The difference between the marriage rights that gay couples are seeking and the civil unions that some Massachusetts lawmakers want to give them are potentially vast, touching on almost every aspect of living and dying. The immediate practical difference, however, may be nearly nonexistent due to a 1996 law blocking gay couples from receiving hundreds of federal marriage benefits, including an array of tax breaks and Social Security, Medicaid, Medicare, and pension allowances for spouses.
But without being able to call it marriage, gay couples and their advocates argue, they will never have the opportunity to challenge that federal ban in either the legal courts or the court of public opinion. "We won't even be able to get in the door to be heard about it," said Claire Humphrey, 45, who lives with her partner and two children in the Jamaica Plain section of Boston. "As we've seen from Vermont, it doesn't even open the discussion."
In an effort to win legislative support for a constitutional ban on gay marriage, several Massachusetts lawmakers have proposed the simultaneous legalization of some form of civil union benefits for same-sex couples. Because of the 1996 Defense of Marriage Act, legislative leaders say, there is no practical distinction between the two relationships. "It would be a huge difference if that federal law wasn't on the books," said Massachusetts senate minority leader Brian Lees, who cosponsored the "compromise" with Democratic house and senate leaders. "But as it stands, I believe that with the exception of the word 'marriage,' all the rights and benefits would apply."
Legal experts and gay rights advocates agree that in a very technical way, that may be true, depending on which benefits lawmakers may decide to give to same-sex couples. But they say the word alone provides benefits, offers protections, and erases gray areas--particularly in private employment benefits--that civil unions would not address. "The major distinction is that a couple who is married in a state is married everywhere and will be recognized all over the world," said Nancy Polikoff, a law professor at American University. "But with civil unions, as soon as they go anywhere else, they will notice some major differences."
Beyond the letter of the law, advocates say, institutions will be more likely to recognize marriage--a universally understood concept--than they would partners joined in a civil union. For instance, a company may feel compelled to give family leave benefits to a married gay employee, even though not required to under the federal law. "Doors would open even if theoretically and legally those doors are supposed to be locked, because everyone understands what marriage is," said Mary Bonauto, an attorney with Gay and Lesbian Advocates and Defenders, who represented seven Massachusetts gay couples in a landmark case decided in November. "Civil union takes a lot of explanation."
In response to the state supreme judicial court decision, which ruled it unconstitutional to bar gay couples from marriage, the legislature is currently debating a constitutional amendment that would define marriage as a union between one man and one woman. The debate will resume at a constitutional convention March 11 on Lees's proposed amendment, which would provide civil unions as an alternative.
Civil unions convey only the approximately 350 state benefits of marriage, while marriage would also--potentially--convey about 1,000 federal marriage benefits, which many consider essential for financial security. For instance, partners in federally recognized marriage are guaranteed the right to live out their last days together in the same nursing home room. Partners in civil union are not. Married couples are married no matter what state they're in. Partners in civil union are not, because only Vermont has something called "civil unions" on the books.
A widow is entitled to an array of financial protections, mainly through Social Security, when a spouse dies. The survivor of a civil union is not. Married couples can share ownership of their worldly goods--homes, cars, salaries--without paying a cent in taxes. Couples in a civil union cannot, leaving them vulnerable if the partner with the name on the deed dies. "My husband and I are treated as financial strangers, yet we live our lives as an economic unit," said Robert DeBenedictis, 41, who lives in Cambridge with his partner and two children. The men exchanged wedding vows in 1997, though the union held no legal weight.
The differences between marriage and civil unions could become even more stark if the legislature is allowed to define which benefits are included in civil unions--as would be allowed under one proposal. Some advocates have said that could lead to a very limited form of recognition. While civil unions have been offered as a compromise, lobbyists on both extremes are not satisfied with that solution. "It's just marriage by another name," said Ron Crews, president of the Massachusetts Family Institute, who would prefer an amendment that simply banned gay marriage.
For gay couples, the idea of civil unions--once a radical thought in Massachusetts--now seems to pale in comparison to the rights the court said they should receive. "When that decision came down, I felt what it was like to be an equal citizen," Humphrey said. "And now that I've sampled that, I can't get the taste of freedom out of my mouth."