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February 08, 2012

Civil Unions Are Important

I don't have anything to add to Drew's Prop 8 post. Just the note that civil unions (or more properly, as California terms them "registered domestic partnerships") were important. I mean that in the value-neutral sense. Not that they're necessarily good (or that they're necessarily bad). I mean that they're important in the legal sense.

California, through its registered domestic partnerships, grants to gay couples the rights, benefits, and burdens of marriage and withholds from them solely the term "marriage." That's key: all of the myriad incidents of marriage---adoption, legitimation, child-rearing, spousal privilege in courts, tax benefits, inheritance, etc.---are extended to gay couples, except for the actual right to the term itself. It becomes very hard for folks to defend that in court.

The U.S. Constitution permits many types of discrimination (and please note, this is a discrimination case, not a "constitutional right to marriage" case). Government itself is a form of line-drawing, and in the exercise of government distinct groups are addressed by the laws and execution of the laws. It is a constitutional minimum, however, that such line-drawing be "rational." And, as I said, it's very hard to defend a regime as legally rational in which every last incident of marriage is extended to gay couples except the word itself. That looks pretty darn irrational.

For example, the Prop 8 proponents had argued that banning gay marriage would encourage responsible biological procreation, which they said has positive outcomes for society. The court held that it wasn't rational to expect that giving gays all the incidents of marriage except the term marriage would encourage straights to raise their children in traditional marriages. California already extends child-rearing rights to gay couples and, in fact, its family laws give preference to non-biological parents who have raised a child over a biological parent who comes only late to claim the kid. Even Judge Smith, the dissenting judge, found that this purported justification didn't quite add up, given California's extension of all of the incidents of marriage to registered domestic partners.

So civil unions are the "slippery slope" that many folks said they would be. The majority judges claimed that their holding was limited to California's unique circumstance, in which gays already had the right to marry which was then taken away. But their reasoning seems to me to be easily extended to states that convey to gay couples marriage rights without the word "marriage."

One of my frequent twitter correspondents, who I believe may also be a commenter, suggested that the court's reasoning would be nullified if the government just got out of the marriage business and maybe substituted civil unions for both straight and gay couples. That's true, but exceptionally unpopular. And neither gay marriage opponents nor gay marriage supporters want to push for it---the former because it's hard to say you're "defending marriage" by pushing it out of the public sphere and the latter because they're already caricatured as "attacking marriage." So, although it's true that there would be no government discrimination in marriages if the government stopped administering marriages, I don't expect that to happen any time soon.

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posted by Gabriel Malor at 07:39 AM

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