Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions

By Eskridge, William N., Jr. | Albany Law Review, Spring 2001 | Go to article overview

Equality Practice: Liberal Reflections on the Jurisprudence of Civil Unions


Eskridge, William N., Jr., Albany Law Review


THE 2000 EDWARD C. SOBOTA MEMORIAL LECTURE(*)

On April 26, 2000, Vermont's governor signed legislation recognizing civil unions between same-sex couples.(1) Under the new law, same-sex couples entering into civil unions will enjoy the same benefits and obligations that Vermont law provides for different-sex couples who enter into civil marriages. The law was a legislative response to Baker v. State,(2) a state supreme court decision interpreting the state constitution as requiring the state to equalize the benefits and obligations afforded same-sex couples and different-sex married couples.(3) The court's decision explicitly contemplated the possibility that the legislature could remedy the discrimination either by extending civil marriage to same-sex couples, or by creating a new institution entailing the same state-sanctioned benefits (such as the right to bring a lawsuit for the wrongful death of a spouse) or obligations (such as the duty of support and maintenance) for same-sex couples that are afforded to different-sex married couples. Six European countries had created such new institutions, called registered partnerships.

Most of the criticism of Baker, and the ensuing civil union law, came from traditionalists who assailed these moves as compromising the institution of marriage, or promoting homosexuality. Some of the criticism, however, came from liberals who assailed these moves as falling short of full legal equality for lesbian, gay, and bisexual people--in essence creating a "separate but equal" regime for gays. In important respects, the civil union law is inconsistent with the premises of the liberal state as applied to same-sex couples: it treats them differently from different-sex couples, and for reasons that are hard to justify without resort to arguments grounded in status denigration or even prejudices. Justice Denise Johnson dissented from Baker's reluctance to require the state to issue marriage licenses to same-sex couples. The majority's concern with "disruptive and unforeseen consequences," she argued, was the same kind of concern raised by segregationist states opposing judicial remediation of apartheid in the 1950s and 1960s. "The Supreme Court's `compelling answer' to that contention was `that constitutional rights may not be denied simply because of hostility to their assertion or exercise.'"(4)

In the legislature, Representative Steve Hingtgen opposed any compromise on the ground that it "validates the bigotry" against lesbians, gay men, and bisexuals.(5) Representative Hingtgen expressed his opposition, saying "[i]t does more than validate it. It institutionalizes the bigotry and affirmatively creates an apartheid system of family recognition in Vermont."(6) Although I think the analogy of civil unions and Baker to racial apartheid and Plessy v. Ferguson is inapt, Justice Johnson and Representative Hingtgen raise pertinent issues. The legislation is a compromise of liberal principles--but a small and perhaps temporary one that both contributes to liberal projects and reveals some limitations in the liberal ideal for our polity.

I. CIVIL UNIONS AS A SACRIFICE OF LIBERAL PRINCIPLES

Liberal theories maintain that the state exists to provide a context within which its members can flourish. The state properly creates public goods (like roads), prevents people from hurting one another or unnecessarily interfering in one another's affairs, and (by some accounts) inculcates civic virtues of toleration and cooperation in the citizenry.(7) On the whole, the state is supposed to be neutral as to its citizens' moral virtue.(8) Thus, the liberal state is not permitted to hurt people or treat them differently because they are unpopular or even objectionable, so long as they are not positively harming other people or depriving them of their recognized liberties.(9) The liberal state can arrest and otherwise penalize a person for coercing another person to have penile-vaginal sex with him, but not for engaging in oral intercourse with a consenting adult. …

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