Galois

Who Needs Marriage?

In the debate over same-sex marriage, some see civil unions as a politically expedient compromise that would offer some protections for gay and lesbian couples and their families without ruffling quite so many feathers.  Others use even the possibility of civil unions as a means to justify withholding from gay and lesbian couples the true protections of marriage.  Of course once they achieve that purpose, their tone about civil unions shifts a bit (pdf).  When he was pushing to pass Measure 36, a constitutional amendment prohibiting the marriage of same-sex couples, Tim Nashif of the Oregon Family Council was quoted in the Bend Bulletin as saying:

Same-sex couples should seek marriage-like rights through another avenue such as civil unions. --8/20/04

Today, when Oregon is considering a civil unions bill, the Oregon Family Council is leading the fight against it and Nashif tells the Bend Bulletin:

We would be against any measure that takes all the benefits of marriage and then calls it something else.  We don't think Oregonians had that in mind when they passed Measure 36. --4/15/2005

Others try to use other's legitimate criticisms of civil unions as a sign of some form of hypocrisy.  We are accused of not really wanting same-sex couples to have the protections of marriage or else we would jump at civil unions.  And when we applaud Connecticut for at least doing something--although not enough--to protect these families that too is questioned, as Elizabeth Marquardt asks

Help me understand how something you passionately and loudly label as “insulting” and “discriminatory” can also be – when you realize it’s all your going to get for now – “a step” towards what you want? If it is truly discriminates against you, you should never tolerate it under any circumstances, isn’t that right?

Well, one could imagine a situation where some citizens were not allowed to ride on public buses.  Then, as many people point out the gross injustice of the situation and demand equal rights this is forestalled by a move to graciously let them ride certain local buses provided they sit in the back. People would be right to label such a move as "insulting" and "discriminatory" while conceding that it was at least "a step" toward gaining what others take for granted.  This policy truly discriminates against them, but wouldn't there be circumstances--say the need to get to a job to provide for one's family--that would cause some to bear the insult and ride the buses while continuing to push for full equality?

One can learn a great deal from the actual alternatives people support once marriage is taken off the table.  In Oregon the Governor and the Senate are supporting a civil unions bill (SB 1073 pdf) along the lines of what's been passed in Vermont and Connecticut.  Republicans who control the House are pushing a reciprocal beneficiary bill (HB 3476 pdf) that would give a few important, but quite limited, protections to same-sex couples and to close relatives that cannot marry.

The RB bill itself repeatedly emphasizes that it is not for same-sex couples in particular, but rather more generally for the many couples who are prohibited from marriage.  As the bill states:

(1) The Legislative Assembly finds that the people of Oregon have chosen to preserve the tradition of marriage as a unique social institution between one man and one woman. As such, marriages are subject to restrictions, such as the prohibition of a marriage under ORS 106.020 between parties who are first cousins or any nearer of kin to each other.
(2) However, the Legislative Assembly acknowledges that many individuals have significant personal, emotional and economic relationships with other individuals, but are prohibited by law from marrying each other. Examples of such individuals include two individuals who are related to each other, such as a widowed mother and her unmarried son, or two unrelated adults of the same gender.
(3) The Legislative Assembly finds that certain rights and obligations should be extended to couples composed of two adults who are legally prohibited from marrying each other.

Yes, there is nothing particularly remarkable about the situation of gays and lesbians who are being denied the protections of marriage.  Many individuals are in a similar situation. For example, there are all those couples who cannot marry because they are too closely related and there's also the example of a widowed mother and her unmarried son.  OK that last one was actually a particular case of the first, and there actually is no other situation of a couple that would fall under this bill other than (a) individuals who are too closely related to marry and (b) same-sex couples. Still it seemed quite important to the bill's authors to make it clear that someone else was in the "same situation" as gay and lesbian couples.  It nicely frames their attempts to link gay marriage to incestuous marriage and their attempts to claim gays and lesbians are asking for "special" rights. 

