Colorado includes different-sex couples in civil union legislation...you wouldn't know it from the press

When I heard about the civil union bill in Colorado, I did what I always do...check the fine print.  And the first thing I looked for was whether different-sex couples were eligible.  I needed to check the bill for that because the press didn't report it, not the New York Times, or Huffington Post, or the Denver Post.  The answer is...yes.  Colorado joins Illinois and Hawaii as states that don't discriminate in civil unions on the basis of sex or sexual orientation.  Nevada and the District of Columbia allow different-sex couples to enter the equivalent status, which they call domestic partnership. (D.C. allows any two people who live together in a committed, familial relationship to enter a domestic partnership).

Colorado also retains a unique status of designated beneficiaries, which I've written about extensively in these posts.  It allows people to tailor the legal consequences they want to their specific relationship, rather than being the all-or-nothing of marriage or civil unions.

With all the focus on same-sex couples and marriage, civil union is generally portrayed as a second-best way station until equality comes with access to the word "marriage."  But when the status is available to different-sex couples it provides a choice for those who have reasons not to marry.  In the first three and a half months in Illinois, 87 different-sex couples registered.  As this survey shows, they had varying reasons.

Illinois may be on its way to marriage equality.  The current proposal leaves civil unions in place.  DC has marriage equality, and it has retained domestic partnership.

Why does all this matter to me?  I want respect for all families.  When marriage is on a pedestal, all other forms of families are devalued. Civil unions for different-sex couples create a small opening, a crack in the pedestal. It's not enough, but it's better than the way station approach.

Maps of relationship non-recognition laws often obscure non-recognition of different-sex unmarried couples.

In the process of planning one of my law school classes, I was perusing the websites with maps of the United States showing the status of relationship recognition or non-recognition across the country. There are so many different types of laws that it's a challenge to accurately portray each state with all its nuances. HRC and NGLTF each have useful, easy-to-print one-page non-recognition maps. The Movement Advancement Project has interactive maps more suitable to getting a quick online snapshot of each state's LGBT-related laws.

Differences among these maps are not readily apparent, but I found one that troubles me. One category of state laws prohibits not only recognition of same-sex marriage but also recognition of unmarried couples. All the maps refer to these laws, but only the Task Force says some of the laws that ban partner recognition beyond marriage also ban that recognition for unmarried heterosexual couples. (I actually thought all of them did that, but I'll have to recheck state-by-state before I say that for sure.) From reading the maps on the HRC and MAP websites, you would think that the laws that bans partner recognition beyond marriage were specifically targeted at same-sex couples.

So why obscure the extent of nonrecognition in these statutes? One possibility is the assumption that viewers only care about lesbians and gay men and same-sex relationships and so are no more interested in unmarried straight couples than they would be in, say, laws that require vaccinations or prohibit the sale of alcohol on Sunday. Or perhaps those groups themselves don't care about straight couples. If it's not about a sane-sex relationship, then perhaps the groups see it as outside their mandate.

This bothers me. First, MAP says it is telling viewers about bans that affect "LGBT people." HRC says its mission is "working for lesbian, gay, bisexual, and transgender equal rights." If they are serious about the "bi" part of that, then they should realize that a bisexual might be in an unmarried relationship with a person of a different sex and would find it helpful to know the status of that relationship. And for transgender people, a ban on recognition of both same-sex and different-sex unmarried couples means that the state's view of the trans person's "real" gender would be irrelevant to its treatment of his or her unmarried relationship.

But it bothers me for another reason. The broad non-recognition laws are a visible consequence of not only anti-gay politics but of politics that insist the failure of heterosexuals to marry is the source of all our social problens. Those laws were intentionally written to channel straight people into marriage by denigrating their unmarried relationships. Right-wing marriage movement advocates let rampant capitalism with its outrageous income inequality and its relentless curtailing of public services and support for families off the hook. If the decline of life-long heterosexual marriage is the culprit, then individuals who don't marry can be blamed for all the crime, poverty, unemployment, violence, etc in the country. That's very convenient for those in power and those with lots of money.

I fear that the failure of maps to note this aspect of state laws and amendments may also reflect an unwillingness to criticize laws barring those who could marry but don't from such things as domestic partner employee benefits. If that's true, then LGBT groups won't complain about a constitutional amendment banning recognition of unmarried couples as long as same-sex couples can marry. In my opinion, that would be a tragedy. Any part of our movement that thinks it need not complain about laws that channel all people into marriage as long as gay people can marry is not a movement that represents me.

