Paul McGuire | Legally LGBT
You may have heard about the latest developments in the fight for marriage equality. Illinois and Hawaii both passed marriage equality through the state legislature recently. New Jersey’s path to marriage is a bit different. A court challenge was filed in state court and before the challenge made it to a full decision by the New Jersey Supreme Court, the New Jersey Supreme Court stepped in at an earlier stage to indicate it was likely to rule in favor of the challengers. In response, The New Jersey Attorney General withdrew its opposition to the challenge, giving marriage to the entire state.
Like California soon before them, all of these states had either civil unions or domestic partnerships in the law before the passage of marriage.
Some might be wondering why marriage is such a big deal if these states already had either civil unions or domestic partnerships. For many the distinction is obvious. Some see civil unions and domestic partnerships as a sort of “separate but equal,” just a consolation prize states use to get the activists to leave them alone.
The federal government’s lack of recognition of civil unions was the main reason the New Jersey Supreme Court made its latest decision that New Jersey must allow same-sex couples to marry. The idea is that civil unions aren’t equal to marriage if they aren’t recognized by the federal government.
Civil unions also carry with them uncertainty of recognition outside the state of celebration. It is not always clear how states and other countries that recognize same-sex marriage will treat couples in a civil union.
In Canada a same-sex couple had to go through the courts to get approval to have Canadian courts split up their civil union. The trial judge took the initial position that it couldn’t hear the case because Canada only recognizes marriages. It is likely that other entities in Canada had similar problems knowing how to treat civil unions. The same problem could arise in states like Washington or New York that recognize same-sex marriage.
But what about those people who want to enter into a civil union despite this uncertainty? Some people believe that marriage is an institution they want nothing to do with because they don’t believe in the religion that is typically associated with marriage. Gay and lesbian couples especially may have a problem with an institution primarily championed by Christian churches that many were excluded from in the past.
Others might take issue with the gender inequality that for so long went hand in hand with marriage. Why would gay and lesbian activists fight so hard for equality only to participate in an institution that traditionally made men essentially owners of their wives?
In order to truly support the rights of the people who choose to not get married, the federal government and all the states would have to figure out ways to treat civil unions and domestic partnerships like marriage. I don’t expect the people who opposed same-sex marriage to welcome recognition of opposite-sex civil unions. To them, marriage is the ideal and anything else is a poor substitute.
Some couples in Connecticut were surprised to learn that passing marriage automatically translated their civil union into a marriage. Illinois did not abolish civil unions with the latest bill so some couples may decide to remain in a civil union. Hawaii’s bill leaves in place civil unions and also a reciprocal beneficiary designation status that lacks the rights of both marriage and civil unions, but is much easier to exit.
Moving forward, there is still much uncertainty for couples in civil unions or domestic partnerships.
Will the federal government ever recognize them? It doesn’t seem likely. Some couples may eventually determine that federal recognition of their relationship is more important than the things that kept them from wanting to marry. Others may start up the fight for the recognition of their civil union or domestic partnership.
—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com.