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Debate: Civil unions vs. gay marriage

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Which is the superior alternative: civil unions or gay marriage?

Background and context

A civil union is a legally recognized union similar to marriage, proposed primarily as an alternative to same-sex marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples with rights, benefits, and responsibilities similar (and in some countries, identical) to opposite-sex civil marriage. In some jurisdictions, such as Quebec, New Zealand, and Uruguay, civil unions are also open to opposite-sex couples.
Most civil-union countries recognize foreign unions if those are essentially equivalent to their own; for example, the United Kingdom lists equivalent unions in Civil Partnership Act Schedule 20. Some commentators are critical of civil unions because they say they represent separate status unequal to marriage ("marriage apartheid"). Others are critical because they say civil unions are separate but equal — because they allow same-sex marriage by using a different name. In general, the questions that frame the debate include the following: Do civil unions offer equality to gays? Are civil unions comparable to vilified "separate but equal" laws that existed in the US prior to the Civil Rights Act of 1964? Do civil unions create second-class citizenship for gays and invite discrimination? Are the benefits offered in civil unions sometimes unequal? Should they be equal? But, are equal benefits sufficient, or is the title of "marriage" the only fair option ultimately? Should marriage be defined as between a man and a woman? Do civil unions better protect the "institution" and "tradition" of marriage? Is "marriage" an important term/symbol that must be protected, or, conversely, is it so important and socially meaningful that it cannot be fairly denied to gays? Are civil unions a good compromise? Are they the only way forward in the conflict, and for advancing gay rights? Are they a good stepping stone toward gay marriage, if that is the final objective for gay rights supporters? Do civil unions poorly protect the children of gay couples and the custody rights of gay parents? Does gay marriage threaten the freedoms of religious organizations, and civil unions better protect them? What is the overall balance of pros and cons? Are civil unions a better alternative, or is gay marriage superior?


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Children: What are the pros and cons for children of same-sex couples?

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Equality: Do civil unions offer sufficient equality to gays?

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Yes

  • Homosexuality is wrong along with equal rights by gay marriage. This is a common argument against gay marriage, and sometimes underlies the position of those that reluctantly are willing to accept civil unions. But, the premise is that homosexuality is immoral and wrong, so efforts for full equality through gay marriage are misplaced. If civil unions are unequal, the argument goes, than it is, nonetheless, fitting. This argument is not supported by most advocates of civil unions with equal benefits, but by some.
  • Homosexuals have the same right to marry members of the opposite sex. In so far as the equal protection clause of the U.S. Constitution applies to homosexuals and marriage, they have the same right to enter into the same type of traditional marriage contract. Even without civil unions they are equal in the eyes of the law.
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No

  • Civil unions are "separate, but not equal" During the 50s and 60 in the United States, a segregationist principle was established called "separate but equal" under the Jim Crow laws of the time. This was struck down by the Massachusetts Supreme Judicial Court, who wrote: "The history of our nation has demonstrated that separate is seldom, if ever, equal."[2] Civil unions are precisely the same arrangement, attempting to give gays a "separate" arrangement than marriage, while conferring "equal" benefits. But, because "separate can never be equal", civil unions can never equal. Civil unions, therefore, are unequal, segregationist, and discriminatory, just as were the "separate but equal" laws of the past.
  • Civil unions still "separate, but equal" if straights can do it. The idea that opening civil unions to straights solves the problem of civil unions be "separate, but unequal" fails a very simple test. While heterosexuals may have equal access to civil unions, do gays have equal access to marriage? No. Clearly, therefore, allowing straights to participate in civil unions while continuing to deny gays the right to marry does not nullify the argument that civil unions are akin to "separate but equal" and actually unequal.


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Discrimination: Can civil-unions avoid second-class treatment and discrimination?