Supporters of the civil unions bill point out (pdf) that:

The relationships between committed, same-sex couples who want to form a family and, potentially, raise children are fundamentally different from the relationships between two cousins or two elderly aunts who may rely on one another for a limited time. Furthermore, cousins; elderly aunts; and parents and adult children already enjoy a legal relationship to one another that allows them the limited protections afforded by HB 3476. Using the law to treat same-sex couples like elderly aunts is demeaning and ignores the seriousness of these commitments and the needs of these families.

Then again, opponents of the civil union bill might make similar claims about treating homosexual relationships like heterosexual relationships.  Let us put aside for the moment the question of whether a lesbian woman seeking to marry her soulmate is more like a straight woman in that situation or more like a widow moving in with her son.  Instead we can use this opportunity to compare the bills and see the details of how each group, the civil union supporters and opponents, would have the state treat the gay couple differently than the close relatives and the straight couple respectively.

Let us start by looking at perhaps the most significant difference, how the relationship is dissolved.  A reciprocal beneficiary is terminated either by one member simply signing and notarizing a form, or it terminates automatically when one member marries.  Can you imagine if someone proposed changing the marriage laws so that you could end one marriage simply by marrying someone else?  The need to go through and complete comprehensive divorce proceedings before marrying another is a vital protection of marriage, and it's not because of a child's need for his married mother and father (a person could be leaving a marriage with no children to marry the child's other parent, and yet we would still properly require divorce proceedings). This way of terminating the reciprocal beneficiary may be appropriate for the widow and her son.  They knew they were going to be the primary adults in each other lives for a limited time and either one might find someone to marry at any point. If one of them finds that person he or she should be able to marry.  The son doesn't need to end his relationship with his mother, but the new spouse will naturally take primacy in regards to medical decisions and issues of survivorship.  But opponents of the civil union bill feel that dissolution proceedings would be inappropriate for gay and lesbian couples.  They should be able to leave one another at the drop of a hat.  Hardly a recipe for commitment and stability, but then it seems that's not what they want for gay and lesbian couples.  I believe they are hopeful that the relationships will end and wouldn't want anything to prevent one or both of them from "seeing the light" and marrying someone of the opposite sex.   

The two bills also differ significantly on obligations. Well actually there are no obligations in the reciprocal beneficiary bill.  That may work as far as the widow and son are concerned.  Some obligations may be inappropriate for them.  For example, if the son had a minor child, the grandmother would probably care for her grandchild, but why should she be any more legally obligated for the child's educational expenses than any other grandmother?  Oregon, however, recognizes that a married person is responsible for his or her family.

109.053 Responsibility of stepparent for expenses of stepchild.  The expenses of the family and the education of minor children, including stepchildren, are chargeable upon the property of both husband and wife, or either of them.

It's unclear to me why this obligation should be any different if the stepparent is a woman instead of a man. I guess opponents of the civil unions bill don't want to even consider the possibility of a same-sex stepparent.  For one thing, stepparent adoption is generally easier than a second-parent adoption and they don't want to do anything to make it easier for same-sex couples to parent, nor anything that would further the idea that a child could have two mothers or two fathers.  The grandparent relationship and the stepaprent relationship are already described in Oregon law.  Some people would do all they could to avoid reference to the relationships between same-sex couples and their children, though. 

I have no problem with the reciprocal beneficiary bill for relatives who support one another.  Vermont passed a very similar bill (pdf) at the same time they passed civil unions.  I don't know how necessary it is.  I have heard reports that nobody has signed up for reciprocal beneficiary status in Vermont in the five years they've had it.  Still, I don't see how it hurts and perhaps in Oregon there will be some demand for it.  The idea that such a law is appropriate for same-sex couples demonstrates a view that such relationships should be transient and same-sex couples should not be too dependent on one another for support.  It shows absolutely no consideration for the children of same-sex couples and does little to promote the stability and security which would benefit those couples, their children, and the welfare of Oregon. 

 

Joined In Civil Union

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.

