Comment & Debate
A civil union is a legally recognized union similar to marriage, proposed primarily as an alternative to same-sex marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples with rights, benefits, and responsibilities similar (and in some countries, identical) to opposite-sex civil marriage. In some jurisdictions, such as Quebec, New Zealand, and Uruguay, civil unions are also open to opposite-sex couples. Most civil-union countries recognize foreign unions if those are essentially equivalent to their own; for example, the United Kingdom lists equivalent unions in Civil Partnership Act Schedule 20. Some commentators are critical of civil unions because they say they represent separate status unequal to marriage (“marriage apartheid”). Others are critical because they say civil unions are separate but equal — because they allow same-sex marriage by using a different name. In general, the questions that frame the debate include the following: Do civil unions offer equality to gays? Are civil unions comparable to vilified “separate but equal” laws that existed in the US prior to the Civil Rights Act of 1964? Do civil unions create second-class citizenship for gays and invite discrimination? Are the benefits offered in civil unions sometimes unequal? Should they be equal? But, are equal benefits sufficient, or is the title of “marriage” the only fair option ultimately? Should marriage be defined as between a man and a woman? Do civil unions better protect the “institution” and “tradition” of marriage? Is “marriage” an important term/symbol that must be protected, or, conversely, is it so important and socially meaningful that it cannot be fairly denied to gays? Are civil unions a good compromise? Are they the only way forward in the conflict, and for advancing gay rights? Are they a good stepping stone toward gay marriage, if that is the final objective for gay rights supporters? Do civil unions poorly protect the children of gay couples and the custody rights of gay parents? Does gay marriage threaten the freedoms of religious organizations, and civil unions better protect them? What is the overall balance of pros and cons? Are civil unions a better alternative, or is gay marriage superior?
“the Illinois Religious Freedom and Protection Civil Unions Act (HB 2234) passed a House committee and is now on its way to the House floor, potentially making Illinois the first state in the Midwest to legalize civil unions. […] If the bill were to become a law, it would be a simple, but highly effective solution in allowing same sex couples the same benefits, rights and responsibilities of a marriage without changing Illinois marriage laws.”
“And one more suggestion: To avoid charges of separate but unequal, make civil unions open to straight couples.”
This is a common argument against gay marriage, and sometimes underlies the position of those that reluctantly are willing to accept civil unions. But, the premise is that homosexuality is immoral and wrong, so efforts for full equality through gay marriage are misplaced. If civil unions are unequal, the argument goes, than it is, nonetheless, fitting. This argument is not supported by most advocates of civil unions with equal benefits, but by some.
Barack Obama said in March of 2008: “I believe in civil unions that allow a same-sex couple to visit each other in a hospital or transfer property to each other.”[1]
In so far as the equal protection clause of the U.S. Constitution applies to homosexuals and marriage, they have the same right to enter into the same type of traditional marriage contract. Even without civil unions they are equal in the eyes of the law.
“Marriage, under any interpretation of American constitutional law, is among the most basic civil rights.”
During the 50s and 60 in the United States, a segregationist principle was established called “separate but equal” under the Jim Crow laws of the time. This was struck down by the Massachusetts Supreme Judicial Court, who wrote: “The history of our nation has demonstrated that separate is seldom, if ever, equal.”[2]Civil unions are precisely the same arrangement, attempting to give gays a “separate” arrangement than marriage, while conferring “equal” benefits. But, because “separate can never be equal”, civil unions can never equal. Civil unions, therefore, are unequal, segregationist, and discriminatory, just as were the “separate but equal” laws of the past.
The idea that opening civil unions to straights solves the problem of civil unions be “separate, but unequal” fails a very simple test. While heterosexuals may have equal access to civil unions, do gays have equal access to marriage? No. Clearly, therefore, allowing straights to participate in civil unions while continuing to deny gays the right to marry does not nullify the argument that civil unions are akin to “separate but equal” and actually unequal.
“For most Americans, marriage is a religious sacrament or ceremony. If the definition of marriage is changed to allow SSM, some religious individuals and groups feel that they will become at risk of having to violate their beliefs by being forced to marry same-sex couples.”
