Gay 'Marriage' vs. 'Civil Unions': What's in a Name?

The New York Times reports that most Americans "say they support gay marriage or domestic partnerships." The or is a crucial part of that statement. While recent surveys indicate that more Americans support gay marriage than oppose it, the plurality ranges from slightly less than half to slightly more, and the polls' margin of error is typically three or four percentage points in either direction. You get a clear majority only if you include respondents who support "domestic partnerships" (a.k.a. "civil unions") but not "marriage" for same-sex couples. Since President Obama's 16 years of equivocation on this issue, which ended (for the most part) yesterday, was built on this distinction, it is worth asking 1) what it means and 2) how much of a difference it makes politically.

Even before he explicitly endorsed gay marriage, Obama supported "civil unions" that give homosexual couples "all the rights" and "all the benefits" that heterosexual couples enjoy. Here he is at the July 2007 presidential debate in South Carolina:

We've got to make sure that everybody is equal under the law. And the civil unions that I proposed would be equivalent in terms of making sure that all the rights that are conferred by the state are equal for same-sex couples as well as for heterosexual couples. Now, with respect to marriage, it’s my belief that it’s up to the individual denominations to make a decision as to whether they want to recognize marriage or not. But in terms of, you know, the rights of people to transfer property, to have hospital visitation, all those critical civil rights that are conferred by our government, those should be equal.

And here he is at an August 2007 debate co-sponsored by the Human Rights Campaign:

My view is that we should try to disentangle what has historically been the issue of the word marriage, which has religious connotations to some people, from the civil rights that are given to couples, in terms of hospital visitation, in terms of whether or not they can transfer property or Social Security benefits and so forth. So it depends on how the bill would’ve come up. I would’ve supported and would continue to support a civil union that provides all the benefits that are available for a legally sanctioned marriage. And it is then, as I said, up to religious denominations to make a determination as to whether they want to recognize that as marriage or not. 

For Obama, then, a "civil union" was the same as a "civil marriage," but for the name. As he recognized, the name really does matter to some opponents, mainly because they conflate civil marriage—the legal arrangement recognized by the state—with "the sacred institution of marriage" (as Mitt Romney, among others, puts it), which is defined by religious traditions that date back a lot further than marriage licenses. In my view, this confusion is another argument for taking marriage—the word and the institution—back from the state and giving what today is known as civil marriage a new name (civil uniondomestic partnership, or something else) that would apply to gay couples and straight couples alike. That was the solution suggested by dissenting Justice Martha Sosman in Goodridge v. Department of Public Health, the 2003 decision by the Supreme Judicial Court of Massachusetts requiring state recognition of same-sex marriages, which helped ignite the ongoing public debate on this issue. It also seems a feasible response to the equal protection argument against California's ban on same-sex marriage, whose opponents complain that the state's "domestic partnership" option, though quite similar to civil marriage, is not an acceptable substitute because the difference in terminology implies a difference in status.

President George W. Bush reacted to the Massachusetts decision by endorsing a constitutional amendment banning gay marriage. Notably, social conservatives criticized Bush for not seeking to ban same-sex civil unions (as the state constitutional amendment approved by North Carolina voters on Tuesday does). As CNN reported, Bush imagined an amendment that "would restrict marriage to two people of the opposite sex but leave open the possibility that states could allow civil unions." Mitt Romney, who was governor of Massachusetts at the time, criticized Goodrich but complied with it. He has repeatedly said he favors a federal definition of marriage as a heterosexual relationship. What about civil unions? Here is what Romney's gubernatorial campaign said in 2002:

All citizens deserve equal rights, regardless of their sexual orientation. While he does not support gay marriage, Mitt Romney believes domestic partnership status should be recognized in a way that includes the potential for health benefits and rights of survivorship.

