Civil Unions in Hawaii & Illinois. How'd They Get it Right?

(reprinted from the Huffington Post)

Katherine Franke

Katherine Franke

Posted: February 23, 2011 12:18 PM

The governor of Illinois signed a bill into lawlegalizing civil unions in early February, and the governor of Hawaii will sign into law a similar provision today. These events have gained much media attention, but most of the coverage has described the new laws as offering same-sex couples the legal rights that married couples get by virtue of marriage. Well, that's only 1/2 the story. In fact, unlike in most jurisdictions in the U.S. -- New Jersey, Vermont and California -- that have enacted a civil union law, the Hawaii and Illinois laws cover both same-sex and different-sex couples.

This is great news. Rather than setting up a separate and, by some accounts, inferior institution for same-sex couples to gain legal status, the Hawaii and Illinois laws create a separate civil status for all couples regardless of their sexual preference. This is, of course, what the French, the Dutch, and many other non-U.S. jurisdictions have done. Straight people in those places have found a civil union an attractive alternative to marriage for a range of reasons. Some see it as an intermediate step before marriage, others see it as a viable alternative to marriage.

The Illinois Civil Union law establishes a Civil Union as having the same status as a marriage, to the extent that Illinois can do so:

  • The ability to own property jointly, including the presumption that the property obtained by either partner after joining in a civil union is owned jointly;
  • Certain protections against losing your joint property to creditors;
  • The right to make decisions about one another's medical care if either of you is unconscious or otherwise unable to make those decisions;
  • Rights to keep private your conversations and to avoid testifying against one another;
  • The right to court-supervised distribution of property if you and your partner break up;
  • The right to share the same nursing home room;
  • Pension protections for surviving partners of teachers, police officers, and firefighters, and those other state, county, and municipal employees whose pension benefits pass to their spouses at death;
  • Workers' compensation benefits for partners of employees who are accidentally injured or killed at work;
  • The ability to recover for your partner's wrongful death;
  • Intestacy rights to ensure that your surviving partner will receive some or all of your property if you die without a will.

The Hawaii Civil Union law does similar things, stating that "a party to a civil union shall be included in any definition or use of the terms 'spouse,' 'family,' 'immediate family,' 'dependent,' 'next of kin,' and other terms that denote the spousal relationship, as those terms are used throughout the law."

But, of course, entering into a Civil Union in Hawaii or Illinois will not afford couples any of the federal protections or responsibilities federal law provides to married couples (such as social security, immigration, tax and other benefits that different-sex couples gain when they marry). But then, if these two states had amended their law to allow same-sex couples to marry, the federal government would not have recognized those marriages either under the Defense of Marriage Act.

As the Illinois ACLU affiliate points out in its just-released "What You Should Know About Illinois' New Civil Union Law,":

Civil marriage is a widely recognized and respected social structure for two people who have committed to build their life together. Civil unions are not universally understood. It is unclear whether they will be given the same level of respect as marriage in Illinois and elsewhere. What is already clear is that different-sex couples get to choose whether to enter a civil marriage or a civil union; lesbian and gay male couples are given only the civil union option.

See the ACLU 's summary of the law here.

But in this lies the rub. While LGBT legal organizations have advocated for the passage of Civil Union laws in states where marriage was not politically viable or had been made legally impossible through mini-DOMAs, they have done so while almost always denigrating Civil Unions as suffering a dignity-deficit when compared with full-blown marriage. While this may be true as a matter of social fact, the pro-marriage advocates in the gay and lesbian community have played a not insignificant role in perpetuating the devaluation of Civil Unions. A more progressive approach to this social-legal issue might commit itself to two simultaneous aims: lifting the bar on marriage for those same-sex couples who wish to be married, and simultaneously working to create viable, legally and economically secure life outside marriage. The marriage equality movement's uni-focal strategy to "gain" marriage rights for same-sex couples has, unfortunately, made arguments over and over that have denigrated the lives of people who choose not to, or cannot, marry.

Let's hope the Hawaii and Illinois Civil Union regimes do a few things: i) offer new legal security for same-sex couples who want it, ii) become an attractive way for different-sex couples to formalize their partnerships as an affirmatively chosen alternative to marriage, and iii) provide a means by which we might start to undermine the social hierarchy that legitimizes married people and delegitimizes those who organize their lives on marriage's outside.


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