Do the Rite Thing?
Addressing the current state of the civil union
Alex Knisely and David Jones jumped at the chance to get a civil union in 2000, the year the Vermont law took effect. Knisely, a Pennsylvania physician, had been offered a job in London, and wanted to make sure his partner of 10 years could accompany him across the Atlantic. Although civil-union licenses are not usually recognized outside Vermont, Knisely and Jones lucked out. Jones was granted a visa based on his relationship with Knisely which the c.u. helped document.
Now Knisely and Jones are hoping to tie the knot again -- this time, more securely. They're planning a Massachusetts wedding. "Nobody knows what a civil union is, but people recognize what a marriage is," explains Knisely. "It's the public declaration that this is meant to last."
Civil unions seemed radical four years ago. But as more and more states and municipalities move towards performing -- or at least recognizing -- single-gender weddings, the Vermont model is complicating the legalities of an institution in flux.
The recent firestorm of civic activism in places like San Francisco, New Paltz, Asbury Park and Plattsburgh was sparked in November, when the Massachusetts Supreme Judicial Court mandated same-sex marriage. In response, last week the Massachusetts Legislature gave preliminary passage to a bill that writes civil unions into -- and gay marriage out of -- the state constitution. It will likely receive final approval when the state's constitutional convention reconvenes on March 29.
But even if the measure passes, the earliest it could go into effect would be 2006. Between May 17 and then -- barring some long-shot legal maneuver by Governor Mitt Romney -- same-sex marriage will be legal in Massachusetts. The vows exchanged just over our southern border will be heard around the world. Here in Vermont, the anticipated weddings already look like a movie trailer for Civil-Unions Debate, Part II.
"I can't see that we won't have people who get married there and come here," says Vermont Attorney General William Sorrell. Those marriages will stir up a mess of legal puzzles, foremost among them: Will Vermont legally recognize them, and if so, as what?
The answer may depend on who's getting married, Sorrell suggests. A 1912 law stipulates that if a Vermonter leaves the state and contracts a marriage that would have been forbidden here, that marriage will be declared null and void when the person returns to Vermont. In other words, a Massachusetts marriage between homosexual Vermonters will not be recognized as a marriage in Vermont.
On the other hand, Sorrell notes, "Vermont does not have a specific statute that talks about two people who live in Massachusetts on May 17 and get married, and lo and behold on July 1 they come to Vermont." It's unclear whether the courts would treat such transplants as married, as in a civil union, or as not married.
"Off the cuff," Sorrell says, "I think it would be unlikely that the state would recognize the marriage in this latter example of people who live in Massachusetts and at the same time not recognize the marriage of two people who went to Massachu-setts and came back." Most likely, he guesses, both marriages would be treated as civil unions. But he cautions, "Put 10 lawyers in a room, you'll get 10 opinions."
Attorneys are already having a heydey with the question of civil unions' portability. "The experiences of civil unioned couples in other states is decidedly mixed," says Middlebury attorney Beth Robinson, a lead lawyer in the Baker case that resulted in Vermont's civil-union law, and a founder of the Vermont Freedom to Marry Task Force. Robinson tells about a man who sued a New York hospital for his civil-union partner's wrongful death. The hospital argued that the plaintiff had no legal standing, but the court ruled in the man's favor. The hospital has appealed.
Robinson also describes a divorced mother in Georgia whose visitation rights barred her from keeping her child with her overnight if another adult who wasn't related to her was present. A court ruled that the woman's civil-union partner didn't meet the definition of "spouse." And in two separate cases, Iowa and West Virginia couples seeking to end their civil unions were granted divorces in their home states.
If the lay of the land is confusing for gay and lesbian couples at the state level, the national landscape is crystal clear. Although the 2000 U.S. Census reveals 3 million households headed by same-sex couples in 99.3 percent of counties nationwide, these partners have no legal standing in the eyes of Uncle Sam. They can't receive Social Security benefits, file joint tax returns or qualify for any of the provisions that are contingent on marital status and spelled out in 1049 U.S. laws.
The feds' position is reinforced by the 1996 Defense of Marriage Act, which excuses states from recognizing same-sex unions solemnized in other places. At last count, 37 states had laws on their books banning gay marriage within their own borders.