Civil Unions: Some Suggestions (3 of 3)

(Part 1 is here.)

Despite all of these problems, civil unions do have a better chance of passage (especially in a state that already has an amendment prohibiting same-sex marriage).  Such passage can lead to some real protections for real families that need them now, and not twenty years down the road.  So for those people, especially politicians, who claim to support civil unions but not “marriage” for same-sex couples, I suggest the following:

1. Be clear about what you mean when you say you support “civil unions”.  Politicians hate to be specific, but this is particularly important.  I would suggest that all the laws which apply to marriage apply equally to civil unions, but at least if one does not support that he or she should explain how it would differ and why such differences are justified.
   
2. Do something about it.  It is not enough to say you support in theory civil unions simply as a tool to justify a stance against marriage.  You cannot say same-sex couples and their families do not need marriage because they can have civil unions when they don’t even have that much.  For individuals, write and phone your legislators.  For politicians, draft legislation and speak about the importance of protecting these families.
   
3. Work for federal recognition of civil unions.  As noted this would solve one of the biggest problems with civil unions.  There is no way to argue that civil unions could provide all of the benefits of marriage when the federal government does not recognize civil unions for any purpose.    
   
4. Work for state recognition of foreign civil unions and marriages. You may wish to call a Canadian or Massachusetts marriage a "civil union", but that does not mean you must ignore it.  Portability of marriage is a very important aspect and on what basis should it be denied to same sex couples?
   
5. Make it clear that civil unions deserve the same respect as marriage outside of the law as well.  I do not believe it is a wise move to use a different term here, but if one is to go this route, it needs to be understood that the commitment made in a civil union is the same as one made in a marriage and is one that we all should honor. 
   

Civil Unions: The Problems (2 of 3)

(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.

Civil Unions: Revisiting the Issue (1 of 3)

A number of occurrences have prompted me to revisit the issue of civil unions.  First there was a discussion in the comments here between Mark Miller and me.  I had posted about gender discrimination, and Mark implied--I think--that it would not be gender discrimination to have gendered terms, provided legal consequences did not hinge on the term.  An example used was a king and queen.  A monarchy which referred to the monarch as king if male, and queen if female, wouldn't necessarily be discriminating provided that all the rules and powers were the same.  (Note that in the UK the powers are the same, I believe, but the rules of succession are not the same--hence still discriminatory).   While there are debates over whether and how gender-neutral terms should be used, the debate is far different than one over whether a person of a certain gender can fulfill the role even with a different term.  So the analogous question with regards to civil unions is would it be acceptable to use "marriage" as a gendered term referring to a male and female, but "civil union" to refer to two males or two females with the understanding that regardless of the term the rules and regulations would be the same?  Might one even suggest distinct terms to differentiate male-male and female-female unions? 

More recently I was discussing the recent vote in Missouri with some friends and family there.  (I grew up in Missouri).  There were many with whom I talked who opposed the amendment to prohibit same-sex marriage, but there were also some who supported it.  One in particular said I had convinced him that same-sex couples should have the same legal rights, but it was important for him that marriage keeps its gendered definition.  This position is not uncommon--think John Kerry--and I have certainly heard it often.  Gendered terms seem to the most common, most enduring, and most emotionally tied to us when it comes to familial relationships.  That is why I have opined that even with same-sex marriage the words "mother" and "father" will not disappear.  (Nor do I believe, "husband", "wife", "brother", "sister", "aunt", "uncle", "bride", "groom" or others will vanish--although "bridegroom" which I prefer for some unknown reason to "groom" seems to be on the decline).  It is also for this reason that I think even many supporters found the replacement of "bride" and "groom" on the Massachusetts marriage applications (pdf) with "party A" and "party B" to be disturbing.  (Personally, I think checkboxes beside each name with "bridge" and "bridegroom" would have been preferable, simply allowing two brides or two grooms.  Part of the problem, I think was the Massachusetts legislature and administration spent more of the six month stay trying to fight the Goodridge decision than figuring out how to best implement the changes.)   It has thus been observed that it might be far easier for "civil union" legislation to be passed.  In fact one Connecticut legislator observed that a majority there supported either marriage or civil unions, but the marriage supporters have delayed action in the hopes that marriage itself can get a clear majority.   (So far only Vermont has passed a "civil union" that is to be treated the same as "marriage" under the law.  Massachusetts would join them in 2006 if an amendment under consideration gets ratified.  Other states such as Hawaii, California, New Jersey, and Maine have legal relationships which are similar to marriage, but with some critical distinctions.  This would be comparable to a king and queen with different powers.  It is still clearly discriminatory and is not what I wish to consider here.)   

