Is the civil union compromise constitutional?
Anyone who has read this journal knows that I strongly support same-sex marriage as good public policy. I also believe the Massachusetts SJC was correct in declaring the sex-based requirements for a marriage license in that commonwealth were unconstitutional. I especially agreed with Justice Greaney's concurring opinion in the case. Yesterday the Massachusetts Senate asked the SJC for an advisory opinion on whether a certain bill which intends to grant same-sex couples all the legal consequences of marriage through civil unions, but deny them marriage would be constitutional. Laurence Tribe said he woud be disappointed but not shocked if the SJC declared such an act to be constitutional. Based on that article and past statements it seems that Tribe would view the court as backing down from its convictions in the face of political realism in finding the civil unions bill constitutional. While I think that simply allowing same-sex marriage would be better policy than the civil unions route, I also think that such a bill would nonetheless be constitutional.
The Massachusetts marriage laws as they stand clearly deny equal protection on the basis of sex and hence are unconstitutional. Would the civil unions act also deny equal protection? Many respected lawyers and scholars think it would. With no briefs on the matter submitted yet, the best insight into their arguments is given by a statement of Mary Bonauto, the lead attorney for the plaintiffs in Goodridge. She will almost certainly file a brief before the court on the matter of the advisory opinion and her arguments should be seriously considered. She writes:
“Civil unions,” however defined, are not an adequate remedy. By definition they are not marriage. The word “marriage” is one of the major “protections” of marriage. Everyone knows that a married person has the right to be by his or her spouse’s side no matter what emergency may arise. Only a legally married couple has the unique legal status marriage confers and which allows marriage to be respected by state and federal governments, other countries and third parties like banks and employers. Married couples are also protected with over 1000 federal laws in areas as diverse as the right to transfer property between themselves without paying taxes and social security survivor benefits. Married couples can travel freely without having their family relationship challenged. Civil unions cannot provide these protections.
These concerns all amount to a belief that a "civil union" would be treated differently than a "marriage" by 1) other governments (foreign states, countries, and our own fedeal government) and 2) private entities like banks and employers. She may be right and my main policy concern with civil unions is that this type of discrimination is almost invited by using the separate label. Before being able to discriminate against a class one must be able to identify that class which is one reason anti-miscegenation laws were an important component of societies that practiced racial discrimination. Making discrimination easier by others, though, does not violate constitutional principles.
First of all, there is no evidence that same-sex "civil unions" will get any less recognition by others than same-sex "marriages". The federal government and many states have already anounced their policy not to recognize same-sex marriages regardless the label. Yes there are constitutional concerns with such policy, but those concerns should not hinge on the names. Whether a state calls it "matrimony", "wedlock", "marriage", or "civil union" should make no legal difference. We don't fail to recongize German marriages because they use the word "Ehe". More imporantly, even if another state did draw a distinction between same-sex "marriages" and same-sex "civil unions" that is not a constitutional violation of the Commonwealth of Massachusetts. The SJC only has jurisdiction over the constitutionality of the laws of the Massachusetts and how they are interpreted by the commonwealth. As long as the commonwealth treats civil unions as the equal of marriage it seems to me that constitutional concerns are satisfied.
The idea of using separate words for equal legal realities is actually common when it comes to sex-based classifications. In fact the laws itself deal constantly with the labels "woman" and "man". As long as it treats such individuals equally, though, the state is not forbidden from identifying them with different words. It makes no difference that other entities might discriminate on that basis. In fact, the Senate bill would not only have the commonwealth consider "civil unions" and "marriage" as legal equivalents, it would add several sections to its anti-discrimination laws to prohibit private employers from treating "civil unions' differently from "marriage".