Of course it may be that HRC and MAP thought there was enough nuance to provide on their maps that they just did not want to add one more nuance to the mass of information. But I know which map I'm giving my students; it's the Task Force map. That's the only one that gives the full picture of what marriage means in each state.

Civil unions in Illinois good news for same-sex couples there who need to divorce

It's a growing problem that will only grow more. Same-sex couples from around the country, who have travelled to places that allow them to marry, go home, later split up, and find out they cannot divorce. Family law practitioners specializing in LGBT families are working on creative solutions that allow those couples to go their separate ways without further legal entanglement.

When Illinois joined the ranks of states allowing civil unions this week, it also became a state in which couples can end their marriages, domestic partnerships, or civil unions from elsewhere. That's because Illinois now recognizes those relationships as Illinois civil unions, and therefore they can be dissolved in the same way that Illinois civil unions are dissolved. Chicago attorney Richard Wilson, who was instrumental in the drafting of the new law, reports that as couples flocked to the County Clerk's office on June 1 to get their civil union licenses, he headed off to Circuit Court Clerk's office to file several Petitions for Dissolution of Civil Union.

The difficulty couples face is a result of the fact that states don't require residency to marry (think destination weddings or Las Vegas wedding chapels), but they do require residency to divorce. So the couples who married in Massachusetts, DC, etc, cannot divorce if they live in a state that won't recognize their marriage, at least for purposes of getting divorced. Some couples think this means they can just go their separate ways, but it's not that simple. They are still married in states that recognize same-sex marriage. And if what they have is a civil union, say from Vermont which was the first place to allow them, they are still in a legal relationship in those states that recognize civil unions from other states, even if they don't recognize marriages.

And a couple's status in their home state can change. Here's what happened in Illinois. Before June 1, a couple in an Iowa marriage had no legal relationship in Illinois. Likewise a couple registered as domestic partners in DC. Those couples might have split up already without doing anything to adjust their legal status, thinking they had no status in Illinois. Well, as of June 1, 2011, both those couples are in civil unions in Illinois. Rights of inheritance and other potentially weighty matters turn on marital status, so those couples need to dissolve their relationships. Now they can...and they must.

Bottom line: Anyone who entered a formal status with a same-sex partner, in any state, needs to talk to a lawyer if that relationship ends.

British gay activists urge both marriage for same-sex couples and civil partnerships for different-sex couples

Gay activists in Britain are urging William and Kate to announce their support for marriage for same-sex couples. But at the same time they are advocating access to civil partnership for different-sex couples. At the moment, only same-sex couples can enter civil partnerships. Truncated news coverage has described the marriage equality plea without noting that advocates also back different-sex civil partnerships.

Although recent civil union legislation in Illinois and Hawaii both allow access for different-sex partners, Delaware's bill, which awaits the governor's signature, extends civil union status to same-sex couples only. Newspaper coverage noted than an effort to add different-sex couples was seen as an attempt to "undermine" the bill. That's a way of thinking that I do not follow. What civil union for different-sex couples undermines is the preservation of marriage as the one and only way straight people can announce their commitment. We are more likely to get to a greater recognition of the many ways that people form relationships that matter if we knock marriage off its pedestal. Given straight people options other than marriage is one step in that direction.

MD Delegate Tiffany Alston had a good idea for a bad reason

When I first heard that Maryland Delegate Tiffany Alston wanted to replace marriage with civil unions for all I was hopeful she had a principled reason and that it was an idea that might catch on. I'm still waiting for a state to change the name of the status it grants couples, leaving "marriage" as a religious term or a generic term couples use for themselves. But it soon became clear Del. Alston was not really looking for a way to get the state out of the marriage business. She was just looking for a way to avoid voting for same-sex marriage.

I admire her unwillingness to advocate civil unions only for same-sex couples. She said she did not want to create a discriminatory status for same-sex couples only. But the eve of a vote on a same-sex marriage bill is the wrong time to start talking about changing the name of state licenses. And after her amendment was defeated, Del. Alston voted against allowing same-sex couples to marry. Turned out her vote was unnecessary to pass the bill out of committee. The full House of Delegates is likely to vote next week. The Senate has already passed the bill, and the governor says he will sign it.

So I'm still waiting for a state legislator to seriously propose and push for replacing "marriage" with "civil partnership." "Civil union" would be okay with me, but I prefer "partnership," both for what it says about the relationship and because it has no other association and would not be confused with a status for same-sex couples only.

