Civil Unions: a Perspective

As this is written, SB1716, a bill on civil unions for gay and lesbian couples in Illinois may be called up for a vote in the House in the fall veto session of the General Assembly. If it is, and if it passes, Gov. Patrick Quinn who supports it will presumably sign it.

The Chicago Sun Times, the Chicago Tribune, and the Daily Herald have all editorialized in support of civil unions. The ACLU of Illinois supports it. Patriots United, the Illinois Family Institute, and Chicago Roman Catholic Archbishop Cardinal Francis George oppose it.

Polling data both nationally and in Illinois make it evident that a clear majority support civil unions though less than half fully support same-sex marriage.

The bill now before the General Assembly in Springfield is also supported by Protestants for the Common Good, an organization with which I am happily associated. At this moment, however, I am wondering if this is a bill we should support.

If enacted, this bill would make it possible for one partner in the union to make medical decisions for the other in the event of the latter’s incapacitation. It would establish the right of one to access the other’s benefits such as workers’ compensation and pension. In the event of the wrongful death of one partner, the other would have standing and thus access to civil action. Should both parties to the union agree that it should come to an end, both parties are subject to laws that govern dissolution and disposition of property. The bill would make it possible for both partners to benefit from joint state tax returns and have standing in the disposition of wills, trusts and estates. The testimonial privilege now enjoyed by spouses would also apply to partners in a civil union, as would protections under the law against domestic violence.

There is much about this law that makes it comparable to those rights and privileges that pertain to a legal marriage. In fact, the law would make it possible for any adult couple, whether they are same-sex or different-sex, to partner in such a union. Arguably, it is a “marriage” of sorts; it just isn’t called that.

But what it’s called isn’t really the problem. It’s what it does that’s the problem. Permitting and recognizing a particular set of rights, privileges and responsibilities as applicable to two people who freely consent to enter into such a relationship, in this case, effectively creates and sanctions a second-class status.

In the United States, people who marry in one state have a legal status that is recognized and protected in all the states of the Union. Should a couple in a lawful civil union in Illinois relocate to another state, all the rights and privileges accorded to them here would end. Unless the new state of residence recognized civil unions, the Illinois union would no longer be legally valid.

None of the federal laws pertaining to rights, privileges and benefits apply to the parties in an Illinois civil union. Should one lose employment and health coverage, COBRA health benefits would not be available for the other. The provisions of the Family Medical Leave Act would not apply to the union, nor would exemptions from federal income and estate taxes. It would not be possible for one partner to receive the survivor portion of the other’s Social Security benefit. Low-income partners in an Illinois civil union are ineligible to receive the federal Earned Income Tax Credit. If one of the partners is a homeowner, and together they choose to sell their home, the principal owner will have to file a capital gains tax calculated on the basis of a single rather than a married homeowner.

There are 1,138 benefits, rights and protections codified in federal law for married couples. Wherever a married couple lives or moves, these laws privilege their status as a couple and protect their financial interests at present and in the future.

The problem with civil unions in Illinois, then, is that creating them is a continuation of the denial of those rights accorded to married couples in identical relationship circumstances.

No reasonable person can deny that with marriage comes a special, respected, privileged, and beneficial status. From a social and cultural perspective, marriage can be defined any number of ways, and these definitions can be codified into law in order to protect the institution of marriage. We practice marriage in the United States in ways and with rights, privileges and responsibilities that are different than those in Russia or Indonesia, Cambodia or Myanmar, Brazil or Germany. Our state and national governments identify and secure certain rights to the partners in a marriage because our society recognizes that the institution of marriage is extremely important. Indeed, the state has an interest in the institution of marriage because this institution is foundational to our social and economic fabric. Absent an interest in marriage, why would the state enact laws to manage it and protect those who enter into it?

