Home -> Law Blog Directory -> Family Law Blogs -> Massachusetts Gay and Lesbian Legal Briefs

Family Law

: Massachusetts Gay and Lesbian Legal Briefs

Civil Unions. What They Are; What They Aren't.

By Christopher Vaughn-Martel

On January 1, 2008, New Hampshire became the fourth state in the nation to grant civil unions to same-sex couples. Currently, civil unions are recognized in Vermont, New Jersey, and Connecticut, while both California and Oregon offer Domestic Partnership Laws, which offer substantially similar rights and protections.

What is a Civil Union? Civil union laws attempt to create a legal status parallel to that of marriage. The New Hampshire legislation creating civil unions is entitled, "An Act Permitting Same Gender Couples to Enter Civil Unions and Have the Same Rights, Responsibilities, and Obligations as Married Couples". The idea is to provide separate-but-equal rights, protections, and obligations for both same and opposite-sex couples.

No Fixed Legal Definition. Unlike the legal status of marriage, which is nearly universal and understood worldwide, civil unions are not commonly understood by the general public and have no fixed legal definition. The definition of a civil union is whatever the granting state's legislature decides it is; and is not. Civil union laws change from state-to-state, with no guarantee that State A will grant the same rights and benefits to a same-sex civil union as State B. And while all states already have a marriage framework in place, not all states even have a civil union framework in place.

Civil Unions Miss the Point. Civil union laws dramatically underestimate the social and cultural significance of the institution of marriage. Even a civil union law which provides all the economic and legal rights and benefits of a marriage still deprives same-sex couples of the rich social and cultural benefits, as well as dignity and security, attached to the word 'marriage'. For an eloquent discussion on the intangible benefits associated with marriage, read the Massachusetts Supreme Judicial Court's opinion in Goodridge v. Dep't of Public Health.

Civil Unions Often Grant Only State Rights and Benefits. The 1996 Federal Defense of Marriage Act (DOMA) currently denies federal recognition of same-sex marriage. However, a repeal of the 1996 Act would entitle same-sex married couples to approximately 900 rights and benefits conferred by the federal government (including IRS, immigration and other government benefits). In contrast, the civil union laws of Connecticut and Vermont grant only state-level rights, while specifically denying access to any federal rights and benefits.

Same-sex marriages originating in Massachusetts are spreading throughout the country. As the status of legal marriage crosses state lines, these states are being challenged to apply their existing marital structure to these couples, including laws relating to inheritance, divorce, adoption, spousal and child support, access to health and financial records, etc. As a creature of state law, and without a historical and legal tradition of recognition, state courts and legislatures may not be as compelled to extend reciprocal rights to civil unions.

A Civil Union is Not a Marriage. Although civil unions represent a momentous practical step forward for same-sex couples living in the states that grant them, a civil union is a political compromise. A civil union is not a marriage.

(Given the current patchwork of various state and federal laws relative to the recognition of same-sex relationships, couples considering entering into a civil union or a marriage should consult with an attorney first, as a change in status could effect property ownership, inheritance, immigration status, adoption rights, military benefits, etc.)

Full post as published by Massachusetts Gay and Lesbian Legal Briefs on February 26, 2008 (boomark / email).