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Civil Unions: Separate and Unequal

By Henry Schleifer

This article originally appeared in the Wilmington News-Journal

In America, the face of marriage is changing at an increasing rate.  A recent study by Pew Research found that one in every 12 new marriages was an interracial couple.  Stunningly, these unions would not have been legal in many states just 50 years ago. Thankfully, the Supreme Court ruled in Loving v. Virginia that the state’s ban on interracial marriages violated individuals’ guarantee of equal treatment under the law. But what if the political elite of the time had told interracial couples to forgo the push for equal marriage rights and instead settle for civil unions? After all, 70 percent of people polled at the time voiced an opposition to the mixing of the races.

In the rear view mirror of history, the conclusion of the Court in Loving was obvious, and the idea of interracial civil unions sounds preposterous today. But in 2012 we continue to make a similar societal bargain to grant gay couples some of the rights of married couples, but not all of them. In exchange for this progress, we agree to refrain from calling the union marriage: this is good enough, we say. Yet this is a gross inequity that the federal government should not let stand.

This past month, the 9th Circuit Court of Appeals in California affirmed that this was indeed not “good enough.” In their decision, the Court wrote that Proposition 8, a California initiative that overturned the state’s gay marriage law, violated the Equal Protection Clause. “It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status,” they decided.

The Court wrote that because civil unions give LGBT couples many of the legal rights of heterosexual couples but still deny them the opportunity to officially marry, it merely constitutes the punishment of an unpopular group. While civil unions do grant some rights, the court has decided that civil unions aren’t good enough—and they’re right. Just as interracial couples did not and should not have to settle for civil unions in the 1960’s, gay couples should not have to settle for civil unions now.

Past the thorny moral questions surrounding the issue, the practicality and efficacy of civil unions has also come into question. Many states, including Delaware, have recently passed legislation that allows for civil unions. These states should be applauded for their efforts. However, whether states have done so as a step towards marriage or a compromise away from it, civil unions have encountered severe logistical problems.

New Jersey has fully admitted that their civil union law of 2006 has been totally unworkable. As with any patchwork state-by-state regulation, there have also been problems with states passing different laws with different regulations. In Washington D.C., which passed its marriage law in 2009, people who have moved out of the district have been unable to get divorced in their new home state, which does not recognize their marriage in the first place. Yet they also have not been able to return to D.C. to obtain a divorce, as their marriage law only affords this right to residents. The district is now scrambling to change the statute so these couples can dissolve their unions.

I realize that Delaware has only just now passed its civil union bill. But every day that gay couples don’t have the same rights as straight couples is another day of inequality. Every day that they cannot take a job in another state because the rights that Delaware has bestowed on them do not transfer is another day of unnecessary discrimination. After all, Governor Markell said this past week that the legislature will probably consider a gay marriage bill “in the next few years.” Why can’t we fix this injustice today?

As a straight American, I have the right to marry any person that I like. But shouldn’t homosexuals be afforded the same right to marry the people they love too? Shouldn’t the standard of equal rights under the law apply to all Americans? While civil unions were a step in the right direction, they have proven unworkable in many cases and are simply not “good enough.” After all, how are civil unions any different than the abhorrent “separate but equal” legislation of centuries past?

I look forward to the day when instead of seeing heart wrenching stories in our local papers of the bullying and harassment of gay students that across the country we will see touching marriage announcements of gay couples. And hopefully, whether by the hand of Congress or more likely by the hand of the Supreme Court, that day will come soon.


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'Civil Unions: Separate and Unequal' have 1 comment

  1. March 26, 2013 @ 12:05 am Why A Conservative Supports Gay Marriage In The SCOTUS Debate - The Brenner Brief | The Brenner Brief

    […] been found that a simple change in phrasing can make all the difference in the world. To this end, civil unions are separate and not […]

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