Over the past several months, I have been traveling around Florida talking about marriage and made an inadvertent discovery. "Marriage" means different things to different people. When I ask people what marriage is, I typically get a myriad of responses: partnership, love, commitment, contract, legal union, religious rite or ceremony... and the list goes on. Yes, marriage can be all of those things. But in the eyes of the government, civil marriage is something very specific -- and quite distinct from religious marriage.

What is Marriage?
To fully understand what marriage is, we must distinguish between civil marriage and religious marriage. Religious marriage is considered by many to be a sacred rite. Religious marriage rituals vary depending on the faith of the participants, but one thing is clear. Regardless of whether the government grants same-sex couples equal access to civil marriage, religious faiths will not be required to perform the religious rite of marriage for same-sex couples. Religious institutions will remain free to determine, based on the dictates of their faith, who may and may not undergo the religious sacrament of marriage. No religious institution will ever be forced to perform a wedding ceremony for a same-sex couple.

Civil marriage, on the other hand, is a package of approximately 1,500 reciprocal rights, privileges and obligations granted or imposed by state and federal government. The federal government bestows at least 1,049 of these reciprocal rights, privileges and obligations, while most states provide approximately 500 (the exact number of rights and obligations vary a bit from state to state).

Federal benefits include such things as protection under the Family Medical Leave Act, family and death benefits through social security and pension plans (most of which provide benefits only to legal spouses), immigration laws that enable foreign spouses to immigrate, worker's compensation surviving spouse protections, numerous tax benefits such as the ability to roll over a spouse's 401(k) plan upon death and the unlimited ability to make gifts and transfer property to each other, and marriage portability - the knowledge that a marriage performed in one state will be recognized by other states.

State benefits include the ability to have access to a spouse's hospital room, to make medical decisions on his or her behalf, a presumption that the spouse is the legal parent of children born during the marriage, inheritance rights, application of homestead and community property laws, the ability to make burial decisions for a spouse, and the right to sue for wrongful death. They also include access to family law courts, whose equitable distribution, child support and visitation provisions enable couples to terminate their relationships in a more equitable and humane fashion.

Why Aren't Civil Unions or Domestic Partnerships Enough?
Contrary to popular myth, "marriage" and "civil unions" are not the same; changing the term drastically changes the meaning as well. As mentioned above, marriage is approximately 1,500 reciprocal rights, privileges and obligations, 1,000 from the feds and about 500 from the state. A civil union, on the other hand, is a term coined by the Vermont legislature to avoid granting the "m" word to gay and lesbian couples. Because federal law does not recognize civil unions, a civil union provides only the 500 state conferred rights, privileges and obligations associated with marriage with none of the 1,000+ federal benefits.

But that is not the only difference. In addition to being denied federal benefits, rights and responsibilities, civil unions lack portability - so couples do not have the security of relationship recognition when traveling to other states. So although civil unions may provide a couple some protections at home, when they go on vacation, travel on business or otherwise leave the state, the couple will likely once again be relegated to the status of legal strangers.

Domestic partnership laws provide even fewer protections than civil unions and can vary dramatically depending on the jurisdiction that enacts the law. In some jurisdictions, domestic partner registries do not confer any rights or responsibilities at all and are simply a registration. In other jurisdictions, domestic partners are given a few protections, such as the right to hospital visitation. (The most generous local domestic partnership laws only provide about 10-15 rights). Currently, only three states, Hawaii, New Jersey and California, provide more comprehensive rights and responsibilities under their domestic partnership registration systems. At the local level, most domestic partnership laws provide benefits for public employees and little or nothing else.

So, to return to the initial question, why not just settle for civil unions or domestic partnerships? 1,500 (M) vs. 500 (CU) vs. 10-15 (DP). But what's in a name, right? As the Supreme Judicial Court of Massachusetts recently pointed out, "The history of our nation has demonstrated that separate is seldom, if ever, equal."

Denial of Marriage Acts and A Proposed Constitutional Amendment
In 1996, anti-marriage activists succeeded in passing a federal law (DOMA) which created a federal definition of marriage as the "union between one man and one woman" and permitted states to legally discriminate against same-sex marriages performed in other states. In response, 38 states passed "mini-DOMAs," state statutes or amendments to state constitutions which express that state's intent to refuse to grant or recognize same-sex marriages performed in any state.

Despite this legislative attempt to deny marriage equality to same-sex couples, many legal scholars on both sides of the marriage debate believe DOMA laws may ultimately be ruled unconstitutional as a violation of the Equal Protection, Due Process and/or Full Faith and Credit Clause of the U.S. Constitution. As a result, anti-marriage activists have been pushing a federal constitutional amendment to explicitly write discrimination against same-sex couples into the U.S. Constitution.

President Bush and some conservative legislators have recently rallied around a proposed amendment sponsored by Congresswoman Marilyn Musgrave.1 The Musgrave amendment states that, "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

This proposed amendment would do far more than simply deny same-sex couples marriage equality. According to Evan Wolfson, a leading legal expert on marriage and executive director of Freedom to Marry, an organization which supports marriage rights for same sex couples, the White House and "the Christian right" are "being deliberately deceptive." According to Wolfson, the "vague and sweeping language" of the proposed amendment's second sentence "is intended to deny any other measure of protection, including civil unions and domestic partnerships."

If the Musgrave amendment is passed, the issue before us will no longer be whether same-sex couples should receive 1,500 or 500 or 10-15 rights. If passed, the amendment could mean that same sex couples would be denied ALL of the federal AND state rights, privileges and obligations of marriage. Families headed by same-sex couples would be officially denied equal treatment and constitutionally branded as second class citizens.

Conclusion
Religious and moral objections to marriage equality are not new. They were used when women first fought for marriage equality - to be something other than their husbands' property. They were used to justify laws prohibiting inter-racial marriages. As the Massachusetts Supreme Judicial Court pointed out in the Goodridge case, "Alarms about the imminent erosion of the 'natural' order of marriage were sounded as each of these changes occurred, and they are being sounded again at the prospect of same-sex marriage.... Marriage has survived all of these transformations, and [it will undoubtedly] continue to be a vibrant and revered institution." There is no rational reason to continue to deny same-sex couples equal access to civil marriage and the 1,500 reciprocal rights privileges and obligations that it affords.
Footnotes :
1. Ironically, many of America's leading conservatives are speaking out AGAINST the proposed Musgrave amendment. Former Senator Alan Simpson, R-Wyo. said in the July 2003 issue of Newsweek, "I don't think the Federal Marriage Act is appropriate. I think that minimizes the Constitution."
Former Congressman Bob Barr, R-Ga. who drafted DOMA said in the Washington Post, August 21, 2003, "A Constitutional amendment is both unnecessary and needlessly intrusive and punitive."
Conservative Columnist George Will stated in his November 30, 2003 syndicated column that, "Amending the Constitution to define marriage as between a man and a woman would be unwise... Constitutionalizing social policy is generally a misuse of fundamental law."
2004 General Accounting Office Study (*.pdf version) concluding that there are now 1,138 federal rights and responsibilities automatically accorded to married spouses.
1997 General Accounting Office Study (*.pdf version) concluding that there were 1,049 federal rights and responsibilities automatically accorded to married spouses.
For more information, contact:
      National Center for Lesbian Rights
      870 Market St., Ste. 370
      San Francisco, CA 94102
      415.392.6257