Reprint from Baltimore Gay Life

Why Not Civil Unions?

By Dan Furmansky, Executive Director, Equality Maryland

Friday, July 21, 2006

It's been a period of setbacks for the progressive community.

First, Georgia 's Supreme Court ruled that the constitutional amendment passed there by voters was, well, constitutional. (The question at hand was whether backers had violated a "single subject" rule for amendments by dealing with a ban on both marriage and civil unions for gay couples – the Court said no violation had occurred).

Next, LGBT activists have to anticipate the threat of a constitutional amendment banning same-sex marriage going to the ballot in Massachusetts in 2008.

Then came an insulting and poorly reasoned decision by New York 's Court of Appeals that same-sex couples have no constitutional right to marry. The majority opinion of the Court of Appeals strained logic so far that I may have actually pulled a muscle just trying to follow it. Straight couples can have children by accident, unlike gay couples, so then therefore they need marriage more than gay couples because, because, because...their children might end up in a less stable situation than same-sex couples. Um, huh?

I could wax poetic about the New York decision and waste more space, but the only words worthy of merit were those of dissent from Chief Justice Judith Kaye, who said "I am confident that future generations will look back on today's decision as an unfortunate misstep."

Given these setbacks, I wasn't surprised to receive an email from an Equality Maryland member this week that said, for the most part, "Why not civil unions?" Every so often I'll hear someone say "I don't care what it's called." It's an important debate in the LGBT community, and a question that deserves attention.

I always like to start the conversation by reiterating that equality under the law means equal marriage rights. The same license that all other couples have. The same social, legal and financial benefits that cannot be replicated. The right to marry the person of one's choice is, after all, a constitutional right. According to U.S. Supreme Court, even murderers sentenced to life in prison can't be denied the right to marry their pen pals. Indeed, marriage is a fundamental part of our "pursuit of happiness."

The question at hand in America courts today is whether there is any logic in a legislature preventing same-sex couples from marrying. Make no mistake – there is no rational reason for doing so. But there is an irrational one: prejudice and ignorance cloaked, quite often, in the language of "religious freedom."

Yes, marriage is a constitutional right, and LGBT Americans are being denied that constitutional right. Don't forget that lower courts in Alaska , Hawaii , Oregon , Washington , Maryland , New York , and California have affirmed this right, as has the high court in Massachusetts , and to a lesser extent, Vermont.

Enter civil unions. Civil unions were groundbreaking when Vermont 's Supreme Court told its legislature that the protections of marriage could not be denied to same-sex couples in that state. The Legislature took the easy way out – give the protections of marriage through another license. Essentially, a fabricated system was established to comply with the Vermont Constitution but still set gay and lesbian couples apart from other couples, i.e., make a moral statement that their relationships are somehow different and inferior.

Marriage in this country is defined as much more than a mere concept or word. It is a legally binding contract between two persons that love each other and the government. All Americans who love each other should have the right to enter into that contract and have those civil rights and key protections.

Nonetheless, having all of the state-level protections of marriage through a civil union would be a step forward for same-sex couples in Maryland (even if there was no chance those civil unions would be recognized by the Federal government or in a neighboring state). But in Maryland , we can get full marriage rights – just like all other couples – and can keep them. Furthermore, our shot at obtaining equal marriage rights is far greater than our chances of obtaining civil unions. So why would we go for less? Do we deserve less?

In other states it may make sense to pursue civil unions because the courts are unfriendly, so civil unions are a logical legislative end goal. That is not the case with Maryland . The Circuit Court in Baltimore has already affirmed that it is a violation of our state constitution to deny marriage to same-sex couples. The ACLU and Equality Maryland believe there is a very healthy chance that the high court will agree. We also believe that if the LGBT and allied community continue to build our movement and stay politically engaged, we can prevent a constitutional amendment from ever seeing the light of day.

Equality Maryland also hasn't pursued civil unions as a matter of pragmatism: If we couldn't get Gov. Ehrlich to sign the Medical Decision Making Act, we certainly weren't going to get him to sign a civil union bill. And the conservative Senate Judicial Proceedings Committee was not a likely entity to send a civil union bill to the Senate floor for a vote.

Just because the LGBT community had a setback in New York does not mean we get overly disheartened. Many of us in the activist LGBT community were not banking on a win by New York's Court of Appeals, based upon our knowledge of the court. Still, there was always the hope, and the pathetic reasoning employed by the majority was quite upsetting.

But look forward: there are two progressive high courts – Washington State and New Jersey – a set to rule any day now on their marriage cases. California 's legislature already passed a marriage bill, and several Democratic candidates for governor there have vowed to sign it if they edge out Gov. Schwarzeneggar in November. And while there is potential of a ballot measure in Massachusetts in 2008, we already know that more than half the population there supports equal marriage rights. In New York , New Jersey , and California , the population is evenly split or decisively in favor of marriage for same-sex couples. And nationally, opposite to equal marriage rights is declining.

We're getting there, but if we want to gain the full respect of the laws in the United States, then we're going to have to deal with the legal and legislative setbacks as well as the successes. If the ability to marry the person we love was as easy to come by as summer thunderstorms in Maryland , then would it be worth it? Let's not forget why the forces of intolerance are working to keep us from marrying, they cannot accept that we love as they do. They must reduce us to sex acts, mentally confine us to parade floats, strip us out of constitutions, and remind us that we are deserving of stigmatization through sodomy laws and marriage amendments.

There are many families that deserve and need protections now. That's why Equality Maryland continues to work in the General Assembly to make advancements. In 2005 Equality Maryland passed not just the Medical Decision Making Act, but also bills to eliminate the transfer and recordation tax for same-sex couples. Sadly, Governor Ehrlich vetoed both bills. This year, Equality Maryland worked with legislators to make important chances to advance directive forms to grant new rights to same-sex couples that avail themselves of advance directives.

If marriage for same-sex couples in Maryland fell completely out of reach, then a pragmatic organization like Equality Maryland would reevaluate our goals. And if we lose in court, then we'll take our case to the General Assembly. Remember, though, that this conversation is not just about protections and rights, but also about how LGBT Americans and our families are going to be treated in society. Of course civil unions are better than nothing – much better than nothing – but as long as we can gain our seat at the table with every other American, we should never strive for anything less than what we deserve.