By Theodore B. Olson & New York Attorney General Eric Schneiderman
Editorial in New York Daily News, reposted at keystothecloset.blogspot.com
Proponents of same-sex marriage are only a few weeks into a new effort to pass a marriage equality bill in New York State by the end of this year's legislative session, and already there are opposing voices offering civil unions as a potential "compromise." As lawyers from both sides of the aisle who have been entrusted with pursuing the law on behalf of the public, we can agree that this is simply not an acceptable legal alternative.
A civil union reflects a second-class status that fails to protect committed same-sex couples who choose to be married. This is not a Democratic or Republican issue; this is a matter of protecting the Constitution's guarantee of equal protection under law for all Americans.
In New York, there are more than 1,300 state rights and responsibilities that come with a marriage license. From spousal inheritance rights to the ability to file joint tax returns to child custody rules to the transferring of workers' compensation benefits, the scope of marriage-related law is expansive. Some are fundamental, others mundane - but all serve to underscore how deeply interwoven New York's marriage laws are and how extraordinarily they reach into the lives of countless people.
Unlike the universally accepted concept of marriage, employers, businesses and individuals simply do not know how to treat civil unions. Several states have experimented with these so-called compromise solutions and have already reached the conclusion that they just don't work.
For example, after New Jersey granted civil unions to gay and lesbian couples, many employers refused to offer them partner benefits because they were not legally married. Hospitals denied them the rights of married couples, checking the "single" box - rather than the "married" box - on patients' admissions forms, thereby denying them access to hospitalized loved ones. Gay and lesbian couples were put at risk in emergencies when they traveled, because civil unions, unlike marriages, are often not recognized across state lines.
All of these legal uncertainties led the New Jersey Civil Union Review Commission to ultimately declare civil unions a failure, finding that the separate categorization "invites and encourages unequal treatment of same-sex couples and their children."
Many states that have experimented with civil unions have abandoned them and moved to marriage for all couples, citing similar experiences that demonstrate this separate status is not equal. Connecticut and New Hampshire have replaced their civil union statues with marriage for all couples. And legislators in Vermont voted to do the same by a two-thirds, bipartisan majority.
Civil unions were not the right solution for these states and they are not right for New York.
Moreover, civil unions are not what the public is demanding: They are voicing full-throated support for the freedom to marry. Marriage for gay and lesbian couples has stronger across-the-board support from New Yorkers than ever before, with a recent poll showing a solid majority of 58% in favor. As individuals across the state learn more about the issue, that number continues to climb.
Support for marriage spans all demographics, with a majority of support among independent voters and a virtual tie among Republicans in the state. The state Assembly has twice passed marriage legislation, and all 81 pro-marriage legislators who sought reelection in 2008 won, including each of the Republicans who voted in favor of the bill.
The call for equality is picking up steam across the nation as well, with a majority of Americans now in favor of legalizing same-sex marriage for the first time. This growing group of supporters is not calling for the legalization of half-steps or civil unions. They're calling for marriage.
A civil union is not a marriage, nor is it an adequate substitute for one. To suggest otherwise is a cruel fiction. Even if all of the inherent confusion and complexities could be resolved and civil unions could somehow provide couples with the same rights and responsibilities of a true marriage, the separation of the two institutions creates a badge of inferiority that forever stigmatizes the relationships of committed same-sex couples as different, separate, unequal and less worthy.
Time and time again, the U.S. Supreme Court has held that marriage is one of the most fundamental rights that we enjoy as Americans under the Constitution. It's a right older than the Bill of Rights and older than our political parties. It is the foundation of society. The time to grant the right of marriage to all New Yorkers is now.
Olson is former United States solicitor general. Schneiderman is attorney general of New York.
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