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Why Civil Unions Aren't Enough

This three-part article appears in Out in the Mountains, beginning with the March 2004 issue.

Click here to jump to Part Two or Part Three

- Part One -
by Sherry Corbin, VFMTF Chair

It's time to look forward, not backward. It's time to stop celebrating the civil union law.

A lot has happened in the last 4 years since the Baker Decision. Vermont's civil union law was groundbreaking. At the time it passed, in April 2000, it shot Vermont to the head of the American pack with regard to protections for gay families, and close to the international lead. For that, we had reason to be proud and to celebrate.

Many in our community will never forget the year 2000, nor should we, with its turmoil, struggles and celebrations as the legislature answered the Baker Decision. But the civil union law resulted from a painful and difficult compromise between genuine equality and no rights at all. As we celebrated civil unions in our community we embraced what we had, instead of what was missing. The civil union law embodies "partial equality"-- a concept as bizarre as "partial pregnancy." Freedom to marry advocates grudgingly supported the law only as a first step, but by no means as the end. The law represented a step forward from where we were, but relative to where we should be, the law still falls woefully short.

Much has changed since 2000. The entire nation of Canada will soon join Ontario and British Columbia in including same sex couples in marriage-- not some separate legal category created specifically for the purpose of keeping us separate, but marriage. Canada joins the Netherlands and Belgium in this regard. As a result of the recent Massachusetts high court decision, beginning in May of this year, same-sex couples will begin legally marrying in Massachusetts.

Another example of how far we have come can be seen in Massachusetts. Massachusetts Governor Mitt Romney is taking a position very similar to that taken by Governor Howard Dean in Vermont. He advocated for a proposed "civil union" alternative, while working hard to exclude same-sex couples from marriage. Governor Dean was revered by many in the gay community for his stance in Vermont, while Governor Romney is rightly being acknowledged as a foe of our civil rights. How much the ground has shifted. Now, just four years later, civil unions no longer represent a step forward. They are the fallback offering of anti-gay, or just politically cowardly politicians who can't bear the thought of a true breakthrough for gay equality on their watch.

We in Vermont carried the torch for several years, especially in 2000. Now the national debate around gay marriage has passed us by. As gay rights opponents in other states point to Vermont, seeking to adopt the civil union law as a ceiling, rather than a floor, they must know that we here in Vermont aren't finished. The conversation won't be over until the choices available to us are genuinely equal. Whether you believe in the institution of marriage or not, we have the right to the choice!

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Why Civil Unions Aren't Enough
- Part Two -
by Laura Davidson, VFMTF Board Member

We all went through a lot in 2000. Many of us don't want to go back. We came out of 2000 with a new law that represented an unprecedented breakthrough for gay rights in this country. But the law also falls short of genuine equality in significant ways. Our desire not to go back to 2000, and the turmoil we experienced that year, should not stop us from looking forward to the future, and educating ourselves and others on the ways in which the civil union law falls short of the full equality it was supposed to be:

1 The Legal Status of Being "Married," Is A Benefit Of Marriage

Like it or not, the term "marriage" is widely understood, not just in Vermont and Massachusetts, but around the world. By plugging into that universally understood language, it gives us all a frame of reference. We all have an understanding of what a married couple is. The word alone also establishes a set of expectations between the committed partners themselves. That simply isn't true for "civil union," or any other new legal status created to avoid the use of the word "marriage". You can't assume that someone in Arizona, Japan, or New Zealand has ever heard the term "civil union," or has any idea what it means. The social significance of the term "married" is one of the significant benefits of marriage.

There are members of our community who wouldn't ever choose to adopt the social content that comes with the term "marriage." Given the choice, they'd rather not plug into the centuries of history and international recognition that comes with the term. But the fact is, right now, they don't have the choice. Those in our community who value the concept of marriage, and who seek the intangible but very real social recognition that accompanies that legal status, have no way of attaining it. The state guards the gate to the legal status of "married," and so far, we're barred from entering.

2 "Separate-But-Equal" Cannot Be Equal

Whether we would choose the label "married" or not, many of us recoil at the message inherent in a set of laws that sets us apart as unworthy of full inclusion. Although there are many differences between anti-gay discrimination and the racism of the mid-20th century South, the analogies are undeniable. It wasn't until the groundbreaking 1954 United States Supreme Court decision in the case of Brown v. Board of Education that the law finally recognized that "separate but equal" is, by definition, unequal. The mere fact of separation stigmatized the African Americans who supposedly were included even though separated. Even if the seats in the back of the bus were functionally the same as the seats in the "white-only" front of the bus, we intuitively understand that isolating a group of citizens to separate seats in order to avoid commingling is stigmatizing, immoral, and unconstitutional.

These principles apply as well to the marriage apartheid we're now living in Vermont. As the Massachusetts Supreme Court recently acknowledged, ruling that a civil union law like ours would be unconstitutional, "The history of our nation has demonstrated that separate is seldom, if ever, equal." We're not allowed to marry because some want to protect "traditional marriage," meaning "heterosexuals-only" marriage. The civil union law was an attempt to split the difference between those seeking full equality, and those who reject our claim to recognition and inclusion altogether. The homophobia underlying the law isn't limited to those who openly admit to an anti-gay agenda. Many of our traditional allies in the political sphere pursued civil unions with zeal while also insisting upon our exclusion from marriage. This suggests that even many of our straight "friends" believe we're entitled to rights, but in the end, our love and families aren't really entitled to quite the same recognition and respect as theirs.

