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.
TrackBack URL for this entry:
The comments to this entry are closed.