Yesterday, I had the honor of presenting my work to the faculty at Akron Law. One of the benefits of such invitations is the compulsion to make sure one’s information is up-to-date. And in the course of working up a presentation on the state of civil unions, I was fascinated by a couple of recent developments.
First, Illinois may or may not be on the verge of extending full marriage equality to same-sex couples. This is indeed a warp-speed development, given that the state passed a civil union law only two years ago. But what’s attracted my attention is that the law, if enacted, would leave in place the civil union option. This is a unique development: in every other state that has moved from the civil union to full marriage equality, civil unions have gone by the boards. No further civil union licenses are issued, and in some cases existing civil unions have been forcibly morphed into marriage.
Why is Illinois retaining the civil union option? I’ll end the suspense — it’s because the civil union option in Illinois is available to both same- and opposite-sex couples. So unlike in most states, where the civil union was (in old game show parlance) the lovely parting gift offered to same-sex couples, in Illinois the civil union acquired a more complex meaning by being offered to everyone. And many of the straight couples who chose the civil union pointedly did not want to marry. So a law that would take away the civil union option isn’t appealing to them, and isn’t being considered — at least for now.
Meanwhile, Colorado is set to become the third of the civil union states (following Illinois and Hawaii) to extend the option to opposite-sex couples. But unlike other civil union laws, Colorado’s isn’t an exact mirror of marriage: it doesn’t allow for the filing of a joint state income tax return.
So we add yet another wrinkle to the options couples can choose for legal recognition of their relationships. And I think that, in a curious way, the marriage equality debate has revealed another aspect of a discussion we’re having about the lives people are actually living, and the choices that the law has made (and continues to make) in recognizing those lives and relationships. Civil unions, domestic partnerships, reciprocal beneficiaries, designated beneficiaries — the list gets longer, and more tongue-tying. And it makes me wonder, as I must, about the effort to resurrect and reaffirm the primacy of place to marriage over these other options. Yes, we know that married folks and their kids do better over a range of important measures than their unmarried cohabitants, and I have signed on to David Blankenhorn’s recent clarion call to refresh our commitment to marriage. Yet it’s important to continue to question whether that option is right for all people, and the extent to which the law and legal rules should continue to incentivize through privilege some choices over others.