The civil union law is cheered by some of our community precisely because it creates a separate status, untarnished by whatever baggage they associate with marriage. But for others, our willingness to settle for a law that repeats in several places the mantra of our exclusion (the law reiterates that we cannot marry) reflects our own internalized homophobia. It suggests that we're grateful for some truly tasty scraps rather than insisting on our seat at the table. That's a message we cannot send.

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Why Civil Unions Aren't Enough
- Part Three -
by Nora Skolnick, VFMTF Board Member

Vermont's civil union law provides raft of important benefits to same-sex couples while segregating us to a separate legal status from marriage. It denies same-sex couples the profound but intangible benefits of marriage. Likewise, it sends a dangerous message of exclusion, stigmatizing the very class of people - us - the law was designed to embrace. Apart from the weighty "symbolic" issues discussed previously, civil unions are disadvantageous in a variety of practical ways.

1. Civil Unions Face Greater Obstacles To Portability

The willingness of courts and other entities outside of Vermont, to recognize civil unions has, to date, been mixed. In terms of dissolution of civil unions, courts in two states have been unwilling to dissolve them while courts in two other states have done so. The differences between civil unions and marriage have been pointed out and used by courts ruling out child visitation with the non-custodial parent while that parent's civil union spouse is living with him or her in yet another two states. On the upside, a New York court allowed a surviving civil union spouse to bring a wrongful death claim when his partner died at the hands of the negligence of others. As you can see, the fact that we have civil unions, and not marriage, increases the problems couples face when they travel outside of Vermont, or return to their home state after joining in civil union.

It's true, even if we had marriage, same-sex couples who married in Vermont would face some obstacles to recognition of their relationships outside of Vermont's borders. It's quite clear that the obstacles are much, much higher when the legal status we carry is a completely new creature. It's more difficult to plug into the reams of court cases requiring respect for marriages that were valid in the state where celebrated, even if not ordinarily allowed in another state. If a state is inclined to recognize a civil union, it's far from clear how they will since there are no legal standards dictating what it means to recognize a civil union.

These problems aren't simply academic. Numerous and profound real-life impacts on couples joined in civil union exist. Who will inherit if a civil union spouse dies? Who makes medical decisions if a civil union spouse is incapacitated while traveling? Can a surviving civil union spouse bring a wrongful death claim in another state for the death of a partner? Is a civil union spouse in another state entitled to state law family-leave to care for a sick partner? Or will a civil union couple outside of Vermont have access to the courts to end their legal connection in the event that they part ways? Any suggestion that the civil union law creates a "separate" but "equal" status (or, as Governor Dean liked to say, in an effort to distance his pro-civil union, anti-marriage position from the shameful philosophy of Jim Crow, "different but equal") is simply untrue. One of the benefits of marriage is the mobility of that legal status, and the civil union law falls far short on that measure.

2. Civil Unions Skirt Federal Benefits

Sandy Reeks and Pam Kinninburgh had to uproot, leave children, a home, family, and friends behind, and move to Canada because Reeks, a British citizen, could not get further visa extensions. Although the pair had joined in civil union in 2000, that legal status meant nothing to the federal government, and the couple could not take advantage of the immigration-laws available to married transnational couples.

Holly and Lois, of Baker v. State fame, joined that lawsuit in part because, as they began planning for their retirement years, they realized that Lois wouldn't be protected by social security survivor's benefits if Holly predeceased her- benefits that would be automatic if they were a heterosexual married couple.

Additionally, Vermont couples joined in civil union have to complete at least three federal income tax returns - one hypothetical return assuming a "married" status for federal purposes in order to calculate the state tax, and two separate, real federal returns, filed as "single" people. Couples that try to plan for the future, including tax planning, quickly discover that federal laws are designed to help married couples plan, and they recognize the intermingling of married couples' finances, but offer no protection for civil union couples.

The General Accounting Office of the federal government has identified over 1000 federal benefits linked to marriage. These vital benefits are currently out of reach to couples joined in civil union. No doubt, given the federal "Defense of Marriage Act ("DOMA")," if same-sex couples could marry in Vermont tomorrow, they would have obstacles to overcome before attaining these federal benefits. Those obstacles are surmountable. DOMA is unconstitutional for a slew of reasons, but until a same-sex couple in some state is allowed to marry, we won't be in a position to take on the constitutionality of DOMA. Federal law doesn't provide benefits to civil union spouses, but does provide benefits to married couples as defined by state law. The legal status of "marriage" would move us much further down the road to federal benefits than the newly invented status of "civil union."

The civil union law represented a great step forward, but it was only a step. We cannot let the homophobia of those who oppose our claim to a seat at the table, the fears of politicians who feel they've done enough by conferring "partial" equality, or even our own internalized homophobia stop the movement forward. We're not advocating filing a lawsuit or pushing a marriage bill in the legislature tomorrow; the time for such measures will come. Until then, though, we must move beyond celebrating the civil union law and congratulating ourselves and our political allies who made it possible. Now is the time to recommit to the project of educating ourselves and our fellow Vermonters about the injustices that remain. We have more work to do!

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