“And while most Americans who favor keeping marriage as it has customarily been would prefer no legal recognition of same-sex unions at either the federal or the state level, we believe that they can live with federal civil unions — provided that no religious groups are forced to accept them as marriages. Many of these people may come to see civil unions as a compassionate compromise. For example, a PBS poll last fall found that 58 percent of white evangelicals under age 30 favor some form of legal same-sex union.” [This all suggests that civil unions will be met with greater respect from the general American population, instead of the kind of recrimination that can lead to hatred and descrimination.
4. A separate and unequal status invites others to discriminate. When the government decides one group cannot have the same choice as others, it marks them as inferior and invites others to discriminate against them as well, including employers, businesses, police, emergency room workers and others.”
“3. A civil union has to be explained and does not get the same respect as a marriage”]: “Only the word married conveys the universally understood meaning applicable to the lifetime commitment many couples make. Marriage has a meaning unmatched by any other word. Regardless of whether civil unions and marriage offer the same benefits and obligations on paper, when the government relegates same-sex couples to civil unions rather than marriage, it forces them to explain the difference at work, at school, in hospitals and elsewhere. Those couples lose the respect and dignity that they deserve for their commitment to be responsible for each other.”
“Imagine a scenario where Congress passes a law that extends federal benefits to couples that are joined in a civil union. This would respond to those who argue that the only way to obtain federal benefits is through legal marriage and assuages those who want to leave the definition of marriage untouched.”
The list of benefits that are allegedly deprived to gay couples in civil unions is often entirely fabricated. Frequently, all the same benefits are offered in civil unions as are offered in gay marriages.
While many argue that civil unions sometimes deprive couples of certain rights given to those in gay marriages, many existing laws and many proposals and legislation on the table would see every single right given to married couples also given to couples with civil unions. Civil unions, therefore, do not inherently involve depriving couples of the various benefits outlined by the opposition.
“3. Civil unions in other states, unlike those in Connecticut and Vermont, would probably include a smaller number of benefits and entitlements than marriage, making them far from equal. But however hard this is to swallow, here again the point is to get a process started. Even if lessor variations on civil unions offer minimal benefits (e.g., hospital visitation), it is almost inevitable that as legislators and the public become comfortable with gay couples in formalized relationships, they will feel more comfortable adding additional benefits over time. […] That model has worked well in California where gay couples have obtained more and more benefits with each legislative session. It has also worked in several European countries that have gradually added benefits, in some cases resulting in marriage itself. Most U.S. surveys show majority support for providing some benefits for gay couples. So let us work on obtaining those and then go on to others as the public comfort grows. If you cannot get all the justice you want, take what justice you can get and then work for more.”
“A commission established to study same-sex civil unions in New Jersey has found in its first report that civil unions create a ‘second-class status’ for gay couples, rather than giving them equality.[…] [the report] find[s] that gay couples in Massachusetts, the only state that now allows same-sex marriage, do not experience some of the legal complications that those in New Jersey do [where there are civil unions].”
“Imposing Civil Unions Creates More Harms Outside The State. The federal government and some other states disrespect same-sex married couples when they cross state lines or deal with federal taxes or social security. When a couple’s own state creates a separate status for them, it makes them even more vulnerable. As a result, same-sex couples are increasingly avoiding tourist destinations in states that bar them from legal protections, and national membership organizations and multi-state employers have begun to consider policies that avoid planning conventions, conferences or meetings in states where some members or employees may not feel that they are adequately safe as a legal matter (see the Safety Scale below). The more vulnerable couples are, the more time, trouble and expense for them to get protective legal documents (see the life-planning toolkit below).”
With marriage, partners can make emergency decisions across state lines. This means that partners in civil unions may not be able to make decisions out of state. This is an additional reason why civil unions create unequal rights and second class status.[3]
Married couples can file both federal and state tax returns jointly. Civil Union couples can only file jointly in the state of civil registration. This is an additional way in which civil unions create unequal rights and second class status.[4]
Married partners can transfer gifts to each other without tax penalty. Civil partners do not pay state taxes, but are required to report federal taxes.[5]
In the case of a married partner’s death, a spouse receives any earned Social Security or veteran benefits. In the case of civil unions, partners do not receive Social Security or any other government benefits in the case of death.[6]
Hilary Clinton: “Marriage has got historic, religious, and moral content that goes back to the beginning of time, and I think a marriage is as a marriage has always been: between a man and a woman.”[7]
“No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman.”
“The institution of civil marriage, like most human institutions, has undergone vast changes over the last two millennia. If marriage were the same today as it has been for 2,000 years, it would be possible to marry a twelve-year-old you had never met, to own a wife as property and dispose of her at will, or to imprison a person who married someone of a different race.” [It should now evolve to include gays].