Romney's notion of a legally recognized same-sex domestic partnership seems substantially more limited than Obama's. It is not clear what the arrangement includes beyond "health benefits and rights of survivorship," but it clearly does not include "all the rights" and "all the benefits" of marriage. In a 2004 Wall Street Journal op-ed piece titled "One Man, One Woman: A Citizen's Guide to Protecting Marriage," Romney wrote:

That benefits are given to married couples and not to singles or gay couples has nothing to do with discrimination; it has everything to do with building a stable new generation and nation.

Keeping in mind that a "civil union" or "domestic partnership" means different things to different people, ranging from a few specific benefits to marriage by a different name, what do the survey data indicate about support for such alternatives vs. support for gay "marriage"? In a February New York Times/CBS News poll, 40 percent of respondents supported "legal marriage" for gay couples, while an additional 23 percent favored "civil unions"; 31 percent said there should be "no legal recognition at all," and 6 percent were undecided. An August 2010 Fox News poll had similar results, with 37 percent saying gay couples "should be allowed to get legally married," 29 percent saying they should be "allowed a legal partnership similar to but not called marriage," 28 percent favoring "no legal recognition," and 6 percent undecided. So Obama's support for "strong" civil unions straddled two positions that together account for more than 60 percent of voters (and an even bigger majorty among people apt to vote for him). By contrast, "no legal recognition" for same-sex couples is clearly a minority position—a fact that Romney, who talks a lot about protecting marriage but very little about fair legal treatment of gay couples, may have to contend with as he repositions himself for the general election.

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  • robc||

    I oppose state licensed gay marriage, state licensed straight marriage, and state licensed civil unions.

  • Bee Tagger||

    This x 1000

  • robc||

    I wonder what would happen if my plan was passed by a state.

    Lets say KY ends state licensing of marriage and removes all traces of it from their laws.

    Lets also say that John and Jane Doe get married in church (or John and Jim Doe, for that matter).

    Lets also say that later they move to, oh, lets say, New York State. Would NY acknowledge their marriage under NY laws like they currently do KY licensed marriages?

  • BarryD||

    It would make the most sense to allow anyone to specify any designee to have legal rights like survivorship.

  • robc||

    That would be the result. Those kind of things would have to be assigned via contracts and other legal papers, instead of there being defaults.

  • Teaching Student||

    My thought is that "marriage" today is only a legal contract; less binding than most. I see no moral, legal, or ethical reason that marriages should be managed by the State. Want to be married/domestically patterned/civil unionized/whatever; write-up a contract, sign it, boom. Wouldn't need to change the divorce structure much, it's still a decision on breaking a contract.

  • robc||

    I also oppose state licensed doctors, state licensed lawyers, and state licensed indian chiefs.

    And people who dont use the Oxford comma.

  • T||

    But you apparently favor people who don't use apostrophes.

  • ||

    All those commas have to come from somewhere, T. Sacrifices must be made.

  • robc||

    I find them unnecessary. The situations were an apostrophe helps prevent confusion are very, very rare.

  • CockGobbla||

    So, the "institution of marriage" and the licenses of said institution are public-choice theory phenomena?

  • Hugh Akston||

    I now pronounce you Butt Buddies.

  • Eduard van Haalen||

    "President Obama's 16 years of equivocation on this issue, which ended (for the most part) yesterday"

    No, I don't think so. He still wants gay marriage left to the states, and most states have rejected it.

    A complete "evolution" on this issue would mean that the federal government (including courts) would impose gay marriage on the states regardless of state laws or constitutions.

  • Pippers||

    How would it "impose" anything on a state? It's like saying we are "imposed" that we have to let minorities be equals to whites. DRAT.

  • Eduard van Haalen||

    Historically, that was imposed as well (see: American Civil War, etc.). So why not impose gay marriage as well, if gay marriage has the same constitutional and moral imperative as freeing the slaves?

  • cold666pack||

    At least he came out one way or the other. In Colorado the Speaker of the state house, an R, filibustered and refused to even allow it to come to a vote earlier this week, which is weak. Either let it come to a vote & let the chips fall where they may, or never complain the libs are 'playing political games' again since that's exactly what is going on here.

