Civil Union == Marriage
Since the beginning of the debate over gay marriage, the “moderate” argument has supposedly been, “Well, I’m against gay marriage but support civil unions.”
It’s time for somebody to explain to me, clearly and point by point, what possible difference there is between the two.
Xrlq and Lileks both support the distinction. Xrlq and I had a weak Round 1 about this a couple months ago.
Me: “The fundamental fiction in this whole thing is the supposed separation between marriage and civil union. There’s no practical difference, and a state that pretends to preclude one while allowing the other is fooling itself.”
Xrlq: “Nonsense. For one thing, the two are not identical, and certainly don’t have to be. For another, even if they were that would be no reason for a constitutional amendment, unless you happen to live in one of the few states whose judges think the constitution requires one or the other.”
Take the Xrlq Challenge: explain to me why they are not identical in the eyes of the law. Obviously they’re not identical in the eyes of a church (“the church” is a phrase that carries little meaning to my mind unless one’s discussing Catholicism), but that’s not what we’re concerned with here. I’m thinking here of any practical difference between a couple married at church and a couple married in the courthouse, so unless you’re planning to create a whole new category of union especially for gay couples, with different status attached (and why would they accept that?), then the courthouse wedding is what we’re talking about. A couple united down at the courthouse is married in the eyes of the law; that couple typically does not walk around introducing one another as “my civil partner.” They mark “married” on forms with choices of “married, single, widowed, other.” They are married for tax purposes, for purposes of any children born into the relationship, for any other purpose where spousal status is an issue. All the same privileges attend civil union that attend a church wedding; so long as an officiant signs your certificate, your spouse can drive your rental car.
Marriage is where church and state intersect. A pastor performs marriage by the power vested in him or her by the state so that the couple enjoys privileges appended to their status by that sate. Furthermore, if marriage and civil union are different, then that can only mean that the word “marriage” has a unique definition confined to church usage, and therefore has no more business appearing in any constitutional amendment, of any state, than the words “baptism” or “communion,” nor should it have any privileges appended by the state, any more than a baptised person should be able to get a driver’s license sooner than an unbaptised one.
Until people cease talking about these things as though they’re different, we won’t really be talking about the possibilities and consequences of gay couples with legal standing in this country. We’re making a distinction without a difference, and neither side should buy into it.
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Hi Anwyn:
First time commenter but not first time visitor.
The distinction is real — enforceably, consequentially real.
Marriage predates law and has accumulated direct as well as incidental benefits under the common law, statutes and “common law statutes”. In my opinion, marriage (and its incidents) is the first and foremost unenumerated right protected by the Ninth Amendment.
Civil unions are newly-created statutory creatures in derogation of the common-law and precedent. They are construed narrowlly. They are only what the legislature unambiguously says they are. (For one example: Unless the legislature clearly writes in the statute that partners in a civil union have the right of homestead, i.e. to live in the marital residence all their lives as married people have, then they do not have that right.) Civil unions, being newly created statutory creatures, can also be uncreated. The legislature can simply repeal the statute. Can you see any legislature repealing marriage?
I partially disagree with you about the intersection of church with state. Culturally, that is correct. Legally, in marriage church does not intersect but only parallels state. A couple can go to the county clerk, pick up their marriage license and either carry it to an officiant to solemnize their marriage or just both of them fill it in and sign it in the back and hand it back to the clerk. Both marriages are equally valid under American law. (I do not expect that I will know before Judgment Day whether they are equally valid under God.) America is definitely, enforceably a disesteblishmentarian country.
Comment by nk — November 11, 2006 @ 12:46 pm
I see a distinction between marriage and civil marriage. The former is traditionally (although not exclusively) a religious matter while the latter is the state’s recognition of the former. One does not need the state’s permission to be married to another person.
When TT and I were married in a church by a pastor, we spoke our vows in front of friends, family and (I assume) God. That same day we signed a piece of paper issued by the county that essentially declared a civil marriage between TT and I for purposes of recognition under the law. The legislature could repeal the recognition of such a union (although, as a practical matter, doing so would be political suicide) but it would make no difference at all as to the relationship I have with my wife. We’re married; we are a couple; we are members of a union together — irrespective of whatever civil recognition might (or might not) be granted by government.
In my opinion, if the state is going to recognize my marriage and grant it a tax status, then it should do so for any two people who wish to enter into a similar relationship (be it called marriage or something else). The concept of self-ownership and right to establish a contract with another person are, again in my opinion, among those unenumerated rights protected by the ninth amendment. To the extent that government’s role is to enforce contracts, it should do so without deference to gender.
Others will, no doubt, disagree. I have no idea at all what will happen on Judgment Day but that’s a matter for another realm entirely.
My $0.02 plus applicable taxes.
Comment by Allen — November 12, 2006 @ 8:39 am
nk, thanks for coming by and for commenting!
