the Second Amendment doesn’t qualify for this.  Many of the founding fathers thought so.  An unarmed populace and/or a standing army were considered precursors to tyranny, but we’ve since seen a plethora of totally functioning democracies that have very strict gun control laws.  Moreover, in US history there is no evidence that this works.  An armed revolt is totally contrary to the rule of law, and those who resort to it tend to do so more because of displeasure with the law than because they were treated unjustly by it.

The other reason that would seem to me to justify a constitutional prohibition on some sort of law is a belief that legislation of that sort would be fundamentally morally wrong.  It would have to violate someone’s rights, and usually this group would be some sort of minority, since a democracy is naturally pretty good at protecting the rights that apply to all/most voters.

Religious freedom and protections against racial discrimination seem to clearly fall into this category, but I don’t see how gun control does.  Many reasons are given.  “It’s culturally important” is frequent, but that’s true of any number of things.  I see no problem with the legislature outlawing something, even an important cultural practice, if it thinks doing so will save huge numbers of lives.

The claimed underlying justification that makes the most sense to me is that the real fundamental right is self-defense, and gun control is an extension of that.  However, I don’t see how this can be an absolute right.  Sure, if someone’s attacking you you have the right to use anything at hand to defend yourself.  If you happen to have a tank there then you’re welcome to shoot them with it.  That doesn’t mean you have a right to own that tank in the first place.  By that logic any weapon at all would be allowed.  (I don’t think anyone believes that the Second Amendment protects the right to own fighter planes or nuclear bombs — and if they do, I would bet they’re for revision of the amendment at least.)  Allowing people to own tanks would be obviously insane.  Sure, if you own a tank, you’d be safer, but your owning a tank would make everyone else less safe and the government less able to maintain order.  If it’s ok to make that analysis with tanks and you don’t violate any important rights, why not make it with guns?  We might not reach the same decision, but it doesn’t seem like the rights issue changes any.

It’s not even clear, if you do believe self-defense is a fundamental right, that legalizing gun ownership is the best way to protect it.  I’m all for safety and self-defense, but I feel much safer and able to defend myself when neither me nor my mugger has a gun than when we both do.

The real debate over gun control is a practical one.  I have a lot of sympathy for judges who feel it’s not their role to make policy decisions.  If the Second Amendment allows for a ton of gun control, it is basically meaningless.  To whatever extent it’s actually doing anything, it’s preventing democratic outcomes.  We should get rid of it and deal with the real issues here.

Tags: gun control, law

Today the Supreme Court struck down the DC gun law that banned handguns and greatly restricted the storage of the firearms that were still legal to own.  The decision is unsurprising given the current composition of the court, and given what could have happened, is reasonably moderate.  The decision is clear about most gun control laws that currently exist being perfectly fine — it strikes down DC’s because it is so extremely restrictive that it essentially (according to the court) amounts to a ban on using guns for self defense in your home.  It’s a decision that conservatives clearly support, and I think it’s important that Obama get behind it too.

I’m not totally sure I agree with the decision, and Obama has said in the past that he thought the law was constitutional (which will be a tough quote to get out of), but I really think he needs to use the decision to bolster his cause.  I would be extremely surprised if many people in the US really had a problem with banning military assault rifles or requiring background checks.  I think the real problem is that people feel like advocates of gun control really want much more than the current, mainstream proposals.  They think advocates of gun control really want to limit guns as much as possible, up to and including banning them, and that the current proposals are just the most they feel like they can get through a legislature right now.

Obama would benefit a lot politically, I think, if he used the decision to say something to the effect of “See, you have nothing to worry about.”  The right most people care about is the general ability to own the types of guns they actually want to own, with regulation that is not prohibitively complex.  I think that if they feel that right is secure, they will be more willing to accept other limits and regulations that don’t touch that core.  Obama needs to say, “Not only do I not want to ban guns, but now you don’t have to just take my word for it.  You have a constitutional protection, upheld by the Supreme Court, that will guarantee that right.”

He’s gotten close to this, with quotes like this one:

The problem is that we’ve got a position, oftentimes by the NRA, that says any regulation whatsoever is the camel’s nose under the tent. And that, I think, is not where the American people are at. We can have reasonable, thoughtful gun control measures that I think respect the Second Amendment and people’s traditions.

I think he would benefit from being a little more explicit with the linkage.  I think it’s a message that pro-gun control groups would be fine with — he would still be advocating gun control, after all.  At the same time he’d be expressing sympathy with gun owners and a real understanding of what’s important to them.  He’d use a pro-gun court ruling as a reason why most gun control is desirable and not worrying.  I think it would be a message that is all-around acceptable, still advocates the positions he believes in, and does a bit of the rising above wedge issues and building consensus that he’s always (rightly) talking about.

Tags: barack obama, gun control, law, politics, supreme court

With all the recent gay marriage controversy in California and New York, I’ve been thinking about an idea I’ve actually had for quite a while. I think that every state should offer civil unions — but not just for same-sex couples. In fact, I think civil unions should completely replace marriages, at least legally.

Now, of course, this will probably seem extreme. End marriage? But the really important thing here is that such a move would in no way end marriage. Churches would still perform marriages. There would still be weddings, and rings, and vows, and everything else. None of that is remotely related to the legal institution of marriage. Legally, marriage is a contract of sorts between two people where they agree to a standardized set of promises towards each other. As a society we formally recognize this for two reasons. First, we think it’s beneficial socially as a structure for families. Second, it’s easier to keep track of things that way, since so many decisions/transactions are made at the family level. (For example, if we want to see if a child is poor enough to qualify for free school lunches, we need the combined income of both parents, not just one.)

I’m all for giving those legal protections to married couples. I do think it’s a good social structure to encourage, and it provides for a lot of expediency throughout society. Civil unions would also do this. (The civil unions I have in mind, very similar to those that actually exist, would be complete replications of the legal status of marriage, but with a different name.) In a way, it’s a meaningless change. However, I think it would have an important effect. There’s a reason that civil unions, despite being essentially equivalent, are meaningfully more acceptable to many people than gay marriage. To say gay couples deserve marriage is to make a strong statement about the cultural and religious institution of marriage, not just the legal one. Now, I fully support social as well as legal equality, and I believe churches should be willing to perform marriages for gay couples. Some already do. However, it seems better to me if the government stays out of that decision. The government already does, technically — even if gay marriage were legalized, a church could easily refuse to perform marriages for gay couples — but it doesn’t feel like that to most people. I think changing the name to “civil union” would clearly distinguish the legal institution from the cultural/religious one. Very few people actually oppose hospital visitation rights for gay couples. Making it clear that that kind of stuff is what we’re talking about would allow for a much more intelligent debate, and probably a better outcome for everyone.

Tags: civil liberties, culture, gay marriage, law, sexual orientation