Sorry I’ve been failing to deliver on my promise to blog about civil unions. I got caught up in a book deadline,1 and then, close to exhausation,2 decamped from civilization for a three-week vacation that concluded with a blissful week in the Adirondacks — lots of long-distance lake swimming; splashing and canoeing with the kids; reading “Superman” (a history of the guy); and consuming exactly one gin and tonic per day.
And what little other time I’ve had has been spent working with Elizabeth Marquardt on piece about California’s proposed law that would allow courts to recognize up to 75 legal parents per child (well, actually, no maximum number is specified, but it’s clearly written so that there can more than even three). We’ll let you know when our piece hits the cyber-streets.
So, back to it.
One of the things about these new, straight civil unions now available in both Illinois and Hawaii (which I blogged about here) is that they throw the whole future of the civil union compromise into disarray. For opponents, they were the line in the sand. But as King Canute and others have learned, nothing can withstand the tide of history. The very existence of civil unions proves the point of their inadequacy, in a way more strongly than does the complete denial of equality.3 At least those who oppose marriage equality can argue — unpersuasively, to me — that same-sex couples are differently situated from opposite-sex couples, so that marriage isn’t the appropriate legal or societal response to our needs. But once you create a simulacrum called the civil union, that argument dries up. It can’t be that the name is the crucial demarcation between what’s necessary for straight v. gay couples.
So it’s hardly surprising that some of the states that have enacted these laws have already replaced them with full marriage equality: Vermont, New Hampshire, and Connecticut. So far, there have been two ways of effecting this civil union-to-marriage progression: Convert existing civil unions into marriages, or leave existing civil unions alone but recognize no new ones. In either case, the civil union exist, if at all, as a vestigial institution. A reminder of a species, like the Denisovans, who didn’t adapt well and died out.
But what happens in Illinois and Hawaii when the march to full marriage equality reaches its destination? The pioneering opposite-sex couples who have chosen civil unions over marriage don’t want to be married. Will these states allow them to hang onto their civil union status? Will they recognize new civil unions? It seems they should, as a straight civil union means something quite different from a gay or lesbian one. But then it’s hard to see how a legislature could do one thing for straight couples, another for gays. That would just plunge us right back into the inequality that a full marriage equality law would be exploding. And if civil unions are allowed to exist side-by-side with marriage for every couple, the dismantling of marriage through the proliferation of palatable alternatives would accelerate. Nancy Polikoff would surely approve. (I’m, um, still evolving on this one….)
This should get interesting.
- What book, you ask? “Same-Sex Legal Kit for Dummies,” I reply. Coming to real and virtual bookstores near you on November 11. End of shameless self-promotion, which I’m amazed I managed to tamp down into a footnote. ↩
- By law professor standards only. ↩
- For an example of one politico’s tortured dance around that issue, consider NJ Gov. Chris Christie’s veto of the legislature’s marriage equality bill. He took pains to spell out the need to respond to the state’s civil union commission, which found that civil unions were doing a lousy job at conferring the equality they’d been supposed to bring. But he’s on a fool’s errand. ↩