The “Civil Unions Guy”? Really?

06.12.2012, 10:03 AM

As a young boy, I little dreamed that one day I’d become known — even in small circles — as the “civil unions” guy. On the face of it, could anything more dreary be imagined?

Apparently, not to some people. When Elizabeth Marquardt introduced me on this site a few days ago with that label (which I give her both credit and blame for creating), one commentator pithily asked:

“Welcome, but what does it mean to be the ‘civil unions’ guy? Civil unions are a “separate but equal” attempt at denying gay and lesbian Americans the same legal rights as straight Americans. Is there a lot more to know on the subject?”

Is there more to know? I thought you’d never ask. Yes, there is so much more to know. (Reader to CU Guy: “You fascinate me. Tell me more.”)

The commentator’s view of civil unions is wide-spread, but it misses some really interesting questions that the whole discussion of civil unions raises. (That’s why I’m writing a whole book on the subject….) In fact, in many ways thinking about civil unions can open us up to a much broader discussion than can the whole marriage equality debate. That movement has mostly sidestepped deep questions about the meaning and fairness of marriage in its relentless (and understandable) push for legal recognition of our unions.

During the next few months (or until I bore everyone to death, whichever comes first), I will be exploring civil unions from a variety of different angles, and trying to shed light on how this “separate but equal” concept might yet have a longer shelf life than anyone might have thought back in 2000, when the Vermont legislature invented the term. (Well, OK, the French already had the “pacte civile”, but it’s quite a different animal — much more limited in the rights and responsibilities it confers and imposes.)

Today, a quick bit of history on the civil union for the uninitiated. It’s time to dispel the misconception — one I once shared — that civil unions are necessarily an “attempt at denying gay and lesbian Americans the same legal rights as straight Americans.” With the benefit of a bit of historical distance, I think civil unions have been brilliant.

In 1999, the Vermont Supreme Court startled both sides of the marriage equality debate with its ruling, in Baker v. State, that same-sex couples were entitled to the same rights as opposite-sex couples, but that the state didn’t have to call these unions “marriages.” After several months of white-hot politicking in the state that Jon Stewart once said was made “entirely from hemp fibers,” the legislature grasped the life raft that the court had thrown it — and thus was created the civil union, which attempted the high-wire feat of making same-sex couples equal without giving them marriage. (For a great account of the political battles that threatened to scorch the Green Mountain State, read David Moats’s excellent “Civil Wars.”)

Why do such a cray thing? Why not just call them marriages, and get it over with? That’s what Justice Johnson suggested in her dissent, and, at the time, I agreed. But (and this will come as a surprise to no one), the Vermont Supremes were smarter than I, or at least more practical. The justices said that Justice Johnson’s suggestion that her mandate would avoid “the political cauldron” of public debate was “significantly insulated from reality.” In case there were any doubt about what the court feared might happen were it simply to require marriage equality, the statement I’ve just quoted was followed by references to state constitutional amendments in Alaska and Hawaii banning same-sex marriages — amendments that had followed lower court decisions requiring the issuance of marriage licenses to same-sex couples.

Message: The court isn’t the final arbiter here. The voters can amend the constitution if they feel strongly enough, and then same-sex couples would lose everything.

So, far from denying same-sex couples equality, civil unions turn out to be an important step toward its achievement. The proof is in Vermont itself, where in 2009 the legislature overwhelmingly passed a marriage equality bill. And that same legislature had sown the seeds of the civil union’s destruction back in 2000, with legislative findings that equated the relationships of same-sex couples with those of opposite-sex couples, and that saw the civil union as a way to respect both sides while “permitting adjustment” as “unmet needs” were identified. And the legislature also established a Civil Union Commission, which later found that the only way to meet those “unmet needs” was through marriage itself.

But civil unions continue in force today in several states: New Jersey, Delaware, Illinois, Hawaii, and Rhode Island. A number of former civil union states (including Connecticut, Vermont, and New Hampshire) now have full marriage equality. And several other states allow full rights to same-sex couples under a different name — usually “domestic partnerships” (all three West Coast states, although Washington may soon have full marriage equality, depending on the results of a voter referendum in November). In a subsequent post, I’ll look into these developments in a bit more depth. But that’s enough for now.


