When politicians say they support civil unions but not marriage for people of the same sex, what do they mean? We find three main differences between civil unions and marriage as it’s traditionally viewed:
- The right to federal benefits. States that allow some type of same-sex union are able to grant only state rights. The Defense of Marriage Act passed in 1996 prohibits same-sex couples from receiving federal marriage rights and benefits.
- Portability. Because civil unions are not recognized by all states, such agreements are not always valid when couples cross state lines.
- Terminology. "Marriage" is a term that conveys societal and cultural meaning, important to both gay rights activists and those who don’t believe gays should marry.
In a questionnaire that Human Rights Campaign, a gay rights advocacy group, sent to presidential candidates, all of the Democrats said they were in favor of civil unions for gay couples – a solution that is often touted as being functionally equivalent to marriage. Only Rep. Dennis Kucinich and former Sen. Mike Gravel said they would support gay marriage. But what exactly is the difference? FactCheck.org offers this primer on the subject.
The Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, stipulated that for all federal legal purposes “marriage” is a union between one man and one woman. Because of that legislation, all federal laws pertaining to married couples apply exclusively to opposite-sex couples. States that have made civil unions legal, including Connecticut, New Hampshire, New Jersey and Vermont, have granted state benefits to same-sex couples. These include state tax benefits, better access to family health plans, co-parenting privileges, automatic preference for guardianship and decision-making authority for a medically incapacitated partner, as well as protection under state divorce and separation laws. While each state law is somewhat different, they are similar in that they convey these state rights to gay couples; they do not and cannot grant federal rights and benefits.
California, Hawaii, Maine, Oregon, Washington and the District of Columbia have domestic partnership laws, which are fundamentally similar to civil unions. Massachusetts is the only state in which gays can legally marry, due to the 2003 Massachusetts Supreme Judicial Court ruling that said the state constitution didn’t support discriminating against same-sex couples that wanted to wed. Like states that grant civil unions, Massachusetts extends all the state benefits of marriage to same-sex couples; unlike in other states, gay couples also can be issued a marriage license. However, married gay couples still are not eligible for federal benefits.
The Government Accountability Office lists 1,138 federal laws that pertain to married couples. Many in that long list may be minor or only relevant to small groups of citizens. However, a number of provisions are key to what constitutes a marriage legally in the United States:
- Taxes. Couples in a civil union may file a joint state tax return, but they must file federal tax returns as single persons. This may be advantageous to some couples, not so for others. One advantage for married couples is the ability to transfer assets and wealth without incurring tax penalties. Partners in a civil union aren’t permitted to do that, and thus may be liable for estate and gift taxes on such transfers.
- Health insurance. The state-federal divide is even more complicated in this arena. In the wake of the Massachusetts high court ruling, the group Gay & Lesbian Advocates & Defenders put together a guide to spousal health care benefits. GLAD’s document is Massachusetts-specific but provides insight into how health insurance laws would apply to those in a civil union in other states. In general, GLAD says, it comes down to what’s governed by state law and what’s subject to federal oversight. If a private employer’s health plans are subject to Massachusetts state insurance laws, benefits must be extended to a same-sex spouse. If the health plan is governed by federal law, the employer can choose whether or not to extend such benefits.
- Social Security survivor benefits. If a spouse or divorced spouse dies, the survivor may have a right to Social Security payments based on the earnings of the married couple, rather than only the survivor’s earnings. Same-sex couples are not eligible for such benefits.
Other federal areas in which couples in civil unions don’t have the same rights as married couples include immigration (a partner who’s a foreign national can’t become an American by entering into a civil union with someone) and veterans’ and military benefits (only opposite-sex spouses have a right to pensions, compensation for service-related deaths, medical care, housing and the right to burial in veterans’ cemeteries). Gay couples, however, may actually benefit when applying for programs such as Medicaid or government housing that require low-income eligibility. A spouse’s income is included in such applications, but a same-sex partner’s income is not. One change has been made in federal law: A provision in the Pension Protection Act of 2006 allows same-sex couples to transfer 401(k) and IRA earnings to partners without penalty.
Brad Luna, director of communications at Human Rights Campaign, says there have been several unsuccessful lawsuits filed by same-sex couples who wish to receive federal benefits. “It’s going to have to take the repeal of DOMA or a federal civil union law that would grant them that kind of federal recognition,” he says.
