Balkinization: What Turns on the GLAD litigation now that CT has civil union?

What Turns on the GLAD litigation now that CT has civil union?

Ian Ayres

A lot. And it is not just the important dignitary interest of same-sex couples in having access to the word "marriage."

The press has suggested that the civil union statute confers all the state marriage rights on same-sex couples who register. But this is not true.

There are arguably six different classes of substantive rights that may still be denied same-sex couples under the civil union statute (when it takes effect on Oct. 1), but would not be denied if GLAD wins its litigations and strikes down the marriage exclusion.

You might have thought that CT had at least created a "separate but equal" regime of civil union and marriage. Let's be clear. Civil union is a true advance. Being able to ride in the back of the bus, is a lot better than not being able to ride at all. But the civil union statute is better characterized as a "separate but substantively unequal" regime.

The basis for this list and much more can be found in GLAD questions and answers about CT's new civil union law.

Here's the top six reasons why CT civil union rights are substantively different than equal marriage rights:

6. As I posted before, the civil union statue discriminate against 16 and 17 year olds. Here's GLAD's take:

[T]here are certain circumstances in which 16 and 17-year-olds may marry, but
you must be 18 to join in a Civil Union (unless you are ruled an emancipated
minor by a court). . . . [A] minor between ages 16 and 18 will be deemed
to be over 18 for the purpose of obtaining a Civil Union license if the minor
has received a court order of emancipation. . . . This is different than
the Connecticut law governing marriage. A person under 18 can marry in
Connecticut if an acknowledged, written consent of a parent or guardian is filed
with the registrar of vital statistics. If there is no parent or guardian
resident in the United States, “the written consent of the judge of probate for
the district in which the minor resides, endorsed on the [marriage] license,
shall be sufficient.” (Conn. Gen. Stat. §46b-30(b)). A person under
16 can marry in Connecticut if “the judge of probate for the district in which
the minor resides endorses his written consent on the license.” (Conn.
Gen. Stat. §46b-30(a)).

If the marriage exlcusion were abolished, same-sex couples would be able to marry on the same basis as different sex couples.

5. "[T]he Civil Union law gives public officials the explicit right not to officiate at a Civil Union while there is no such explicit exemption in the marriage laws." If the marriage exclusion were abolished, public officials would have the same duties to perform same-sex and different sex weddings.

4. As it now stands "couples joined in Civil Union will not be able to file joint tax returns because Connecticut ties one’s filing status to federal law." If the marriage exclusion were abolished, it is more likely that same sex couples would be able to file joint state tax returns.

3. "[I]t will be harder to gain respect for one’s Civil Union in other states– in whole or in part – than it would be for a marriage. While marriages of same-sex couples will face discrimination in some places, marriages are advantaged over Civil Unions because all states have a marriage-system (with rich histories of respect for marriages validly licensed elsewhere) and only two other states (Vermont and California) have a Civil Union system. If the marriage exclusion were abolished, it would be more likely that at least some states would recognize as a same-sex marriage than they would be to recognize a same-sex civil union.

2. The civil union statute may allow employers to deny benefits to same-sex couples who are joined in Civil Union but unmarried. "[B]y calling the status a “Civil Union,” a self-insured employer (and that includes most large employers) will have to amend its plans to include Civil Union spouses whereas married spouses would automatically be covered under self-insured plans that defer to a state-law definition of who is married." If the marriage exclusion were abolished, it is more likely that an employer would be prohibited from discriminating between same-sex and different-sex married couples.

And the number one reason why civil union is substantively different than marriage:

1. "The word “marriage” is the gateway to the 1138 federal protections afforded married couples. Without that word, same-sex couples in Civil Unions have no claim for those legal protections." If the marriage exclusion were abolished, same-sex married couples would have a stronger standing -- both legal and political -- to challenge the federal discrimination. They would have a ready-made option for their marriage rights to spring to life as soon as the federal discrimination ended.

We should cut the Gordian knot of dual causation. The state argues "We're not to blame for same-sex spouses not qualifying for social security, because the feds wouldn't give them to you even if we allowed you to marry." The feds argue, "We're not to blame for same-sex spouses not qualifying for social security, because even if we granted benefits to married spouses CT will not allow you to marry."

This is just like the classic problem in tort law where there is no but-for cause. The mechanic can say, "My failure to fix your brakes did not cause the accident because you didn't push on the brake." The driver says, "my failure to push on the brakes did not cause the accident because the mechanic hadn't fixed them." Tort law knows how to deal with problem (a pox on both your houses!) and we should too.

Stepping back we see that the CT legislature did not go all the way in creating "separate but equal" civil union rights. On reflexion this shouldn't be so surprising. The seats on the back of the bus are never quite nice.

Posted 8:13 AM by Ian Ayres [link]