In Praise of Civil Unions

AuthorGreg Johnson
PositionAssistant Professor of Legal Writing and Assistant Director of the Legal Writing Program, Vermont Law School
Pages315-342

    Assistant Professor of Legal Writing and Assistant Director of the Legal Writing Program, Vermont Law School; J.D. 1985, Notre Dame Law School; B.A. 1982, Cornell University. This essay grew out of the presentation I gave at Capital University Law School for its Symposium, "Same-Sex Marriage, Civil Unions, and Domestic Partnerships" in March 2001. I have included some events occurring after the Symposium to keep the reader as up to date as possible. My thanks to Capital University Law School for an excellent Symposium. I would also like to thank Mike Duffy, David Chambers, and my research assistant Jason Perkey.

Page 315

[Our civil union] was very spiritual and meaningful. The thing that I had not expected, that was just powerful, was just how much our families understood the legal connection. They got it right away . . . . The best way I can describe how we felt is ecstatic.

Stan Baker 1

Let us celebrate Vermont! Let us praise civil unions! At a time when setbacks seemed to outweigh positive developments in the struggle for same-sex marriage, Vermont managed to buck the trend and in a big way. In the late 1990s, many states passed so-called "Defense of Marriage" laws and in 1998 voters in Hawaii and Alaska resoundingly overturned pro-marriage judicial decisions.2 But at the dawn of the new millennium, the Vermont legislature passed a law that is truly unprecedented, at least in this country: the civil unions law that grants same-sex couples "all the same benefits, protections and responsibilities under law . . . as are granted to spouses in a marriage."3 The civil unions law goes far beyond even the most promising developments in other states such as the domestic partnership registry in California. Professor Barbara J. Cox put this exceptional achievement in perspective:

What happened in Vermont is something unexpected at this point in the movement toward civil rights for sexual minorities: an elected body withstood the threats and fears that come from supporting civil rights for same-sex couples.

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For countless sexual minorities in America, that vote by the Vermont Legislature and its Governor signing the bill into law changed the political landscape surrounding us. While some legislative victories have occurred in those states where discrimination against individuals on the basis of sexual orientation or HIV/AIDS status has been outlawed, state-wide legislative victories have been rare when seeking rights for same-sex couples

. . . .

. . . Here is a state-wide legislative victory that deserves applause. This law includes same-sex couples in civic society to an extent not seen before in this country.4

So let's hear it for Vermont! And let us praise civil unions! "Not so fast," you might say to this second cheer. After all, for as far as the law might go, and for as commendable as the actions of the legislature might be, civil unions are not marriage. Many advocates of same-sex marriage reject civil unions as an unequal and unacceptable substitute.5 Evan Wolfson, the former head of the Marriage Project at Lambda Legal Defense, said in reference to civil unions, "[w]e've gone down the path of two lines at the clerk's office, or two drinking fountains, before. We've done separate and unequal; it was a mistake and should not be repeated."6 Although Wolfson considers civil unions "a terrific thing and something upon which we can build," he says it is "no substitute for full equality."7 Why?

[I]t does not assure people the full respect and legal protections that marriage has traditionally received in this country, and it does not assure people who enter civil union that their legal relationship will be respected as they travel or move to other states. And it is inherently separate and therefore unequal.8

Others have echoed Wolfson's concern. Professor Barbara J. Cox, who, as I noted, applauds what Vermont did, nevertheless worries that the "politically-expedient compromise" of civil unions "may cost too much."9 Cox argues, like Wolfson, that in addition to the "inherent inequality" of aPage 317 separate marital institution, civil unions are also unequal to marriage because they may not prove as portable as same-sex marriages.10 Cox points out that earlier attempts at "separate but equal" in the race and sex context "established beyond a doubt that segregation can never lead to equality. Similarly, this segregation of same-sex couples outside the bounds of marriage will not give us the freedom we so strongly seek."11

Pro-marriage scholars have been quick to call civil unions unconstitutional. Professor Michael Mello said,

