Wednesday, June 26, 2013

Civil unions are not marriage "in all but name"

When I read the passage below in Justice Kennedy's decision striking down DOMA today, I thought of a gay friend of mine:
DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses.
My friend was married to his husband in a New Jersey church a few years ago.  Legally, they are joined in a New Jersey civil union. My friend gets health insurance through his spouse, but thanks to DOMA, the employer does not get the federal tax exemption for providing his health insurance, and the employer passes on the cost to this couple.

When New Jersey passed its law establishing civil unions in 2006, it was billed as marriage in all but name. It was never that, and now its difference from marriage is all the more acute. An ACLU-NJ press release applauding today's decision and exhorting New Jerseyans to push for gay marriage spells this out:
Same-sex couples in civil unions will remain ineligible for the hundreds of benefits that now will be granted to same-sex married couples in other states under the court’s decision.
When the New Jersey Supreme Court ruled unanimously in Lewis v. Harris in October 2006 that the "unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution," the court split 4-3 on what to do about that intolerable state of affairs. The majority  declined to decide what to call the new legal status it was instructing the legislature to create. In dissent, Chief Justice Deborah Poritz declared marriage in all but name inadequate on grounds quite similar to those used by Justice Kennedy today to delegitimize the federal government's discrimination against same-sex couples whose marriages have been sanctioned by a state.  Poritz wrote:
By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately the message is that what same-sex couples have is not as important or as significant as real marriage, that such lesser relationships cannot have the name of marriage."
They key word here is "differentiate" -- as in discriminate. Compare Kennedy:
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and
protect. Bythis dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects (pp 22-23).
Poritz was speaking of a "differentiation" that was ostensibly just nominal. The decision to accord a right-that-had-no-name claimed, in effect, that the name of the union it was mandating was both immaterial and too hot to handle:
Denying committed same-sex couples the financial andsocial benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term,
is a matter left to the democratic process.
Today's Supreme Court decision highlights the incoherence, not to say the cowardice, of that abdication.

UPDATE: In response to NJ Governor Chris Christie's assertion last night that the DOMA decision has no effect on Jersey's civil unions law, and his reiterated call for a referendum, Zack Ford at ThinkProgress adds some important context (hat tip to the Dish):
Besides the fact that a referendum continues to be a costly, offensive, and unnecessary option, Christie could not be more wrong; in fact, Wednesday’s DOMA decision probably has a bigger impact on New Jersey than on any other state. In the 2006 case Lewis v. Harris, the New Jersey Supreme Court unanimously ruled that the state’s constitution guarantees “every statutory right and benefit conferred to heterosexual couples through civil marriage.” The Court left it up to the legislature to determine how those rights are conferred, and lawmakers at the time passed a civil unions bill. An investigation that concluded in 2008 found that these “separate but equal” unions were inferior and did not meet the Supreme Court’s expectations, and a lawsuit is already pending to challenge their unequal status.

With Wednesday’s ruling, the case against the civil unions becomes much more significant. Now, not only are civil unions inferior in how they’re respected in the state, they also deprive same-sex couples of all the federal benefits of marriage — the only union the federal government recognizes. A state judge has already scheduled a hearing for August 15 to fast-track Lambda Legal’s lawsuit in light of these new legal circumstances.

At the time he vetoed the marriage equality bill, Christie claimed, “I have been just as adamant that same-sex couples in a civil union deserve the very same rights and benefits enjoyed by married couples.” That may have been remotely possible while DOMA was still law, but it’s very much impossible now. Full marriage equality is now the only way to fulfill New Jersey’s constitutional guarantee of equality for same-sex couples.

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