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Thursday, December 9, 2010

Gay marriages, civil unions and the space between them

, Professor of Law, Widener University -
What justifies restricting marriage to same-sex couples, and are civil unions an acceptable compromise?
Those questions were at the core of Monday’s oral argument in the Prop 8 case. They also direct Maggie Gallagher’s response to my post on civil unions last week, where I pointed out that her position on this marriage-in-all-but name compromise has been inconsistent (a conclusion she denied, but the evidence seems to me compelling).
The back-and-forth had a great result, as Maggie spelled out, more clearly than I’d see before, her position on civil unions and their connection to marriage.  You should read the whole thing (it’s not long), but I’ll summarize here.
What she cares about is marriage, and, for her, supporting marriage means restricting it to those couples that can provide a mother and a father for kids.
Unlike some, she doesn’t think that same-sex couples and our families should be ignored; in principle, she would favor some kind of civil union status that would identify and protect our interests, but she’s clear that we don’t have the right to civil unions – they are “a gesture of civic respect, crafted in ways that would minimize the impact on a marriage culture.”
And she’s wary that civil unions lead to marriage.
Now I’m quite clear about our areas of disagreement – and, perhaps surprisingly, of agreement.
First, she’s right that civil unions and domestic partnerships are leading to marriage.
Here’s some evidence: In Vermont, the first state to create the civil union, the legislature moved to full marriage equality in less than 10 years. Why? I’m sure each law-maker had his or her own reasons, but among them was surely a recognition – informed by a decade of experience and the report of a civil union commission – that this creative half-step was inadequate, confusing, and – most centrally – discriminatory.
They could see no reason in jealously withholding the word “marriage” from same-sex couples any longer, and plenty of reasons to move to full equality.
Maggie’s fear of civil unions leading to marriage was also dramatized during the Prop 8 argument.
Two of the justices – looking for a way to limit their decision to the unique facts surrounding California’s battle over marriage equality – homed in on several related facts. I’ve ordered them syllogistically here to present what I think is the likely reasoning of the court’s eventual decision:
(1) Before Prop 8, the California Supreme Court had held that marriage was a fundamental right;
(2) Prop 8 took that right away, leaving same-sex couples with the “virtual equality” (domestic partnerships, in California, but with full rights) they’d had before; and
(3) since the only reason to grant full equality without the name is anti-gay animus,  Prop 8 violates the Supreme Court’s directive, in Romer v. Evans (1996), that the Constitution must “neither know nor tolerate classes among citizens.”
Yes, there’s something paradoxical about this argument (or “perverse,” as Prop 8 defender Charles Cooper put it during the argument.) The closer a state moves towards full equality for its LGBT citizens – allowing adoption, enacting anti-discrimination laws, and (most importantly) granting relationship recognition short of marriage – the likelier it is that the denial of full marriage equality will be seen as discriminatory.
Judges Reinhardt and Hawkins, in particular, were looking for just this sort of narrower ground for what might be their holding (if the defenders’ appeal isn’t tossed for lack of standing, which is by no means certain).  Had the case arisen in, say, Florida – which, legally speaking, hates LGBT people – the judges would have a heavier lift, because that state has held on its arguments (however misguided) for treating us differently. There’s no civil union (or anything else) to build the bridge from intolerance to acceptance that then unmasks the denial of full equality as discrimination simpliciter.
This is what Maggie Gallagher fears – and, from her perspective, rightly so.
Second, I also agree with her that there’s no right to any such thing as a “civil union,” at least as that term is currently understood. (There’s a good argument for legally renaming all marriages  “civil unions,” but that’s a different point.)
There is a right to equality, and it’s by now clear that civil unions don’t and never can confer it.
If I might be so presumptuous, I’d bet that Maggie would even agree with me so far: She doesn’t oppose what she considers to be equality (I mean, who would oppose equality?), and she also knows that civil unions aren’t the same thing as marriages.
Where we dramatically part company, of course, is in our conclusion about the meaning and purpose of marriage. Under her (to me) narrow and unbending definition, same-sex couples aren’t “similarly situated” to opposite-sex couples with respect to marriage, so denying us the right to marry isn’t denying us equality.
We can’t be a mother and a father, obviously. So if marriage is really just about providing (and encouraging) only that form of parented family, it’s easy to see why she and others oppose our marrying.
The trouble, of course, is that there’s no evidence to support her conclusions. That kids do better, on average, in two-parent homes where the parents are married than in other situations isn’t relevant to this issue, because the studies so demonstrating didn’t compare same-sex couples to opposite-sex ones.
Indeed, the studies that have assayed such a comparison show that kids do just fine in our families – even while we’re denied the social glue of marriage.
And even if there were evidence that kids do better when raised by opposite-sex couples, the fact is that same-sex couples are raising kids, and doing so with state approval (compare: polygamous families).
In that context, walling us off from the protections and social approbation that comes along with marriage works a real harm, and one that the civil union can’t entirely cure. So denying us the right to marry would have to be based, legally speaking, on some concrete – not speculative – showing of harm to the institution of marriage were we permitted entry.
And this, neither Maggie nor any of the anti-equality forces can show.
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: He is the editor of and contributor to a just-released book, Reconsidering Law and Policy Debates: A Public Health Perspective, now available on Amazon .  His chapter is on marriage equality.

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