In effect, this means that the state has an interest in encouraging and promoting stable and committed relationships. No married person would thrill at the prospect of having government interfere in any way in their relationship with their spouse. But those who are married most likely enjoy the fact that certain social and financial benefits accrue to them by government action. State and federal laws relative to the rights and privileges of marriage are in place because our government recognizes that a committed relationship, entered into by two persons with the intent of sharing life together and supporting one another, is a fundamental block in building a socioeconomic order; the social and economic unit established in such a relationship is foundational to establishing families, neighborhoods, and communities in which the flourishing of all is possible.

But governments at all levels also have an interest in securing equal rights in our society. The principle of equality in our nation’s history has not always been operative in our laws, but since our founding it has served as a criterion by which discriminatory laws have been overturned and more equitable laws established. And while social, economic and political debate can rage on the issue of equality of outcomes, no reasonable dissent can be offered on equal opportunity and the equal protection of the laws.

As a fundamental social and cultural institution in our society, marriage both reflects and secures this principle of equality, and it does so by affirming the freedom of choice. In its 1967 decision in Loving v. Virginia, which struck down Virginia’s anti-miscegenation laws, the U.S. Supreme Court contended: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

In light of this and other decisions of the courts which have secured marriage as a fundamental human and civil right, it is both impracticable and unreasonable to deny this right to any citizen or lawful resident of the United States on the grounds of his or her sexual orientation. Regardless of one’s view of the nature and origins of homosexual orientation and behavior, there is no justification for a government or state having a legal interest in an individual’s sexual orientation; whether it is a matter of nature or nurture or both, it most assuredly is not a matter of state regulation or interference. If the state has no compelling interest in one’s sexual orientation, the state has no basis to deny, on the basis of sexual orientation, civil rights guaranteed to others.

The U.S. Constitution and the Constitution of the state of Illinois have enshrined the principle of egalitarianism so that one cannot lawfully be denied his or her rights on the basis of one’s race, religion, sex or place of origin. Indeed, the principle of equality before the law entails an affirmation that all are equally subject to the law and all are equally beneficiaries of the law. But in this state, it is still possible to deny an individual the right to marry the person of his or her choice because the one chosen is of the same sex. Not every couple in Illinois who freely chooses to love each other and commit to a live together in all of life’s circumstances, who wants to form a household and raise children and contribute out of their own personal and familial well-being to the improvement of their neighbors’ lives and their community, who recognizes the social and economic importance of marriage and wishes to discharge their responsibilities and avail themselves of its benefits, not every such couple can get married in the state of Illinois. The adoption of civil unions will not change this. The one fact that prevents them from marrying is sexual orientation.

But it is not just the denial of one’s right to marry the person of one’s own choosing and benefit from the protections and privileges accorded to all married persons that renders a second-class status to civil unions. By any measure and by any definition—social, cultural, economic, emotional, spiritual—a civil union is not a marriage; it is, and by correlation always will be, a partnership that carries an inferior and disadvantaged status. In our society, it is marriage that stands as the definitive institutional expression of an intimate and committed interpersonal relationship, and civil unions do not carry the same social value and significance.

At best, civil unions are regarded by many as a pale imitation, a contrived and variable facsimile, of marriage. Granting same-sex couples the form of a sanctioned and protected relationship while different-sex couples enjoy the substance of a relationship whose reality is feigned in civil unions strikes me as both discriminatory and cruel. As the U.S. District Court noted in its opinion in Perry et al. v. Schwarzenegger et al.: “The availability of domestic partnerships does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.” For all practical purposes, the difference between a civil union and a domestic partnership is insignificant; neither one is a marriage, and both are structured and legalized according to the discretion of the state legislatures that enact them.

Civil unions bring a measure of protection and benefit to same-sex couples in Illinois, and for that reason alone the bill before the General Assembly should be supported. But its enactment will not alter the fact that same-sex couples are treated differently under the law in Illinois, confined to a second-class status, and denied the equal protection of the law. For this reason, SB1716 should be seen only as a stage on the way, a milestone to mark the advance toward the full inclusion and equality of all.

On the other hand, to the extent that SB1716 is viewed as the alternative to same-sex marriage, or the final resolution of the issue of legally protected same-sex relationships, it must be opposed.

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