Equality practice: liberal reflections on the jurisprudence of civil unions.

• Author: Eskridge, Jr., William N.
• Position: Vermont gay marriage case

THE 2000 EDWARD C. SOBOTA MEMORIAL LECTURE(*)

On April 26, 2000, Vermont's governor signed legislation recognizing civil unions between same-sex couples.(1) Under the new law, same-sex couples entering into civil unions will enjoy the same benefits and obligations that Vermont law provides for different-sex couples who enter into civil marriages. The law was a legislative response to Baker v. State,(2) a state supreme court decision interpreting the state constitution as requiring the state to equalize the benefits and obligations afforded same-sex couples and different-sex married couples.(3) The court's decision explicitly contemplated the possibility that the legislature could remedy the discrimination either by extending civil marriage to same-sex couples, or by creating a new institution entailing the same state-sanctioned benefits (such as the right to bring a lawsuit for the wrongful death of a spouse) or obligations (such as the duty of support and maintenance) for same-sex couples that are afforded to different-sex married couples. Six European countries had created such new institutions, called registered partnerships.

Most of the criticism of Baker, and the ensuing civil union law, came from traditionalists who assailed these moves as compromising the institution of marriage, or promoting homosexuality. Some of the criticism, however, came from liberals who assailed these moves as falling short of full legal equality for lesbian, gay, and bisexual people--in essence creating a "separate but equal" regime for gays. In important respects, the civil union law is inconsistent with the premises of the liberal state as applied to same-sex couples: it treats them differently from different-sex couples, and for reasons that are hard to justify without resort to arguments grounded in status denigration or even prejudices. Justice Denise Johnson dissented from Baker's reluctance to require the state to issue marriage licenses to same-sex couples. The majority's concern with "disruptive and unforeseen consequences," she argued, was the same kind of concern raised by segregationist states opposing judicial remediation of apartheid in the 1950s and 1960s. "The Supreme Court's `compelling answer' to that contention was `that constitutional rights may not be denied simply because of hostility to their assertion or exercise.'"(4)

In the legislature, Representative Steve Hingtgen opposed any compromise on the ground that it "validates the bigotry" against lesbians, gay men, and bisexuals.(5) Representative Hingtgen expressed his opposition, saying "[i]t does more than validate it. It institutionalizes the bigotry and affirmatively creates an apartheid system of family recognition in Vermont."(6) Although I think the analogy of civil unions and Baker to racial apartheid and Plessy v. Ferguson is inapt, Justice Johnson and Representative Hingtgen raise pertinent issues. The legislation is a compromise of liberal principles--but a small and perhaps temporary one that both contributes to liberal projects and reveals some limitations in the liberal ideal for our polity.

1. CIVIL UNIONS AS A SACRIFICE OF LIBERAL PRINCIPLES

   Liberal theories maintain that the state exists to provide a context within which its members can flourish. The state properly creates public goods (like roads), prevents people from hurting one another or unnecessarily interfering in one another's affairs, and (by some accounts) inculcates civic virtues of toleration and cooperation in the citizenry.(7) On the whole, the state is supposed to be neutral as to its citizens' moral virtue.(8) Thus, the liberal state is not permitted to hurt people or treat them differently because they are unpopular or even objectionable, so long as they are not positively harming other people or depriving them of their recognized liberties.(9) The liberal state can arrest and otherwise penalize a person for coercing another person to have penile-vaginal sex with him, but not for engaging in oral intercourse with a consenting adult. The former harms another; the latter does not.

   Liberal premises do not require the state to recognize any two people's marriages, nor to attach legal obligations and benefits to such interpersonal commitments, but once the state has made a policy decision to recognize and even encourage marriages, the state may not arbitrarily deny that recognition and bundle of regulations. For example, the state presumptively cannot give marriage licenses to same-race couples but deny them to different-race couples. The United States Supreme Court elevated this liberal principle to a constitutional rule in Loving v. Virginia,(10) which held that the state could not bar different-race marriages. The primary ground for the Court's holding was that the law prohibiting different-race marriages was an invidious discrimination on the basis of race, which is a highly suspect classification. Under the Court's liberal reading of the equal protection clause, the state cannot deny marriage licenses to a black-white couple because of the race of one partner.

