AFTER GOODRIDGE: WILL CIVIL UNIONS DO?
Professor Katharine B. Silbaugh
Boston University School of Law
JURIST Guest Columnist
In Goodridge v. Dept. of Public Health, the Massachusetts Supreme Judicial Court found that the exclusion of same-sex couples from civil marriages violates the Massachusetts constitution. The most pressing question at this moment, as was the case when the Vermont Supreme Court made a similar decision in Baker v. State, is whether the availability of a Civil Union status for same-sex couples would satisfy Constitutional requirements, if the State continued their exclusion from marriage. The Massachusetts Senate recently asked the Supreme Judicial Court for an advisory opinion on that question.
There are good reasons to think nothing short of marriage will do once a court has decided that same-sex couples are entitled to the legal benefits of marriage, independent of the Goodridge opinion. If Civil Unions truly deliver all of the legal rights, obligations, and benefits of marriage statewide, then we are left wondering what purpose the distinction between civil unions and marriage is serving. It’s one thing to argue that substantive differences between the groups necessitate different legal rules, but it seems to me another to say that differences necessitate only a different label. Advocates of civil union put themselves in the very awkward position of discriminating without legal substance; we can treat these couples the same as long as we label them as “other”. It lays bare the discriminatory motive; discriminatory in the sense of desire to make a statement of ‘lesser-ness’. The separate-but-equal analogy isn’t perfect, because in the educational context the separate schools were in no way similar. But the real salience of the analogy is in the stigma communicated by separation. This aspect of the debate over Civil Unions versus Marriage is well-rehearsed in the literature, and in any case not difficult to grasp.
But there is more that can be said than that the bare inequality of the labeling is awkward. What the Goodridge litigation and opinion illuminate particularly well is the peculiar integration of the legal with the social and cultural meaning that is marriage. Many politicians, unburdened by the need to clarify this relationship between the cultural and the legal, have taken the position that Civil Unions are fine, but that marriage is a unique religious institution, and thus the label should not be conferred on same-sex couples. Legally we’re usually embarrassed if religious rules are the only authority we can cite to explain a law of general application. Moreover, it has always been the case that religious organizations choose not to recognize marriages that are recognized by the civil government. The Catholic Church does not recognize remarriages following divorce, and many religious institutions do not recognize marriages between people of different faiths, though the State licenses them freely. Surely Democratic politicians, in Massachusetts, would not defer to religion when it comes to deciding whether remarriage should be allowed following divorce, or whether a marriage between an evangelical Christian and a Jew should be permitted. The civil law defines legal marriage, and religious institutions define religious marriage. Legal marriage, then, is about state recognition and benefits, not about a sacrament.
But of course, this argument can be turned around. If civil marriage is nothing more than the legal benefits it confers, than Civil Union should be enough civil protection for same-sex couples. Just as lawmakers are awkwardly reifying the marriage label, we could say that same-sex couples are as well. same-sex couples have been holding marriage ceremonies in religious and secular settings, and declaring themselves married, for years. States don’t ordinarily presume to interfere with that process, although there are occasional cases such as Shahar v. Bowers where a job offer to a new assistant Attorney General in Georgia was withdrawn in light of the individual’s culturally solemnized marriage to a same-sex spouse, or In the matter of an Application for a Change of Name by Jill Iris Bacharach, where a lower court denied a couple the right to change to the same last name for fear it would appear the state was condoning a same-sex marriage (overturned on appeal). But by and large, a same sex couple holding themselves out as married despite being unlicensed does not face the wrath of the law that a polygamous marriage does for doing the same. same-sex couples have the right to compete in the social world for the use of the social term marriage, and it can be argued that it is the social and cultural reaction to this use of the term marriage that measures the social and cultural validity and equality of the union. You might conclude from this, once again, that Civil Union is enough: same-sex couples receive legal benefits from the civil union, and cultural benefits by holding themselves out socially as married.
But this isn’t really a satisfactory explanation of the battle at hand. To understand what the conflict is between advocates of same-sex marriage and advocates of civil union, we have to concede that marriage is a strange animal. It is a cultural and social institution that receives cultural credit for being legally licensed. As a social institution, we can’t legislate its meaning very well or very predictably. But everyone seems to have a sense that the law plays an important role in regulating the symbolic and cultural institution—perhaps even licensing it. So while anyone can use the label marriage to refer to the social institution, certainly heterosexual couples get a “plus” to that argument when they also have a license. The overlap isn’t perfect: some people will not view a licensed couple as married, such as Catholics viewing a remarriage after divorce. Some will view an unlicensed marriage as real, as is the response to many same-sex couples today. But the license is a powerful tool in the road to legitimate social recognition. It is in that light that we ask how the state is permitted to use that power to socially and culturally legitimate a marriage.
Mary Bonauto, who represented the plaintiffs in Goodridge, also represented the plaintiffs in Baker v. Vermont. She had several years to contemplate how to convey the complexity of the relationship between civil marriage, cultural marriage, social marriage, religious marriage, and the legal rights, benefits, and obligations conferred by marriage. The arguments made in the Goodridge case, the stories of the relationships of the seven plaintiff couples, and finally, the opinion of Justice Marshall itself, all reflected quite clearly the symbolic importance of marriage. The couples had very long-term relationships and openly stated a longing for recognition and validation. They made that plea with perhaps more vigor than the plea for legal benefits, although those claims were made as well.
The Court appears to have understood the idea. The opinion of Chief Justice Marshall reflects this aspect of marriage very clearly. The opinion contains language like the following throughout: “[A] person who enters into an intimate, exclusive union with another of the same-sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions.” In cataloging the benefits of marriage, she begins with the intangible benefits, before moving to the tangible legal ones: “Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. ‘It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.’ Griswold v. Connecticut (1965). Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition.  Tangible as well as intangible benefits flow from marriage.” It’s as if Marshall’s opinion were written directly to what she terms the “unique institution of civil marriage;” that is, the social power that combines with the license to make marriage more than the legal benefits and obligations that go with it. As a culture, we have conceded some of our cultural power to define the social institution of marriage to the State, and in the Goodridge opinion, that Court recognizes that the reach of that uncommon power extends somewhat beyond the distribution of legal goodies.
It must be acknowledged that marriage is also different from Civil Union from a benefits perspective, in that it lays the groundwork for the fight that is to come over the validity of DOMA and the so-called mini-DOMAs in the states, which purport to deny legal recognition of same-sex marriages across state lines or at the federal level. But the case for marriage over Civil Unions made in the Goodridge opinion rests more squarely on the Court’s recognition of its own power to confer social meaning through the issuance of its license.
Katherine B. Silbaugh is a Professor of Law at Boston University School of Law.
February 11, 2004