5 Responses to “The “Civil Unions Guy”? Really?”

  1. [...] drew a nice crowd of commentators. (Although the civility policy has me half-smiling/half-mad.) My second one, on why civil unions matter so much, just went up. Check them out (as well as the whole site, which [...]

  2. JHW says:

    I probably find this topic at least as fascinating as you do, so I hope you keep blogging about it.

    What is striking about the creature of the “civil union,” to me, is how closely it mimics marriage. Domestic partnerships, even “comprehensive” domestic partnerships, are subtly different from marriage–they are generally entered into by filling out a form rather than through solemnization, and they generally require the parties to already have a common residence, remnants of their origin as an attempt to provide for the needs of people in long-term interdependent relationships, rather than to serve as a full-on marriage substitute. Not so with civil unions, which tend to mimic marriage exactly. This is part of what is so strange about them: they are not a substantive marriage alternative so much as they are, in some sense, both marriage and non-marriage at the same time.

  3. Hernan says:

    It’s time to dispel the misconception — one I once shared — that civil unions are necessarily an “attempt at denying gay and lesbian Americans the same legal rights as straight Americans.”

    Formally, nothing you wrote really dispels the idea that civil Unions (CUs) are “denying gay and lesbian Americans the same legal rights as straight Americans”. Rather you have shown that denial has had some positive, practical political effects including increasing the rights of gay people from nothing to less-unequal. So, call it: an attempt to increase the rights of gays and lesbians by denying them the same rights as straights (temporarily?)

    Civil Unions will always be about denying rights because Civil Unions are defined structurally as like-marriage-minus-X where X is some legal, civil, religious, or cultural right/protection/privilege. In the least severe case, X is the legal title, “marriage” and CUs are marriages minus the right to call them marriages.

    Here is the rub: the particular formulation of CUs as “marriage in all but name” is one that has already been explicitly rejected by many traditional marriage folks (for a variety of reasons). Which other rights/protections/privileges would have to be bargained away to close the political sale that you are arguing is worth the price of those lost rights/protections/privileges? I am not sure there is a set that will get us to a robust majority (much less a consensus)… or if that is even a worthy goal? tactic?

    Anyway: as an exercise, I would like to know how commentators formulate marriages vs civil unions in specific terms. I am particularly interested in formulations that are not functionally marriage-minus-X because while I have yet to see one the absence of evidence is not evidence of absence (and I’d like to be wrong).

  4. John Culhane says:

    JHW: Thanks for pointing out how CUs and DPs differ from each other. I think that these are important differences, and that I and others have too often glossed over them in making the point that the legal rights they confer are identical (under the most robust DP laws).

    Hernan: My point was that CUs, as conceived, were not “an attempt to deny…” rights so much as a way to grant them so that they’d stick. And it worked. As a legal matter, CUs are — at the state level — the legal equivalent of marriage — in every state that’s gone this route, they convey exactly the same rights, benefits, and obligations of marriage, save for the name. (The situation is complicated, though, by the fact that the CU isn’t recognized in most states that don’t have them, and by DOMA, about which I’ll be writing a whole post, soon). But…
    that doesn’t mean there’s not a “minus-X.” What the whole debate has taught (among many other things!) is that you can’t take marriage, use a syringe to remove the legal content, and then decant the substance into something else and have it be the same thing.
    No, you can’t. But I still think it’s been a good way to advance the ball.

  5. Hernan says:

    Fair enough, we are more or less on the same page, actually…but I have always worried that CUs only seem like a tolerable solution to me because as a married heterosexual guy I don’t actually have any real skin in that particular game.

    I know the naming rights seem like a small thing, but thank you also for reminding me that the other currently lost right is the right to have your union recognized in other states. In a practical sense, that can be…kinda inconvenient. 8-)

    As you post, I hope you will consider addressing a couple of things:

    1) If CUs are a method for advancing the ball… what is the goal?

    2) Whether the goal is a 2 institutions-in-parallel solution or a single integrated institution or something else, I hope you will address the potential negative as well as positive consequences.

    Thanks!