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    January 21, 2009

    Federal civil unions: so simple

    Posted by: Andoni

    ".... and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions."

    More properly, the title of this post should have been "Federal recognition of our relationships as civil unions: so simple."

    Of all President Barack Obama's proposals for the LGBT community on the official White House webpage , I believe this one is the best and most powerful. It will achieve more rights and benefits for gay people than all the others combined. It's beautifully simple yet simultaneously brilliant. If done properly, it will bring gay rights to couples in Mississippi and Alabama as well as Massachusetts.

    Repealing the Defense of Marriage Act will take many more years because marriage is still such a third rail issue, whereas benefits for civil unions is not. And when DOMA falls, only Massachusetts, Connecticut and New York couples will gain those 1100+ rights.

    This is how you do it. The bill would not have to be complicated and could be as simple as this:

    THE PURPOSE of this legislation is to extend to same sex couples the exact same rights and benefits from the federal government that married opposite sex couples receive from the federal government

    THE LEGISLATION: All federal statutes, codes, rules and regulations are hereby amended so that wherever the word "marriage" appears, that word is replaced with the phrase "marriage or civil union." Additionally, when other forms of the word "marriage" are used, the appropriate form of "civil union" is used. (Example: "married" is amended to read "married or civil unioned.")

    DEFINITIONS: For the purposes of this legislation "civil union" is defined as any same sex union legally created by a state government where such a union has the exact same or substantially the same definition, obligations and rights as a marriage in the state.

    RESTRICTIONS: This legislation applies for federal rights and benefits only. There is nothing in this legislation to mandate state recognition of these relationships, or to compel the various states to grant similar rights and benefits to same sex couples. Such matters are left entirely to the states under the Tenth Amendment.

    Here are some important things our community needs to understand about this proposal:

    The federal government doesn't create marriages or other unions, it merely recognizes marriages legally performed by one of the states. This would be the same arrangements for "civil unions." The federal government would recognize a same sex union legally performed in one of the states and it would be called a "civil union."

    This legislation does not require DOMA to be repealed. Only if the federal government wants to call these unions "marriages" does DOMA have to be repealed.

    The federal government would acknowledge same sex couples in all 50 states, as long as the union was created legally by one of the states, which is what they do for marriage. It doesn't matter where you live, it matters that your union was created or performed legally -- which would mean in a state that performs these same sex uinons. A couple can go from a state that has no recognition of same sex couples to a state were same sex relationships are legally created. They can get hitched legally there and the federal government will acknowledge that relationship even if the couple returns to their home state where they get no recognition and no state rights and benefits.

    Because of DOMA, the federal government cannot recognize same sex marriages (from CT and MA) as marriages, but under this legislation, those same sex marriages would be defined as civil unions (see definition above) at the federal level. Domestic partnerships from CA and civil unions from VT or NJ would also be called civil unions at the federal level. Should a future state decide to call a same sex union something new, such as a "civil partnership," this law would cover that too -- as a "civil union."

    When DOMA is repealed, then same sex marriages from MA and CT (and any future same sex marriage state) will be recognized as marriage by the federal government. DOMA is the only thing preventing that now.

    The fight for marriage can and will continue in the states. When new states choose to call our relationships marriage, people will receive the 1100+ federal benefits as civil unions. When DOMA is repealed, they will receive those same 1100+ benefits under a new name, marriage. Maybe then someone will propose to expand the federal definition of civil unions to include opposite sex couples as well, so they too can choose to have a marriage or a civil union, getting our country further along the road of separation of church and state.

    You may ask, how can the federal government grant rights at the federal level, when the state government where the couple resides may not do the same.