  • wareagle||

    At least he came out one way or the other.

    bullshit. He changed positions because it was politically expedient to do so. Biden was sent out as a stalking horse to see what media reaction would be to Obama's reversal of position. Count gays among the historically liberal groups being treated with contempt by this president, given that his "decision" was little more than a re-enactment of Macbeth.

  • rac3rx||

    http://freebeacon.com/gay-for-pay/
    He's not getting donations for his SuperPAC

  • T o n y||

    Considering it's swing states and not liberal states Obama has to work to win in November, it's hard to see how this was a political move.

  • John Thacker||

    It's political in that it helps with fundraising.

    If we had publicly financed campaigns, it's unlikely that he would have come out at this point. Thank goodness we don't. He needs money as well as votes.

    If the 1% (and the Koch Brothers) really controlled things, then we'd have gay marriage.

  • Teaching Student||

    It's totally a political move. He needed to distract from the worsening economy. What news just came out this week? Extremely low labor participation, more people dropping out of the job market, his favorite Republican Senator lost his primary, more people voted for Scott Walker in Wisconsin than the Democrat recall challengers combined, his Osama bin Ladin memo. All that going on, but what are we talking about? Gay Marriage.

  • wareagle||

    Lovely. Rhetorical games from the nation that not long ago found itself embroiled over the definition of "is". Bigger question: why do privileges that are disguised as rights accrue to the married but not the unmarried? Specifically, why do you get a tax break for action that is not the govt's business?

    We can get wrapped around the axle of hospital visitation, survivorship, and the rest but that's contract law. In its distilled form, marriage is a contract. In theory, it's between two people to protect the rights of each. In practice, the state has inserted itself as an interested party that bestows benefits on the participants. Meanwhile, the debt keeps rising but let's waste some more time on this.

  • Eduard van Haalen||

    "the debt keeps rising but let's waste some more time on this."

    Would you prefer Obama ran on his stellar economic performance?

  • wareagle||

    clearly, he can't do that. A few things with this bother me:
    --the naked hypocrisy for the sake of political expedience
    --the contempt for gays that this man has
    --the nuclear level of stupidity with which some gays and most media types have reacted

    if you don't think the bar can ever get lower, give Obama time; he will seldom disappoint.

  • Randian||

    This move reeks of desperation. Kudos to the President for coming out on the right side, but I doubt that his motives were pure. Gotta do anything we can to distract the conversation from the 15% unemployment rate.

  • ||

    It may reek of desperation to you or me, but it seems to be working on his base. Unsurprising considering how stupid they are, but it still seems like a relatively good move on his part.

  • Randian||

    They're like the sad guy constantly checking his phone to see if that girl texted him back. Any sign or signal that there's a glimmer of hope is leapt upon with the ferocity of a starving prisoner and a piece of chicken.

  • ||

    Good analogy. And yes, they are that pathetic.

  • Hugh Akston||

    So wait, are you saying she's not going to text back?

  • Randian||

    "You know, if there's one thing women totally love, it's to be smothered by men. "

  • ant1sthenes||

    Or choked.

  • BarryD||

    ...because his base was all set to run out and vote for Romney?

  • Randian||

    No, but they may just stay home.

  • Pippers||

    Considering the economy and unemployment has been nothing but positive lately, how is this distracting?

  • Randian||

    What color is the crack on your world? Just about everybody knows what complete and total garbage the unemployment numbers are. Nothing is structurally different from two years ago, and inflation is coming. The economy is going to be in the shitter for another ten years.

  • John Thacker||

    In North Carolina, polls consistently showed that about 60% opposed gay marriage, about 60% favored civil unions, and about 60% favored Amendment One, because the 20% who favored civil unions and opposed gay marriage didn't realize that the Amendment outlawed civil unions.

