The New Marital Property: Civil Marriage and the Right to Exclude?

• Author: David B. Cruz
• Position: Associate Professor, University of Southern California Law School
• Pages: 279-314

Associate Professor, University of Southern California Law School. B.S., B.A., University of California, Irvine; M.S., Stanford University; J.D., New York University School of Law. Copyright © 2001, David B. Cruz, all rights reserved. This essay is based on my presentation at the Capital University Law School Symposium on Marriage, Civil Union, and Domestic Partnership on March 3, 2001. I have tried to maintain the informal style of that presentation through the editorial process. I thank my spouse, Steve Greene; Larry Helfer, Dan Klerman, and Madhavi Sunder for helpful comments as I developed this essay; and Michael Bermudez for excellent research assistance.

Page 279

Good afternoon. I, too, would like to join everyone else in extending my gratitude to the Capital University Law School, Dean Bahls, BIGLaw, especially LeeAnn Massucci and Shawn Beem, and everyone else involved in this symposium for creating this forum and inviting me to participate. I am going to use my time today to make a few remarks about marriage as metaphorical property.

To start, I think it important to examine the remarkable fin de siÎcle development of civil unions in Vermont. Many people have, quite rightly in my view, lauded the courageousness of the Vermont legislature and Governor Howard Dean in adopting this legislation in the wake of the Vermont Supreme Court's December 1999 decision in Baker v. State¹ which held that the State's exclusion of same-sex couples from the benefits and protections incident to marriage violated the Common Benefits Clause of the Vermont constitution.² Many Vermont citizens-although, it is also important to note, far from all-opposed even this move.³ But many people have alsoPage 280 questioned whether the creation of a regime of parallel marriage and civil unions, or the creation of domestic partnership legislation elsewhere, is an improper variation of "separate but equal,"⁴ only now in the symbolic service of heterosexuality supremacy, not white supremacy.

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This common charge⁵ would certainly not be plausible in jurisdictions that do not even have domestic partnership laws, for they offer same-sex couples no legal institution or status to be "equal" to civil marriage from which same-sex couples are presently excluded throughout the country. There, the discriminatory character of the mixed-sex requirement for civil marriage would have to be defended as justified discrimination without any potentially mitigating claim that the government afforded same-sex couples an equal (if separate) status.

Similarly, the "separate but equal" charge is only slightly more plausible with respect to domestic partnership or reciprocal beneficiaries legislation, but only because those laws are so weak, afford so few of the benefits and protections incident to marriage, that it is clear that such "separate" institutions do not have even a colorable claim of being "equal." Consider, for example, Hawaii's reciprocal beneficiaries law.⁶ Hawaii law restrictsPage 282 reciprocal beneficiaries to people prohibited from marrying, confers only a small set of primarily financial rights, and may be terminated by paying an eight dollar fee and filing a signed notarized declaration of termination.⁷ Hawaii marriage, in contrast, confers a huge set of rights and obligations (including mutual support)⁸ and may only be terminated by annulment or divorce proceedings which require the involvement of courts.⁹ Or consider California's domestic partnership legislation: the California law limits eligibility to couples sharing the same residence¹⁰ which married couples need not do;¹¹ is open to mixed-sex couples over age sixty-two both of whose partners are eligible for Social Security,¹² whereas marriage in California is not open to similar same-sex couples;¹³ is terminable by the mere expedient of sending written notice of termination to the other partner¹⁴ as opposed to requiring judicial involvement in divorce proceedings as does marriage;¹⁵ and basically provides only for the benefits of automatic proportional joint ownership of property acquired during the partnership and hospital visitation rights,¹⁶ whereas marriage entitles spouses to a panoply of rights and benefits, including mutual obligations of support,¹⁷ tenancy by the entirety,¹⁸ testimonial privileges,¹⁹ and so on.²⁰ Under these circumstances, defenders of the mixed-sex requirement should be pressed first to justify the dramatically unequal nature of the benefits provided via marriage or via these new relationship statuses before one needs worry as much about the fact that the government is providing separate statuses for mixed-sex couples and same-sex couples.

