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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 Now, just four years later, civil unions no longer
represent a step forward.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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