Gay Marriage Is Booming. Where Does That Leave Civil Unions?

Outward
Expanding the LGBTQ Conversation
Nov. 8 2013 1:10 PM

Gay Marriage Is Booming. Where Does That Leave Civil Unions?

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Supporters of same-sex marriage gather at a Chicago rally to celebrate the Illinois General Assembly's passing of a gay marriage bill.

Photo by Scott Olson/Getty Images

Victory in the marriage-equality movement has lately seemed inevitable. On Election Day 2012, the number of marriage-equality states doubled from three to six because of first-ever wins at the ballot box. This year has been almost dizzying: marriage equality came to Rhode Island, Delaware, and Minnesota within a three-week span in the spring. Victory in the Prop 8 case yielded the biggest prize by far: California. And within the last few weeks, both New Jersey and Illinois have climbed on board. New Mexico and Hawaii seem sure to follow, bringing the number to 17 states (and the District of Columbia). Is the fight over? It’s starting to seem that way even to anti-marriage-equality activist Maggie Gallagher, who recently conceded that the cause of preserving “traditional marriage” was probably lost.

You’d win an easy bet by guessing that not many people have been staying up nights wondering: “Well, what will happen to civil unions once full marriage equality is attained?” But it’s indeed an important question to ask, because the civil union—created as a compromise measure to bestow on same-sex couples the rights of marriage while withholding the jealously guarded label—has evolved into something quite different. The beta version isn’t going away, but its future role and significance are up for grabs.

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Civil unions, remember, evolved as a way for progressive states to tack between two extremes they found unpalatable: granting same-sex couples no rights at all, or giving up the ghost and simply allowing them to marry. Created in 2000 by Vermont lawmakers in response to a decision by the state supreme court mandating equality of benefits, the civil-union straw has since been grasped by a bunch of states. Some of these eventually moved to marriage once the populace realized that the effects of equality were less than cataclysmic—Connecticut, New Hampshire, Rhode Island, Delaware, and Vermont itself had abandoned their civil-union experiment in favor of marriage by the middle of 2013. Other states, like Illinois, New Jersey, Colorado, and Hawaii were sticking with the civil union.

But then two things happened. The more publicized was the decision by the U.S. Supreme Court in U.S. v. Windsor, striking down the worst part of the Defense of Marriage Act. Now, same-sex couples in valid marriages would be able to gain access to all the federal benefits of marriage, but—as the IRS made clear—those in civil unions were entitled to none of these benefits. After all, no federal law so much as mentions civil unions.

DOMA’s demise trained a bright light on the deficiency of civil unions, and the movement toward full marriage equality became a flat-out sprint in the civil-union states. A New Jersey lower court found that civil unions could no longer be defended as “marriage by another name,” and the Christie administration (no doubt with one eye on 2016) gave up its appeal. Illinois is about to become the 15th state to join the equality ranks, and Hawaii—where the current marriage-equality push began, back in the 1990s—is hot on its heels. (New Mexico, too, although the situation there is unique and likely to be decided by the New Mexico Supreme Court.) Colorado and Nevada (which has civil unions by another name, domestic partnerships) will have a harder time following, because same-sex marriage prohibitions have been impaled into their state constitutions, but the move to amend the Nevada state constitution is already underway.

But the other thing that happened has been less noticed, and it means that civil unions aren’t going to disappear—at least, not everywhere. Two years ago, Illinois and Hawaii became the first states to allow opposite-sex couples to civilly unite. Colorado became the third, last year. And civil unions mean something quite different to opposite-sex couples than to same-sex couples. As I explained here in Slate last year, for the pioneering hetero couples who chose the civil union, marriage wasn’t a choice that appealed to them. Their decisions to elect the civil union over marriage were fueled by a mix of reasons: the association of marriage with religion; its dismal history relating to gender roles and rules; the view that the law didn’t do enough to recognize other kinds of family forms; and solidarity with same-sex couples who couldn’t marry. These couples didn’t want to marry then, and many of them still won’t want to, even though the gays can now do so.

And the early word is that they won’t have to. The new Illinois law allows those in civil unions to convert them to marriages, at no cost, but doesn’t require them to do so—they can hang onto their civil unions. But Illinois didn’t stop there: Going forward, both same- and opposite-sex couples will continue to be able to choose between marriage and civil union. This is a first, but Illinois won’t be alone for long. The marriage-equality bill in Hawaii is even more interesting, because the legislature has determined to retain not only civil unions, but also an earlier legal status, the reciprocal beneficiary designation, that was created out of the compromise that led to banning same-sex marriages in the mid-1990s. In Hawaii, couples will soon have three options: marriage, civil union, and reciprocal beneficiary (a status that confers certain limited rights and is much easier to exit than the other two).

The cynical take on these developments is that we can’t take any options away from straight couples. There’s something to that view, but it’s also fair to say that straight civil unions have opened up a broader debate on how we choose what relationships to value. Once couples were given the option of a different status, at least some—a small number, to be sure—discovered that they rather liked the messages they’d be conveying through the civil union. But that insight hasn’t yet been extended to those states that allowed civil unions only to gay and lesbian couples, and only as a glass-half-empty palliative. A gay friend of mine in Delaware was irate that his civil union was about to be turned into a full marriage—involuntarily, with only the prospect of dissolving his relationship as the alternative. Now that civil union status might be an affirmatively chosen alternative to marriage, rather than an enforced marker of second-class citizenship, why not allow couples to keep the civil unions they’re in?

Can marriage stand the competition? If not, the institution has bigger problems than most people realize.

John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware.

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