  • wareagle||

    interesting, considering NC already held gay marriage to be illegal

  • RBS||

    I argued with a guy on Tuesday who's main concern, and the reason he voted for the amendment, was that he would have to explain to people that his wedding ring meant he was, in fact, married to woman.

  • Loki||

    ...so the stereotypes about people from NC are true. They really are that stupid.

  • wareagle||

    no, because by your calculus, about 30 states are stupid since that is about how many have voted the exact same way. As for NC, there is the usual odd mix of social conservatives and blacks who seem to unite on this issue everywhere it is put to a public vote.

    I hate govt by referendum. Hats remain off to NY and WA for having the legislative balls to vote and take their chances at re-election.

  • John Thacker||

    Law, not amendment to the state constitution.

    The entire push to pass the Amendment got kickstarted when the court in CA ruled against Prop 8. The California ballot proposition process results in a law, not a state constitutional amendment. Also, in particular, that ruling held that since CA had civil unions, which were basically the same as marriage, it was irrational to not let gays get the word "marriage."

    There's certainly something to that argument, but the two worst features of NC's Amendment One, it being a state constitutional amendment and it banning civil unions as well, are direct reactions to the court ruling on Prop 8.

  • BarryD||

    So basically, huge numbers of voters don't fucking READ an amendment they're voting for?

    I mean, they voted for this:
    "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State."

    They didn't read that?

  • wareagle||

    that is exactly what happened. My boys live in NC; talked to the youngest yesterday who says a huge number of folks he talked to had no idea that the civil unions for anyone would be eliminated by this measure.

    Of course, from what he told me, you had to research that ahead of time. At the ballot box, the wording focused on the gay marriage component.

  • John Thacker||

    Yes, that's exactly right. See polling.

    Even the TV networks and newspapers reported it as a "gay marriage" amendment.

  • CockGobbla||

    I'm certain that when the general campaign kicks into full-swing and he has to make a visit another visit to the Saddleback Church to connect with his supposed* Christianity, Obama was be back to the same bigoted, unenlightened view of homosexuality...And liberals will, once again, convince themselves that ole' Barry is just saying it to get elected.

  • CockGobbla||

    ...squirrels, etc.

  • BarryD||

    No kidding. It seems like support for BO is all about Kool-Aid, not issues. I mean, he could come out and say that he favors hacking off the limbs of gay couples, and a big chunk of Team Blue would explain it away somehow, at least to themselves.

  • ||

    This is wonderful for his base. Those extra judicial murders: forgiven. Medical marijuana: forgiven. Not shutting down guantanamo bay: forgiven. starting wars in Lybia: forgiven.

  • Randian||

    But he promised not to hit me again...he's been under a lot of stress and the thing with the kids has really gotten tough...he told me he was going to get his drinking under control too.

  • wareagle||

    good analogy

  • perlhaqr||

    "I walked into a door."

  • Pippers||

    Why did you post Mitt's 2002 quote? He is not for ANY sort of civil union or any sort anymore. He has completely caved to the vocal Republican base, and has lost any libertarian and centrist votes because of this.

  • John Thacker||

    Presumably for the same reason that Reason (and others) posted Obama's 1996 survey answer when it contradicted his policy until yesterday.

    I also think you're greatly overstating it with the "any... votes" there. Especially since Obama's stance has no practical impact, since it's the only issue ever where he believes in federalism.

  • BarryD||

    It still contradicts his policy. What policy has he changed?

  • Contrarian P||

    "But in terms of, you know, the rights of people to transfer property, to have hospital visitation, all those critical civil rights that are conferred by our government, those should be equal."

    I'm surprised nobody has pointed out the insidious message of this quotation from the President, in particular the last portion: "critical civil rights that are conferred by our government". There's your Constitutional law professor. He thinks that our rights are a boon granted to us by our generous rulers. The sad part is he gets a pass because a lot of people are too miseducated to know better.

  • Proprietist||

    It's the same old "separate but equal" arguments that I thought the Supreme Court invalidated with Brown v. Board.

