this great opinion editorial titled “The Inadequacy of Civil
Unions” that ran in last Thursday’s New York Times. It’s so good
that we are going to reproducing it here in full.
A potentially groundbreaking legal battle over Connecticut’s
exclusion of gay people from the state’s marriage law has
catapulted the debate over same-sex marriage to a new level.
Appearing last month before the state’s highest court, a lawyer
representing eight same-sex couples led a spirited attack on
Connecticut’s refusal to grant gay couples the freedom to marry.
He also challenged the notion that civil union laws — like those
enacted in Connecticut, New Jersey, Vermont, and most recently New
Hampshire — are a constitutionally adequate alternative.
The plaintiffs’ argument was laced with references to Plessy v.
Ferguson, the U.S. Supreme Court’s notorious 1896 decision which
justified racial segregation under a deplorable standard of
“separate but equal.” Although startling, the analogy is apt.
In establishing civil unions two years ago, Connecticut lawmakers
created a separate and inherently inferior institution that
continues to deny gay couples the equality they seek and
Connecticut would seem a particularly hospitable place to advance
this equality claim. In addition to requiring equal treatment for
individuals in comparable circumstances, and barring
sex-discrimination, Connecticut’s Constitution explicitly forbids
State lawyers answer that the basis for the exclusion is not gender
but sexual orientation, a category not covered by existing
antidiscrimination provisions. That is true, but forbidding
marriages when one partner is the wrong gender still adds up to sex
discrimination. The state also asserts that the civil union law
grants all the rights of marriage to same-sex couples, and any
difference amounts to “a difference in name alone.” A trial
court judge bought that argument and dismissed the case last year,
saying the plaintiffs suffered no legal harm.
Saying a civil union is the same as marriage does not make it so.
Civil unions are a newly invented category, neither universally
recognized nor understood. Connecticut’s claim that the two terms
are alike merely underscores the bottom-line question: Why relegate
a minority group to a separate category?
The court case has helped stall this issue in Connecticut’s
Legislature. But if the ruling goes against the couples involved,
the Legislature will have a duty to revisit the matter. A law that
allows civil unions but not marriage is preferable to denying
benefits and recognition to same-sex couples. But no one should
confuse it with equality.