The Inadequacy of Civil Unions

The New York Times Editorial
Published: June 7, 2007

A potentially groundbreaking legal battle over Connecticut’s exclusion of gay people from the state’s marriage law has catapulted the debate over same-sex marriage to a new level.

Appearing last month before the state’s highest court, a lawyer representing eight same-sex couples led a spirited attack on Connecticut’s refusal to grant gay couples the freedom to marry. He also challenged the notion that civil union laws — like those enacted in Connecticut, New Jersey, Vermont, and most recently New Hampshire — are a constitutionally adequate alternative.

The plaintiffs’ argument was laced with references to Plessy v. Ferguson, the U.S. Supreme Court’s notorious 1896 decision which justified racial segregation under a deplorable standard of “separate but equal.” Although startling, the analogy is apt. In establishing civil unions two years ago, Connecticut lawmakers created a separate and inherently inferior institution that continues to deny gay couples the equality they seek and deserve.

Connecticut would seem a particularly hospitable place to advance this equality claim. In addition to requiring equal treatment for individuals in comparable circumstances, and barring sex-discrimination, Connecticut’s Constitution explicitly forbids gender-based “segregation.”

State lawyers answer that the basis for the exclusion is not gender but sexual orientation, a category not covered by existing antidiscrimination provisions. That is true, but forbidding marriages when one partner is the wrong gender still adds up to sex discrimination. The state also asserts that the civil union law grants all the rights of marriage to same-sex couples, and any difference amounts to “a difference in name alone.” A trial court judge bought that argument and dismissed the case last year, saying the plaintiffs suffered no legal harm.

Saying a civil union is the same as marriage does not make it so. Civil unions are a newly invented category, neither universally recognized nor understood. Connecticut’s claim that the two terms are alike merely underscores the bottom-line question: Why relegate a minority group to a separate category?

The court case has helped stall this issue in Connecticut’s Legislature. But if the ruling goes against the couples involved, the Legislature will have a duty to revisit the matter. A law that allows civil unions but not marriage is preferable to denying benefits and recognition to same-sex couples. But no one should confuse it with equality.

Source: The New York Times