Why Not Civil Unions?

by John Tyler Connoley

August 3, 2004

In response to my essay on civil marriage last week, one of my readers asked the question, "Why not civil unions?" This reader wanted to know why gay people are so hell-bent on marriage, when we could get the same benefits with civil unions -- and without all the bombs bursting in air. There's a large segment of the population that wouldn't deny hospital visitation and Social Security benefits to same-sex couples, but who also want to keep the word marriage for heterosexuals. So, why alienate all these allies by demanding marriage? It's a good question.

When talking about civil unions in the United States, it's important to begin with the history of the term. Vermont legislators devised civil unions after the Vermont Supreme Court ruled that same-sex couples could not be denied equal protection under state law. The Vermont legislature was afraid that granting same-sex couples civil marriage would be too politically risky. The Supreme Court's ruling related only to state responsibility to same-sex couples (not federal), and was based entirely on Vermont’s state constitution. So, in compliance, the legislature passed a law granting civil unions to same-sex couples, but only within the state of Vermont, thereby hoping to leave aside the politically volatile issue of legal marriage.

Unlike civil marriages, Vermont civil unions provide only state-level rights equivalent to what the Vermont government would give to married couples. They don't affect Social Security benefits, federal death taxes, or any of the hundreds of federal-level rights and responsibilities granted to heterosexual couples who obtain civil marriage licenses. Civil unions are not marriages by another name, and they’re hardly marriage lite. They also didn’t protect the legislature from political fallout.

Immediately after the civil union bill was signed into law, the political Religious Right organized a campaign called Take Back Vermont. They were outraged that same-sex couples would be given any government recognition. Barely a year later, thanks to the success of Take Back Vermont, the state House of Representatives fell into Republican hands for the first time in 14 years. Five Republican representatives who had voted for the civil union bill also lost their seats during the primaries. Politicians everywhere took notice, and no other state has dared to enact civil unions since.

The lesson of Vermont is that civil unions are not a safe political fallback position. The power players on the Religious Right don't want same-sex couples to have any recognition from the government. That's why the proposed Federal Marriage Amendment includes the sentence, "Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." The language was carefully crafted to ban civil unions, domestic partnerships, and any other pseudonyms for legal same-sex civil marriage.

But, even if civil unions were a happy compromise that could be achieved without bombs bursting in air, there are other problems with them. The Vermont law creating civil unions required over 9,000 words. In order to give same-sex couples equal rights under a different name, the legislature had to enumerate each of the rights and responsibilities that came with civil marriage and give them to same-sex couples under civil unions. A computer programmer friend describes this as redundant code -- a section of code that does essentially the same thing as another section. Redundancy is a big no-no in computer programming, because every time you change one section of redundant code you have to make sure you also change the other. If you're not extremely careful, you end up with conflicts and gaps.

In a January 2004 audit, the United States General Accounting Office listed 1,138 federal rights and responsibilities that come with a civil marriage license. An earlier audit, in 1997, listed 1,049. The laws affected by marital status range from obscure tax provisions to immigration and naturalization law. Of course, a civil union act would have to enumerate all these statutes. Then, each time the legislature passed a law affecting civil marriages in any way, they would have to add a rider giving the same rights and responsibilities to those in civil unions. Between 1997 and 2004, they would have had to do this 89 times. Is this the way we want our legislatures spending their time, checking and cross-checking laws to make sure redundant legal codes remain equal in their redundancy?

But a more fundamental question is why do we need all the redundancy to begin with? There's only one reason to give same-sex couples all the rights and responsibilities of civil marriage while keeping the word marriage for opposite-sex couples. This semantic game is played to ensure that the government classifies gay relationships as inherently different from straight relationships. The truth, however nicely couched, is that those who advocate civil unions are advocating a legal secondary status for homosexuals. Of course, there are many people who will always believe same-sex relationships are not equivalent to straight relationships, but codifying civil unions would mean writing that opinion into law.

Let's give up this notion that civil unions would be a comfortable compromise that would give same-sex couples legal recognition without ruffling feathers. Civil unions would not satisfy the political Religious Right, they would bloat and complicate our civil code, and they would demean gay people in the name of giving them equal rights.

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Copyright © 2004 by John Tyler Connoley