Views
CU's Aren't Enough, Part 2
CUs Aren't Enough,
Part 3
by Nora Skolnick
Vermont's
civil union law provides raft of important benefits to same-sex couples
while segregating us to a separate legal status from marriage. It denies
same-sex couples the profound but intangible benefits of marriage. Likewise,
it sends a dangerous message of exclusion, stigmatizing the very class
of people - us - the law was designed to embrace. Apart from the weighty
"symbolic" issues discussed previously, civil unions are disadvantageous
in a variety of practical ways.
Civil Unions Face Greater Obstacles to Portability
The willingness of courts and other entities
outside of Vermont, to recognize civil unions has, to date, been mixed.
In terms of dissolution of civil unions, courts in two states have been
unwilling to dissolve them while courts in two other states have done
so. The differences between civil unions and marriage have been pointed
out and used by courts ruling out child visitation with the non-custodial
parent while that parent’s civil union spouse is living with him
or her in yet another two states. On the upside, a New York court allowed
a surviving civil union spouse to bring a wrongful death claim when his
partner died from of the (alleged) negligence of others. As you can see,
the fact that we have civil unions, and not marriage, increases the problems
couples face when they travel outside of Vermont, or return to their home
state after joining in civil union.
It's true, even if we had marriage, same-sex
couples who married in Vermont would face some obstacles to recognition
of their relationships outside of Vermont's borders. It's quite clear
that the obstacles are much, much higher when the legal status we carry
is a completely new creature. It's more difficult to plug into the reams
of court cases requiring respect for marriages that were valid in the
state where celebrated, even if not ordinarily allowed in another state.
If a state is inclined to recognize a civil union, it's far from clear
how they will since there are no legal standards dictating what it means
to recognize a civil union.
These problems aren't simply academic.
Numerous and profound real-life impacts on couples joined in civil union
exist. Who will inherit if a civil union spouse dies? Who makes medical
decisions if a civil union spouse is incapacitated while traveling? Can
a surviving civil union spouse bring a wrongful death claim in another
state for the death of a partner? Is a civil union spouse in another state
entitled to state law family-leave to care for a sick partner? Or will
a civil union couple outside of Vermont have access to the courts to end
their legal connection in the event that they part ways? Any suggestion
that the civil union law's "separate" status is actually "equal"
(or, as Governor Dean liked to say, in an effort to distance his pro-civil
union, anti-marriage position from the shameful philosophy of Jim Crow,
"different but equal") is simply untrue. One of the benefits
of marriage is the mobility of that legal status, and the civil union
law falls far short on that measure.
Civil Unions Skirt Federal Benefits
Vermont residents Sandy Reeks and
Pam Kinninburgh had to uproot, leave children, a home, family, and friends
behind, and move to Canada because Reeks, a British citizen, could not
get further visa extensions. Although the pair had joined in civil union
in 2000, that legal status meant nothing to the federal government, and
the couple could not take advantage of the immigration laws available
to married transnational couples.
Holly Puterbaugh and Lois Farnham, of Baker
v. State fame, joined that lawsuit in part because, as they began planning
for their retirement years, they realized that Lois wouldn't be protected
by social security survivor's benefits if Holly predeceased her - benefits
that would be automatic if they were a heterosexual married couple.
Additionally, Vermont couples joined in civil union have to complete at
least three federal income tax returns - one hypothetical return assuming
a "married" status for federal purposes in order to calculate
the state tax, and two separate, real federal returns, filed as "single"
people. Couples that try to plan for the future, including tax planning,
quickly discover that federal laws are designed to help married couples
plan, and they recognize the intermingling of married couples' finances,
but offer no protection for civil union couples.
The General Accounting Office of the federal
government has identified over 1000 federal benefits linked to marriage.
These vital benefits are currently out of reach to couples joined in civil
union. No doubt, given the federal "Defense of Marriage Act"
(DOMA), if same-sex couples could marry in Vermont tomorrow, they would
have obstacles to overcome before attaining these federal benefits. Those
obstacles are surmountable. DOMA is unconstitutional for a slew of reasons,
but until a same-sex couple in some state is allowed to marry, we won't
be in a position to take on the constitutionality of DOMA. Federal law
doesn't provide benefits to civil union spouses, but does provide benefits
to married couples as defined by state law. The legal status of "marriage"
would move us much further down the road to federal benefits than the
newly invented status of "civil union."
The civil union law represented a
great step forward, but it was only a step. We cannot let the homophobia
of those who oppose our claim to a seat at the table, the fears of politicians
who feel they've done enough by conferring "partial" equality,
or even our own internalized homophobia stop the movement forward. We're
not advocating filing a lawsuit or pushing a marriage bill in the legislature
tomorrow; the time for such measures will come. Until then, though, we
must move beyond celebrating the civil union law and congratulating ourselves
and our political allies who made it possible. Now is the time to recommit
to the project of educating ourselves and our fellow Vermonters about
the injustices that remain. We have more work to do!
This
op-ed is the final installment of a three part series. In the first part,
published in February, the Vermont Freedom to Marry Task Force described
the changes in the national landscape since Vermont's civil union law
passed, and called for further movement toward marriage. In last month's
installment, the Task Force discussed the intangible harms of the civil
union law. If you would like to get involved please contact the Task Force
at 802 388-2633 or info@vtfreetomarry.org
Nora Skolnick is a member of the Vermont Freedom to Marry Task Force.
She teaches school in Randolph and lives with her partner in Braintree.