This legislation is bound to be tested in court, where lawyers will undoubtedly argue that DOMA violates Article IV of U.S. Constitution, which requires states to give "full faith and credit" to each others' judicial proceedings. President Bush acknowledged this legal vulnerability on February 24 when he called for a constitutional amendment defining marriage as a union of a man and a woman.
Dubya softened his rhetoric by stipulating that a marriage amendment should leave states "free to make their own choices in defining legal arrangements other than marriage" -- a statement that leaves the door open for civil unions. That the Vermont model now provides a fallback position for conservative politicians shows how far attitudes around homosexuality have come in just a few years.
Popular opinion tells a similar story. This month a USA Today/ CNN/Gallup poll found that while only 33 percent of Americans support same-sex marriage, half oppose a constitutional amendment banning it and a 54 percent majority supports civil unions -- up from just 40 percent last July. Gay-rights advocates view this shift as one more step in the march towards marriage for all.
"Civil unions were a tremendous step
forward here," says Beth Robinson. "They would be a tremendous step backwards in Massachu-setts." Speaking to 100-plus cheering supporters at Burlington's Unitarian Universalist Society Friday evening, Robinson quoted from the Massachusetts high court's November 25 decision: "The history of our nation has demonstrated that separate is seldom if ever equal."
The crowd had gathered to help launch a new educational campaign by the Vermont Freedom to Marry Task Force. "We need your stories," VFMTF chair Sherry Corbin told the audience. She said the group plans to follow the strategy that worked so well in promoting civil unions. Like last time, it aims to harness the persuasive power of the anecdote, using poster children who look like anyone's next-door-neighbor to show the human side of queer commitment.
And this time around, activists argue, they'll be bolstered by the state's four-year experience with civil unions. Their mantra: The sky hasn't fallen. "No one in Vermont can say that taking that next step is going to tear Vermont apart," says Robinson. "Marriage isn't going to hurt anybody and it's going to make some families in the community more secure."
Also key will be articulating the limits of civil unions -- not just that they provide less security than marriage on a practical level, but also that they lack the symbolic weight of the institution of marriage. "No one grows up hearing songs about civil unions," Robinson notes. "Our civil-union law doesn't just disadvantage committed couples in long-term relationships, it says that gay and lesbian people are less worthy than their hetero neighbors."
Corbin believes that more public education is needed before Montpelier is ready to reconsider gay marriage. But pols are already staking out their positions on both sides of the aisle. Representative David Zuckerman (P-Burlington) has sponsored a bill to legalize same-sex marriage. "Ultimately, he says, "equality is important."
The opposition is also poised. First-term Senator Marc Shepard (R-Bennington) has introduced a bill that would amend the Vermont Constitution to limit marriage to heterosexual couples. Shepard says he took his model from the Alliance For Marriage, the lobbyists who drafted the federal marriage amendment. A coalition of conservative political and religious groups, AFM makes no reference to homosexuality and avoids the now politically-extreme position of seeking to ban civil unions.
Shepard's bill follows suit. His statement of purpose talks about gender equality, the social benefits of marriage and family, and a desire to ensure that "the democratic process is not overrun by judicial activism."
"I don't believe the role of government should be to give out licenses to people based on feelings," Shepard says. "If you can make a case for gay couples, you can make a case for polygamy or something else... People talk about bisexuals. What do you do in that case?"
Although Shepard's bill doesn't address civil unions, he does say he believes that the current law "is not good policy." And although he acknowledges that "it's too soon to say" whether it has harmed the state, Shepard suggests the legislation has encouraged "more openness among our youth to experiment" sexually. "People may have an orientation towards [homosexuality]," he says, "but that doesn't mean we should celebrate it. Some things are healthy and some are not."
One thing Shepard and Zuckerman agree on: No one in Montpelier seems to be in a hurry to address the issue. Both bills are sitting in committee.
In the meantime, people are definitely confused. "A day doesn't go by when a question doesn't come in," says Deputy Secretary of State Bill Dalton. His job is to help town clerks and other officials understand how to issue civil unions. But these days he sometimes finds himself as stumped as his callers. "This is a brave new world," he says, "a world where there are no answers yet."
