Civil Unions Are Not Equivalent to Marriage

Over at the Lippard Blog, Jim Lippard quotes a recent Economist article on the global state of equal marriage rights for gays and lesbians as follows:

Gays have the same rights as married heterosexuals, but only in civil unions or partnerships rather than marriage in Britain, Denmark, Finland, Iceland, New Zealand, Norway, Sweden, and the U.S. (California, Connecticut, New Jersey, and Vermont).

Gays have civil unions or partnerships with lesser rights than heterosexual marriage in Argentina (1 state), Czech Republic, France, Germany (3 states), Hong Kong, Ireland, Luxembourg, and the United States (Hawaii, Maine).

I don't read the Economist, so I have only this summary to go by. But as far as the U.S. goes, this summary is simply wrong. It's not just in Hawaii and Maine that civil unions have lesser rights than heterosexual marriage; it's in every state of the U.S. In fact, even full-fledged marriage rights in Massachusetts are not equivalent to heterosexual marriage: even in Massachusetts, gay and lesbian citizens are denied equal rights.

This isn't a new point; it's been talked about a lot (one recent example is here). But if the Economist can get this wrong, it's a point that bears repeating.

For the purposes of this post, I'm going to set aside the whole separate-but-equal issue. Nevertheless, it is of course true that even denying the name marriage is a form of discrimination -- a linguistic marker that does nothing but set aside a disfavored group as lesser; it is "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution." (source) So even if there were no legal ramifications at all, civil marriage as a matter of justice must be made available to gays and lesbians on an equal basis with straight couples.

But again, let's set that aside for now. Let's just talk about specific legal rights.

I don't know the details of state law in California, Connecticut, New Jersey, or Vermont, so I will take the Economist at its word (possibly a mistake) that within state law civil unions have all the legal rights of full marriage. But even if this is the case, it doesn't make civil unions equal to marriage, because in the U.S., federal law also gives rights to married couples. For a couple to be treated as married (or the equivalent) in federal law, the federal government has to recognize them as married (or the equivalent).

But the federal government doesn't. One of the provisions of the so-called "Defense of Marriage Act" which President Clinton, to his eternal shame, signed into law is that the federal government is not required to recognize marriages (let alone civil unions) between gays and lesbians which a state might recognize. That is, DOMA doesn't only permit states not to recognize gay and lesbian marriages performed in other states; it also forbids the federal government from doing so.

This means that, for federal purposes, married couples from Massachusetts are treated as single by the U.S. government -- if they happen to be a gay or lesbian couple. And "civil unions" from California, Connecticut, New Jersey, or Vermont are not granted the rights of marriage under federal law either.

What are those rights? Well, a specific example just came up fairly recently when Gerry Studds's spouse was denied pension benefits on precisely these grounds. From the Nashua Telegraph:

For the first time, the federal government is denying death benefits to the spouse of a congressman because he is gay. Former Rep. Gerry Studds, D-Mass., who became the first openly gay member of Congress when his homosexuality was exposed during a teenage page sex scandal, died early Saturday. He was 69. In 2004 Studds married Dean Hara, 48, after gay marriage was legalized in Massachusetts. Hara, unlike the spouses of other members of Congress who have died, won’t be receiving any portion of Studds’ estimated annual $114,337 pension. The 1996 federal Defense of Marriage Act blocks the federal government from recognizing the 2004 marriage between Studds and Hara.

That's just one example; there are, in total, more than 1100 others.

Until that section of DOMA is overturned by the courts, or revoked by Congress, gay and lesbian couples will be legally discriminated against even in Massachusetts, the one state thus far to treat its gay and lesbian citizens equally. And, of course, even if that section of DOMA is overturned, "civil unions" in the states that have them won't have to be recognized by the federal government.

So don't let anyone say that civil unions are equivalent to marriage. It's not true. In fact, for gay and lesbian citizens, even marriage won't be equivalent to marriage until that section of DOMA is overturned.

There is only one solution to this issue: full equality, without any badge of servitude or other maker of second-class status. And contrary to those who proclaim the role of the states in this matter, this is also something that will have to be granted by the federal government.

Which leads to a speculative postscript: it seems that there is a case to be made against that section of DOMA without overturning the entire thing -- at least this site quotes an ACLU lawyer as saying that

if DOMA were to be challenged, lawyers would solely focus on the part of DOMA that denies gay citizens federal benefits. Left unchallenged would be the portion of DOMA that allows states to refuse recognition to a same-sex marriage performed in another state, out of fear that the legal claim would be rejected, and even if successful might encourage passage of a federal amendment banning gay marriage.

Obviously I would be in favor of overturning the entire thing -- indeed, I think it will happen, sooner or later. But so far as "sooner" goes I can definitely see it being politically easier (and maybe legally easier, although I don't know either way) to eliminate just that section of DOMA. It would preserve for discriminatory states their "right" to discriminate, which might mollify the bigot vote; and that way at least those states that intend to grant their gay and lesbian citizens the full and equal rights to which the laws of nature and of nature's God entitle them -- so far just Massachusetts, but hopefully to be soon joined by others (even maybe my home state of New York) -- will at least be legally able to do so. It would be of great help to gays and lesbians in those non-discriminating states; it would allow those who are able to vote with their feet and move somewhere that treats them as full citizens; and it would be clarifying. And, maybe, more politically possible in the short run.