[Civil Unions]: A Reply to Nussbaum

Readers will not be surprised to learn that I agree with Martha Nussbaum's compelling analysis of this issue. I would be very interested, though, to hear what Rick Garnett and Doug Laycock think of it. Doug has already said that he supports same-sex marriage, so I suppose it's Rick whose response will be most interesting.

There's one element of Martha's analysis that I do want to address. Martha argues that states should permit same-sex marriage. But H.R. 2234 authorizes not same-sex marriage, but civil unions. I have struggled personally with the question whether to endorse a law allowing civil unions, but not same-sex marriage. Because I believe that discrimination against gays and lesbians is ignorant, immoral and inconsistent with our nation's most cherished constitutional values, I deeply believe that full equality, rather than some form of subordinated "separate but equal," is the only proper solution. Nonetheless, I am persuaded by those who know Illinois politics better than I that although the state legislature might legalize civil unions, it will not in the foreseeable future legalize same-sex marriage.

The quandary is whether to settle for a half-a-loaf or whether to stand on principle. On the one hand, accept civil unions while expressly reserving "marriage" for opposite-sex couples seems to me deeply offensive. It has the same moral justification of separate-but-equal in the racial context. It is stigmatizing, insulting and discriminatory. On the other hand, there are very real practical benefits to civil unions that mean a great deal to the day-to-day lives of same-sex couples. So, assuming the recognition of same-sex marriage is not in cards in Illinois at present, what to do? This is similar to the "don't ask, don't tell" question.

I'd be very interested to know what Martha, Rick and Doug think about this.

Comments

[FrankMCook]

I too once accepted the notion that same sex marriage should simply be allowed, but I've changed my mind and I no longer view civil unions as half-a-loaf but as a logical consequence of the separation of church and state. The State should not be able to tell the Church who they must marry, and the Church should not be able to tell the State who it should recognize as a couple.

We lawyers are used to the notion that one word can mean the same thing in different contexts, but on an issue this divisive using two different words is far simpler in practice. While I'm comfortable saying that both the Church and the State can perform marriages, I think it is easier to just create a new word and say that Churches perform marriages and the State creates unions.

That does leave what might be called a full faith and credit question. Currently the State fully recognizes marriage ceremonies performed by the Church as long as the civil license was obtained first. Whether Churches now recognize marriages performed by Judges has no simple answer. Furthermore, we have both civil and religious divorces which are completely separate and independent concepts.

Many of the posts here have raised the question whether the State should be able to compel a Church to perform a same sex marriage. Would any court issue an order compelling a church or a clergyman to perform a mixed racial marriage? (The question only makes sense if we assume we are talking about a clergyman acting in a religious capacity and not about government officials refusing to perform one of the duties of their office because of their religious beliefs.) Talk about entanglements. Wouldn't any judge dismiss the suit and tell the plaintiffs to join him in chambers for the wedding ceremony?

[LAK]

A single word on some government document is not the same thing as having different public facilities like schools and water fountains. The stigma you associate with it is extra-legal in a way that racial segregation of public facilities is not, and the rights implicated are significantly different, and so is the social context. I'm hesitant to conflate the two. There are those of us, men and women alike, gay and straight who recognize "marriage" as a sexist religious institution born of the control of women and sexuality and who reject the word and practice, and would welcome alternative words for the package of rights privileges and duties that the law confers on couples, either as a complete secular civil substitute for "marriage," or alongside with it. There are those who are married who do not call themselves married. There are those who aren't under the law who do. You can still call someone your wife or husband or partner whether or not some state certificate says "union" or "marriage" and you can call yourself "married" if that's what you want to do. So long as you have the exact same substantive rights under the law, I don't see how anyone's civil rights are affected in even remotely the same way as someone who under no circumstance can ride in the same train car as someone else due to the color of their skin. What's in a name? A lot less than being able to sit or stand or drink or ride or learn in certain public places.