    There is a parallel situation. Just like marriage licenses, the federal government does not issue doctors' licenses either -- states do. So how does the federal government recognize doctors who can practice in the federal medical system (the Veterans Administration, the military, the public health system, etc.)? It recognizes the state licenses. To practice medicine in the federal system and receive all the rights and benefits granted to a physician by that license, you must hold a license legally obtained from one of the 50 states. Your license may be from MA, but the federal government will recognize you as a doctor in the federal system in Alabama (for example at the VA hospital) even though the state of Alabama will not recognize that license and will not allow you the rights and benefits to practice in their state outside of the VA system. Alabama will not recognize your license to practice medicine from MA even if the federal government does. So just as the state of Alabama does not recognize a same sex marriage license from MA, or a doctors license from MA, the federal government does recognize the doctors license and could do the same with the other license. The federal system and the state system are two separate and independent systems. This is at the heart of federalism that some Republicans like Bob Barr strongly support.

    The best part of this is that it is such a powerful tool. Literally hundreds of thousands, possibly millions of gays in all 50 states will have the ability to access these 1100+ federal benefits even if their own state doesn't recognize that relationship.

    Finally, I realize that the screams from our own left will say "marriage or nothing." Here's a counter argument. By setting up such a clearly "separate but equal system" (there is no debate on this, rigtht?), that separate but equal system, as a half step, will be successfully challenged more quickly (either through public education or in the courts) and become full marriage equality sooner, than the purer route of going from nothing at the federal level to full marriage equality in one step. Anyone who thinks that going from nothing to full marriage equality at the federal level all in one step is coming soon is fooling themselves. That is a much harder, bigger, and more time consuming route.

    I wish I could say my thinking is original on this, but it is based on my discussions with a prominent LGBT Obama campaign official and a prominent ACLU attorney neither of whom wishes to go on record at this time.

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    Comments

    1. Bucky on Jan 21, 2009 10:47:06 AM:

      I might need to rethink my position because I actually agree with you on this. ;-)

      While I firmly believe that ultimately nothing short of marriage is acceptable, I'm happy to take whatever scraps I can get along the way.

      I've never understood those activists that thought our struggle for rights was an either/or situation. Working for some rights (like marriage) doesn't mean we can't at the same time advocate for other rights (like immigration).

      In fact, the hard push for marriage is a great tactic because it makes the "compromise" of civil unions seem much more reasonable to otherwise unreasonable people. And as you point out, I believe that an intermediate step of civil unions is actually the fastest way to get full marriage rights. We saw this in New Jersey when people saw civil unions put into practice and quickly realized they really didn't work so well.

      If Obama is willing to push for civil unions, I'll be there supporting him -- all the while working toward full equality.

    1. Elizabeth on Jan 21, 2009 12:12:12 PM:

      I'm still not totally convinced federal civil unions would be such an easy fix for the inequities gay couples face in states with consitutional amendments that ban not only marriage, but also civil unions (like my home state of Virginia).

      Take family law, over which the states have primary jurisdiction. It seems a Virginia judge, in upholding the state consitution, would be compelled to disregard a federal civil union in areas such as spousal (or second-parent) adoption, child custody, child support, divorce, alimony etc. For example, a mother's husband is legally the father of her child (regardless of actual genetic paternity), and this much is reflected on the child's state-issued birth certificate. How could Virginia issue a birth certificate to the child of a gay couple, which reflects both as a parent, without violating its own state constitution?

      Take your own medical license analogy: what good is a federally recognized medical license if it's useless for practicing medicine in one's home state?

    1. Bucky on Jan 21, 2009 12:54:59 PM:

      Excellent points, Elizabeth.

      And you are entirely correct -- civil unions are NOT the answer to the institutional inequality the lesbians and gays are facing. Separate is ALWAYS unequal.

      You also raise the point that just adding "marriage or civil union" isn't enough -- what about laws that mention "spouse" or "husband" or "wife"? We will need to address that as well in any civil union legislation.

      Even then, civil unions aren't enough. The biggest problems as you point out will be in family law which is entirely controlled by the individual states.