This topic was again brought to my mind by a discussion over at Positive Liberty (which was coincidentally instigated by the vote in Missouri).  A commenter, John Barlow, thought that it would be better to extend certain rights to other couples which "would include two homosexuals" rather than redefine marriage.  Jason Kuznicki, the author of the blog and husband in a same-sex marriage himself, noted some obstacles to securing certain rights without marriage.   All in all, I thought this would be a good jumping off point to discussing the idea of marriage by another name....

Are Civil Unions Enough?

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.

The SJC Opinion

Here are my excerpts from the opinion that I found most relevant:

...The constitutional difficulty of the proposed civil union bill is evident in its stated purpose to "preserv[e] the traditional, historic nature and meaning of the institution of civil marriage." Senate No. 2175, § 1. Preserving the institution of civil marriage is of course a legislative priority of the highest order, and one to which the Justices accord the General Court the greatest deference. We recognize the efforts of the Senate to draft a bill in conformity with the Goodridge opinion. Yet the bill, as we read it, does nothing to "preserve" the civil marriage law, only its constitutional infirmity. This is not a matter of social policy but of constitutional interpretation. As the court concluded in Goodridge, the traditional, historic nature and meaning of civil marriage in Massachusetts is as a wholly secular and dynamic legal institution, the governmental aim of which is to encourage stable adult relationships for the good of the individual and of the community, especially its children. The very nature and purpose of civil marriage, the court concluded, renders unconstitutional any attempt to ban all same-sex couples, as same-sex couples, from entering into civil marriage.

The same defects of rationality evident in the marriage ban considered in Goodridge are evident in, if not exaggerated by, Senate No. 2175. Segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or "preserve" what we stated in Goodridge were the Commonwealth's legitimate interests in procreation, child rearing, and the conservation of resources. See Goodridge, supra at 341. Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status. The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal.3....

...The bill's absolute prohibition of the use of the word "marriage" by "spouses" who are the same sex is more than semantic. The dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. The denomination of this difference by the separate opinion of Justice Sosman (separate opinion) as merely a "squabble over the name to be used" so clearly misses the point that further discussion appears to be useless.4 Post at . If, as the separate opinion posits, the proponents of the bill believe that no message is conveyed by eschewing the word "marriage" and replacing it with "civil union" for same-sex "spouses," we doubt that the attempt to circumvent the court's decision in Goodridge would be so purposeful. For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain. The bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex "spouses" only a status that is specially recognized in society and has significant social and other advantages. The Massachusetts Constitution, as was explained in the Goodridge opinion, does not permit such invidious discrimination, no matter how well intentioned.

The separate opinion maintains that, because same-sex civil marriage is not recognized under Federal law and the law of many States, there is a rational basis for the Commonwealth to distinguish same-sex from opposite-sex "spouses." Post at . There is nothing in the bill, including its careful and comprehensive findings (see Senate No. 2175, § 1), to suggest that the rationale for the bill's distinct nomenclature was chosen out of deference to other jurisdictions. This is but a post hoc, imaginative theory created in the separate opinion to justify different treatment for a discrete class. Even if the different term were used for the reason the separate opinion posits, and not in order to label the unions of same-sex couples as less worthy than those of opposite sex couples, we would remain unpersuaded. "Our concern," as the court stated in Goodridge, "is with the Massachusetts Constitution as a charter of governance for every person properly within its reach." Id. at 312.

