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[Civil Unions]: A Reply to Nussbaum

Readers will not be surprised to learn that I agree with Martha Nussbaum's compelling analysis of this issue. I would be very interested, though, to hear what Rick Garnett and Doug Laycock think of it. Doug has already said that he supports same-sex marriage, so I suppose it's Rick whose response will be most interesting.

There's one element of Martha's analysis that I do want to address. Martha argues that states should permit same-sex marriage. But H.R. 2234 authorizes not same-sex marriage, but civil unions. I have struggled personally with the question whether to endorse a law allowing civil unions, but not same-sex marriage. Because I believe that discrimination against gays and lesbians is ignorant, immoral and inconsistent with our nation's most cherished constitutional values, I deeply believe that full equality, rather than some form of subordinated "separate but equal," is the only proper solution. Nonetheless, I am persuaded by those who know Illinois politics better than I that although the state legislature might legalize civil unions, it will not in the foreseeable future legalize same-sex marriage.

The quandary is whether to settle for a half-a-loaf or whether to stand on principle. On the one hand, accept civil unions while expressly reserving "marriage" for opposite-sex couples seems to me deeply offensive. It has the same moral justification of separate-but-equal in the racial context. It is stigmatizing, insulting and discriminatory. On the other hand, there are very real practical benefits to civil unions that mean a great deal to the day-to-day lives of same-sex couples. So, assuming the recognition of same-sex marriage is not in cards in Illinois at present, what to do? This is similar to the "don't ask, don't tell" question.

I'd be very interested to know what Martha, Rick and Doug think about this.

Full post as published by The University of Chicago Law School Faculty Blog on May 06, 2009 (boomark / email).