The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

NJ Folds on Equality

So, it looks like New Jersey is going to do just what I said it would do after the state’s Supreme Court rendered its decision on marriage. The legislature’s vote for civil unions as a means of granting same-sex couples the rights and protections of marriage is a step forward in the sense that it means gay families in New Jersey will have more protections than they had before, but it leaves something to be desired.

The vote in the General Assembly was 56-19. The Senate vote was 23-12. Gov. Jon S. Corzine has said he would sign a civil unions bill into law.

Steven Goldstein, director of Equality New Jersey, told Bloomberg that the vote was a mixed blessing for the state’s gays and lesbians because there was no guarantee non-government entities would honor the decision.

“Nobody knows what civil unions are in the real world. That’s the problem,” Goldstein told Bloomberg. “We want marriage equality, not a law that discriminates.”

The move follows an order by the New Jersey Supreme Court, which directed the state to provide same-sex couples with marriage rights or their equivalent.

Employing civil rights terminology, gay and lesbian advocates blasted the decision and said that providing the benefits of marriage without calling it marriage was tantamount to the “separate but equal” treatment of a discriminated group.

… “By passing a law that marks same-sex couples as inferior, the government has paved the way for others to discriminate against them,” said David Buckel, marriage project director at Lambda Legal and lead attorney on the Lewis v. Harris marriage lawsuit that led to the court’s decision.

It’s not surprising, because the New Jersey legislature is well practiced in the art of compromise, as evidenced by the states domestic partnership, statute, which permitted cities and municipalities to establish domestic partnership policies for city employees, but didn’t require them to. The statute was no help to Laurel Hester, who had to mount a fight for domestic partnership even as she was losing a fight against cancer. And it was only afterwards that the Legislature got around to putting some teeth in the domestic partnership statute.

If you ask me, I think civil unions may be a tiny step forward, but they don’t solve anything. In fact, they raise more questions than they answer.

The big issue is portability. The rights and protections granted by civil unions stop at the state line. In fact, sometimes they stop at the emergency room door, whether granted by a civil union or legal documents. As we saw in the Virginia/Vermont custody case, a civil union enacted in one state probably won’t be recognized by any other state, especially given how many state laws and constitutional amendments may prohibit recognition of any legal arrangements between same-sex partners that too closely resembles marriage. And, as Steven Goldstein pointed out in the article, civil unions may not be recognized by non-government entities, and the states may not require them to recognize civil unions.

By their very nature, civil unions throw the rights and protections of the couples that enter into them into question. Richard Rothstein posed just a few of those questions.

At one end of the spectrum, gay men and women are demeaned and insulted by “civil union.” Furthermore, American history teaches us the specious notion of “separate but equal” is simply ridiculous.

At the the other end of the spectrum “civil union” is neither morally, ethically or legally equal to marriage. “What you call it” matters greatly. Will federal and out-of-state employers, insurance companies and other institutions that automatically provide benefits and protections for married couples provide equal respect and recognition to civil unions? Maybe, maybe not. In social and business situations, will couples united in a civil union be afforded the same respect and accommodations afforded married couples? Who can tell? Of course, they can lie and claim to be married; but how sad is that? It hearkens back to the days when gay men and women would travel as best friends, check into hotels separately and then sneak into each other’s rooms under cover of darkness.

What makes is “separate but equal” is the simple fact that it’s not marriage. There’s no established definition of civil unions from one state to the next, nor any structure to support recognition of civil unions. And there’s no legal recourse if your New Jersey civil union isn’t recognized in New Mexico, or Montana. If you’re a heterosexual couple, you’re as married in Mississippi as you are in Minnesota, or Morocco for that matter. If you’re a same-sex couple, the simple truth is that your rights and protections move in and out of existence from one place to another. If you’re gay, you’d better have your papers with you everywhere you go, but just know that even showing up with an arsenal of documents may not protect you.

But the biggest problem with civil unions, and what makes them “separate but equal” is that the status itself is inherently unstable. As with reciprocal beneficiaries or other alternative legal status cooked up as an end-run around equality, civil unions are more easily redefined. Being separate from marriage, it can be endlessly redefined, even right out of existence.

There just isn’t any other real way to establish equality for same-sex couples other than marriage. A recent comment on an earlier post posed this question.

Many of the rights afforded by current marriage laws could be achieved for homosexual couples without sanctioning same-sex marriage, and many of the rights that we associate with marriage don’t actually come from the institution, but are regulated by something different entirely – but this doesn’t address why same-sex marriage should not be legal.

In theory that may be right, but as I pointed out before (and has been suggested before as the best means of obtaining equality) that requires challenging and changing over 1,000 federal laws and regulations, not to mention the lobbying to change the policies of countless private employers. In the real world, this is (a) unlikely to happen, and (b) will take an interminably long time. It’s basically saying that if the mountain won’t come to you, you can’t go to the mountain, but instead have to move it one teaspoon at a time. Marriage, on the other hand, ties all of it up in a neat package, and can be entered into with relative ease and little expense if you’re heterosexual.

Despite all of the above, though, I’m willing to admit that what’s happened in New Jersey is progress. I’m also encouraged that the gay community in New Jersey is continuing to fight for equality and that, despite my earlier concerns, at least some progressives support that effort.

If we can achieve the same result in Maryland when the time comes, it’ll be a good start.

3 Comments

  1. One problem with Domestic Partnerships/Civil Unions that I don’t often see addressed is how they are perceived by regular people. They’ve heard so often from talking heads that “Civil Unions are good as long as they give the same rights as marriage.” Then they hear about Civil Unions being enacted in New Jersey or Vermont or California and they think that indeed the Civil Union must be a good thing because it gives all the rights as marriage does. They miss that whole “if” part. I’ve had straight friends completely fail to understand why I don’t believe my Domestic Partnership is good enough. The light dawns when I tell them that no matter what we call it, gay couples are NOT recognized by the Feds, and that if we move, our “contract” suddenly becomes null and void.

    Sure, Civil Unions are a good first step, a stop-gap measure to give our families some protections, but it’s not enough. Take advantage of them when they’re offered, but keep pushing for full equality, both at the State and Federal levels.

    JOhn.

  2. Civil unions is nothing less than separate and unequal. Its definitely a step in the right direction in that civil unions provide practical benefits to same-sex couples and their families, but they are so clearly not equivalent to marriage. The New Jersey legislature had the opportunity to take a strong stand for equality. Instead they punked out.

  3. Sometimes, people only do the right thing after they have exhausted all alternatives. I view this as progress not in itself but because it will fail, i.e. bog 500 courts in endless litigation, and will ultimately lead some opponents to sigh, throw up their hands, and say “enough already.”

    It will also lead to the argument that a structure that is not honored under full faith and credit nationwide is not equal in practice, i.e. marriage is mandatory. That suit will require a few new facts and new law will spring from it, I predict.

    I think the passage of this NJ statute may make it easier for Maryland’s Court of Appeals to go all the way, under the theory that they would rather deal with this once than multiple times. The court in MD is institutionally conservative but nobody really wants to see their effort fail to deal fully with a situation.

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