So Connecticut has just passed and signed an An Act Concerning Civil Unions which will go into effect October 1 of this year. Here is the official overview of the new law:
This bill authorizes same sex couples to enter into civil unions, granting them the same legal benefits, protections, and responsibilities as married couples. It incorporates civil unions by reference in most statutes that use or define terms indicating a spousal relationship. It establishes eligibility, application, and licensing criteria; specifies who can perform civil union ceremonies; and sets forth record-keeping requirements. The bill (1) restricts civil unions to couples over age 18, (2) exempts people authorized to perform civil union ceremonies from liability for failing or refusing to do so, and (3) requires town clerks to give civil union license applicants copies of the relevant laws. Otherwise, the bill’s substantive provisions and penalties are identical to current marriage statutes.
The bill also defines “marriage” as the union of one man and one woman. It establishes circumstances under which the state will recognize civil unions performed in other countries.
I've written from time to time about civil unions on this blog, so my reaction might be predictable. Still, I thought this specific passage might be a good time to reiterate and/or clarify some of those views.
Let's start with what is
good great about these civil unions. This law will offer same-sex couples in Connecticut some concrete important protections for their families. As the official analysis of the bill writes:
The bill specifies that the rights it extends to civil union partners may derive under statute, administrative regulations or court rules, policy, common law, or any other source of civil law. Generally, these fall into the following categories: 1. family law, including marriage, divorce, and support; 2. title, tenure, descent and distribution, intestate succession, wills, survivorships, or other incidents of the acquisition, ownership, or transfer (during life or at death) of real or personal property; 3. state and municipal taxation; 4. probate courts and procedure; 5. group insurance for government (but not private-sector) employees; 6. family leave benefits; 7. financial disclosure and conflict-of-interest rules; 8. protection against discrimination based on marital status; 9. emergency and non-emergency medical care and treatment, hospital visitation and notification, and authority to act in matters affecting family members; 10. state public assistance benefits; 11. workers’ compensation; 12. crime victims’ rights; 13. marital privileges in court proceedings; and 14. vital records and absentee voting procedures.
What is most important is that it firmly establishes the rule that these civil unions should be treated the same as a marriage. The only exceptions are limited and explicit. For the most part they refer to procedures and formalities and then the bill extends parallel procedures and formalities to the civil union. For example, the parties to a civil union cannot obtain a marriage license, but they can obtain a civil union license. The only difference for which there is no such parallel is that a 16 or 17-year old may marry with parental consent and a person 15 or younger may marry with a probate judge's consent. To enter into a civil union one must be either 18 or older or an emancipated minor.
This law is also great in that it was passed not as a measure to keep same-sex couples out of marriage, but as a way of providing their families the protections of marriage. Although some legislators may have voted for the bill solely out of the hope that this would forestall same-sex marriage, many legislators saw it as the best way to protect same-sex couples and their families as soon as possible. They should be applauded for passing this bill, and Governor Rell despite being an obstacle to same-sex marriage in CT should at the least be applauded for signing this bill.
Now let us look at the problems with the law. Although the law has a section concerning the recognition of civil unions of CT citizens performed in other countries which precisely mirrors the recognition of marriages of CT citizens performed in other countries, it does not explicitly deal with the issue of recognition of same-sex marriages and civil unions performed in other countries except as to this one particular. Since the general rule is to take marriage to include marriage or civil union the law would seem to call for such recognition, that is for example recognition of VT civil unions and recognition of Massachusetts marriages as civil unions, but I worry about it not making this explicit. This is especially worrisome in light of its reiteration of the definition of marriage as heterosexual. Why leave any ambiguity in regards to this important concern?
The other problems are problems that will plague civil unions anywhere. The first concerns the stigmatizing nature of civil unions. The second concerns other jurisdictions' recognition of CT civil unions vis-a-vis marriage. For how this type of discrimination for the sake of discrimination is unjust, I would suggest reading the brief (pdf) submitted by Rep. John Lewis and other civil rights leaders in Massachusetts. I would note, however, that the situation here is not as bad as it would have been had MA passed civil unions in an attempt to avoid the court's decision there. In that case it was clear that the interest was not so much in protecting families, but in preventing the marriage of same-sex couples which would have (and did) otherwise occur. In CT, however, where the bill was passed on the legislature's own initiative it does not seem as bad. Still, the need of the state to create this new domestic relationship parallel to marriage is an insult to same-sex families.
The second concern is how will civil unions performed in CT be recognized elsewhere as opposed to marriage. Certainly the fact that a marriage is likely to be recognized elsewhere even if the family moves or travels is an extremely important protection of marriage. Although there are no guarantees of how either civil unions or marriages would be recognized elsewhere, there is some reasons to believe that a marriage might be recognized whereas a civil union would not be. Ironically one of the main reasons to believe so comes from CT itself. A few years back in the case of Rosengarten v. Downes (pdf) the courts of CT refused to offer an opportunity for the dissolution of a VT civil union claiming that they had no jurisdiction. The court did indicate that the situation would probably be different had it been a VT marriage. As the CT Supreme Court wrote:
Nor is it a marriage under our sister state of Vermont’s definition of marriage found in § 1201 (4) of title 15 of the Vermont Statutes Annotated because it too limits the definition of marriage to those entered between ‘‘one man and one woman.’’
The [lower] court held that because the dissolution of a civil union was not a family relations matter as set forth in either § 46b-1 or Practice Book § 25-1, it lacked subject matter jurisdiction to dissolve such a union and was, therefore, required to dismiss the plaintiff’s action.
This very concrete problem is, to me, indicative of a larger more abstract problem with civil unions. It is clear that marriage creates family, but people may view civil unions as some other sort of legal relationship that is distinct from family. In any case, while I applaud the CT legislature they should continue to work for full equality. In the meantime, I'm going to refer to any couple entering a civil union as getting married. I'm not going to send cards that say "Congratulations on being Joined in Civil Union", such couples are certainly married.
Update (4/28): GLAD has a nice Q&A (pdf) concerning Connecticut civil unions.