      I'll still take whatever we can get. Every small step forward is a move in the right direction and every small step forward belies the right wing fundie claims of total world destruction if the homosexuals are allowed to exist.

    1. Andoni on Jan 21, 2009 1:02:11 PM:

      All I said was this would give us the most number of rights and benefits in one swoop. Obviously, if something is a state right, this is not the fix, but I didn't imply that it was.

      The plan should be to whittle away at our rights from both ends. Work from the civil unions end, while simultaneously working from the marriage end and we will meet somewhere in the middle.

      The goal is marriage in every state, but that's a long way off, especially for a state like Virginia. In the meantime working on this solution from both ends makes sense to me. One doesn't not preclude the other, in fact they complement each other.

    1. Michael on Jan 21, 2009 1:28:09 PM:

      I have been saying at www.civillywedd.com, since year 2000, that Lgbt's should have the legal right to civilly wed their partners with full rights of marriage. To me the fight for the right of a word has hampered the progress of obtaining the rights! It looks like we might see the light at the end of the tunnel with our new President.

    1. the troll on Jan 21, 2009 3:47:19 PM:

      I haven't taken the time to read the whole post. Would this apply to two spinster sisters living together?

    1. Andoni on Jan 21, 2009 5:22:13 PM:

      I'm not sure this is a serious question, but here goes: No. The two spinsters would need to qualify for a civil unions license in some state and then go through with the ceremony.

      On the other hand there ARE proposals out there for any two people to be able to be recognized by the government to get benefits, both state and federal, but is not that proposal.

    1. Brian on Jan 21, 2009 6:02:11 PM:

      Chris you are spot on with this. Perhaps more important about what this would do is what it would say....as long as the federal government (and military) can hide behind a veil of legal discrimination, why should anyone (or any state) do otherwise as well?

    1. Chris on Jan 22, 2009 4:31:34 PM:

      Elizabeth: No one is suggesting that federal civil unions will result in the extension of any of the rights and benefits of marriage that come at the state level. That's a separate and extremely important battle that will unfortunately take much longer to win. It's also a battle about which President Obama and Congress can do little or nothing.

      At the federal level, however, federal civil unions means that a gay couple from Virginia can go get married in Mass or Conn -- or actually just cross the Potomac and get D.P.'d in D.C. -- and they would immediately qualify for every one of the more than 1,100 rights and benefits of marriage at the federal level.

      That is huge.

    1. the troll on Jan 22, 2009 6:47:52 PM:

      I think marriage should be a states rights issue and not federal. Any attempt to sneak a state issued gay marriage into a federal marriage will backfire and cause a backlash (read constitutional ammendment to ban gay marriage)

    1. Mark on Jan 23, 2009 12:18:46 PM:

      It seems to be a simple solution with very complicated results. It won't be that easy for a poor couple in Mississippi to travel to NY, CA, MA, and get either a marriage or a civil union. What about the immobile? The blind? The incapacitated? And in states like Mississipi and Arkansas and, yes, Florida, where animus is fierce, we will still be told to wipe our asses with our federal recognition. At the very least it will cause long-term confusion and delays with a state agency or hospital saying, 'But we don't recognize that, let me get back to you (and I hate you, by the way)', while the partner we can't see dies. While it may well be the approach to take, expect widespread legal chaos coupled with equally widespread litigation. I would love for this to be a solution - I don't care if it's called marriage or civil union - but for at least a long beginning this will have people running into brick walls as they try to exercise their federally granted rights in states that refuse to recognize them.

    1. MNPundit on Jan 23, 2009 1:08:23 PM:

      Well look, as long as the left screams marriage or nothing and then civil unions are the new compromise which was not the case 4 years ago. So the left needs to keep screaming to move the terms of the debate.

      Personally I think we need to abolish marriage. Government should give civil unions to all and marriage to none. If you want to be married, which I understand is commonly understood to make a commitment before whatever religious figure/deity you have, then you find a church. Churches can refuse to marry people all they want. I'd think less of a church that refused to marry homosexuals, but that's their right.

