Will It Be Marriage or Civil Union?

Published in: March-April 2004 issue.


THIS FALL, while the Right was still staggering from the U.S. Supreme Court’s decision in Lawrence v. Texas, Massachusetts dealt conservatives another body blow when its highest court legalized same-sex marriage. In a 4–3 ruling authored by Chief Justice Margaret Marshall, the Supreme Judicial Court (SJC) held that denying marriage to homosexuals violates the Massachusetts Declaration of Rights, the state constitution. To remedy the violation, the Court changed the common-law definition of civil marriage to eliminate its opposite-sex requirement and to compel the issuance of marriage licenses to qualified persons of the same sex. Civil marriage in Massachusetts now means “the voluntary union of two persons as spouses, to the exclusion of all others.” The legislature, which was directed to “take such action as it may deem appropriate in light of this opinion,” has been running for cover ever since.

A friend recently asked me how important the Massachusetts decision is in the struggle to achieve marriage equality in the U.S. I was struck, first of all, by the terms of the question, because “marriage equality” is not the same as “marriage.” The issue all along has been whether gays will get marriage or some equivalent formality that will make them equal to their heterosexual counterparts. There are those who say that civil union is marriage equality. It’s what Vermont said and what many Massachusetts legislators are saying in their desperate search for an escape route from the SJC ruling. It’s also what William Eskridge claimed in his 2002 book, Equality Practice: Civil Union and the Future of Gay Rights, where he argues that, while there is no principled basis for withholding marriage from gays and lesbians, the gay community should bow to the political will of the majority and move slowly, accepting the equality of civil union now and pressing for marriage later when it becomes more palatable to the majority. Eskridge views Baker v. State, the Vermont civil union decision, as the equivalent of Brown v. Board of Education, the 1954 landmark civil rights decision that opened the way to racial integration in this country. Marriage activist Evan Wolfson, on the other hand, views Baker as the gay rights version of Plessy v. Ferguson, the railway carriage case that authorized “separate but equal” status for disfavored minorities.

This essay is being written during the 180-day waiting period following the issuance of the decision, a period of either genuine confusion or deliberate obfuscation, depending on the degree of cynicism with which you view the political process. It might be useful at this point to summarize what the Court said and how the Legislature has responded. The Court began by reminding everyone that the Massachusetts marriage statute is a licensing law. Because marriage has always been understood to mean the union of a man and a woman, the statute cannot be construed to authorize issuing a license to two people of the same sex. But to bar gay couples from all the benefits, protections, and obligations that accompany marriage violates the Massachusetts constitution, which means that the current marriage licensing law is unconstitutional. The remedy the Court fashioned was to change the common law definition of civil marriage to eliminate its opposite-sex requirement, thereby removing the bar that excludes gay couples from obtaining marriage licenses.

Rather than declare that cities and towns must immediately begin to issue marriage licenses to gays, which would have created chaos, the Court granted the Legislature 180 days to revise state statutes so as to bring them into line with its ruling and to clean up a complicated domestic relations regulatory scheme that refers to husbands and wives. The Court reminded the Legislature that it retains “broad discretion to regulate marriage.” This means that the Legislature can continue to impose certain restrictions upon persons who wish to marry. The Legislature may refuse to authorize granting a marriage license to persons under a certain age, or to siblings, or to a parent and child. It may require a blood test or a birth certificate, or that applicants turn around three times and face north, or anything else that would be constitutional. But, as I read the decision, the Legislature may not refuse to grant a license to otherwise qualified gay couples.

The SJC was perfectly clear in stating that the remedy for the constitutional violation was the reformulation of the definition of civil marriage. Yet many legislators, together with the current Attorney General, want to take a different view of the matter. They have seized upon the “protections, benefits, and obligations” language in the opinion in the hope that, by providing the benefits that marriage yields in our society, they can avoid providing marriage itself. The Legislature has asked the SJC to render an advisory opinion about a civil union bill, and the SJC has invited interested parties to submit briefs. Meanwhile, the Massachusetts constitutional convention is scheduled to meet on February 11, 2004, to vote on a Defense of Marriage Act or DOMA that, in its present form, would not only prevent gay marriage but would also outlaw domestic partner benefits. If the Legislature passes the DOMA in a second convention, the measure would appear on the ballot in November of 2006 and voters could, by a simple majority, amend the state constitution to make gay marriage, civil union, and domestic partnerships illegal. The political reality is that such a DOMA will probably not garner the necessary votes either in the legislature or among voters; however, a simple DOMA limiting itself to marriage is more likely to succeed, especially in the face of the SJC decision, which presents the Right with what it would call a “clear and present danger.” This means that gay marriage could become legal in Massachusetts on May 18, 2004, via the SJC decision and illegal in Massachusetts on November 14, 2006, via a voter referendum. No one knows what will happen to gay couples who marry in the interim. Let the courts sort through that one!