Since civil unions are only legal in certain states, they also can’t be taken across state lines. If a couple gets married in Vermont, they can reasonably expect to still be married if they move to California; the same is not true for same-sex unions. While New Jersey law specifies that the state will recognize civil unions and domestic partnerships performed elsewhere, this is not true for all states that allow some form of same-sex partnership. And if civil partners move to a state that disallows all same-sex unions, they may find themselves with no legal standing whatsoever as a couple.
Most states have enacted DOMA legislation or passed constitutional amendments stipulating that marriage is a union exclusively between one man and one woman. In fact, only five states do not have laws on the books that prohibit same-sex marriage: Massachusetts, New Jersey, New Mexico, New York and Rhode Island. The District of Columbia also does not have such a law. Both HRC and DOMAwatch.org, a project of the Alliance Defense Fund, which opposes gay marriage, have U.S. maps showing the breakdown of legislation by state.
The least concrete difference between civil unions and marriage is also perhaps the most polarizing: the term “marriage” and the social and cultural weight it bears. For many, this is not just a semantic issue. Opponents are concerned that allowing gays to marry will dilute the term “marriage,” threatening the institution it stands for. Supporters, meanwhile, feel that setting up a marriage-like institution for gays (such as civil unions) while defining marriage as fundamentally heterosexual is an example of flawed “separate but equal” legislation.
In an interview with FactCheck.org, Paul Cates of the Lesbian Gay Bisexual Transgender Project at the American Civil Liberties Union stressed the cultural significance of marriage: “You’re not a little kid dreaming about your civil union day. It’s your wedding day.” When you want to commit to a partner, “you’re not really thinking about the [legal] protections,” he says. “It’s the significance and what it means to be married and hold yourself out as married.”
Opponents of gay marriage also recognize the social importance of the word. Jenny Tyree, associate analyst for marriage at Focus on the Family, a Christian organization headed by James C. Dobson, says her group "does not believe that marriage has to be redefined to care for all the people in society. We understand that every person has needs and people they want to care for. But these are pretty bold attempts to undermine the marriage institution.”
Focus on the Family and other groups that oppose same-sex marriage are not just concerned with terminology. “Marriage is important because it’s a time-honored enduring social institution that serves women, men and children,” Tyree says. “And civil unions undermine marriage by reducing it to a bundle of rights and benefits.” Despite difficulties like divorce, marriage “is still an institution that does what we need it to do for children,” she adds.
Such views seem to be in the majority. A 2003 Pew Research Center survey showed that 56 percent of respondents agreed that gay marriage would undermine the traditional family.
As previously noted, even states that allow for same-sex civil unions or domestic partnerships – including California, Connecticut, Maine, Vermont and Washington – have passed laws defining marriage as something that occurs between a man and a woman. Liberal-leaning politicians have made that distinction as well: Most of the Democratic candidates set to debate these issues support extending all the federal legal rights of married couples to same-sex couples – but they don’t want to call that “marriage.”
– by Jess Henig and Lori Robertson
Update Aug. 9: Our article originally said that Jenny Tyree of Focus on the Family cited studies showing that children do better when raised by a married mother and father. Better than what, though? When we had a chance to do a little more checking, we found that research does seem to show that children raised by married biological parents are better off on average than those raised by cohabiting biological parents. In addition, other studies show that children raised by both parents fare better than children raised by one. Studies have also shown, though, that children raised by homosexual parents are just as emotionally and socially healthy as those raised by heterosexual parents. The Child Welfare League of America says of its position on same-sex parenting: “Studies using diverse samples and methodologies in the last decade have persuasively demonstrated that there are no systematic differences between gay or lesbian and non-gay or lesbian parents in emotional health, parenting skills, and attitudes toward parenting.”
DOMAwatch.org, Alliance Defense Fund. Issues by State. 8 Aug. 2007.
Government Accountability Office. Defense of Marriage Act: Update to Prior Report. GAO.gov. 23 Jan. 2004.
Human Rights Campaign. State-by-State Information, national maps of marriage-related laws. HRC.org. 8 Aug. 2007.
New Hampshire General Court. House Bill 437-FN-LOCAL. 4 Apr. 2007.
New Jersey Legislature. Bill A3787. 21 Dec. 2006.
Vermont General Assembly. Act No. 91: An Act Relating to Civil Unions. 26 Apr. 2000.