    1. Ken on Jan 23, 2009 1:25:52 PM:

      I'm not sure that your argument works. The only reason to support civil unions is to deny us marriage. That's the most basic reason civil unions have been invented since we've started winning court victories that require our relationships be recognized as equal to heterosexual marriages.

      Just as I do not believe the Warren court would have upheld civil unions for interracial couples if Virginia allowed interracial couples to form them but not get married I do not believe that denying gay couples marriage is a reason to support civil unions.

      Why should we support a policy that codifies religious and social disapproval of our relationship? No, there's simply no reason to accept being characterized as second class.

    1. blevine on Jan 23, 2009 2:46:51 PM:

      The way to get equal rights is through a policy such as this.

      The way to change the definition of marriage is to start acting like your married. Call your spouse your husband or wife as the case may be. Put a picture of your spouse on your desk at work. Have a bridal shower. Rent a hall for your wedding and invite a lot of straight people. Celebrate your anniversaries. Wear a wedding ring.

    1. BobN on Jan 23, 2009 4:11:07 PM:

      As the country continues the discussion of "what to about the gays", this time with much more likelihood of progress, let's consider what, if anything, we're willing to give up and what, if anything, we want in return. I hear a lot about how WE should compromise but not much about what the rest of society should accept to buy our relinquishment of the word "marriage". I'm no saying we should relinquish it, but if we do... How about wrapping our second class status in the marriage department with a clear statement of equality, say, in the Constitution? The greatest danger to gay people is changing times. Societies change. Our stories get buried. Kind of hard to bury the Constitution. Or, pardon me for getting all screaming lefty, how about some legal structure for the way a lot of gay people live their lives: with built-family, as opposed to biological family. Maybe some variation of a corporation. I'd even go so far as all-voluntary-polygamy. Not the hetero, patriarchal version in which a man collects wives. Yes, I realize there's not much call for it, but if we're going to give up something important, we ought to get something no one else does...

    1. Chuck on Jan 25, 2009 5:03:55 PM:

      I for one, am becoming sick and tired of the "It must be perfect or forget it" crowd who is waiting for someone to make it all happen, overnight, with with the simple wave of a magic wand.

      You people, and you know who you are, need a serious reality check. It don't be working like that! If you will check your history books, you will note that civil-rights did not come overnight to any minority group. It came, one step at a time and as the result of persistent hard work and at a high cost.

      What is particularly aggravating, is that the "It must be perfect or not at all" crowd, is that they have nothing at stake and, in many cases, are very vocal, as I have sadly learned many of my friends are, about NOT wanting to get married.

      Some have even gone so far as to say "Why did you have to go pick on a foreigner? Why couldn't you have gotten involved with someone from your own country?" To those of you who would espouse such ice-water-in-your-veins sentiments and idiocy, I say, read the Rita Mae Brown quote at the top of this site, over and over to yourselves, until you get it.

      Well, bully for you! Choosing not to get married is your inalienable right. No one would dispute that and no one is insisting that you do. But where the fuck do some of you get off blocking the path of those of us who would like to get married and enjoy the civil-rights and benefits of doing so, one of which is to be able to have our partners by our side just as the rest of you do?

      I mean, who are you to deny people like Chris, InExile, me and some 32,000 other couples involved in bi-national relationships from being with our loved ones and families, just because some of you are hung-up on semantics.

      None of us are saying that separate but equal is right or acceptable. None of us will be truly free, until each and every one of us is free. But what is so terribly wrong with accepting the concept of civil-unions, which will allow all of us to move forward and enjoy civi-rights and benefits we are current denied, as we continue our fight for full equality? Turning our noses up at what is being offered to us, is like throwing the baby out with the bathwater. It is senseless and idiotic, not to mention having to endure more years of suffering and pain to obtain the real McCoy in the meantime. It just doesn't make any sense.