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Pro

  • Many opponents of gay marriage are tolerant of civilian unions David Blankenhorn and Jonathan Rauch. "A Reconciliation on Gay Marriage." New York Times. February 21, 2009: "And while most Americans who favor keeping marriage as it has customarily been would prefer no legal recognition of same-sex unions at either the federal or the state level, we believe that they can live with federal civil unions — provided that no religious groups are forced to accept them as marriages. Many of these people may come to see civil unions as a compassionate compromise. For example, a PBS poll last fall found that 58 percent of white evangelicals under age 30 favor some form of legal same-sex union." [This all suggests that civil unions will be met with greater respect from the general American population, instead of the kind of recrimination that can lead to hatred and descrimination.


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Con

  • Civil unions have to be explained; unequal status with marriage "Civil Unions Are Not Enough. Six Key Reasons Why." Lambda Legal: "3. A civil union has to be explained and does not get the same respect as a marriage"]: "Only the word married conveys the universally understood meaning applicable to the lifetime commitment many couples make. Marriage has a meaning unmatched by any other word. Regardless of whether civil unions and marriage offer the same benefits and obligations on paper, when the government relegates same-sex couples to civil unions rather than marriage, it forces them to explain the difference at work, at school, in hospitals and elsewhere. Those couples lose the respect and dignity that they deserve for their commitment to be responsible for each other."


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Benefits: What debate surrounds civil union vs. gay marriage benefits?

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Pro

The list of benefits that are allegedly deprived to gay couples in civil unions is often entirely fabricated. Frequently, all the same benefits are offered in civil unions as are offered in gay marriages.
  • Many laws already give civil unions equal benefits as marriage. While many argue that civil unions sometimes deprive couples of certain rights given to those in gay marriages, many existing laws and many proposals and legislation on the table would see every single right given to married couples also given to couples with civil unions. Civil unions, therefore, do not inherently involve depriving couples of the various benefits outlined by the opposition.
  • Civil unions can be pushed to include equal benefits as marriage Paul Varnell. "For Civil Unions". Chicago Free Press. March 8, 2006: "3. Civil unions in other states, unlike those in Connecticut and Vermont, would probably include a smaller number of benefits and entitlements than marriage, making them far from equal. But however hard this is to swallow, here again the point is to get a process started. Even if lessor variations on civil unions offer minimal benefits (e.g., hospital visitation), it is almost inevitable that as legislators and the public become comfortable with gay couples in formalized relationships, they will feel more comfortable adding additional benefits over time. [...] That model has worked well in California where gay couples have obtained more and more benefits with each legislative session. It has also worked in several European countries that have gradually added benefits, in some cases resulting in marriage itself. Most U.S. surveys show majority support for providing some benefits for gay couples. So let us work on obtaining those and then go on to others as the public comfort grows. If you cannot get all the justice you want, take what justice you can get and then work for more."
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Con

  • Civil unions are not necessarily recognized out of state "Civil Unions Are Not Enough. Six Key Reasons Why." Lambda Legal: "Imposing Civil Unions Creates More Harms Outside The State. The federal government and some other states disrespect same-sex married couples when they cross state lines or deal with federal taxes or social security. When a couple's own state creates a separate status for them, it makes them even more vulnerable. As a result, same-sex couples are increasingly avoiding tourist destinations in states that bar them from legal protections, and national membership organizations and multi-state employers have begun to consider policies that avoid planning conventions, conferences or meetings in states where some members or employees may not feel that they are adequately safe as a legal matter (see the Safety Scale below). The more vulnerable couples are, the more time, trouble and expense for them to get protective legal documents (see the life-planning toolkit below)."
  • Partners can only make medical decisions in the registered state. With marriage, partners can make emergency decisions across state lines. This means that partners in civil unions may not be able to make decisions out of state. This is an additional reason why civil unions create unequal rights and second class status.[3]
  • Civil partners can only file taxes in registered state. Married couples can file both federal and state tax returns jointly. Civil Union couples can only file jointly in the state of civil registration. This is an additional way in which civil unions create unequal rights and second class status.[4]
  • Civil partners must pay federal taxes on transfered gifts. Married partners can transfer gifts to each other without tax penalty. Civil partners do not pay state taxes, but are required to report federal taxes.[5]
  • Civil partners must pay federal taxes on death benefits. In the case of a married partner's death, a spouse receives any earned Social Security or veteran benefits. In the case of civil unions, partners do not receive Social Security or any other government benefits in the case of death.[6]


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Defining marriage: What role do different definitions of marriage play in this debate?