Another area that's still up in the air: what happens when the honeymoon is over. If same-sex marriage really does mirror the traditional variety, statistics suggest that about half of committed gay couples will eventually split up. For folks in civil unions, that means a "dissolution." But proceedings can't begin until the couple has lived in Vermont for at least a year. Since most C.U.ed couples come from elsewhere, it's not surprising that the state so far has recorded 6761 civil unions, but only 29 dissolutions.
Debra Schoenberg, a Burlington attorney who practices family law, has handled about five gay break-ups -- all involving couples who lived here when they got hitched. But she's fielded more than 50 inquiries on the topic from out-of-staters. "Once I explain their need to buy a red flannel shirt and hang in Vermont for a year," she says, "they decline."
That situation is likely to change, though, Schoenberg adds. With breaking up so hard to do, and as long as no state outside Vermont would recognize a c.u., there's been little incentive for folks to formally declare their civil unions finis. But as recognition of same-sex couples -- either in civil unions or in marriages -- becomes more prevalent, more parties will feel pressure to legally untie the knot.
And what about couples like Knisely and Jones? Assuming their Vermont civil union doesn't preclude a Massachusetts marriage, were they to break up, would they have to get both dissolved and divorced? As with so many questions around this issue, time, and the courts, will tell. One thing's for sure: It's all good news for attorneys. Quips Sorrell, "This is all like the lawyers' relief act."
ALABAMA: DOMA adopted as state law. Pending constitutional amendments would prohibit courts from considering the definition of marriage, ban the issuance of marriage licenses to same-sex couples and abolish the recognition of common-law marriages.
ALASKA: DOMA written into constitution and state law
ARIZONA: DOMA adopted as state law.
ARKANSAS: DOMA adopted as state law.
CALIFORNIA: State law bans same-sex marriage. In defiance San Francisco has issued more than 3200 marriage licenses to same-sex couples. The state will extend certain marriage benefits to those on a domestic partners' registry starting Jan. 1, 2005.
COLORADO: DOMA adopted as state law.
CONNECTICUT: State adoption statute refers to marriage as a union between a man and a woman. Pending bill allows same-sex couples to marry.
DELAWARE: DOMA adopted as state law. Proposed constitutional amendment forbids same-sex marriages and civil unions.
FLORIDA: DOMA adopted as state law.
GEORGIA: DOMA adopted as state law. Constitutional amendment banning same-sex marriage passed in state Senate, stalled in House.
HAWAII: DOMA written into constitution and adopted as state law. Hawaii law provides limited benefits to same-sex partners.
IDAHO: DOMA adopted as state law. Proposed constitutional amendment banning same-sex marriage passed in House, stalled in a state Senate committee.
ILLINOIS: DOMA adopted as state law. Constitutional amendments banning same-sex marriage introduced.
INDIANA: DOMA adopted as state law. Constitutional amendment banning same-sex marriage. The measure passed the state Senate, stalled in House. Legislative session adjourned.
IOWA: DOMA adopted as state law. Proposed constitutional amendment and state law would prohibit recognition of same-sex marriage or any legal union that provides marriage-like benefits.
KANSAS: DOMA adopted as state law. Constitutional amendment banning same-sex marriage and benefits that associate marriage to other relationships passed in state House, pending in Senate and may go before voters in November.
KENTUCKY: DOMA adopted as state law. State Senate voted March 11 to put a constitutional amendment banning same-sex marriages on the Nov. 2 ballot; provision now pending in the House.
LOUISIANA: DOMA adopted as state law.
MAINE: DOMA adopted as state law. Constitutional amendment banning same-sex marriage proposed but failed in both legislative chambers.
MARYLAND: In 1973 adopted the first state law defining marriage as a union between a man and woman. Proposed constitutional amendment and state law would ban same-sex marriage.
MASSACHUSETTS: Massachusetts Supreme Judicial Court has ordered legislation to allow same-sex couples to marry by May 17, 2004. Constitutional amendment banning same-sex marriages but establishing civil unions gained preliminary approval at the March 11 state Constitutional Convention. Measure will be debated again March 29, and must be approved during the 2005 legislative session, then be put to a statewide vote in 2006. Three bills introduced to permit same-sex couples to marry.
MICHIGAN: DOMA adopted as state law. Constitu-tional amendment banning same-sex marriage failed to receive two-thirds vote in House March 9. Similar amendment pending in the Senate.