   Today, the Court's liberal jurisprudence considers sex a quasi-suspect classification, namely, one that is presumptively arbitrary and requires strong justification when deployed by state policy. To the irritation of many, but refutation by none, Andrew Koppelman has argued that, by analogy to miscegenation, state recognition of same-sex marriage is required by this liberal sex discrimination jurisprudence: just as it is race discrimination for the state to deny marriage licenses to black-white couples because of the race of one partner, so it is sex discrimination for the state to deny marriage licenses to female-female couples because of the sex of one partner.(11) Koppelman's argument takes the liberal case for same-sex marriage and shows how it is mandated by the Court's constitutional jurisprudence.(12)

   An alternative holding of Loving was even broader: the Court said that the state presumptively could not deny couples the "fundamental" right to marry without strong justification.(13) The Court has elaborated on this principle by holding, in a later case, that the state cannot presumptively deny convicted felons the ability to marry, even during their confinement in prison.(14) The Court reasoned that the extensive bundle of individual and partnership rights and benefits entailed in marriage were just as important for felons as for civilians.(15) This is a demanding liberalism and one wonders how far it reaches. The Court's answer is that state restriction on the "freedom of personal choice in matters of marriage and family life" can only be acceptable if it is "supported by sufficiently important state interests and is closely tailored to effectuate only those interests."(16) Some restrictions can pass this test. For example, the state can deny marriage licenses to minors, under the reasonable supposition that a minor does not have the maturity of judgment to consent to the life-changing commitment of marriage. Although not so easy a case, the state can plausibly maintain that marriage licenses should not be given to closely related persons, such as siblings or uncles and nieces, because the possibility of marriage between close relatives risks undermining the family as a safe haven where children can receive emotional support without sexual attachment.(17) In both of these cases, there is an important state interest that motivates the restriction on civil marriage. (In both cases, by the way, churches could recognize such marriages even if the state did not.)

   Can the liberal state deny marriage licenses to polygamous partners, typically one man and two women? This was once the main argument against same-sex marriage recognition--it would require the state to recognize polygamous ones as well. That is hardly clear. John Stuart Mill believed liberalism to be hostile to laws making polygamy a crime, but disapproved of state recognition of polygamy, on the ground that it has third-party effects harmful to women.(18) In our society, polygamy would make it easier for many women to find husbands, but a modern Millian would doubt that women who share their husbands with other women would find happiness, because the bargaining position of the man within marriage would be so much greater. In fact, this liberal argument against polygamy is one of the best arguments for same-sex marriage. If women had other options, other than marrying men, their bargaining power within male-female marriage would be greater, and wives might actually start getting the equal treatment our society has long claimed that they have.

   The state that cannot legitimately deny different-race couples, or even convicted felons, marriage licenses ought not to deny two adult women the same basic right, and the associated state rights and benefits.(19) Liberal philosophy would reject outright the notion that the state can deny two women the right to marry simply because third parties consider lesbian relationships morally objectionable or desire to disrespect such relationships. These are not good liberal reasons for denying some people state benefits and obligations owed to other people. For this and other reasons, opponents of same-sex marriage in Vermont and elsewhere have de-emphasized these kinds of arguments and instead have maintained that state recognition of same-sex marriages would have harmful third-party effects.

   The main third-party effect invoked by states defending their marriage bars in Vermont and Hawaii was the claim that children would suffer. The argument usually goes something like this: same-sex marriage would create more households where lesbian and gay parents are raising children; children are much better off being raised in households where the parents are heterosexual; therefore, same-sex marriage would be bad for a number of children.(20) The Vermont and Hawaii courts rejected this argument as factually...