We are well aware that current Federal law prohibits recognition by the Federal government of the validity of same-sex marriages legally entered into in any State, and that it permits other States to refuse to recognize the validity of such marriages. The argument in the separate opinion that, apart from the legal process, society will still accord a lesser status to those marriages is irrelevant. Courts define what is constitutionally permissible, and the Massachusetts Constitution does not permit this type of labeling. That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups. That such prejudice exists is not a reason to insist on less than the Constitution requires. We do not abrogate the fullest measure of protection to which residents of the Commonwealth are entitled under the Massachusetts Constitution. Indeed, we would do a grave disservice to every Massachusetts resident, and to our constitutional duty to interpret the law, to conclude that the strong protection of individual rights guaranteed by the Massachusetts Constitution should not be available to their fullest extent in the Commonwealth because those rights may not be acknowledged elsewhere. We do not resolve, nor would we attempt to, the consequences of our holding in other jurisdictions. See id. at 340-341.5 But, as the court held in Goodridge, under our Federal system of dual sovereignty, and subject to the minimum requirements of the Fourteenth Amendment to the United States Constitution, "each State is free to address difficult issues of individual liberty in the manner its own Constitution demands." Id. at 341...

This opinion was signed by the four justices who signed onto the original Goodridge decision.  Of the three other justices, two of them (Sosmand and Spina) signed onto an opinion stating there was a rational basis for using different names.  Namely the state might want to differentiate between same-sex and opposite-sex marriages in order to accomodate differences in how they are treated in other jurisdicitons.  For example, the state might concievably want to adjust the state taxes to help same-sex couples who are differently taxed by the federal government.  The final opinion (by J. Cordy) was short and said the SJC should wait until there was a more complete legislative history before ruling on the matter.

Mass Marriage Redux

The Massachusetts SJC rules that same-sex couples can marry.  Again.  Civil Unions will not suffice.  Here is the text of the advisory opinion.  I'll write more on the opinion later today.

Scandinavia and SSM (2 of 2): Causation

(Part 1 is here)

The second major criticism of Kurtz's Weekly Standard article was that he did not demonstrate that RP's actually caused any harm.  The criticism was that at best he established a correlation between acceptance of same-sex unions and the acceptance of unmarried cohabitation.  It seems to many critics, myself included, that other causes have caused both effects.  In fact, many of Kurtz's own statements seem to indicate this.  Still, Kurtz has argued that RP's have contributed to the acceptance of the latter.  This his how he explains it in his NRO response:

There [the WS article] I showed that gay marriage had split the Norwegian church and weakened the position of those clergy most likely to speak out against the trend toward unmarried parenthood among heterosexuals. In Norway, the clergy most accepting of gay marriage are the clergy least likely to criticize unmarried parenthood. With priests who see homosexuality as sinful effectively banned from churches, their criticisms of out-of-wedlock parenthood will be lost as well. Since traditional religion is one of the strongest barriers to out-of-wedlock births (conservative religious districts in Norway have by far the lowest rates), it's obvious that the flag movement will help remove a key counterforce to the decline of marriage. And it is very unlikely that conservative priests would have been so thoroughly and effectively banned if the issue were only unmarried heterosexual parenthood. It took the question of homosexuality to produce what amounts to a near total purge of conservative clergy from Nordland's churches.

The flag movement Kurtz refers to is the practice of flying rainbow flags outside churches signifying that nobody inside the church may speak negatively about homosexuality.  His argument thus seems to be: legal recognition of same-sex unions causes growing acceptance of homosexuality causes those who speak out against homosexuality (especially clergy) to be silenced (or at least ignored) causes the same people to have less success speaking out against other issues (like cohabitation) causes an increase in cohabitation causes harms like family dissolution.  It is a very indirect chain even if one accepted all of the links, which aren't all so clear.  For example, does legal recognition of same-sex unions cause acceptance of homosexuality or vice-versa?  More importantly why does one need to attack homosexuality in order to preach against cohabitation?  Can't one preach that "living in sin" is sinful without reference to homosexuality?  It is certainly possible to point to the harms of cohabitation (increased chance of dissolution), while encouraging all couples (same-sex included) to choose marriage and  reject cohabitation.  To argue that A is harmful because many people who oppose A also oppose B which is itself harmful is not a particularly strong argument against A.  It seems to be more of an argument that those people should spend their time opposing B directly.