    And the arguments for letting states refuse to recognize gay marriage should have been invalidated on the precedents of Loving v. Virginia, which invalidated miscegenation laws.

    The fact is we've already redefined legal marriage once in history - it use to be "one man and one woman of the same race." If you can remove the race factor, I'm not seeing how gender can't also easily be removed, especially with the advanced research now available on the biological basis for homosexuality.

    The fact that the courts refused to follow this precedent is a sign of ideological interference more than a valid legal interpretation of the Constitution.

  • Randian||

    The fact that the courts refused to follow this precedent is a sign of ideological interference more than a valid legal interpretation of the Constitution.

    Completely and totally wrong. Marriage in historical usage had never, ever meant "same genders", ever. It was so unheard of for so long that legislatures didn't even see fit to define it when they drafted and promulgated state statutes and original state constitutions.

    The court's logic is very simple: if the People want to redefine marriage (and I support the redefinition, but that's what it is), then the People have to do it at the ballot or through their legislatures. It is not up to the court to redefine common terms as they have been historically understood.

  • Proprietist||

    According to the Wikipedia article on same-sex marriages, what you say is "completely and totally wrong." There were same-sex marriage contracts as far back as ancient China and Rome. Emperors Nero and Elagabalus were supposedly gay married.

    In the American context, miscegenation was illegal and that was how marriage was defined. The courts blocked that under the auspices of the 14th Amendment. If government must define marriage at all, the same precedent logically must apply to same sex marriages, as gender is as equally illogical a basis for government determining the legal legitimacy of the relationship as race.

  • Randian||

    Oh well, if Wikipedia says it...

    Denying that marriage has been historically thought of as opposite-sex is plain ridiculous. The reason that the constitutional amendments were passed is because before gay marriage became "a thing", everyone just assumed it didn't need to be said that marriage was between opposite sexes.

    Like I said, I support the redefinition, but don't contort yourself and act dumb to bolster your point. Seriously, there was not a one "no gay marriage" constitutional amendment in 1960, was there? What do you think would have happened if you tried to marry your boyfriend back then? People would have looked at you like you were retarded.

  • Proprietist||

    I don't deny that GENERALLY marriage has always been considered opposite-sex. But if we're generalizing, for most of history, marriage was usually restricted within one's own race through civil or tribal law - the concept that mixing blood would result in inferior/dirty offspring. The legal status of marriage was a result of anti-miscegenation efforts. Still, courts finally legalized marriage across races despite much whining by racists.

    So in the context of American legal tradition, redefining legal marriage has already happened at least once.

    As our understanding of genetics has mostly validated the biological basis for homosexuality, the idea that we must continue to operate legal institutions under 1950s (or 1700s) sexual/social norms because "tradition!" is laughable.

  • Mickey Rat||

    "As our understanding of genetics has mostly validated the biological basis for homosexuality,..."

    Even stipulating that as true, why must a basic social institutions be radically redifined to accommodate people with a genetic disease?

  • Mickey Rat||

    Gender is not equivalent to race. There are real differences between the sexes that require different treatment under circumstances where such differences matter.

    If "separate but equal" is intolerable with regards to gender differences then gender segregrated restrooms, locker rooms and college sports are impermissable.

    "If you can remove the race factor, I'm not seeing how gender can't also easily be removed,..."

    There is no functional difference between a mixed race couple in a sexual relationship and racially homogeneous couple. You cannot say the same thing about an opposite sex couple and a same sex couple.

  • Proprietist||

    "If "separate but equal" is intolerable with regards to gender differences then gender segregrated restrooms, locker rooms and college sports are impermissable."

    I oppose any laws mandating gender divided bathrooms/locker rooms and think college sports at state schools should be privately funded/separate from tax money. What the private market does is up to them.

    There's technically no functional reason why bathrooms need to be gender-divided, per se. Such a concept is culturally conditioned and has little to do with biological necessity.

  • Mickey Rat||

    Applying your no "separate but equal" rule means that gender segregated restrooms are unconstitional and therefore illegal, at the very least in government facilities.