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Pro

Vatican. Offices of the Congregation for the Doctrine of the Faith. June 3, 2003: "No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman."


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Con

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Institution of marriage: Do civil unions better protect the "institution of marriage"?

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Pro

  • Gay marriage undermines the institution of marriage. The institution of marriage is dependent on its traditional definition being maintained as between a man and woman, and the traditional family/reproduction/child-rearing/mother-father-role-models function of marriage being upheld as well. Gay marriage breaks from many of these traditional functions. Civil unions uphold the institution of marriage by not interfering with them.
  • Civil unions avoid drawn out culture war on gay marriageDavid Blankenhorn and Jonathan Rauch. "A Reconciliation on Gay Marriage." New York Times. February 21, 2009: "Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together. [...] In all sharp moral disagreements, maximalism is the constant temptation. People dig in, positions harden and we tend to convince ourselves that our opponents are not only wrong-headed but also malicious and acting in bad faith. In such conflicts, it can seem not only difficult, but also wrong, to compromise on a core belief. [...] But clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it."


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Con

  • Gay marriage does not harm heterosexual marriages "Civil Unions Are Not Enough. Six Key Reasons Why." Lambda Legal: "In its decision that a civil union law in California (there called a domestic partnership law) did not provide equality under the constitution, that state’s highest court listed these top two reasons why civil unions are not enough: 'First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples."
  • Gay marriage is a negligible change to institution of marriage Andrew Sullivan. "Why 'civil union' isn't marriage." The New Republic. May 8, 2000: "the inclusion of gay people is, in fact, a comparatively small change. It will affect no existing heterosexual marriage. It will mean no necessary change in religious teaching. If you calculate that gay men and women amount to about three percent of the population, it's likely they will make up perhaps one or two percent of all future civil marriages. The actual impact will be tiny. Compare it to, say, the establishment in this century of legal divorce. That change potentially affected not one percent but 100 percent of marriages and today transforms one marriage out of two. If any legal change truly represented the 'end of marriage,' it was forged in Nevada, not Vermont."
  • Gays can only undermine marriage if seen as morally depraved Andrew Sullivan. "Why 'civil union' isn't marriage." The New Republic. May 8, 2000: "how, exactly, does the freedom of a gay couple to marry weaken a straight couple's commitment to the same institution? The obvious answer is that since homosexuals are inherently depraved and immoral [according to opponents], allowing them to marry would inevitably spoil, even defame, the institution of marriage. It would wreck the marital neighborhood, so to speak, and fewer people would want to live there. Part of the attraction of marriage for some heterosexual males, the argument goes, is that it confers status. One of the ways it does this is by distinguishing such males from despised homosexuals. If you remove that social status, you further weaken an already beleaguered institution. [...] This argument is rarely made explicitly, but I think it exists in the minds of many who supported the DOMA."


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Symbol: Do civil unions unfairly deprive the symbol of "marriage"?

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Pro


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Con

  • Word "marriage" is symbolic, should not be denied to gays In its decision declaring the denial of the right to marry unconstitutional, Connecticut’s highest court said: "We agree with the following point made by the Lambda Legal Defense and Education Fund, Inc., in its amicus brief: 'Any married couple [reasonably] would feel that they had lost something precious and irreplaceable if the government were to tell them that they no longer were 'married' and instead were in a 'civil union.' The sense of being 'married' — what this conveys to a couple and their community, and the security of having others clearly understand the fact of their marriage and all it signifies — would be taken from them. These losses are part of what same-sex couples are denied when government assigns them a 'civil union' status. If the tables were turned, very few heterosexuals would countenance being told that they could enter only civil unions and that marriage is reserved for lesbian and gay couples. Surely there is [a] constitutional injury when the majority imposes on the minority that which it would not accept for itself."[8]
  • You cannot ask a lover, "will you civil union me?". There is significant importance placed on asking the question, "will you marry me?". Civil unions essentially deny homosexuals the ability to ask that beautiful, long-valued, important question? This is wrong on many levels.


