Sunday, January 17, 2010

Civil union legislation in Hawai'i, the spectrum of opinion on non-spousal, legal unions, and the impact of the Perry trial

As Herbert Sample reports for AP, "a group of Protestant evangelicals" - the Hawai'i Christian Coalition - will join the Hawai'i Family Forum for a rally today in Honolulu to urge state legislators to vote against civil unions legislation (HB 444). Expanding the limited rights and obligations of a "reciprocal beneficiaries" law, the bill would give same-sex couples a full range of spousal benefits and protections. If enacted, Hawai'i would join six other states that have comparable laws. See this Lamda Legal page to understand the historical context in which the state legislature will now consider the legislation after it stalled last year. Pam's House Blend has more on the response by Equality Hawai'i.

Opinion on non-spousal, legal unions varies among opponents and supporters of marriage equality. An overview of the state of opinion strikes me as timely, particularly in light of the Perry trial. At its core, the Perry case concerns the constitutional adequacy of California's "all-but-marriage law" for same-sex couples. Moreover, John Green, a political science professor at the University of Akron, recently told USA Today that marriage-equality advocates "will push for states to grant civil unions or domestic partnerships, which allow similar rights to those of married couples ... [because] Americans are more likely to support those relationships."

Let's first consider the views of marriage-equality opponents. Many who oppose same-sex marriages also oppose any type of non-spousal, legal union. Honolulu Catholic Bishop Larry Silva last week said that civil unions represent "simply a euphemism for same-sex marriage." Before Colorado Governor Bill Ritter approved limited domestic partner benefits for state employees, Colorado Family Action opposed the legislation because "it attempts to elevate same-sex couples to the status of married couples by defining domestic partner as an eligible dependent of a state employee."

Nevertheless, other marriage equality opponents have - as a matter of political strategy - accepted domestic partnerships or civil unions, at least in states that have related laws. In fact, divisions over the issue continued last year among Prop. 8 supporters. Andrew Pugno, general counsel of, faulted an attempt by the Campaign for California Families (CCF) to intervene in the Perry case. CCF takes the same view on domestic partnerships as Silva and Colorado Family Action. The organization initially opposed Prop. 8 because it did not ban non-spousal, legal unions. Pugno said that CCF went "beyond what we thought voters would support and roll back gay rights with a much more aggressive measure."

Finally, David Blankenhorn, a defender of "traditional marrige" recommended a "reconciliation," with backing from Jonathan Rauch, a gay marriage advocate. They would allow the federal government to recognize all spousal benefits and protections for same-sex couples who have married or entered into civil unions, as long as the associated state laws include "robust" religious-liberty protections. (Blankenhorn will testify this week in the Perry trial on behalf of Prop. 8 proponents.)

Marriage-equality supporters have their own spectrum of differences on non-spousal, legal unions. Law professor Nancy Polikoff, author of Beyond (Straight and Gay) Marriage, conditions her support of marriage equality. As long as marriage exists, she believes that same-sex couples should have equal access to it. But she would replace the state's role in marriage with a new status, civil partnerships. Civil partnerships would have all the rights and duties previously reserved for marriage. Polikoff would also extend civil partnerships to traditional and non-traditional families. (See her latest post on the Perry trial.)

Marriage-equality supporters tend to embrace the "conservative position" that Perry counsel Theodore Olson recently articulated. This is the view that that marriage represents "one of the basic building blocks of our neighborhoods and our nation," from which same-sex couples can not be excluded. In states, such as New Jersey, that have "all-but-marriage" laws, same-sex partners have described the consequences of the inherent, "second-class citizenship" that these laws represent. The latest accounts of the effects of inequality have occurred during New Jersey's debate overmarriage-equality legislation, and during the Perry trial - see, for example, this report on testimony by Lian H. Meyer, professor of clinical sociomedical sciences at Columbia University’s Mailman School of Public Health.

I have keen interest in the activities of marriage-equality supporters in states with constitutional or statutory DOMAs. These supporters favor domestic partnerships or civil unions, not as satisfactory substitutes for marriage equality, but as interim measures with important benefits for same-sex couples and their communities. These advocates enjoyed their latest success in Washington, where a narrow-majority of voters approved the controversial Referendum 71, upholding the state's "all-but-marriage." Similar controversies in DOMA states have followed proposals or adoptions of limited domestic partnerships, especially in states like Wisconsin with "super-DOMA" amendments. Lee Badgett expects "a campaign for legal rights that will focus on couples in the middle of the country." The latest campaign involves a proposed, civil-unions initiative in Colorado.

Of course, the Perry trial will educate the public on the merits of marriage equality. Whatever its ultimate outcome, it will likely invigorate advocacy - in Colorado and other states (like New Mexico) - for civil unions or domestic partnerships.

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