Hawaii and Illinois have passed civil unions for both same-sex and different-sex couples. It's a start.

Gov. Abercrombie to sign civil union bill at 7pm Eastern tonight; different-sex couples included

The modern era of the movement for access to marriage for same-sex couples began in Hawaii in 1993. Of that there is no doubt. That year the Hawaii Supreme Court ruled that the state's ban on same-sex marriage was unconstitutional sex discrimination under the Hawaii state constitution. The court sent the case back to the trial court and instructed the state to justify the exclusion by proving that it was "necessary" to protect a "compelling state interest." Although the people of Hawaii cut short the process begun by that court ruling by passing a constitutional amendment, the ruling served the purpose of demonstrating that is was possible to bring a court challenge and succeed. The rest is history, and of course it is history still in the making.

Well today Hawaii Governor Neil Abercrombie signs a bill creating civil unions. The status confers all the state based consequences of marriage. Both same-sex and different-sex couples can enter civil unions. You can watch the signing live, at 7 pm Eastern time, here. Lambda Legal has prepared a terrific explanation of the new law which you can read here.

The most recent three states to create such a comprehensive status are Hawaii, Illinois (civil union - 2011), and Nevada (domestic partnership - 2009). All three are open to different-sex couples. I hope this marks a trend that will continue. California and Washington allow different-sex couples to enter domestic partnerships if one person is at least 62 years old. (When a divorced person who was married more than 10 years turns 62, that person becomes eligible for social security based on the work record of his or her ex-spouse. Remarriage destroys that eligibility, but domestic partnership or civil union status does not.)

I hope that someday the official name of the civil status that all couples can choose will be something other than marriage. (I describe my views in more detail here.) I like civil partnership, but I'll take civil union.

My favorite place in the world is Kauai. I can highly recommend it for those wishing to formalize their relationships in, well, paradise.

Illinois civil union law signed today -- more equality yet more injustice

Illinois will become the 12th jurisdiction in the country to provide formal recognition of same-sex couples in a status that confers the state-based rights and responsibilities of marriage. Governor Quinn signs the bill into law later today, and it becomes effective June 1. (To recap -- marriage is available in Connecticut, DC, Iowa, Massachusetts, New Hampshire, and Vermont; civil union is available in Illinois and New Jersey; domestic partnership is available in California, Nevada, Oregon, and Washington -- and also in DC).

That's good news. And adding to the good news, Illinois joins Nevada and DC in making the status available to all different-sex as well as same-sex couples. (California and Washington include different-sex couples if one partner is 62 or older). The bill's sponsor, Rep. Greg Harris, has said it is wrong to write a law that discriminates. I couldn't agree more.

The law will also treat same-sex couples married elsewhere as members of a civil union in Illinois. This is an important provision. Without it, the state's DOMA might leave such a couple with no legal status. The existence of that DOMA, of course, is its own injustice, as it perpetuates the notion that same-sex couples are not good enough for marriage.

But I've got another complaint with Illinois. The state is shameful in its legal treatment of unmarried couples. Under a dreadful 1979 Illinois Supreme Court ruling, the state will not enforce agreements between unmarried couples or allow one partner to have any claim to property owned by the other. That ruling will remain the law for couples who do not enter civil unions. While only Washington state treats property acquired by unmarried partners as "community" property, allowing for a just distribution when the couple splits up (the result I favor), most states do allow one partner to prevail if s/he can prove that there was an agreement to share assets or provide support. It's hard to prove such an agreement, but Illinois goes the additional step and refuses to enforce such agreements even when they can be proven.

Even worse, Illinois does not allow a nonbio mom to file for custody or visitation rights with the child born to her same-sex partner, even if they planned for and raised the child together as two parents. While it may turn out that civil union partners will both be legal parents of a child born to one of them if a doctor performs the insemination and both civil union partners give written consent, a child whose parents do not enter a civil union will have only one parent and will risk losing that parent if the couple splits up.

These two inequities can be remedied only by additional statutes, and I won't wholeheartedly join the celebration in Illinois until neither marriage nor civil union forms such a bright line between whose families count and whose don't.

Thanks to Chicago lawyer Richard Wilson, for keeping me posted on Illinois developments and sharing my concerns.

