(Part 1 is here.)
Let's start with some problems with civil unions and how at least some of them could be avoided. One immediate problem in even discussing the issue is that not everybody agrees on what constitutes a "civil union". Some would consider the legislation passed in Hawaii, California, New Jersey, Maine, or some European countries (like Norway or Sweden) to be civil unions. When polls show popular support for civil unions it is impossible to know what specifically the individuals are supporting. In debates over whether the Federal Marriage Amendment would allow "civil unions" the source of disagreement is often over what is meant by that phrase. For this post (and generally throughout this blog) I use "civil union" to refer to what was passed in Vermont. That is a legal relationship that the law explicitly specifies should be treated as a marriage for all legal purposes. If there is any legal difference I refer to it as a "domestic partnership". In this series of posts I want to focus on civil unions, and perhaps in an epilogue, I will elaborate on the additional problems of domestic partnerships.
One problem that Jason as well as GLAD, HRC, and other groups have pointed to is that while the state may treat a civil union as a marriage, there is no guarantee that other states or the federal government will treat is as such. The federal recognition is particularly important as federal law is filled with laws and regulations on which marital status hinges. Of course under DOMA the federal government would not recognize the marriage regardless of nomenclature, and likewise other states may not recognize even a marriage between people of the same sex. Civil unions are still more problematic, though, for a couple of reasons. For one, some people have questioned the constitutionality of DOMA (especially the federal non-recognition aspect), and without a state using the specific word "marriage", it is difficult to even challenge DOMA. In my opinion, if the US Constitution permits a state to deny recognition to a Canadian same-sex marriage, then it logically permits it to deny recognition to a sister state same-sex marriage as well. The federal case is a little more difficult, though, for a number of reasons including some legal precedent requiring the federal government to defer to the states in certain areas of family law. In any case, a state which is familiar with this situation but consciously avoids the word "marriage" is sending a signal to other governments that this disparate treatment is acceptable. This is particularly troublesome when there are indications, like from Connecticut, that the situation might be different if the word "marriage" were used instead. To use the example we have discussed before, consider a state that will allow a woman to hold the highest executive office in the state, but with the title "Governess". All the powers within the state would be the same. This does not seem so troublesome at first. Suppose, however, the state learns that some other states would acknowledge the executive, but only if the title "Governor" is used. In that case, for the state to use "governess" anyway seems quite problematic (not to mention counterproductive). This problem is avoided if the federal government recognized civil unions and required other states to treat a sister state civil union the same way as if it were a marriage. (This does not imply automatic recognition, as states are not required to recognize as valid a sister state marriage. Such a law would only require a state to apply the same rules for determining the validity of a same-sex marriage and a same-sex civil union. I believe Congress has the authority to pass such a law under its power regarding interstate relations and its power to enforce the equal protection clause. It is not evident that any foreign country would treat the two differently, although should there be indications of that, then this problem returns to some extent.) At least with regards to the federal recognition this seems to be the position taken by John Kerry and John Edwards.
A second problem is that the conscious decision to use a different word can be taken to be stigmatizing to same-sex couples. Marriage is a gold standard in our society. By noting that same-sex couples should not be using the word marriage there is an indication that the relationships are valued less. It is not surprising that when various Jewish movements decided to ordain women, they chose to use the same term, “rabbi”, although that term had traditionally referred to a male. It was important to emphasize that although the idea of a female rabbi was a new one, she should be treated with the same respect. A similar situation occurred in the past when Virginia sought to exclude women from the Virginia Military Institute. When told that they had to provide women with an equal opportunity the state sought to establish the Virginia Women’s Institute for Leadership. The Supreme Court said such a solution was not acceptable because the new school could not compare with VMI in terms of its history and reputation, so there was still a denial of equal protection. That is not to say that sex segregated schools were always unconstitutional, but in this instance the new institution could not compare to the old in its history, tradition, and how it was perceived by others. This disparate treatment was especially evident, the court noted, because the VWIL was only opened as a way to avoid admitting women to the VMI. Likewise the new institution of "civil union" cannot compare with the long and storied institution of "marriage" in these regards. And as with the VWIL, the disparate treatment is especially evident when they are adopted primarily to keep same-sex couples out of marriage. (By the way, does anybody think Virginia would have gotten any further if they had pointed out that a cadet was once by definition male?)
Both of these issues were raised by briefs submitted to the Massachusetts SJC when it was asked for an advisory opinion as to whether civil unions would be constitutional there. These briefs (especially the brief of the civil rights leaders and that of the LGBT organizations) persuaded me, as it did the court that civil unions would not suffice legally. Even before, though, I had noted some problems with civil unions from a policy perspective. Much of the power of marriage comes from our common understanding of the word. Of course this is precisely why some oppose changing the term. I think, however, that it is our understanding of the commitment and obligation involved which is critical when we use the word “marriage”. If I say that I need to get home to help care for my sick wife it is not understood that the reason it is so important is because we can procreate. Nor do I believe it is recognized that the reason it is important is because it is my masculine duty to care for her. I think people would recognize the same responsibility if it was she who said she must get home to take care of me. Rather it is the understanding that is a duty that comes from marriage. That duty exists regardless of gender. In some aspects there is a legal duty to care for one's spouse, but there is an even wider duty recognized by others. I think if the word "marriage" is used, then people--both within and outside the marriage--will be more likely to recognize the responsibility it entails because we are already familiar with it. It is in this area that I am most worried about civil unions. Will people recognize the same extra-legal responsibilities in a civil union? This also underscores my problems with prohibiting SSM from the sex discrimination standpoint. Even if legally husband and wife have the same responsibilities, by prohibiting SSM there seems to be an acknowledgement that outside of the law they should have gender dependent responsibilities. I strongly disagree with that, but perhaps it is a view that is the source for much opposition to SSM. Here is another example of a rational reason to prohibit SSM—namely to support gender delineated responsibilities--but one which is probably not in support of a legitimate government purpose.
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