Thursday, May 17, 2007

Updated: Marriage vs. Civil Unions/Domestic Partnerships:principles and strategies

From The Courant (Hartford):
Connecticut in the spring of 2005 became the first state in the nation to pass a civil union law without being ordered to do so by a court, and only the second to offer such status to same-sex couples.

Two years later, the creation of civil unions here is being used as ammunition by both sides in a monumental legal battle over same-sex marriage that will be argued today before the state Supreme Court.

The article provides some interesting historical perspectives, some specific to Connecticut, some national:

When the jurisdiction of Connecticut was established in 1638, marriage was deemed to be exclusively a civil function. Only a magistrate could join two people in marriage. Clergy were not permitted to officiate over marriages "as an agent of the state" until 1694.

A brief filed by the American Academy of Matrimonial Lawyers emphasized that "like any successful institution, marriage has been resilient, changing to reflect and embody evolving societal norms of individual liberty and equality."

It wasn't until 1877 that married women in Connecticut were permitted to own property apart from a spouse. While Connecticut was among the few states that had no laws barring interracial marriage, the Supreme Court of Appeals of Virginia as recently as 1955 upheld a ban on marriage between whites and African Americans to prevent "corruption of the blood" and "a mongrel breed of citizens." In 1967, the U.S. Supreme Court struck down any remaining bans on interracial marriage.

Connecticut's highest court ruled in 1905 that the right to enter into marriage "is part of the right to life, liberty and the pursuit of happiness" guaranteed by the constitution.

Advocates of (eventual) recognition of gay marriage in some jurisdictions have decided to pursue an evolutionary strategy, avoiding the "M" word in favor of concrete political progress on "domestic partnerships" (with specific tangible benefits in the near term) or civil unions. Presumably "equal protection" lawsuits like this one in Connecticut will provide ammunition to those opposing even such grudging progress. Tough choices on principle and strategy, with varying possible "lessons" to be drawn from the histories of litigation advocating civil rights and reproductive rights objectives.
My own view, at a principled level: the state should (only) recognize civil unions ( a legal status for all couples desiring to formalize their relationships), and leave "marriage" as a religious/cultural concept to be recognized by non-state actors (such as, but not limited to, religious groups). In practice and politics, that is probably a fantasy. But the early Connecticut history is kind of interesting on this...
Comment warranted, and invited.

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