- April 2000
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New Civil Union Law
In response to the Vermont Supreme Court's path-breaking decision of last December, the Vermont house has enacted a comprehensive civil union law. The law is expected to be approved by the full legislature and the Governor, and so it probably will become law very soon. The law tries to carve out a compromise on the the gay marriage issue, by granting to same-sex couples all of the state rights generally associated with marriage, but without calling it marriage.
On the whole the law is very comprehensive, and from a state-law perspective it grants same-sex couples all of the benefits and all of the burdens of state-sanctioned marriage. There are two significant flaws in the legislation, however. First, and most profoundly from a legal perspective, a Vermont civil union will not be a marriage recognized by the federal government. Therefore, the enormous range of very important federal benefits -- inheritance tax, immigration rights, and social security benefits, for example, will not be granted to Vermont civil unions. Now, it is true that the bigoted Defense of Marriage Act states that the federal government would not honor any state's same-sex marriage, but many legal advocates believed that this law would not have survived constitutional scrutiny. By creating a new category called civil unions, however, Vermonters will not even be able to try to overturn the DOMA. In effect, therefore, the state is keeping Vermonters out of the bid for federal benefits, and this is wrong.
Second, the civil union program creates a "separate but not-so-equal" system for same-sex couples, with a separate registration program and a separate legal program. This is wrong from a social and personal perspective, and creates a two-class arrangement which is inherantly discriminatory.
The plaintiffs in the original lawsuit will have the chance to complain about these negative features of the new law, if they wish to bring their case back to the Vermont courts. It is unclear at this time whether the plaintiffs will choose to accept the civil union system or challenge it in court, and likewise it is unknown at this time how the court would respond to such a challenge.
A review of the Vermont statute shows how comprehensive a system is being created. The Vermont civil union law provides, for example, the following benefits:
Like any other married couple, the property rights of a same-sex civil union couple will be adjudicated by the courts, using the same rules of property division which now apply only to heterosexual married couples. While couples can still write pre-nuptial agreements to modify those provisions, the state marital property rules will apply in the absense of such an agreement.
As with the integration battles, a "separate but equal" system is often the last step before full integration. It creates an anomalous situation where one set of citizens are given all the same substantive rights as the rest of society, but where the formal names and treatment are different. Once this separate system is established, the folly of the two-tiered rules grows increasingly evident. And, since calling it marriage would no longer have any substantive change, merging a civil union arrangement into the traditional marriage rules begins to make a lot of sense. So from that perspective, this is a marvelous "next step."
the full text of the recently-enacted Vermont legislation on civil unions,
the full text of the recent Vermont decision on gay marriage, go to:
For those wanting to do further research in these and other areas of interest, check out these valuable legal resources on the internet:
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