    "There's technically no functional reason why bathrooms need to be gender-divided,..."

    Aside from people not wanting to expose themselves in front of strangers of the opposite sex. You would leave no choice because of your pursuit of cosmic justice.

  • Proprietist||

    "There is no functional difference between a mixed race couple in a sexual relationship and racially homogeneous couple."

    And what does differing sexual function have to do with equal access to legal rights and privileges?

    If we're going down into the weeds, should we ban barren women from marriage, since she can't conceive like a fertile woman? What about transsexuals, hermaphodites and men who have been castrated? Can these people ever marry since their function will be different from a heterosexual couple?

  • Mickey Rat||

    "And what does differing sexual function have to do with equal access to legal rights and privileges?"

    The differences make the situations unequal and therefore render the idea of equal access absurd.

  • Mickey Rat||

    "Can these people ever marry since their function will be different from a heterosexual couple?"

    I do not believe the Constitution requires governments to formally recognize those people's relationships as "marriages". What individual jurisictions do with tose circumsatnces is up to them.

  • lightning||

    Marriage is a religious concept. You are looking at a first amendment fight if the Federal government legalizes gay "marriage". That being said, the solution is to get the Feds out of marriage since we already have problems arising in heterosexual marriages like domestic violence. All those "automatic rights" end up being very very problematic when you are trying to leave and disentangle yourself from an abusive spouse. Personally, I don't think it is the Federal government's business at all, and in terms of survivorship, inheritance, etc. it should be something that we all take care of ourselves in a deliberate way. Parental rights should be established by genetics or by adoption. I have never quite understood why government was involved in hetero relationships in the first place and and dumbfounded that people actually want to invite the government into their bedroom.

  • Proprietist||

    We all probably agree with you regarding the legal derecognition angle. Unfortunately all these ballot initiatives legaling or banning legal gay marriage are yes-no, and "derecognize all marriages" is not an option.

    Not really seeing the First Amendment fight angle, however. Simply, criticizing or refusing to recognize a gay marriage cannot be banned under freedom of speech.

  • Randian||

    The First Amendment angle is that religious organizations that employ gays are going to have to provide benefits to their spouses now.

  • ChicagoTom||

    The First Amendment angle is that religious organizations that employ gays are going to have to provide benefits to their spouses now.

    So?

    Can a religious institution be allowed to sacrifice virgin or stone adulterers that work for them because that's what their faith tells them to do?

    This idea that religious institution somehow get to have laws not apply to them because of their beliefs is ridiculous.

    If that's the case, Im gonna start a church whose religious doctrine is to rob and loot from my neigbors and then claim religious persecution when thry try to arst me.

    That raging liberal Antonin Scalia in Employment Division v Smith ruled the "free exercise" of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Thus, the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes.

  • lightning||

    Someone beat you to starting "a church whose religious doctrine is to rob and loot from my neighbors". This is called the Fed and it is easier to question the existence of Jesus than to audit/question the motives of these guys.

  • lightning||

    Apologize for being vague. The first amendment fight I was referring to was the actual marriage ceremony. You know that some same-sex couple is going to "poke the bear" and attempt to get married in a church. Cause priests, pastors, reverends, etc. are licensed by the state, they will claim discrimination.

  • ||

    In California, we've had civil unions for a long time, which give the same legal rights as marriage under state law. And many people have marriage ceremonies to go with them, and refer to their domestic partners as their spouses, which is also legal. But under Proposition 8, it's not marriage in the eyes of the state, which leads domestic partners to feel that their relationships are considered to have lower status, even if the legal incidents are the same.

    And even gay marriage were legal in California, the hateful "defense of marriage" act prohibits the federal government from allowing those legally married under state law from filing a joint tax return unless they are of different genders. You can get the tax benefits if your wife is your 14-year-old cousin, as long as the marriage is legal under state law, but not if your wife is the same gender as you.

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