Illinois legislature passes civil unions: different-sex couples also eligible

In yesterday's post on the DADT repeal recommendations, I noted that the report opposed creating a "same-sex relationship" status for gay servicemembers, in large part because it would appear unjust and unequal to differentiate between same-sex and different-sex committed couples. Well the Illinois Senate has just approved civil unions there, and the governor will sign the bill, and when it becomes law the status will be available to both same-sex and different-sex couples. Only Nevada and the District of Columbia have created a status that is also open to different-sex couples (both jurisdictions called the status "domestic partnership" but because it extends to those who register virtually all of the state-based legal consequences of marriage it is the same as what others states call a "civil union."). The Hawaii civil union bill which was vetoed earlier this year by the state's Republican governor also included different-sex couples.

Colorado allows different-sex couples to register as "designated beneficiaries" (as well as any two unmarried people), and that gives some of the important legal consequences of marriage, like the right to inherit without a will and the right to sue for wrongful death, but it gives nowhere near all the legal consequences of marriage. (I like this status because those who sign up can choose their own legal consequences.) California and Washington also allow different-sex couples to register, but only if one partner is 62 or older. (This is supposedly to protect benefits that might be lost if a recipient remarried, but the specific age chosen - 62 - does not actually correspond to any legal consequence of remarriage, so go figure...)

If Illinois creates a critical mass and is a precursor of things to come, I say it's about time. We may well have come full circle to the impetus behind the first domestic partner benefits implemented in the 1980's; those benefits were available to gay and straight couples because their purpose was to make marriage unnecessary to protect the well-being of a loved one. When Vermont implemented the first "civil union" status but restricted it to same-sex couples, heterosexual feminists rightly complained that they were being inappropriately forced into marriage.

Same-sex only civil unions send two messages: marriage is really special and different-sex couples should be required to marry to get any recognition; and same-sex couples are less worthy and can be cabined in a status developed just for them. I detest both these messages.

After Nevada passed its domestic partnership law, I spoke with some of the key players in that political process. They all said that including different-sex couples was virtually a given, that allowing heterosexuals access to domestic partnership was important to garner more widespread support and represented the value of equality. To me, it's all about making marriage matter less as a legal status, and that's a good thing.

Hawaii civil union bill creates equal rights for same-sex and different-sex couples

The Hawaii legislature took everyone by surprise last week when it approved the creation of civil unions in the state. The gay press generally reported the development as approval of civil unions for same-sex couples, but that's not what the legislation does; it approves civil unions for any two unrelated adults who are not in another civil union, a marriage, or a reciprocal beneficiary arrangement. If Governor Lingle signs the bill (and she has weeks to decide), Hawaii will join Nevada and the District of Columbia in allowing both same-sex and different-sex partners to enter a legal status granting the state-based consequences of marriage (Nevada and DC call the status domestic partnership.)

This development in Hawaii is particularly notable because last year, when the bill to enact civil unions failed, numerous commentators suggested the bill tanked precisely because it included different-sex couples. As law professor Art Leonard noted, including different-sex couples can be seen as a challenge to traditional marriage. In an interview on Hawaii Public Radio, the executive director of Hawaii Family Forum, Dennis Arakaki, said including different-sex couples made the bill "much worse" than a bill limited to same-sex couples. On the other hand, at least one legislator reportedly changed his previous "no" vote to "yes" precisely because the bill now includes different-sex couples.

According to Equality Hawaii, there had been talk over a few years about whether to include different-sex couples in a civil union bill. Gay rights supporters ultimately decided to limit civil unions to same-sex couples precisely because they feared an argument that civil unions for heterosexuals would lead to an erosion of marriage. (The reciprocal beneficiary status now available in Hawaii extends to any two people who are prohibited from marrying -- so it's for same-sex couples and relatives; straight couples who want protection for their relationship have no choice but to marry.)

In 2009, a bill for same-sex couples only passed the House and came up in the Senate with only one day left in the 2009 legislative term. The bill was expected to pass, but opponents were able to stall the bill by amending it, and the amendment they chose was...extending civil unions to different-sex partners! The bill passed, but because of the amendment it needed another reading, which could not take place until the 2010 session. So this did sort of make it look as though the reason civil unions did not become law in Hawaii was because the bill included straight couples, but the bill including straight couples did pass; it just could not become law because the legislative session was over. In other words, the inclusion of straight couples created a procedural problem for the law, not a problem based on a substantive opposition to inclusion of straight couples.

The amended bill passed the Senate again on January 22, 2010, and then it had to go back to the House (because it had been amended). The House postponed voting on the bill but finally did approve it last week, That's how a bill for both gay and straight couples has come before Governor Lingle. So far no press is reporting that she might veto it specifically because it includes different-sex couples.