In Vermont, however, the charge that civil unions and civil marriage are "separate but equal"-and thus supposedly constitutionally objectionable like de jure race segregation in the historical United States²¹-enjoys the mostPage 283 plausibility. In Vermont, the state-controlled obligations and benefits of these two relationship statuses are virtually identical.²² Now, one could respectably argue, as some such as Professor Barb Cox have, that they should not be regarded as constitutionally "equal" because, inter alia, civil unions are less "portable," that is, less likely to be recognized by other jurisdictions, than are civil marriages.²³ But suppose I bracket that point. If one otherwise thought that Vermont's civil unions and civil marriage were equal in their legal consequences, would the enforced segregation of mixed-sex couples into civil marriage and same-sex couples into civil unions still appear an impermissible form of "separate but equal" requiring Vermont to abolish the distinction and treat same-sex couples and mixed-sex couples the same, or might the "separateness" be justified in light of the (hypothetical) "equality"?

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Vermont-style domestic partnerships may indeed bear an unpleasant resemblance to the "separate but equal" regime of racial apartheid in much of the pre-civil rights United States.²⁴ Although I am aware that it is controversial, I believe the analogy to U.S. segregation practices highly relevant here. Given social relations in millennial America, the inference that such a status-differentiating scheme would constitute governmental expression of heterosexual superiority and homosexual inferiority seems difficult to avoid.²⁵ As far as status relations are concerned, separate-but-equal civil marriage/civil union present a situation significantly (although not entirely) akin to what the Supreme Court faced in Brown v. Board of Education,²⁶ where the Court unanimously concluded that "separate but equal" black and white schools were inherently unequal.²⁷ Although radical in its implications for the segregationist South, this view was entirely warranted: as Charles Black persuasively argued, anyone familiar with mid-twentieth century America and its racial history would be entitled to laugh at the denial of the conclusion.²⁸ White-only schools clearly and intentionally expressed white superiority and black (and other minority) inferiority.²⁹ Similarly, mixed-sex only civil marriage would seem purposefully to express heterosexual superiority and homosexual and bisexual inferiority.

Some might think, however, that racial segregation is not the most apt analogy for a legal regime of same-sex-only civil union and mixed-sex-only civil marriage.³⁰ It was widely known, for example, that the ostensiblyPage 285 "equal" black schools were perhaps nowhere in the country actually equal to their counterpart white schools.³¹ Thus, "separate but equal" might be condemned as a mere subterfuge for an unconstitutional allocation of concrete educational opportunities on the basis of race.³² In contrast, a domestic partnership given all the rights and privileges of mixed-sex civil marriage³³ would not be inferior in its legal operation to civil marriage.³⁴

But Brown was decided on the assumption that the specific challenged black schools were tangibly equal to their white counterparts.³⁵ The Court nonetheless held that separate was inherently "unequal" and hence unconstitutional in that context.³⁶ The constitutional infirmity of public racial segregation in schools accordingly rested not merely on the school's tangible deficiencies, but on the schools' intangible differences or what they represented.³⁷ Equal protection was offended by the underlying purpose of the segregation and/or by its social meaning: reflection and/or reinforcement of white supremacy, the ideology underwriting a dividing practice inimical to the Constitution.³⁸

So, the purpose or the social meaning of separate institutions for committed same-sex couples and mixed-sex couples may be key to the question of their constitutionality. Defenders of civil unions might be tempted to rely upon Vermont's "generosity," the range of rights and obligations civil unions extend for the first time to same-sex couplesPage 286 (essentially all the legal rights and obligations of civil marriage within Vermont's power to confer), in concluding that a regime of parallel civil marriage for same-sex couples and civil union for mixed-sex couples does not have a constitutionally objectionable purpose or meaning despite denying same-sex couple relationships the designation of "marriage."³⁹ Civil unions then would dramatically contrast with the situation in a state that provides nothing like civil marriage to same-sex couples as is the case virtually everywhere in the United States.⁴⁰ The latter situation is certainly operationally worse for lesbigay people (and might be thought generally to require greater justification than the former for that reason). But the lack of benefits in many other states does not necessarily entail that both the purpose and the social meaning of Vermont's separate statuses are constitutionally innocuous.

Both Vermont and a state with no formal relationship status for same-sex couples, by reserving civil...