You and Allen both seem to be saying that marriage and civil union are different insofar as marriage can take place without the state’s recognition in an ancient and traditional precedent, whereas “civil union” is the statutes surrounding that union.
Which is not too far off from what I’m saying, except that all I’m saying is that the state’s interest in marriage extends only to the statutes surrounding it–and that those statutes, in whichever state, are the same for everybody who goes down to the courthouse and picks up a license, however they choose to celebrate the event. All I’m really saying is that as it stands now, there is no separate civil status that does not rise to the level of marriage because in the eyes of the state, anybody who goes down and picks up that license and complies with its terms is married.
Thus the people who talk about “civil union” for gay couples, unless they are talking about creating a new, hitherto unrecognized status for gay couples, are really talking about the same thing hetero couples do all the time, so I’ve never understood why that’s presented as a third option. If in the states’ various discussions of constitutional marriage amendments, they’re only talking about the vague nebula of practice and tradition predating laws, then the amendments are meaningless. They are clearly talking about the states’ interest in marriage, which is the statutes regulating the privileges granted by the state that go along with marriage.
Comment by Anwyn — November 12, 2006 @ 3:30 pm
I think we are in agreement that “civil marriage” is what States record and that there’s no particular need for a separate class of “civil union.” I wouldn’t argue for one either since, as you say, any straight couple can go down to the courthouse and get themselves recorded without having to go through a marriage ceremony (led by a pastor, priestess or Elvis impersonator). Remove the gender restrictions and you’re off to the races (and to much rhetorical hyperventilating I’m sure.)
To reduce confusion, I propose we rename “civil marriage” to something really strange like SPLUNG (with apologies to Monty Python). It’s short, would fit easily onto a form and it sounds nothing like marriage. Regardless of your partner’s gender or of your having taken part in a marriage, joining, holy hookup, or soulmate solstice ceremony, you can be recorded as SPLUNGED — afforded all the rights and responsibilities attached thereto.
-Allen, married and SPLUNGED since 1985.
“Take the SPLUNGE today.”
Comment by Allen — November 12, 2006 @ 6:35 pm
Assuming your comparison is between marriage as a legal institution vs. civil unions, the most obvious difference is that the former applies to straights and the latter applies to gays. If you think men and women are fungible to the point where male-male, female-female and male-female unions all must be functionally identical and subject to the exact same laws in 100% of all cases, and you also think this fact is so self-evident that we shouldn’t wait a couple decades to see how this gay marriage/union experiment pans out, then I agree there’s no reason to create a separate legal category of civil unions. I don’t have that certainty myself, so I’d rather keep our new social experiment separate from a tried and true legal institution for the time being.
On the flip side, probably the single dumbest argument I’ve heard against civil unions is that they’ll inevitably lead to gay marriage. To me, that sounds like their biggest objection to this social experiment is not a fear that it will fail, but that it will succeed.
Comment by Xrlq — November 13, 2006 @ 4:11 am
But the latter, as applied to gays, is as yet a fantasy in most states. In the states where it exists, is it not the same institution as the one that applies to straights?
That’s really what I’m talking about–that so far nobody has created a separate category and thus so far “civil union” is already the same as marriage, so that it’s useless to talk about “civil union” as if it were something different.
As for the idea that it *could* be something different–that states *would* make a separate category with separate legal consequences, my answer is pretty much the same: so what? What lesser privileges could it attach to the status that would not make it fundamentally the same as marriage? They might be different in a legalistic sense, but again, I fail to see how different they could really be in practice.
I do not believe men and women are fungible at all, but proponents of gay union do, or pretend to. My argument is not that civil union would lead to gay marriage but that it would fundamentally already be the same, with just enough legal distinction to theoretically satisfy moderates while at the same time inevitably angering gays and arousing cries of “separate but unequal” or whatever the mantra is. I think the whole thing would be an exercise in the most earnest of farces.
Comment by Anwyn — November 13, 2006 @ 8:22 am
Hey, that’s private! Yes it’s true that I used to be fungible but the doctor told me the condition would clear up if I continued my medication, wore the brace at night, and stayed out of direct sunlight during the day.
But seriously… er… SPLUNGEABLE. I didn’t have anything serious to say.
Comment by Allen — November 13, 2006 @ 11:08 am
In the one particular state you linked to, Vermont, sure, but that’s a lousy example. Vermont didn’t end up where it is now because its legislature enacted civil unions on its own, only to learn the hard way that civil unions and marriages are the same thing. Quite the opposite: Vermont enacted civil unions only in response to an activist court decision that required the state to either enact gay marriage or enact a civil union law that mirrored it. So of course Vermont’s law treats the two the same!