“[Many argue] that marriage is primarily about procreation. […] The only trouble with this argument is that it ignores the fact that civil marriage is granted automatically to childless couples, sterile couples, couples who marry too late in life to have children, couples who adopt other people’s children, and so on.”
The institution of marriage is dependent on its traditional definition being maintained as between a man and woman, and the traditional family/reproduction/child-rearing/mother-father-role-models function of marriage being upheld as well. Gay marriage breaks from many of these traditional functions. Civil unions uphold the institution of marriage by not interfering with them.
“Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together. […] In all sharp moral disagreements, maximalism is the constant temptation. People dig in, positions harden and we tend to convince ourselves that our opponents are not only wrong-headed but also malicious and acting in bad faith. In such conflicts, it can seem not only difficult, but also wrong, to compromise on a core belief. […] But clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it.”
“For most Americans, marriage is a religious sacrament or ceremony. If the definition of marriage is changed to allow SSM, some religious individuals and groups feel that they will become at risk of having to violate their beliefs by being forced to marry same-sex couples.”
“In its decision that a civil union law in California (there called a domestic partnership law) did not provide equality under the constitution, that state’s highest court listed these top two reasons why civil unions are not enough: ‘First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples.”
“the inclusion of gay people is, in fact, a comparatively small change. It will affect no existing heterosexual marriage. It will mean no necessary change in religious teaching. If you calculate that gay men and women amount to about three percent of the population, it’s likely they will make up perhaps one or two percent of all future civil marriages. The actual impact will be tiny. Compare it to, say, the establishment in this century of legal divorce. That change potentially affected not one percent but 100 percent of marriages and today transforms one marriage out of two. If any legal change truly represented the ‘end of marriage,’ it was forged in Nevada, not Vermont.”
“how, exactly, does the freedom of a gay couple to marry weaken a straight couple’s commitment to the same institution? The obvious answer is that since homosexuals are inherently depraved and immoral [according to opponents], allowing them to marry would inevitably spoil, even defame, the institution of marriage. It would wreck the marital neighborhood, so to speak, and fewer people would want to live there. Part of the attraction of marriage for some heterosexual males, the argument goes, is that it confers status. One of the ways it does this is by distinguishing such males from despised homosexuals. If you remove that social status, you further weaken an already beleaguered institution. […] This argument is rarely made explicitly, but I think it exists in the minds of many who supported the DOMA.”
“Heterosexuals have all but completely taken over the civil union option [in France] (92%, leaving just 8% for gays!). The civil unions give heterosexual couples financial advantages, but when one of them wants to leave, it is easy: ‘If one or both of the partners declares in writing to the court that he or she wants out, the PACS is ended, with neither partner having claim to the other’s property or to alimony.’ So much for family permanence.”
“Even if you concede that gay men–being men–are, in the aggregate, less likely to live up to the standards of monogamy and commitment that marriage demands, this still suggests a further question: Are they less likely than, say, an insane person? A straight man with multiple divorces behind him? A murderer on death row? A president of the United States? The truth is, these judgments simply cannot be fairly made against a whole group of people.”
“When Congress starts to consider the FMA, here’s hoping a courageous lawmaker will introduce a federal civil union bill. Let’s debate whether gay couples merit equality under the law, not whether straight couples can keep the word “marriage” to themselves. Let’s discuss the special rights that empty-nest and childless straight couples currently enjoy and seriously examine what happens if we extend these rights to gay couples with children.”
“Once you are in a civil union, you can refer to yourself as “married” if you like. A friend in Vermont who is in a civil union says he and his partner refer to themselves as married. So does everyone else. A friend in Norway reports the same thing: ‘Oh, you two are married.'”
In its decision declaring the denial of the right to marry unconstitutional, Connecticut’s highest court said: “We agree with the following point made by the Lambda Legal Defense and Education Fund, Inc., in its amicus brief: ‘Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were ‘married’ and instead were in a ‘civil union.’ The sense of being ‘married’ — what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies — would be taken from them. These losses are part of what same-sex couples are denied when government assigns them a ‘civil union’ status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself.”[8]
There is significant importance placed on asking the question, “will you marry me?”. Civil unions essentially deny homosexuals the ability to ask that beautiful, long-valued, important question? This is wrong on many levels.
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