Over the past decade most of us have argued for gay marriage without bothering to weigh the competing merits of the concept of "civil unions." For the most part, our arguments have focused on why, as the subtitle of Jonathan Rauch's definitive book Gay Marriage put it, it is "Good for Gays, Good for Straights, and Good for America." And we should keep making those arguments.
But it is crystal clear that in all but a handful of coastal states gay marriage is not going to happen in the near future. The idea is too new for many people to be comfortable with. Gay advocates have too few resources to mount an effective campaign to counter religious right scare tactics. Legislators with an eye cocked toward the next election are not interested. Most conservatives are adamantly hostile and view it as a major issue. And most liberals, even if they favor gay marriage, are only quietly supportive and, unlike conservatives, do not view it as a major issue.
Only an obtuse person fails to learn from experience. So it is time to adjust our strategy and focus our efforts on trying to obtain the decidedly less scary civil unions. Less scary? Apparently so. With no public outcry the Connecticut legislature approved gay civil unions substantially equal to marriage. And President Bush, even while playing to the religious right, said during the 2004 campaign that if states wanted to establish civil unions that was fine.
There are at least three interesting arguments against civil unions, however:
1. By providing gays with the substance of marriage but not the name, states would be declaring gays and lesbians second-class citizens, as if their relationships are not worthy of the name "marriage." In short, civil unions relegate gays to "the back of the bus."
But that expression itself shows where the comparison with African-Americans breaks down. Currently gays have nothing. Are civil unions better than nothing? Emphatically, yes. During state segregation black southerners were at least able to get on the bus and ride to their destination. But not gays. Currently the bus doesn't even stop for gay couples-it just drives right on by. Our task is to get on the bus. Then we can argue about seating arrangements.
2. Civil unions do not provide the 1,100-plus federal benefits and entitlements that go with marriage, from social security survivor benefits, automatic inheritance, right of a married partner to immigrate to the U.S., and so forth. But those deprivations are not unique to civil unions. Legally married gay couples in Massachusetts cannot obtain those benefits, either. The 1996 Defense of Marriage Act limited federal benefits to opposite sex couples.
Still, the argument goes, at least being married would give gay couples legal standing to sue in federal court to have the Defense of Marriage Act declared unconstitutional. So it would. And that right exists for married couples in Massachusetts right now. But would you really want that case to work its way up the federal court system and be decided by the Supreme Court, given its current membership? And if, contrary to all reasonable expectations, the Supreme Court did strike it down, consider the massive impetus that would give to the Marriage Protection Amendment being promoted by religious right groups.
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.
Once you are in a civil union, you can refer to yourself as "married" if you like. A friend in Vermont who is in a civil union says he and his partner refer to themselves as married. So does everyone else. A friend in Norway reports the same thing: "Oh, you two are married." It seems clear that once people are comfortable with thinking and speaking of same-sex couples as "married," their willingness to accept gay marriage itself is sure to follow.