The inadequacy of Civil Unions.

The Inadequacy of Civil Unions

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.