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Why Civil Unions Are Not Enough
The Massachusetts Supreme Court's Ruling Gives Gays and Lesbians the Right to Marry


Thursday, Dec. 18, 2003

Forty years ago, eight well-intentioned white Alabama clergymen told the people of Birmingham that they "recognize[d] the natural impatience of people who feel that their hopes are slow in being realized." At the same time, though, they urged that protests and demonstrations would only incite hate and were "unwise and untimely."

Martin Luther King Jr.'s well-known response "from Birmingham Jail" is as timely as it is powerful. King wrote that he had "almost reached the regrettable conclusion" that the "white moderate" was more problematic than the Ku Klux Klan. This, he wrote, was in part because the white moderate "paternalistically believes he can set the timetable for another man's freedom," "lives by a mythical concept of time and . . . constantly advises the Negro to wait for a 'more convenient season.' "

Unfortunately, even today we are hearing the same kind of advice. This time, the subject is marriage equality for lesbian and gay couples, and the timetable offered contemplates civil unions now and marriage in some far-off future.

The Massachusetts Supreme Judicial Court, in Goodridge v. Dep't of Health, made plain that it is blatant discrimination when the state restricts marriage rights from gays and lesbians. Nevertheless, some in Massachusetts - and, surprisingly, even some liberal law professors - still argue that, for now, civil unions are enough to satisfy the court's ruling. But that is plainly wrong.

The Massachusetts Ruling Plainly Gives Gay Couples to Right to Marry

The Massachusetts Supreme Judicial Court's historic opinion, written by Chief Justice Margaret Marshall, explained that the state's Constitution "forbids the creation of second-class citizens." But second-class status is exactly what allowing straight citizens to marry and relegating gay and lesbian citizens to civil unions would create.

Fortunately, the Massachusetts opinion did no such thing. It "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." And it extended the civil marriage law to same-sex couples. If you doubt it, all you need to do is look to the dissent in Goodridge, which complained about the majority's "extending the marriage laws to same-sex couples."

Like the dissenting judges, the governor understood the decision's message loud and clear - and saw that its message was about an equal right to marriage in particular. Republican Governor Mitt Romney, expressing deep disagreement with the decision, said he would work to pass a Massachusetts constitutional amendment "limiting marriage to the relationship between a man and a woman." If he had anticipated civil unions, not gay marriage, then such an amendment would have been entirely unnecessary.

As renowned Harvard Law School constitutional law professor Laurence Tribe - who argued Bowers v. Hardwick before the Supreme Court - remarked, the Massachusetts court "could hardly have been clearer" that its decision meant a right to marriage, not anything less.

Claims that Civil Unions Are Enough to Guarantee Equality Are Unpersuasive

It is deeply disappointing, then, that a trio of liberal law school professors - including even Tribe himself, who seems to have quickly stepped back in the midst of political pressures - has now claimed that civil unions are all the court might require.

The morning after the Massachusetts decision, Harvard Law School Professor Arthur Miller claimed to the New York Times that the legislature would be honoring the Court's decision if it merely "create[d] a relationship that might not necessarily be called marriage but allows for the recognition of property passage and joint ownership and insurance and even child custody."

Later, Northwestern Law School professor Andrew Koppelman--who has written extensively on the legal issues facing lesbian and gay Americans--took the same position in the Chicago Tribune. He asserted that "[t]he truth is that the [Goodridge Court] did not decree that same sex couples were entitled to marry," and claimed that that civil unions would "almost certainly" meet with the court's approval.

Koppelman also stated that newspapers were simply "wrong" to state that the court had "back[ed] gay marriage" - even though many law professors and lawyers hold the same "wrong" belief. Finally, he urged supporters of ending marriage discrimination to wait because we shouldn't "kick a hornet's nest." Civil unions, he suggested, ought to be good enough for us.

Then, this past Thursday, the Massachusetts Senate formally asked the state's high court if civil unions would satisfy the court's order. According to the Boston Herald, Professor Tribe, surprisingly, predicted the court's answer might be yes.

In support of this contention, Tribe "pointed to the long-agonized, 4-3 nature of the SJC decision and said civil unions might be enough to flip one of the justices in the majority, in the wake of political leaders' outcry against full-blown gay marriage."

But this cynical view betrays all who believe in the force of law. The decision said what it meant: "We are mindful that our decision marks a change in the history of our marriage law." The Massachusetts Constitution's proclamation of equality is clear, and the judges who listened to it certainly should not "flip" to another view. Judges distinguish themselves from legislatures in that they are bound by the law - including their own prior interpretations of it. Close decisions are still the law and must be respected as such.

Although Tribe told the Herald that such a flip would "disappoint" him, the newspaper also reported that Tribe has been advising the Massachusetts legislature of his views. Based on his comments, the advice he's been giving is just as disappointing: that the court might accept a civil-union solution if the legislature puts one forward.

As It Was In King's Days, Half-Measures Are Not Enough

All three of the law professors who have suggested civil unions may be enough to satisfy the Massachusetts Supreme Judicial Court's ruling seem to support the idea of ending marriage discrimination against lesbian and gay couples. But in the past month, all have put the idea to the side in favor of prudence and politics.

Each of the three could have a well-intentioned reason for doing so: They'd rather see limited progress (through civil unions) than a backlash (through attempts at an anti-gay marriage amendment). But limited progress, as Martin Luther King noted so long ago, is not enough.

Not so coincidentally, the three professors also have something else in common: marriage certificates. There's the rub. They can afford prudence and political calculations; they already have the right to marriage.

To lesbian and gay lawyers and law students such as myself, these statements sound of privilege, and they sting. This is particularly so when they are coming from Professor Tribe, a man many current lesbian and gay law students came of age respecting deeply for his having argued Bowers.

Like the "white moderates" who told King to be patient, these "heterosexual moderates" can counsel slow progress because they themselves have nothing personally at stake. These straight men of good will seem to believe that they can set the timetable for marriage equality, as white moderates believed when it came to segregation. But justice won't wait - and shouldn't have to.

That supportive members of the majority would compromise on the futures of the rights-deprived minority should not, unfortunately, come as any great surprise. Still, the presumption of these moderates is as wrong today as others' was 40 years ago.

If securing equality in marriage means we're going to have to stir up a hornet's nest, so be it.

Chris Geidner is a second-year law student at The Ohio State University Moritz College of Law. He maintains the blog Law Dork , as well as participating in the group blog En Banc.

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