Still there might be a concern that the only purpose of the civil unions bill is to stigmatize same-sex couples. The wording of the first section of the bill indicates this was not its intention. What rationale could there be, though, for distinct labels. Well, marriage is in part a record-keeping matter for the state. Just as a state keeps records of the sex of a baby born in that state, it could wish to keep track of which marriages were same-sex and which were opposite-sex. States are allowed to keep statistics that make use of racial identifications as well. Constitutional concerns come in only when it treats people unequally because of those classifications. By keeping civil unions on a separate track the commonwealth could also more readily draw distinctions in the future should a compelling need arise. In the meantime the bill is clear that the term marriage as it is used throughout the law shall be construed to include marriage and civil union. This is really not that different than a law that says the term "man" shall be construed to include a man or a woman.
The Massachusetts marriage laws as they stand clearly deny equal protection on the basis of sex and hence are unconstitutional. Would the civil unions act also deny equal protection? Many respected lawyers and scholars think it would. With no briefs on the matter submitted yet, the best insight into their arguments is given by a statement of Mary Bonauto, the lead attorney for the plaintiffs in Goodridge. She will almost certainly file a brief before the court on the matter of the advisory opinion and her arguments should be seriously considered. She writes:
“Civil unions,” however defined, are not an adequate remedy. By definition they are not marriage. The word “marriage” is one of the major “protections” of marriage. Everyone knows that a married person has the right to be by his or her spouse’s side no matter what emergency may arise. Only a legally married couple has the unique legal status marriage confers and which allows marriage to be respected by state and federal governments, other countries and third parties like banks and employers. Married couples are also protected with over 1000 federal laws in areas as diverse as the right to transfer property between themselves without paying taxes and social security survivor benefits. Married couples can travel freely without having their family relationship challenged. Civil unions cannot provide these protections.
These concerns all amount to a belief that a "civil union" would be treated differently than a "marriage" by 1) other governments (foreign states, countries, and our own fedeal government) and 2) private entities like banks and employers. She may be right and my main policy concern with civil unions is that this type of discrimination is almost invited by using the separate label. Before being able to discriminate against a class one must be able to identify that class which is one reason anti-miscegenation laws were an important component of societies that practiced racial discrimination. Making discrimination easier by others, though, does not violate constitutional principles.
First of all, there is no evidence that same-sex "civil unions" will get any less recognition by others than same-sex "marriages". The federal government and many states have already anounced their policy not to recognize same-sex marriages regardless the label. Yes there are constitutional concerns with such policy, but those concerns should not hinge on the names. Whether a state calls it "matrimony", "wedlock", "marriage", or "civil union" should make no legal difference. We don't fail to recongize German marriages because they use the word "Ehe". More imporantly, even if another state did draw a distinction between same-sex "marriages" and same-sex "civil unions" that is not a constitutional violation of the Commonwealth of Massachusetts. The SJC only has jurisdiction over the constitutionality of the laws of the Massachusetts and how they are interpreted by the commonwealth. As long as the commonwealth treats civil unions as the equal of marriage it seems to me that constitutional concerns are satisfied.
The idea of using separate words for equal legal realities is actually common when it comes to sex-based classifications. In fact the laws itself deal constantly with the labels "woman" and "man". As long as it treats such individuals equally, though, the state is not forbidden from identifying them with different words. It makes no difference that other entities might discriminate on that basis. In fact, the Senate bill would not only have the commonwealth consider "civil unions" and "marriage" as legal equivalents, it would add several sections to its anti-discrimination laws to prohibit private employers from treating "civil unions' differently from "marriage".
Still there might be a concern that the only purpose of the civil unions bill is to stigmatize same-sex couples. The wording of the first section of the bill indicates this was not its intention. What rationale could there be, though, for distinct labels. Well, marriage is in part a record-keeping matter for the state. Just as a state keeps records of the sex of a baby born in that state, it could wish to keep track of which marriages were same-sex and which were opposite-sex. States are allowed to keep statistics that make use of racial identifications as well. Constitutional concerns come in only when it treats people unequally because of those classifications. By keeping civil unions on a separate track the commonwealth could also more readily draw distinctions in the future should a compelling need arise. In the meantime the bill is clear that the term marriage as it is used throughout the law shall be construed to include marriage and civil union. This is really not that different than a law that says the term "man" shall be construed to include a man or a woman.