      A war is not won in one brilliant stroke of the sword. A war is a series of battles that must be individually fought, bringing us ever closer to final victory. A "drop the A-bomb and wipe 'em off the face of the earth" mentality is not a viable option.

      Consider the following:

      Are you being legally forced to endure the pain of separation from your loved ones?

      Are you emptying your bank account of your life's savings by being forced to maintain a foreign domicile, while still maintaining your citizenship and a domicile in the country of birth?

      Are you being forced to give up your well-payng job, especially in these hard times, sell your home and cherished possessions and say goodbye to your relatives and friends so that you can be with the one you love?

      Are you forced to spend thousands of dollars annually on airfares and travel expenses just to to visit your loved ones on either side of the pond or country you have been forcibly exiled to?

      Are you compelled to learn a new language, simply to obtain a low-paying, service-industry job just to survive in a foreign land and prevent yourself from being deported for failure to be able to do so?

      Are you willing to forgo the Medicare that you paid into all of your working life, because the American government will not pay any of your medical expenses while you are in a foreign land?

      Are you willing to lose your American medical insurance coverage while you live in a foreign country?

      Are you being forced to maintain two separate health insurance policies, in two different countries, just to protect you and your partner against sickness and injury?

      Do you have enough money set aside in a bank account to pay for the $10, 20, 30 thousand dollars or more to emergency air-lift you back to the country of your birth in the event of a catastrophic illness besetting you while living in a foreign land?

      Are you willing to watch your life tick-away, waiting for something, anything, to happen that would eradicate just a few of the above mentioned problems bi-national couples face daily and are forced to endure by our government, to whom we also pay taxes, just as you do?

      Those of you who are ensconced in a comfortable relationship with the partner of your choice, own a home, have good paying jobs with family and friends to surround and support you, have absolutely no idea what it is like to be denied the most basic of human rights and privileges that the rest of you LGBT people and straights take so for granted.

      It is all well and fine to argue the finer points of law from your comfy positions, while many of us remain standing out in the cold looking in. It is difficult for us to understand your quest for perfection at the expense of the happiness of many of your brothers and sisters.

      Your lack of compassion, understanding and support is no different that that of the Yes on Proposition 8 crowd. One would think that as members of a large minority group yourselves, you would be capable of a bit more empathy.

      In the immortal words of Bacall to Bogey in the film Dark Passage, "How do you get like that?"

    1. laissezfairy on Jan 25, 2009 10:12:34 PM:

      I was going to comment but then just blogged in response:

      http://www.laissezfairy.com/?p=18

    1. InExile on Jan 26, 2009 7:04:18 AM:

      Chuck,
      Very well said! I personally don't care what it is called marriage, civil union, here it is the Pax, who cares? The rights are what matter, we can fight over what to call it latter! One step at a time is the way for us to get our equal rights and a federally recognized civil union would be as good as it gets with all the opposition out there ready to fight for the "marriage word" with all their money$$$$$! If the marriage word is taken out of the debate, it weakens the other sides ability to fight it, because they will fight it no matter what it is called.

      Our new President has civil unions listed under his civil rights agenda, usually an agenda is what you plan to do. This is a very positive thing for us and a reason to hope and push for "civil unions" to make them happen.

    1. SeaMex on Jan 26, 2009 7:38:52 PM:

      Wow Chuck, Say it now. You took the words right off my keyboard. I hear you and I hope President Obama hears you!

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      Well, bully for you! Choosing not to get married is your inalienable right. No one would dispute that and no one is insisting that you do. But where the fuck do some of you get off blocking the path of those of us who would like to get married and enjoy the civil-rights and benefits of doing so, one of which is to be able to have our partners by our side just as the rest of you do?

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    1. celebrity oops on Nov 26, 2009 1:54:52 AM:

      No need to union. Unions is for weak people.

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