Marriage

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

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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.