While I believe that both compelling public policy and the Constitution require that a state permit a committed same-sex couple seeking official recognition to enter into a marriage, I recognize that some politicians prefer, and some judges believe that the Constitution merely requires, that same-sex couples have the opportunity to enter into a state-recognized official relationship with all of the rights, benefits and obligations of a marriage, but labeled something else, such as “domestic partnership” or “civil union.” For ease of reference, I will refer to such relationships as “civil unions” in this entry. Note that the civil unions I discuss below would have all of the rights, benefits and obligations of a marriage other than the name, unlike domestic partnership statutes in some states that are still missing many of the rights, benefits and obligations of marriage beyond the name.
Understandably, most Lesbian, Gay, Bisexual and Transgender (“LGBT”) advocacy organizations take great exception to anything less than the right to enter into full marriage. These advocacy organizations call civil unions “separate but unequal” and point out various ways that the label of marriage alone holds significance. See, for example, this pdf pamphlet comparing marriage with civil unions.
The pamphlet notes essentially three different ways that civil unions are inferior to marriage:
1) Recognition by Other States. Even if those in civil unions are afforded the same rights by the state granting the civil union as that state grants marriages, there is no guarantee that other states will treat foreign civil unions the same that those states would treat a foreign opposite-sex marriage. The pamphlet uses examples such as medical decision making, the ability to divorce, and spousal support provisions. Thus, if a same-sex couple entered into a civil union in New Jersey and subsequently honeymooned in Utah, and one of the partners became ill, Utah might not honor the civil union and allow the other partner to make medical decisions.
2) Treatment by the Federal Government. The pamphlet also notes how the federal government treats marriages differently than it does civil unions in areas such as taxation, Social Security and death benefits, and immigration. In fact, this is a very small sample of the benefits granted by marriage under federal law. The Government Accounting Office reported that “as of December 31, 2003, our research identified a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.” (pdf here).
3) Social Recognition. Finally, the pamphlet notes that people understand and respect the word “marriage,” but “[c]ivil unions are unfamiliar; people don’t understand them or know how to treat them.” Courts have also recognized this issue. See Kerrigan v. Comm. of Public Health, 957 A.2d 407, 417-18 (Conn. 2008) (“[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage” (quoting Lewis v. Harris, 908 A.2d 196, 226-27 (2006) (Poritz, C.J., concurring and dissenting)). See also In re Marriage Cases, 183 P.3d 384, 445-46 (Ca. 2008); Opinions of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004).
All of three of the above grounds are excellent examples of why same-sex marriages should be permitted in every state and afforded equal treatment with opposite-sex marriages by every state and the federal government. However, at this current stage, a state’s decision to permit state’s same-sex marriage instead of civil unions does not make too much of an impact on the first and second categories noted above. Regarding the first (other states’ recognition and treatment of marriages versus civil unions), it is at best unclear at this time that a state would have to recognize a same-sex marriage formed in a different state but would not have to recognize a civil union formed in a different state. Thus, Utah would probably treat a same-sex marriage formed in Iowa the same that it would treat a same-sex civil union formed in New Jersey. And if Utah chose not to recognize the same-sex marriage and the civil union, the Constitutionality of that decision probably does not turn on the name given to the relationship by the state in which the marriage or civil union was formed. As for the second ground (the federal treatment) it is clear that at this time that the federal government’s position is that it does not have to treat same-sex marriages as it does opposite-sex marriages (see the Obama DOJ’s brief in Smelt v. U.S., pdf here), and thus it makes no difference from the perspective of the federal government whether a same-sex relationship is labeled a marriage or a civil union; neither are treated the same as an opposite-sex marriage regardless.
Thus, the third category mentioned by the pamphlet (the assertion that labeling opposite-sex unions as “marriages” while labeling same-sex unions as “civil unions” implies that the latter is inferior) appears to be the only definite consequence of a state’s grant of same-sex marriages versus civil unions at this time. I still agree with the LGBT groups that this alone is sufficient reason to require that same-sex marriages be permitted, both from a policy perspective and on Constitutional grounds. But, in my opinion, this doesn’t mean that civil unions are so inferior to same-sex marriages that they should not be pursued at all. Yet LGBT groups appear to have largely taken an all-or-nothing approach, at least in the courts. For example, in the Maryland Court of Appeals decision on same-sex marriage, the LGBT groups presenting the case expressly abandoned the fallback position that even if the Maryland Constitution did not require same-sex marriages, it required civil unions. See Conaway v. Deane, 932 A.2d 571, 634 n. 71 (Md. 2007). One of the seven judges on the Maryland Court of Appeals nonetheless wrote a dissent arguing just such a position. Id., at 635-54 (Raker, J., concurring in part and dissenting in part). Perhaps one of the four judges in the majority opinion upholding the ban on same-sex marriage would have joined Judge Raker’s opinion had the argument not been disclaimed by the LGBT groups bringing the case, and same-sex couples in Maryland would be in a significantly better position than they are now. There may be some deeper strategy behind abandoning any argument for civil unions beyond moral outrage (a moral outrage I share), but I do not see it, and I do not understand why, if marriage is not available, LGBT groups would not want to at least secure the right to enter into an officially recognized relationship affording all of the rights, benefits, and obligations of marriage other than the name.
I plan to write a longer piece on this soon, but this issue takes on particular significance given the rogue filing of a federal challenge to Proposition 8 (“Prop 8”) in California. (See the complaint in pdf here). Even after the California Supreme Court’s decision upholding Prop 8, California law permits same-sex domestic partnerships that are at least extremely close to providing all of the rights, benefits and obligations of marriage other than the name. See my previous entry on this topic. The rogue federal complaint does not appear to raise any of the differences between California domestic partnerships and marriages other than the label (if there are any other differences), and instead seems to focus solely on the label. Now, I think that the lawyers bringing the rogue case are right that Prop 8 is a violation of the United States Constitution, and I even agree with the Amici brief filed by the ACLU, Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights arguing that Prop 8 has various Constitutional infirmities that do not even require the Court to reach the question of whether sexual orientation is a suspect classification or whether the fundamental right to marry should apply to same-sex couples (see pdf of Amici brief here). However, should the Court reject these narrow arguments, the Court will have to reach the larger issues of whether sexual orientation is a suspect classification and whether the fundamental right to marry applies to same-sex couples. The question I will pose is this: Do we want the United States Supreme Court (which is where many expect this case to end up), in the first case heard on the issue of same-sex marriage, to, just like the Maryland Court of Appeals, be unable to address the fallback position that civil unions are Constitutionally required because the issue isn’t presented? If LGBT groups want to keep that fallback position available (perhaps for a Justice such as Kennedy, who, like Judge Raker in Maryland, may not be comfortable requiring same-sex marriage but might at least conclude that civil unions are required), then those groups should consider filing a case raising federal issues in another state that does not already permit civil unions. That would hopefully provide a companion case in the Supreme Court if the Prop 8 case does indeed go that far. Even though an opinion from the Supreme Court saying that civil unions are all that the Constitution requires would be bittersweet, it would obviously be an immense improvement over the current situation and much better than a 5-4 decision concluding that there is no right to same-sex marriage that does not discuss civil unions.
As always, I would welcome your thoughts and comments on any of this. Please note that the above entry is not legal advice and any comments that you leave will not be protected by the attorney-client privilege, nor will reading this blog or commenting thereon cause us to enter into any legal representation.