MINNESOTA: DOMA adopted as state law. Constitu-tional amendment banning same-sex marriage expected to pass House; Senate action less certain.
MISSISSIPPI: DOMA adopted as state law. Constitu-tional amendment banning same-sex marriage in state House March 1. If passed by Senate could go before voters in November.
MISSOURI: DOMA adopted as state law. Constitutional amendment that would ban same-sex marriages approved in state Senate March 1. Similar bills pending in the House.
MONTANA: DOMA adopted as state law.
NEBRASKA: DOMA written into state constitution.
NEVADA: DOMA written into state constitution.
NEW HAMPSHIRE: State law predating DOMA laws bans same-sex marriage. Bill reinforcing state law banning same-sex marriages and prohibiting recognition of gay marriages performed elsewhere passed state Senate March 11. If House approves, Gov. Craig Benson has said he will sign it.
NEW JERSEY: State domestic partners' registry provides marriage-like benefits for same-sex couples. Bill introduced proposing adoption of DOMA.
NEW MEXICO: No public policy.
NEW YORK: No public policy. Bill that would recognize same-sex marriage proposed in state Senate; three bills to extend some marriage benefits to same-sex couples introduced in the state Assembly.
NORTH CAROLINA: DOMA adopted as state law. Constitutional amendment banning same-sex marriage has been written, but probably won't be introduced until 2005.
NORTH DAKOTA: DOMA adopted as state law.
OHIO: DOMA adopted as state law.
OKLAHOMA: DOMA adopted as state law. Constitu-tional amendments banning same-sex marriage and strengthening existing DOMA introduced.
OREGON: No public policy; Multnomah County officials in Portland began issuing marriage licenses to same-sex couples March 2. Signatures being gathered to try to put a constitutional amendment banning same-sex marriage on the ballot in August or November, bypassing the Legislature.
PENNSYLVANIA: DOMA adopted as state law. Lawmakers attempting to amend a pending adoption bill with provisions banning same-sex marriages, prohibiting recognition of gay marriages or civil unions performed elsewhere, and outlawing recognition of common-law marriages.
RHODE ISLAND: No public policy. Two bills to adopt state DOMA laws introduced.
SOUTH CAROLINA: DOMA adopted as state law. Constitutional amendment declaring that same-sex marriages performed elsewhere will not be recognized in South Carolina introduced. Pending bill would forbid the state from recognizing same-sex marriage or granting marriage-like benefits to same-sex couples.
SOUTH DAKOTA: DOMA adopted as state law. Pending bill would forbid the state from recognizing same-sex marriage or granting marriage-like benefits to same-sex couples.
TENNESSEE: DOMA adopted as state law. Pending bill would forbid the state from recognizing a "civil union or domestic partnership between individuals of the same sex."
TEXAS: DOMA adopted as state law.
UTAH: DOMA adopted as state law. Constitutional amendment defining marriage as the union between a man and a woman and barring state recognition of any "domestic partnership" approved by the Legislature and goes before voters in November. Changes to state law doing essentially the same thing passed by Legislature and awaiting governor's signature.
VERMONT: DOMA adopted as state law, but civil unions adopted in 2000 to provide same-sex couples access to marriage benefits. Bills introduced to amend constitution banning same-sex marriage and to allow same-sex couples to marry.
VIRGINIA: DOMA adopted as state law. Legislature has approved by a veto-proof majority a bill reaffirming that Virginia has no constitutional or legal obligation to recognize marriages, civil unions or domestic partnership contracts between same-sex couples.
WASHINGTON: DOMA adopted as state law. Constitutional amendment banning same-sex marriage introduced.
WEST VIRGINIA: DOMA adopted as state law.
WISCONSIN: State law predating DOMA bans same-sex marriage. Constitutional amendment banning same-sex marriage and civil unions approved by Legislature. Legislation must pass again in 2005 session before going before voters. Statute establishing a state DOMA approved by Legislature but vetoed by Democratic Gov. Jim Doyle in 2003.
WYOMING: State law predating DOMA bans same-sex marriage. Legislation to enact a state law modeled after DOMA introduced but failed.
Information from Stateline.org, as of March 15, 2004.