Kurtz also mentions that, "The connection between gay marriage and unmarried parenthood extends to all sectors of Scandinavian society — religious or not. So when professors from NTNU use the example of gay marriage to argue that marriage is unnecessary for parenthood — they have just as much effect on their secular "congregations" as Lutheran clergy have on theirs."  He seems to see this as the same process above, except in a secular environment.  Actually it's a separate causal link.  The issue is not one of common opponents to two phenomena, but the existence of one being used in support of another.  Here the arguments goes: legal recognition of same-sex unions causes such unions to be used as an example of marriage without parenthood causes people to make arguments that marriage is unnecessary for parenthood caused people to believe said arguments causes people to have children without marrying.   Before going further with this analysis, I should point out that herein lies a major distinction between RP's (until recently) and SSM.  Under RP's initially a couple was not allowed to adopt  or have access to reproductive technologies.  Thus RP's were quite explicitly unions without reagards to parenthood. On the contrary one reason many SSM advocates, myself included, are so adamant about the rights of same-sex couples to marry is that in this country many same-sex couples are adopting and raising children.  We feel marriage would help protect those families in the same way they help protect families headed by opposite-sex parents.  It is the people that strive to deny these families the protection of marriage that are saying that marriage isn't important for parenting. 

Even if same-sex couples never had children, though, Kurtz's causal chain would be seriously flawed.  We can today, without SSM, point to marriages without kids.  Those marriages do not establish that marriage is unnecessary for parenthood.  They establish that parenthood is unnecessary for marriage.  One does not imply the other.  If people are incorrectly using and accepting such false logical arguments the solution is not to ban childless marriage but to speak out against the faulty logic.  If people start to believe that acceptance of SSM requires believing marriage has nothing to do with having children, then acceptance of SSM could lead to more children born out-of-wedlock.  It's unfair, though, for SSM oponents to make such false statements and then blame SSM advocates for the consequences.  Kurtz, and other opponents of SSM, set up this false dichotomy.  They claim marriage is either about the relationship between the adults, or it is about their children.  Why can't it be both?  In particular, family advocates should point out that the relationship between the adults has a significant impact on their children.  A more stable, committed relationship between their parents is likely to be better for the children.  I don't understand how this changes any if the parents are of the same-sex. 

Scandinavia and SSM (1 of 2): Registered Partnerships

In his latest column at NRO Kurtz replies to two of the key criticisms of his recent Weekly Stanard article on the effect of gay marriage in Scandinavian countries.   The first criticism was that he used Scandinavian "registered partnerships" to make the case against same-sex marriage.  This was especially disturbing in that he claims his article destroyed the case for SSM as put forth independently by Andrew Sullivan and William Eskridge, Jr.  Those two, though, have argued that "marriage-lite" arrangements could have a harmful influence on marriage and that traditionalists should actually favor "marriage" over other imitations.  I noted that this was especially true in the case of Eskridge who explicitly compared Vermont civil unions to Scandinavian registered partnerships and said such laws would do more harm than SSM.  The second criticism was that Kurtz failed to establish causation.  I will deal with that issue in the subsequent post. For now let us consider how Kurtz responded RP vs. SSM issue.

