Don Sherfick

Being for Civil Unions: how big of a deal is that? The POTUS and a Primer Part V

Filed By Don Sherfick | September 07, 2007 10:00 AM | comments

Filed in: Living, Marriage Equality, Politics, The Movement
Tags: Defense of Marriage Act, Democrats, DOMA, marriage, New Jersey, POTUS

In early August six Democratic hopefuls for their party's presidential ("POTUS") nomination on an HRC/Logo forum prompted me to think about how much candidates really DON'T say when they talk about gay marriage and civil unions. Mike Gravel and Dennis Kucinich say they support gay marriage, but as I discussed in the first article in this series, the President of the United States has quite a limited legal role in causing this to come about, marriage itself being an almost exclusively state, as opposed to federal, institution. So in expressing their support for full marriage equality rights, they've said nothing I'm aware of as to their own intended role in bringing that about, largely because other than using the Presidential bully-pulpit, there isn't much to say.

Before talking about what Hillary Clinton, Barak Obama, John Edwards and Bill Richardson (and also, I believe non-participants Chris Dodd and Joe Biden) DON'T say when they don't support same-sex marriage, but bubble over about being for civil unions, I devoted three additional articles to the Defense of Marriage Act (DOMA), the Federal Marriage Amendment (FMA), and state constitutional amendments. Hopefully they've provided some useful background and/or been a short refresher course on these matters.

So now to civil unions. What could the successful candidate for the POTUS job really do about bringing them about? And perhaps of greater relevance, are they worth all that much? Some thoughts after the jump.

First, the role of the President of the United States as to civil unions is not really all that different from that concerning marriage, which I've discussed here. The concept of a civil union would still have its origins in state law. But as to the second issue, the value of the civil unions that the six Democrats say they espouse immediately is a far more complex matter.

First, an attempt at defining the term "civil union" is in order. I believe that what most people mean, or THINK they mean (and that likely includes POTUS hopefuls) is some legally recognized status for two persons of the same gender that, for all legal purposes is the full equivalent of marriage. Some may think in terms of slight variations on this theme, perhaps excluding this or that benefit or obligation. But in general, the common concept of the term appears to be that of "marriage in everything but the 'M-word'".

But is it really full legal equality/equivalence? There isn't full consensus on that. The answer isn't all that simple, and some even disagree on the meaning of the question.

To start with, a civil union created by the state in which it's contracted has full effect and validity only within the boundaries of that state. In one sense, if all of the rights and benefits under that state's civil union law are identical to those under its marriage statutes, and legal enforcement, judicial decisions, etc. make no distinctions between them, one could say there is full legal equality in that state. But some argue that simply having two "separate but equal" institutions still leaves an inequality in place in the same sense that as to racial equality, the U.S. Supreme Court in the landmark "Brown vs. Board of Education" school desegregation decision held that "separate but equal" was still inherently unequal. Others say that the sociological/economic circumstances surrounding education in a segregated school system make the Brown doctrine different from that present in the same-sex marriage debate. I'm personally one of the latter, although I fully respect the feelings of those who are offended by a two-track approach. Certainly outside of the legal sphere, society may well draw distinctions between "really married" and "really not". The argument is whether those kinds of acceptance factors rise to make a LEGAL distinction.

That aside, even if all were to agree that within a given state's boundaries, there is full legal equality between marriages and civil unions, THERE IS NO EQUALITY when state lines are crossed, or with respect to federal matters. (In one sense, at least physically even within Massachusetts, married same sex couples themselves are not on a legal par with their married heterosexual neighbors. One Massachussets household can file jointly on its federal income tax return; the other cannot. That, of course, is due to the third section of DOMA, discussed earlier.)

Recognition of one state's civil unions by another, or rather the lack of it, poses the major reason for inequality. Marriages, once validly contracted in one state, are fully "portable" in all others. Even though one state's marital benefits might differ from another's, each state law treats all of its married couples equally, regardless of where the marriage was contracted. On the other hand, civil unions enjoy no similar interstate or federal recognition. The only exception might be if the civil union law of one state said that a civil union of another one was recognized. That may be the case in one or two East Coast/New England states....I confess I have not yet researched that topic.

So the equality/utility of civil unions in a national sense is extremely thin compared to that of marriage. Even if the day came when ALL 50 states were to have enacted civil union laws, the matter would still not be fully resolved. The subject is well beyond the scope of this article, but perhaps something like the Uniform Commercial Code, which has been enacted in all states to facilitate legal uniformity in business and related transactions, could be passed in all states. (Maybe it would be called the "Uniform Reciprocal Civil Unions Act"). Although the federal government is not ordinarily involved in domestic relations matters, perhaps Congress could, under the Interstate Commerce Clause of the Constitution, pass some form of unifying legislation in this area. Bottom line: it would be a big undertaking to resolve a host of complexities just because the "M" word isn't used.

So when the six Democrats who bubble over civil unions and think they've really said something do so, have they really said much? Or do they really understand what civil unions are really all about? From the above it seems very questionable indeed.

The final article in this series will go a bit further in this area and offer some questions for candidates espousing civil unions to try and provoke some really meaningful answers.

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