The Cat-Tribe
20-01-2009, 20:29
Separate is Not Equal, According to the New Jersey Civil Union Review Commission: The Implications of Its Findings that the Civil Union Alternative "Invites and Encourages Unequal Treatment" (http://writ.news.findlaw.com/grossman/20090120.html)
By JOANNA GROSSMAN, Tuesday, January 20, 2009
In December 2006, the New Jersey Legislature adopted a civil union law, permitting same-sex couples to enter into a legal alternative to marriage. The legislature acted in the wake of a ruling from the New Jersey Supreme Court, holding that it did not violate the state constitution's guarantees of equal protection or due process for the state to exclude same-sex couples from marriage, as long as it offered them the benefits of marriage.
In its recently-released final report, however, the New Jersey Civil Union Review Commission unanimously concluded that the alternative status is simply not as good. Rather, the report concludes, because the civil union alternative "invites and encourages unequal treatment of same-sex couples and their children," the legislature and governor should change the law to permit same-sex couples to marry. Moreover, the Commission implored the state to act "expeditiously because any delay in marriage equality will harm all the people of New Jersey."
*snip history of civil union/same-sex marriage law in New Jersey*
The Commission was formed by the state legislature, when it adopted the civil union law in 2006. In its final report, The Legal, Medical, Economic & Social Consequences of New Jersey's Civil Union Law (http://www.nj.gov/lps/dcr/downloads/CURC-Final-Report-.pdf), the Commission drew stark conclusions, based on eighteen months of public meetings and the written or oral testimony of over 150 witnesses, about the appropriateness of maintaining a separate civil status for same-sex couples.
There are two ways in which same-sex couples still will not be equal, even if a state authorizes full marriage rights. First, because of the federal Defense of Marriage Act (DOMA), same-sex unions are not recognized under federal law, meaning that couples must file separate federal tax returns, and that entering into a civil union with a non-citizen does not affect the latter's immigration status, nor provide any other federally-conferred benefit. Second, most states have passed statutes or constitutional amendments prohibiting the recognition by the state of same-sex marriage, even if validly celebrated elsewhere.
However, the New Jersey Commission's report identifies several types of problems with civil unions that it believes could be solved by the state's adoption of full marriage rights for same-sex couples.
First, the New Jersey Commission concluded that a separate legal structure can never be truly equal. It found that the state's use of a separate status to confer marriage-like benefits reinforced the "second-class status" of gays and lesbians, sending the message "that it is permissible to discriminate against them." This line of reasoning led the highest courts in California and Massachusetts to reject civil unions as a constitutionally-permissible alternative to marriage. (As readers likely know, the California ruling was later overthrown by Proposition 8, a voter referendum that ended, for now, the state's brief experience with same-sex marriage – but that is being challenged in the California Supreme Court.)
Second, the New Jersey Commission found that civil unions fail to capture the intangible benefits of marriage, which is a status that is "universally understood" and has a "powerful meaning." Civil unions, in contrast, are frequently misunderstood and undermined, the Commission found. Witnesses described situations "in which they were forced to explain their civil union status, what a civil union is, and how it is designed to be equivalent to marriage. These conversations include the indignities of having to explain the legal nature of their relationship, often in times of crisis, and the obstacles and frustrations encountered when using government, employer, or health care forms that do not address or appropriately deal with the status of being in a civil union."
Third, the New Jersey Commission concluded that children are worse off for their parents being consigned to civil union status, rather than afforded the status of marriage. The refusal to grant marriage rights has had "a detrimental effect" on the families of civil union couples, the Commission found. Health experts testified about the psychological harm that second-class systems can place on children being raised in same-sex families, especially those children who are themselves gay, lesbian, or transgender.
For these and other reasons, the New Jersey Commission concluded that New Jersey should offer full marriage rights to same-sex couples. (A commission studying civil unions in Vermont reached similar conclusions (http://www.leg.state.vt.us/WorkGroups/FamilyCommission/VCFRP_Report.pdf) in April 2008.)
*snip* (emphasis added)
These findings, of course, reinforce my view that same-sex marriage should be legal and civil unions (although better than nothing) do not provide equal protection under the law or equal rights.
