an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The combination this week of President Obama's affirmation that "I think same-sex couples should be able to get married" and Republican presidential candidate Mitt Romney's reaffirmation of his opposition to same-sex marriage and to civil unions usefully highlights two distinct debates about the relationship between marriage and civil unions. Both debates are likely to feature in the presidential campaign and in local politics.
One debate is whether civil unions provide same-sex couples a sufficient alternative to civil marriage by providing the benefits and obligations available to spouses under state law, but not the name "marriage." There are two issues here: the symbolic or expressive value of marriage and its tangible legal consequences. The civil union, people will recall, was the creation of the Vermont legislature when Vermont's high court ruled, in 1999, that the Vermont constitution's "common benefits" clause required that same-sex couples have access to the "common benefits" (and obligations) of marriage, but left the question of remedy to the legislature. It was also the path taken in New Jersey when its high court ruled that, under its constitution, same-sex couples were entitled to the rights "of" marriage, but whether they were entitled to the name "marriage" itself should be resolved through the democratic process. And some states have enacted civil union laws without the spur of a judicial ruling, seeing this remedy as a way to advance equality while also preserving the tradition definition of marriage.
Until recently, the idea that civil unions did accord equality to same-sex couples was President Obama's evident position, although he had more than once described his views as "evolving." In 2009, the Vermont legislature concluded that civil unions did not accord same-sex couples full equality. Testimony persuaded lawmakers that civil unions did not actually provide "equal access, benefits, and privileges under the law," but created a separate status for same-sex partners and their children, who often were "discriminated against, stigmatized, and marginalized."
In New Jersey, the legislature reached a similar conclusion earlier this year, when it passed the Marriage Equality and Religious Exemption Act (vetoed by Governor Christie). The findings in that law mention "testimony and overwhelming evidence" that partners to civil unions in New Jersey experienced denial of equal benefits in employment, hospitals, and other arenas. Both at the tangible and expressive level, civil unions, the lawmakers concluded, do not end discriminiation against same-sex couples, but invite unequal treatment.
Thus, this first debate over civil unions concerns whether they provide a just and principled resolution of the controversy over whether same-sex couples should be able to marry. One assumes that part of President Obama's evolving stance on this issue has been evidence of this sort -- indicators that having two parallel legal structures for opposite-sex and same-sex relationships just can't afford equality.
The second debate, however, higlighted by candidate Romney's remarks and the recent vote in North Carolina, is whether same-sex couples should even be offered civil unions at all because they are too much like marriage. Romney thinks not. As quoted in the New York Times on May 10, he said: "If a civil union is identical to marriage other than with the name, why, I don't support that." While some opponents of same-sex marriage have indicated support for civil unions precisely because they are not called "marriage," for Romney, this is a distinction without a difference. Same-sex couples should not be provided a legal status that gives them everything spouses get under state law except the name "marriage." By contrast, he has indicated that some kind of benefits for same-sex couples might be appropriate, like hospital visitation. Which benefits? On that, he has been less specific.
In 2004, when Romney testified before the Senate Judiciary Committee in favor of the proposed Federal Marriage Amendment to the U.S. Constitution, which would have defined marriage in the U.S. as only "the union of a man and a woman," he spoke of a possible "middle ground." Interestingly, he suggested that such a middle grould would recognize the "inalienable rights of all our citizens to make their own choices to join in partnerships or unions of some kind and to have relationships between one another, perhaps even to raise children." That final reference seemed remarkable at the time, given his firm insistence (in the rest of his testimony) that marriage is the optimal setting for childrearing because, by exposing children to "the contrasting features of both genders," children benefit from having a father who can model masculinity and a mother who can model femininity.
The developments of this past week in North Carolina and in presidential politics put on the table these two ongoing debates about the relationship between civil unions and marriage.