The DOMA Ruling and Civil Unions

One of the many effects of Wednesday’s DOMA ruling is that it really puts the focus on those states that allow civil unions or domestic partnerships but not actual same-sex marriage (New Jersey, Illinois, Wisconsin, Oregon, Nevada, Hawaii and Colorado). Legal challenges in those states will certainly be filed, and if they’ve already been filed the case just became much stronger.

Why is that? Because of equal protection. The DOMA ruling now ensures that married same-sex couples will get a huge range of federal benefits, but only those who are actually married will get them. That means that the argument that civil unions provide all the benefits of marriage in those seven states is now obviously falsified. Those in civil unions will not qualify for those federal benefits.

In New Jersey, for instance, the state Supreme Court ruled that the legislature had to provide either full marriage equality or civil unions and they opted for civil unions. That law is already being challenged in court as a “separate but equal” accommodation that isn’t really equal. And now that inequality becomes absolutely undeniable. If the state constitution requires equality, the state can no longer pretend to have satisfied that requirement. And it creates a possible legal action against the federal government as well.

So while the DOMA ruling may seem limited on the surface, its effects are really quite far-reaching.

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  • psweet

    From what I’ve heard in Illinois, there’s some confusion over how the federal government is going to apply this ruling to civil unions, and everyone’s waiting on that decision before working up a new strategy.

  • That Kennedy based his ruling on the 5th Amendment was the stroke of brilliance. Had the DOMA case been decided under Equal Protection, the case could still be made that both marriage and civil unions/domestic partnerships were state laws giving the same state rights; this would have made it much very difficult for federal courts to intercede and say otherwise. Ruling from the view of Due Process completely cuts the legs from that argument.

  • @psweet #1 – It may be that the courts will declare that since these states insist CU/DP are marriages in all but name that they are, in fact, marriages as a matter of federal recognition. This isn’t the sort of thing that the Executive Branch can do unilaterally, and I just don’t see Congress taking action. It will be up to the courts, and it will take years for this to be settled. In the mean time, there is no reason that CUs and DPs cannot be challenged on other fronts, as well.

  • Ben P

    but only those who are actually married will get them.

    Are you certain about this?

    As it pertains to DOMA issues, as I understand this would be almost universally a matter of proper wording in the regulations. It would be just as easy, and probably still legal, for Obama to now direct that for all federal purposes Civil Unions shall be treated as equivalent to marriages.

    Now, I don’t know if that’s being done, but it probably could be.

  • hunter

    As far as Illinois goes, not only will the marriage equality bill be reintroduced this fall if it doesn’t pass in a special session this summer, but there are two suits pending that challenge civil unions as unequal treatment. (And once again, the state is refusing to defend the state DOMA.)

    As for the “equivalent” issue, the Massachusetts Supreme Judicial Court, in Goodrich, stressed that the word “marriage” carries a social and cultural weight that does not translate to any other term. The New Jersey commission formed to study civil unions found that they are not equal in terms of treatment for insurance and other purposes. That seems to have been the finding in every examination of CU/DP versus marriage.

    And there are limits on how far the administration can push the regs. If they go too far, there are more than enough cave men (and women) in Congress to kick up a fuss.

    My guess is that those states with civil unions will move toward full marriage equality in short order.