For those that missed the link in the story, the lengthy, but easy to read, the New Jersey Civil Union Review Commission Final Report can be found here (http://www.nj.gov/lps/dcr/downloads/CURC-Final-Report-.pdf) (pdf).
What say you NSG?
By JOANNA GROSSMAN, Tuesday, January 20, 2009
In December 2006, the New Jersey Legislature adopted a civil union law, permitting same-sex couples to enter into a legal alternative to marriage. The legislature acted in the wake of a ruling from the New Jersey Supreme Court, holding that it did not violate the state constitution's guarantees of equal protection or due process for the state to exclude same-sex couples from marriage, as long as it offered them the benefits of marriage.
In its recently-released final report, however, the New Jersey Civil Union Review Commission unanimously concluded that the alternative status is simply not as good. Rather, the report concludes, because the civil union alternative "invites and encourages unequal treatment of same-sex couples and their children," the legislature and governor should change the law to permit same-sex couples to marry. Moreover, the Commission implored the state to act "expeditiously because any delay in marriage equality will harm all the people of New Jersey."
*snip history of civil union/same-sex marriage law in New Jersey*
The Commission was formed by the state legislature, when it adopted the civil union law in 2006. In its final report, The Legal, Medical, Economic & Social Consequences of New Jersey's Civil Union Law (http://www.nj.gov/lps/dcr/downloads/CURC-Final-Report-.pdf), the Commission drew stark conclusions, based on eighteen months of public meetings and the written or oral testimony of over 150 witnesses, about the appropriateness of maintaining a separate civil status for same-sex couples.
There are two ways in which same-sex couples still will not be equal, even if a state authorizes full marriage rights. First, because of the federal Defense of Marriage Act (DOMA), same-sex unions are not recognized under federal law, meaning that couples must file separate federal tax returns, and that entering into a civil union with a non-citizen does not affect the latter's immigration status, nor provide any other federally-conferred benefit. Second, most states have passed statutes or constitutional amendments prohibiting the recognition by the state of same-sex marriage, even if validly celebrated elsewhere.
However, the New Jersey Commission's report identifies several types of problems with civil unions that it believes could be solved by the state's adoption of full marriage rights for same-sex couples.
First, the New Jersey Commission concluded that a separate legal structure can never be truly equal. It found that the state's use of a separate status to confer marriage-like benefits reinforced the "second-class status" of gays and lesbians, sending the message "that it is permissible to discriminate against them." This line of reasoning led the highest courts in California and Massachusetts to reject civil unions as a constitutionally-permissible alternative to marriage. (As readers likely know, the California ruling was later overthrown by Proposition 8, a voter referendum that ended, for now, the state's brief experience with same-sex marriage – but that is being challenged in the California Supreme Court.)
Second, the New Jersey Commission found that civil unions fail to capture the intangible benefits of marriage, which is a status that is "universally understood" and has a "powerful meaning." Civil unions, in contrast, are frequently misunderstood and undermined, the Commission found. Witnesses described situations "in which they were forced to explain their civil union status, what a civil union is, and how it is designed to be equivalent to marriage. These conversations include the indignities of having to explain the legal nature of their relationship, often in times of crisis, and the obstacles and frustrations encountered when using government, employer, or health care forms that do not address or appropriately deal with the status of being in a civil union."
Third, the New Jersey Commission concluded that children are worse off for their parents being consigned to civil union status, rather than afforded the status of marriage. The refusal to grant marriage rights has had "a detrimental effect" on the families of civil union couples, the Commission found. Health experts testified about the psychological harm that second-class systems can place on children being raised in same-sex families, especially those children who are themselves gay, lesbian, or transgender.
For these and other reasons, the New Jersey Commission concluded that New Jersey should offer full marriage rights to same-sex couples. (A commission studying civil unions in Vermont reached similar conclusions (http://www.leg.state.vt.us/WorkGroups/FamilyCommission/VCFRP_Report.pdf) in April 2008.)
*snip* (emphasis added)
These findings, of course, reinforce my view that same-sex marriage should be legal and civil unions (although better than nothing) do not provide equal protection under the law or equal rights.
For those that missed the link in the story, the lengthy, but easy to read, the New Jersey Civil Union Review Commission Final Report can be found here (http://www.nj.gov/lps/dcr/downloads/CURC-Final-Report-.pdf) (pdf).
What say you NSG?