Massachusetts has a good track record when it comes to gay families: it permits second-parent adoption; it allows two women to appear as “parent” on a child’s birth certificate; it protects the relationship between a child and her non-biological parent. At the very least, Goodridge is going to yield “marriage equality” in some form of civil union. The problem, of course, is that there is no such thing as “marriage equality” for anyone who files federal income tax returns, bequeaths an estate, or travels outside of Massachusetts. When it comes to federal benefits or the tax-free transfer of marital property or the ability to have another state recognize your Massachusetts relationship, marriage is the only status that will do. This is why some are downplaying the SJC decision, pointing out that even if people are able to marry in Massachusetts, their status will not be recognized by the federal government or by any other state with a DOMA. In that respect, marriage is indeed no different from civil union. In fact, it might even be worse for a while. We’re beginning to see judges in some states accept the validity of a Vermont civil union. Even in states with a DOMA, it will be possible to find a judge who would give full faith and credit to a civil union because most DOMA laws have nothing to say about civil unions. Not so with marriage. For the time being, a Massachusetts marriage will be even less portable than a Vermont civil union.

BUT LET there be no mistake: whatever happens in Massachusetts is absolutely critical to how the gay marriage question will be answered in the rest of the U.S. What happens here is even more important than what happened in Vermont. Here’s why. The next marriage case with a reasonable likelihood of success is working its way through the courts in New Jersey, a state with a history of progressive court decisions. New Jersey will be looking very carefully at the way Vermont and Massachusetts have addressed the marriage question. If the Massachusetts SJC ratifies its decision and mandates the issuance of marriage licenses, New Jersey will look at its predecessor states and see two alternative models, marriage and civil union. New Jersey will choose one or the other. But the SJC could fail to confirm its marriage decision and approve instead some form of civil union. Coupled with the Vermont ruling, this will create a critical mass in favor of civil union, an outcome that will make it far more likely that New Jersey will opt for civil union over marriage. After that, the rest of the states will almost certainly fall into line with civil unions, and that will spell the end of gay marriage, probably forever.

Ironically, it may also mean the end of marriage in its present form, the one that the Right is working so hard to preserve. Conservatives Andrew Sullivan and David Brooks have argued that the best way to protect marriage would be to open it to anyone who wants to vow fidelity and is willing to forego an easy exit from a supposedly permanent relationship. Marriage is, after all, a conservative institution, and persons who enter it with the blessing of the state may not leave it without the state’s permission. Already, as a result of the marriage cases and their surrounding discourse, the very term “marriage” is being qualified. We now speak of “civil marriage” to distinguish it from the religious ceremonies that are but one of its aspects. Insofar as material benefits are concerned, marriage is a civil institution. Those material benefits can attach just as easily to any civil institution the state cares to identify. This is, after all, the point of wanting to offer gays something called “union” rather than something called “marriage.” Nothing but prejudice prevents state and federal governments from offering to partners in a civil union the identical benefits, protections, and obligations that the state now offers to spouses.

William Eskridge is wrong in thinking that civil union is a step on the path towards marriage. Civil union and marriage are not sequential; they are alternatives to one another. There is no reason to think that the country will permit civil union now and confer marriage later. In fact, the reality is likely to be quite the reverse. Because of equal protection considerations, the civil union alternative will have to be available to straights as well as gays. And if my analysis is correct, it will become more widely available to everyone in the coming years. At the moment, there is little incentive for marriage-eligible couples to elect a civil union. But this will change.

It is not difficult to imagine a tacit compromise in which the Right is allowed to maintain its stranglehold on marriage in exchange for allowing the material benefits now associated with it to break free and accompany civil union. This is another reason why the Massachusetts decision in favor of marriage is strategically important. As long as even a single state has legalized marriage, civil union becomes more attractive to the Right. And the gay community can leverage those few gay marriage licenses into a demand that marriage benefits attach to civil unions.

In my view, this would be a good outcome. I say this as someone who views marriage as a regressive institution that has never been good to women, that insidiously creates insiders and outsiders, and, most importantly, that violates the separation of church and state at the heart of our form of government. The state should not be in the business of attaching material benefits to a religious institution. The right to social security death benefits, the right to favorable tax treatment, the right to take your formalized relationship with you when you travel, should be detached from marriage altogether and should be awarded according to some other equitable system. To the extent that this becomes so, there will eventually be no material difference between the old form of marriage and the new form of civil unions. Traditional marriage will endure as a religious institution. Already there are hundreds of clergy willing to perform marriage ceremonies for gay congregants and thousands of gay couples who have participated in these ceremonies whose benefits are wholly spiritual. Over time, civil union and civil marriage will ultimately come to mean much the same thing. Whether the SJC ratifies its original position or abandons it, Goodridge brings us closer to a consensus around civil union. It is time for the gay community to turn its attention to winning for civil union all the rights, benefits, protections, and obligations of  of marriage. That is the truly revolutionary project.


Jo Ann Citron practices law with the firm Altman & Citron and is a member of the Women’s Studies Department at Wellesley College.



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