To answer this question we must figure out what we're talking about when we say "civil union". Therein, as we'll see, lies one major problem with any civil union legislation. First, though, let us consider two possibilities for what people mean when they say "civil union". When I think civil union I think of the system Vermont has which set up a legal "equivalent" status for same-sex couples. This was also the proposal in Massachusetts on which the SJC issued an advisory opinion. It's helpful to start, however, by looking at the type of civil union which gives cetain marriage-like benefits to certain couples. Into this category I would put the recent domestic partner status arranagements passed in California and New Jersey. Also in this category is the reciprocal beneficiary status in Vermont created exclusively for two people related too closely to marry or "civilly unite". According to some this type of civil union would be allowed by the proposed Federal Marriage Amendment whereas the former kind would not.
The first natural question with an arrangement that does not even claim to offer all of the consequences of marriage is why leave those specific consequences out. For example, the NJ law offers no right to an equitable distribution of assets should the relation dissolve or right to ask for alimony. Why not? This can't be linked to any claim about procreation. A married couple has the ability to ask the court for this regardless of whether they procreated. A person who has made career sacrifices for the benefit of his partner and family should be able to have the court consider that in dividing assets. It should make no difference what gender his spouse is. The NJ law also does not allow a same sex spouse to automatically become a legal parent of a child born to her spouse as it would for a married couple. Seeing as NJ would allow the spouse to subsequently adopt the child, this exclusion is curious. The benefit of an immediate and automatic establishment of a second parent is a critical protection for the child. What is the reason for not doing so? Differences like these need to be explained and defended.
So what about Vermont style civil unions that purport to be equivalent to marriage? Well, one problem is there remains the question of why give it a diffent name. It seems like the reason is to stigmatize the same-sex relationships. This sort of second-class status does not belong anywhere in our country. (See this brief by Rep. John Lewis and other civil rights leaders). There is also the problem of how other states and the federal government will treat such unions. By calling it a marriage the state sends a clear signal to other jurisdictions for how the relationship should be treated. Namely the same way one would treat a marriage. By purposefully giving it another name, the state seems to be emphasizing a distinction and at best gives no guidance to other jurisdictions how to treat the status. At worst it seems to invite discriminate treatment. A good example of this is the Connecticut case of Rosengarten v. Downes where a civilly united couple sought a divorce. The court ruled that since Connecticut didn't have "civil unions", it did not have the authority to dissolve the union. Had it been a marriage there is still no guarantee the court would have recognized it (for the purpose of then dissolving it), but at least the court would have been guided by past experience with regards to recognizing marriages that the state itself prohibits. The federal government hardly recognizes civil unions at all. If a state made it clear that the status was instead a marriage the federal government would be forced to defend its position in disrespecting the state's decision, and its position on treating such marriages as non-existant.
Same-sex couples seek to get married for the same reason as opposite-sex couples. They will face the same challenges as opposite-sex couples. As with opposite-sex couples some will enter the marriage with children, some will have children in the marriage, and some will choose not to have children. And as with opposite-sex couples some of thier marriages will end when one spouse dies, and others will end earlier. In either case the end of the marriage will also lead to challenges and complexities with which the government can help to cope. There is an institution we have created to deal with these challenges. It has evolved over time to deal with the evolving challenges faced by today's families. It is marriage that should be used to help same-sex couples and thier families with the same challenges. Any attempt to create some new institution from scratch is less likely to help these families and insults them by treated them as less worthy of help. So no, civil unions are not enough.
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