The Difference Explained

I’ve been wondering for quite a while why a civil union for a gay couple is not equal to a marriage for a straight couple. Obviously, the Federal government does not recognize any kind of same-sex family institution, so that’s a pretty big deal. But I’ve written on many occasions that if a state creates a legal institution that gives all the same rights as marriage, that seems to be the most a state can do, and that leaves someone like me (who thinks that gay couples should be treated the same as straight couples) satisfied. From there, I’ve said that the onus is on the advocates of same-sex marriage to explain why the semantic difference between a civil union and a marriage makes a difference.

Well, at last, I’ve found a reasonably well-argued and articulate attempt to do that. I found it in the Gray Lady, where it was presented as a feature news story as opposed to the op-ed piece that it really is. But no matter – the ideas it throws out are worth considering. The examples the article refers to are from Connecticut, which has a “full equivalency” law – the Connecticut civil union is supposed to provide the same rights under Connecticut law as marriage.

Here’s what the Gray Lady found: a woman was giving birth to her son, and was asked for information on a hospital intake form – “Are you married, widowed, divorced or single?” She was in a Connecticut civil union, and so the proper answer was “none of the above.” When the intake nurse checked “single,” she had to protest that she was “closer to married than to single.” During an in-processing for a recently-hired teacher, he realized that while filling out paperwork with the HR worker, he would basically have to come out of the closet to this person he barely knew, and he was not comfortable with doing that.

There is also a regulation at the University of Connecticut that season tickets for the basketball games can only be passed along to a spouse, not to a partner in a civil union. That seems like it is the UConn Athletic Department’s rule not catching up with the civil union law; the change is so obvious under Connecticut’s full equivalency civil union law that it ought to get cleared up without litigation – a partner in a civil union is a spouse under a full equivalency law. It ought not to take a lawsuit to change the rule, but if UConn does refuse to change the rule, the lawsuit is a dead-bang winner.

So the difference in nomenclature basically comes down to these two points, at least as articulated in this article:

Civil unions require constant “haggling, litigation and explanation,” said Evan Wolfson, the founder of a New York-based advocacy group called Freedom to Marry. Being married, he said, means “you don’t have to fumble for documents. You don’t have to hire an attorney, and you don’t have to consult a dictionary. You’re married. You know what it means, and everyone else knows what it means.”

* * *

Jeffrey Busch, a lawyer who is also a plaintiff in the case, said that he and his partner, Stephen Davis, reluctantly obtained a civil union for the sake of their son, Eli. “It was an awful experience,” Mr. Busch said. “In order to get those rights, we had to make a public declaration of inferiority. [¶] Being in a civil union is not the same as married,” he said. “If it was, they would call it marriage. I don’t know anybody who would give up their marriage for a civil union.”

The first point is that a civil union necessarily creates substantial bureaucratic and legal transaction costs despite the best efforts of a state to make it a “full equivalent.” The second point is that the nomenclature has inherent value. I buy the first argument more than I do the second one.

The article also points out that the absence of the ability to file a joint federal tax return creates logistical difficulties for a “unionized” couple to prepare a state tax return. Most tax preparers have to work up a “dummy” joint Federal return because most state tax forms import information from the Federal forms. So that means that while, in theory, the “unionized” couple need only file a single joint state tax return, the preparer must do twice the work – prepare a dummy joint federal return, then prepare the joint state return, then prepare each partner’s individual federal return. As a result, most preparers must charge a higher fee for putting together tax returns for a “unionized” couple. Then there is the issue of whether a “unionized” partner is liable for taxes for employment benefits gained through his or her spouse (under Federal law, it seems they would be). Those issues, however, seems to be the Federal government’s fault and not that of the state of Connecticut.

Overall, it’s an interesting point. I do not think, though, that the bureaucratic inconvenience, particularly when instigated by private parties rather than governmental entities, is sufficiently grave to make this a case of “separate but equal” being inherently unequal. Still, it’s a more substantive point than I’ve heard yet made in that direction.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.