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TWO CHEERS FOR CIVIL UNIONS When Governor Rell finally signs into law a bill authorizing civil unions for same-sex couples, most supporters of gay rights will rejoice. The approval of civil unions through the legislative process, without any judicial pressure, may represent an even greater victory than obtaining same-sex marriage in Massachusetts by court order. The current political climate makes it unrealistic to expect enactment of same-sex marriage, and the legislation will take Connecticut farther than any state in the nation toward voluntarily recognizing the equality of gay couples. Amidst the rejoicing, though, it is worth noting that the civil union compromise compromises the United States Constitution. The obvious analogy is the “separate but equal” doctrine that once governed civil rights in the racial context. In the 1896 case of Plessy v. Ferguson, the United States Supreme Court upheld a statute that segregated train passengers by race, claiming that the Fourteenth Amendment was designed to enforce “political equality” but not “social equality.” Plessy’s doctrine of “separate but equal” has long since been abandoned, and is considered a stain on America’s past. The two-tiered approach to marriage revives this discredited idea. Justice Harlan’s dissent in Plessy remains the enduring response to the idea of separate but equal – whether for blacks or gays. Harlan rejected distinctions “implying inferiority in civil society” because “there is in this country no superior, dominant, ruling class of citizens. There is no caste here.” Critically, the commitment to a caste-free society requires more than equal benefits. As Harlan explained, “The thin disguise of ‘equal’ accommodations . . . will not mislead any one.” Six decades later, in Brown v. Board of Education, the Supreme Court agreed with Harlan, rejecting the notion that “substantially equal facilities” were all the law owed to African-Americans. The unanimous Court noted that racial segregation “generates a feeling of inferiority as to [blacks’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The words of Justice Harlan in Plessy, and the Court in Brown, speak to us across the ages, and beyond their immediate contexts. A two-tiered marriage/civil union scheme creates a caste system based on and reinforcing the notion that some people are second-class citizens. After all, what other purpose is served by extending all the rights, benefits, and obligations of marriage to gay couples but carefully preserving the word “marriage” for straight couples? The sole effect of this linguistic purity is to place a "brand of servitude and degradation" on gays, to borrow again from Justice Harlan. Consider Governor Rell’s insistence that the legislation explicitly define marriage as between a man and woman. Such a statement is allegedly designed to prevent activist judges from interpreting Connecticut’s marriage statute as permitting same-sex marriage. In point of fact, such a statement is wholly unnecessary. Over the last three decades, sixty judges in various states as well as Canada have rejected the argument that neutrally-worded marriage laws can be construed to permit same-sex marriage. Not a single judge has held otherwise. Governor Rell’s demand served just one purpose, to send the following message: I may go along and give gay couples the rights and benefits of marriage, but I refuse to acknowledge the equality and dignity of gay relationships or allow gay couples to stain our sacred institution of marriage. Connecticut’s legislators had little choice but to go along, and they deserve two cheers for reducing the injustice faced by an oppressed group. But civil union status should still be recognized as an incomplete triumph for the cause of human and civil rights, as it maintains a pointless pecking order among American citizens. Alan Hirsch is a Senior Consultant for the UCLA School of Law’s Williams Project on Sexual Orientation Law and Public Policy. | ||||||