I’m not interested in debating semantics. I use the phrase “civil union” broadly to describe any state institutions designed to perform mostly the same functions for gays as marriage does for straights. If you’re using the term more narrowly, to describe only the true “marriage clone” laws like the one they have in Vermont, then we’re not talking about the same thing. When I semi-advocate civil unions, I’m not suggesting that the civil union law be identical to the marriage law. The two would have many similarities, of course, but only where the legislature independently determined that X was the appropriate rule for both marriage and civil unions; it shouldn’t reflexively copy a rule from one to the other just to make them more equal. Allowing gay partners the same right to visit each other in the hospital, make executive decisions, etc. makes sense. Prohibiting incest, however, does not, since gays can’t produce offspring, and the only other reason for incest to be taboo is … well, yuck.
Comment by Xrlq — November 13, 2006 @ 11:26 am
Hmm. Let me try this again.
1) You’re in favor of a separate status for united gay couples, one with different rules, privileges, etc. attached to it than to marriage, yes?
(By the way, that thing about the hospital is tired. Anybody can visit anybody in the hospital as long as the patient allows it.)
2) I’m saying, a) Why would they accept something other than the marriage rules straights have, and b) Even if they did, I can’t see how they could make it different enough that it wouldn’t be, practically speaking, the same as marriage–i.e. a couple afforded certain privileges by the state or certain assumptions made about them because they are legally joined rather than single.
You seem to be saying that as long as the rules governing gay civil union aren’t exactly like those governing straight legal marriage, then they’re not the same. And I say while that is legalistically true, practically speaking it tends towards the same, with a semantic fiction to placate those who are against “gay marriage” but not able to sort out what, if any, differences there actually are, while the same semantic fiction is more likely than not just to annoy gays into more activism.
Comment by Anwyn — November 13, 2006 @ 3:30 pm
Close. I’m neutral to a separate status for united gay couples, with rules, privileges, etc. determined independently of those applicable to marriage. Making the rules the same for sameness’s sake should not be a goal; neither should making them different for different’s sake. Let each group look out for its own interests.
Which is great if the patient is conscious. It’s not so great if he isn’t. If the analogy were truly “tired” (which is not the same as you being tired of hearing it), then maybe we might as well get rid of spousal rules for hospital visits, too?
That’s because you’re making the same mistake as the marriage equality fetishists do, namely focusing on sameness vs. equality as though they were ends in themselves. They aren’t, or at least, they shouldn’t be. Show me a gay activists who insists on gay marriage to the exclusion of civil unions, and I’ll show you a gay activist whose priorities are mixed up. A gay person who is thinking like an adult and looking out for his own interests rationally, rather than whining about “equality,” may have a good reason to want some/most/all of the benefits of marriage, but he should not care one whit whether he gets these benefits in the form of redefined marriage or in the form of a separate, similar legal institution made for gays. In fact, he’d likely prefer the latter, since the ideal rules for gay marriage may not be the same as the ideal rules for straight marriage.
Comment by Xrlq — November 13, 2006 @ 7:13 pm
I hope I’m not …
… rather, I am trying to say that anybody who objects to gay “marriage” (i.e. the legal institution recognized by the state) has no compelling logical reason to acquiesce to a separate, similar institution, because “legal marriage” can be defined as “the state’s recognition of and granting of privileges to a couple who have followed a directed process”–and thus does it really matter which particular benefits accrue to a gay civil union? At the end of the day the state recognizes them as a legal family unit in the same manner in which it recognizes a straight couple. *That’s* what this is about, for me.
Is that not the crux of it?
Comment by Anwyn — November 13, 2006 @ 7:31 pm
Taking Vermont’s civil union statute which I think is the oldest: It uses very broad language to grant every statutory and common law incident of marriage to two persons of the same sex. BUT it has a provision that ONLY people of the same sex may be united under the statute. Isn’t that enough to establish civil unions as a new institution which parallels but is separate from marriage culturally and legally?
Comment by nk — November 14, 2006 @ 5:43 am
Would it further the distinction if dissolution of civil unions were under a new statute and not under the existing divorce act?
Comment by nk — November 14, 2006 @ 7:21 am
Marriage is fundamentally different from every other contract between two or more consenting adults, because they really aren’t the only parties. When I married The Bride of Monster, although only the two of us stood before the minister with our witnesses, there were in fact four parties to the marriage. Although neither of them had even been conceived, our daughters were definitely involved. Since they were clearly under the age to execute contracts (-1.6 and -7.5 are both under 18), the State had to act in their interest. That is the reason why
While it is true that not all ‘traditional’ male-female unions can generate biological offspring, that does not negate the fact that the justification for the State’s involvement is to represent the interests of the minors involved.
The institution of marriage, which binds a man to his children and their mother, is a fundamental part of what we used to call Western Civilization. There are other relationships which bear some similarities to marriage, but they have different names because they aren’t the same thing.
Should employers offer health insurance to the ‘life partners’ of their employees? That’s between them and the employees. The State has no interest in the relationship between consenting adults. When same-sex couples want to adopt, that’s when the State gets involved.
Comment by The Monster — November 20, 2006 @ 9:05 am