In his response Kurtz focuses on entirely on Sullivan.  This is natural, since Sullivan publicly criticized Kurtz's original article, and as far as I know, Eskridge did not.  Kurtz's response was that Sullivan himself referred to Danish RP's as "defacto gay marriage" and used a study by Darren Spedale of marriage in Denmark to make the case that SSM had a net benefit to marriage there.  If Sullivan can use results based on RP's to support SSM, it seems only fair to Kurtz that he should be able to use results based on RP's to discredit SSM.  It's a fair point and Sullivan responded to it claiming that the main point of his article was not the effect of SSM on the institution as a whole, but it's effect on same-sex couples.  If RP's helped such couples, it seems likely to him that SSM would only help those couples even more.

I was more interested in how Kurtz might respond to the claim that his article actually supports Eskridge's case.  I can only guess that Kurtz might use the fact that Eskridge also referred once to Spedale's study.  Kurtz states in the Weekly Standarda artcile, "Writing in the McGeorge Law Review, Eskridge claimed that Spedale's study had exposed the `hysteria and irresponsibility' of those who predicted gay marriage would undermine marriage." I managed to find Eskridge's note from that legal journal.  The relevant quote is in volume 31, pages 660-661:

Second, the legal recognition of same-sex unions that is best supported by principles of justice and equality can, and perhaps usually does, have benign or good consequences. Denmark, Sweden, and the Netherlands have given almost complete recognition to same-sex unions, without malign consequences: there are no reports, even from traditionalists in those countries, that different-sex families have been weakened or that unhealthy promiscuity or sexually transmitted diseases have become a problem. Indeed, the scanty evidence supports the opposite hypotheses thus far. Not only have same-sex couples been able to solidify their conception of family through registering as partners, but new family-forming opportunities have been offered for different-sex couples. [n48] The pro-family and anti-discrimination policies of these countries have contributed modestly to campaigns to prevent the spread of sexually transmitted diseases, most prominently AIDS. [n49]
Moreover, there is no evidence that legal recognition of same-sex unions has contributed to a decline in the institution of marriage. Reports from Denmark suggest that the opposite may be the case; in the ten years since same-sex couples have been able to register, the marriage rate for different-sex couples has been stable, and their divorce rate has declined. [n50] I am dubious that there is a causal link, for the same reasons I question opponents' confidence that same-sex marriage will ruin the institution, but the correlation between the opening up of marriage to same-sex couples and a (perhaps temporary) halt in the institution's erosion for different-sex couples ought to expose the element of hysteria and irresponsibility in opponents' predictions.

[n48] By the end of 1998, for example, 2,372 couples had registered under the Danish law and 5,217 under the Dutch law; 1,870 of the Dutch couples were different-sex.
[n49] See Benny Henriksson & Hasse Ytterberg, Sweden: The Power of the Moral(istic) Left, in AIDS in the Industrialized Democracies: Passions, Politics, and Policies 317, 321-22 (David L. Kirp & Ronald Bayer eds., 1992).
[n50] See Darren Spedale, Nordic Bliss: The Danish Experience with "Gay Marriage" (1999) (unpublished manuscript, copy on file with author).

[boldfaced added, italics in original]

That's right.  Eskridge specifically doubts a causal link.  He was not claiming that RP's would save the institution of marriage.  Nor did he claim that RP's were the equivalent of marriage.  He was only noting that it didn't make much sense to argue that legal recognition of same-sex couples would have a detrimental effect on marriage as a whole given the existing evidence.  It seems he even suspected that the halt to the erosion of marriage may be temporary.

Can one use evidence from Vermont's civil unions, Scandinavian registered partnerships, or even Canadian marriage to argue about the effect of same-sex marriage?  Sure.  One needs to be explain, though, why such results would likely carry over or why they likely wouldn't.  In order for someone to evaluate such a claim, they need to understand what the causal mechanism is.  The argument will only be persuasive if one agrees on how the effect was caused, and if one believes that the same mechanism would work in the alternate setting.  So now let us consider how Kurtz believes RP's caused the demise of marriage and we can then examine what effect the difference between RP's and SSM would have on that mechanism.  Those differences include adoption rights (which have only recently been chaning in Scandinavia) and of course the name.