Much Ado About I Do

March 22, 2007

Much has been made about the relatively limited numbers of couples who have reportedly entered into civil unions in New Jersey. In my opinion, it is much ado about nothing. According to a report issued by the New Jersey Bureau of Vital Statistics, only 229 couples had entered into a civil union during the first 30 days the civil unions bill was in effect.

This information was picked up by the New York Times and other sources in the media, and was quickly conflated into a wholesale repudiation of civil unions by New Jersey same-sex couples. Opponents of equal rights for same-sex couples, as well as advocates of same-sex marriage quickly released competing press releases, stating that the new law was unnecessary (from opponents of equal rights) or because word is starting to get out that civil unions are not working (this from the left).

Based upon my own experience, and that of many of my clients, I have a different perspective on this statistic.

First, many of the couples I've spoken to in the last few months have indicated an interest in entering into a civil union, particularly when the rights, benefits and obligations are explained to them. Many (like my domestic partner and me) have not yet entered into a civil union for a variety of mundane reasons - inertia, procrastination, etc. In our particular case, we are waiting until my parents return from Florida so that we can gather our families for our ceremony.

Second, some organizations have been so adamant about the marriage or nothing argument that they have discouraged couples from taking advantage of the rights available to them under the New Jersey civil unions law. This is silly - committed couples should enter into a civil union if it makes sense given their personal situation. If they do not, they should reconsider their comittement to each other. Entering into a civil union does not prevent you from further advocating for full marriage equality.

Third, some of the reported violations are not violations that I have heard about nor are they violations that the New Jersey Division of Civil Rights has heard about. The NJ DCR is VERY interested in hearing about violations and its Director, Frank Vespa-Papaleo (who is openly gay) and the remainder of its staff are more than willing to pursue them - if they are reported! I am told that, so far, NJDCR has only received 5 complaints.

I am personally aware of two violations. One involved an insurance company underwriter who was requiring a civil union certificate as proof of the relationship, something that was not required of married couples. I telephoned the company's corporate counsel, who advised me that this was NOT the policy, and immediately corrected the underwriter. The second one involved a Texas-based utility company that refused to provide benefits to a civil union partner. Their excuse was that the plan was self-funded and was therefore exempt from the civil unions requirement because of federal preemption by ERISA. New Jersey, as in Massachusetts, may be powerless to control this, although there are several of us who are considering options.

Third, the web sites that trumpet that civil unions are not legally equal to marriage are doing so based on the approximately 1,138 federal rights, benefits and obligations that are denied to same-sex couples in civil unions. What they fail to point out is that these federal benefits are denied to same-sex couples regardless of the form of the legal relationship. Same-sex married couples in Massachusetts are similarly denied these rights, benefits and obligations.

The fault is not in the state law, it is in the part of DOMA that defines marriage for purposes of federal law, thereby ignoring the traditional deference to a state's definition of marriage, spouse, husband, wife, and other related terms. Very little legal analysis (and no legal challenges, to my knowledge) has been devoted to challenging this part of DOMA on the basis that it violates the 10th Amendment (at the very least). Forget the part of DOMA that addresses full faith and credit, for now; it is a canard.

That isn't to say that there is not a very good reason to advocate for civil marriage instead of civil union. In fact, the best reason I can see is that even in the absence of DOMA's federal definition of marriage, many of the federal rights, benefits and obligations would be denied to civil union couples and domestic partners because federal law does not contain the words civil union or domestic partner.

Fourth, many couples are confused by the changes in the law here in New Jersey. Unlike other states, New Jersey has undergone four significant changes to the rights of same-sex couples in less than three years. In July 2004, domestic partnership was enacted, providing a small subset of the rights of marriage. In January 2005, domestic partnership rights were expanded to include inheritance rights (a change that I had a hand in). In October 2006, the New Jersey Supreme Court ruled that committed same-sex couples could not be denied rights, benefits and obligations equal to those of married couples under New Jersey law, thereby granting equal benefits to all same-sex couples. Subsequently, the Legislature passed the civil unions act, which went into effect a little over a month ago. Frankly, what's a couple to do?

Unlike couples in Massachusetts, Vermont, Connecticut and California, well over 4,000 New Jersey couples had a choice; they could remain in a previously registered domestic partnership, or they could enter into a New Jersey civil union. Furthermore, New Jersey explicity recognizes civil unions from other states. For those couples who had previoulsy entered into a civil union in Vermont or Connecticut, they did not have to take further steps to be considered in a New Jersey civil union.

Complicating this decision was two other factors. The existing domestic partnership act explicitly recognizes civil unions, domestic partnerships and reciprocal beneficiary relationships entered into in other jurisdictions as domestic partnerships. Then, two or three days before the civil unions act went into effect, the New Jersey Attorney General issued an opinion (and a legally shakey one, I might add) that the state would recognize civil unions, California domestic partnerships and same-sex marriages as civil unions.

What we have here is a lack of communication, folks, and a significant failure on the part of the State and the various advocacy organizations to clearly explain the civil unions act to the community, to the general public, and to the various businesses and organizations that are affected by it. Granted, marriage equality would require less explanation, but I suspect our counterparts in Massachusetts had to similarly ramp-up following that state's changes.

Fifth, you cannot discount the effect of ignorance, apathy, hostility to emulating straight relationships, and society's general drift away from marriage as the sole option for couples. Many opposite-sex couples choose to live together rather than marry, for a variety of reasons. Are same-sex couples any different? One guy told me last month he'd just gotten his divorce from his ex-wife and he was in no hurry to enter into another legal relationship that could lead to alimony.

For my partner and me, we have some of the most important rights (to us) because we registered two years ago as domestic partners. Thus, we feel we can afford to wait until we can gather our families and friends together to help us celebrate - which at this rate, may push us into September. Not to mention, have you ever tried to book a wedding hall, hire a photographer, and do everything else in the spring? So, we are not among the 229 reported couples who have entered into a civil union - yet. But we will be before the year is out.

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