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Compromise: Are civil unions a good compromise? Can compromise be justified?

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Pro


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Con


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Getting to marriage: Are civil unions a good stepping stone to marriage?

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Pro

  • Civil unions are a positive step toward gay marriage "Civil Unions. The Blankenhorn-Rauch peace proposal on marriage." Hunter of Justice. February 22, 2009: "The most important aspect of the Blankenhorn-Rauch proposal is that it implicitly establishes what I agree is the right threshold for moving out of gridlock: support for civil unions that are materially equal to marriage, paired with some degree of opt-outs for entities that are thoroughly religious. [...] LGBT rights advocates can still pursue access to marriage itself on equal terms, which I also support, since the difference in designation is obviously intended to function as a signaling device for communicating second-class status. But those battles would be fought against a background and baseline of having had the material benefits already equalized."


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Con


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Religion: Do faiths define marriage a certain way, and does this matter?

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Pro

  • The Bible defines marriage as between only a man and woman. Candidate Barack Obama said Nelsonville, Ohio during the 2008 US presidential elections, in March of 2008: "I believe in civil unions that allow a same-sex couple to visit each other in a hospital or transfer property to each other. I don't think it should be called marriage, but I think that it is a legal right that they should have that is recognized by the state. If people find that controversial, then I would just refer them to the Sermon on the Mount, which I think is, in my mind, for my faith, more central than an obscure passage in Romans. That's my view. But we can have a respectful disagreement on that."[10]
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Con

  • Denying gays marriage is not justified on religious grounds Andrew Sullivan. "Why 'civil union' isn't marriage." The New Republic. May 8, 2000: "Equally, an appeal to the religious content of marriage is irrelevant in this case. No one is proposing that faith communities be required to change their definitions of marriage, unless such a community, like Reform Jewry, decides to do so of its own free will. The question at hand is civil marriage and only civil marriage. In a country where church and state are separate, this is no small distinction. Many churches, for example, forbid divorce. But civil divorce is still legal. Many citizens adhere to no church at all. Should they be required to adhere to a religious teaching in order to be legally married?"


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"Church and State": Doesn't defining "marriage" violate the inferred "separation of church and state"?

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Pro

  • If the government affects the religious term of "marriage" it is in violation. In the United States, the Supreme Court has ruled to infer a "separation of church and state" all the way from federal to local levels. In this way if the government put the millenia-old definition of marriage as "man and woman" into the legal system that is purely in violation of this legal inferrance. If the government redefines a religious term, both in origin and use, than the government would effectively violate the "separation of church and state". It would be paramount as to saying that Parliament in the U.K. would redefine Queen Elizabeth II as King Elizabeth II. Obviously we can see that this is something that violates the inferrance of the Supreme Court to establish a "separation of church and state".
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Con

  • Marriage is more than a religious practice. There are legal issues independent of any religious dogma with regard to marriage. The extension of the right not to incriminate oneself to one's spouse is an example. The religious and legal definitions of marriage are distinct, i.e. one may become legally divorced but if one is Catholic the church may refuse to recognize one's status as divorced. Hence the Church's definition of marriage and the State's definition are distinct and legally independent.
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Pro

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Con

  • Children of civil couples are not protected by child-support laws. In the case of divorce, heterosexuals may have a legally-binding financial obligation to spouses and children. In the case of the dissolution of civil unions, no such spousal or child benefits are guaranteed or required out of state.[11]
  • Gay parents have weaker custody right without marriage Sharon M. Grosfeld, a family law attorney and a former state senator and delegate, said following a 2007 Maryland Court of Appeals case on civil unions: "Without the legal status of marriage, the question of custody when same-sex partners break up and children are involved is much more complicated. If a child is the biological child of one party and not the other, what are the legal rights of that other party, particularly if the child was nurtured by the other party since birth?"[12]
  • Civil couples cannot sponsor spouses or family for citizenship. U.S. citizens and legal residents can sponsor their spouses and family members for immigration. U.S. citizens and legal residents cannot sponsor non-legal spouses or family members.[13]


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Pro/con sources

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Yes

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