Vermont's separate but equal system of marriage ought to be held unconstitutional for precisely the same reasons that Brown v. Board of Education held separate but equal public schools unconstitutional and for the same reason the post-Brown cases held separate but equal busses, swimming pools, golf courses and libraries unconstitutional. Such legally-mandated segregation marks the segregated with an unmistakable badge of inferiority.12

Professor Mark Strasser acknowledges that the civil union law is "better than what any other state has offered thus far," but he also concludes that it is unconstitutional because "civil unions are less likely than marriages to be recognized in other jurisdictions."13 Strasser thinks that Vermont's attempt at marital equality falls short without even considering the portability issue:

Even if one sets aside the fact that same-sex civil union partners will not receive the benefits that they might have received had they been married, the stigmatization that occurs by setting up a separate civil union system for same-sex couples alone suffices to establish that the separate system does not pass constitutional muster.14

Finally, Professor David B. Cruz challenges the constitutionality of the civil union law in his intriguing piece, "Just Don't Call It Marriage: The First Amendment and Marriage as an Expressive Resource."15 Professor Cruz notes that most constitutional arguments in favor of same-sex marriage "relyPage 318 on fundamental-rights doctrine and the guarantee of equal protection."16 He suggests another argument: the First Amendment.17 Cruz persuasively argues that "[c]ivil marriage is a unique expressive resource used by people to express themselves and to constitute their identities."18 Restricting this form of expression to mixed-sex couples might violate the First Amendment.19 According to Cruz, creating a separate marital system such as civil unions does not cure the problem.20

The most plausible defense of such "separate but equal" regimes . . . would seem to be one relying on the importance of naming, of keeping the meaning or symbolism of "marriage" as it is and distinct from institutions embracing same-sex couples, and of the connection between the symbolic meaning of "marriage" and personal identity, rather than any public welfare function.21

Professor Cruz rejects these arguments and concludes, "Vermont's civil unions violate the First Amendment of the U.S. Constitution by restricting the unique expressive resource of civil marriage to mixed-sex couples with inadequate justification."22

Taken together these are some weighty charges. In this article I will defend civil unions against them. I believe that civil unions are equal to marriage in status and in law. I will first argue that civil unions should be recognized in other states for marital benefits and responsibilities in the same way that Vermont marriages are recognized. If Vermont had permitted same-sex couples to marry, other states would have to decide whether they are constitutionally compelled to recognize Vermont's same-sex marriages or whether, even if not compelled, they should recognize them as a matter of comity. The "strong public policy" exception to the general rule that marriages recognized in one state will be recognized everywhere23 may prove to be a barrier for interstate recognition of same-sex marriages or VermontPage 319 civil unions. My position is that if a state would recognize a Vermont same-sex marriage, it should similarly recognize a civil union.

Next, I will challenge the assumption that civil unions are "stigmatizing" because the institution is separate from marriage. The civil union law is not stigmatizing in the way that segregation laws establishing separate schools and drinking fountains in the South were. Although the analogy is tempting, it does not necessarily follow that because the Jim Crow laws were struck down, the civil union law is also unconstitutional. The stigma of the racist Jim Crow laws came in part from the motivation of the legislatures passing them. The Vermont legislature was not motivated by animus as were the legislatures that passed Jim Crow laws.24 In fact, it was far from it. The Vermont legislature seemed keen on recognizing not just the legal rights, but also the worth and dignity of same-sex families, even at the risk of political livelihood.25

I will conclude this article with a reflection on the "queer quality" of civil unions. Civil unions are just for same-sex couples.26 This gives lesbian and gay couples a chance to turn civil unions into another symbol of community pride and power like the pink triangle and the rainbow flag. Given this tremendous potential and the apparent popularity of civil unions, we need to come up with reasons why civil unions should be recognized for marital benefits in other states. Lawyers in Georgia are already making this argument, as I will explain below, and other suits are sure to follow. Now is the time for scholars to supply some theory.

I Civil Unions Should Be Recognized for Marital Benefits in Other States

The civil union law was passed in response to the Vermont Supreme Court's mandate in...

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