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Law, Unwrapped: The Illinois Civil Union Experiment

by John Culhane on October 20, 2011

in John Culhane,News

Post image for Law, Unwrapped: The Illinois Civil Union Experiment

Civil unions – they’re not just for gays any more. (I know, I just paraphrased Anita Bryant. But read on anyway….)

On June 1 of this year, Illinois became the first state to allow opposite-sex couples to form civil unions. And some couples are doing just that. During the first three month period of the new law, about 100 opposite-sex couples in Cook County (Chicago) alone decided to forgo marriage in favor of this odd statutory creature.

But why would they do this? After all, despite states’ best efforts to create marriage without the name, civil unions can’t do that. For one thing, those in a civil union aren’t married for federal purposes any more than we are. This would be true even if the Defense of Marriage Act (DOMA) were repealed, because there’s no federal civil union.

Yet opposite-sex couples are starting to flee marriage while same-sex couples continue to demand it. What’s going on here?

We’re coming at the civil union from opposite directions. Our reasons for demanding marriage are simple, clear, and powerful, and our biggest complaint about civil unions isn’t that they don’t confer federal benefits. It’s that they’re not marriage.

For a same-sex couple, the civil union turns out to be both a necessary expedient and a sharp slap in the face. Some of us want or need the limited benefits, status, and obligations that civil unions confer, but – darn it! – we can’t help noticing that the main reason for their creation is to keep us out of marriage. It’s a paradox: by giving us the rights and benefits of marriage while withholding the title, the state makes clear that it’s still OK to discriminate against us. That’s why marriage equality – in name as well as in substance – is such a priority.

But the matter looks quite different to opposite-sex couples. Since they’re not being excluded from anything, a few progressive folks have taken a hard look at marriage and decided: “Thanks, but no thanks. I’ll take a civil union instead.” Freed from the yoke of second-class citizenship that same-sex couples labor under, straight couples might be likelier than many of us to ask a bunch of really good questions about marriage:

  • Do I want to be part of an institution that’s so bound up in patriarchy?
  • How do I feel about the religious association that seems to be a part of marriage (even though it is, legally, a civil event)?
  • And do I want to participate in a legal institution that excludes same-sex couples for no good reason?

I’m not speculating here. These are some of the answers I’ve gotten through interviewing some of these couples for my book on civil unions. I’m getting an education on the complex reasons for their decisions, and a broader sense that marriage is in deep trouble unless it catches up with societal changes. As straight folks start civilly uniting, their example will doubtless spread to others who will start to ask the same questions, thereby further deconstructing marriage.

This is a welcome development, whatever one thinks of the marriage equality issue. It’s one thing to seek equality and another to accept that the institution we’re struggling so hard to get into should maintain its vast privileges.

As one of the interviewees – herself a lawyer – said to me recently, we need to think about laws that support all kinds of families that actually exist. Civil unions are an important step in that direction.

It’s small wonder, then, that many on the right oppose the civil union, perhaps especially when it’s offered to straight couples. Because marriage is for them the only adult relationship that deserves support, for reasons they don’t often need to defend. But reality upsets their orthodoxy, and will one day force them out of their complacency.
Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.

He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.

John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.

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jboygb October 20, 2011 at 4:56 pm

Great article! One major thing, though:

You say "…same-​sex couples are starting to flee marriage while opposite-​sex couples continue to demand it," and then go on to discuss in your article the exact opposite: OPPOSITE-SEX couples are starting to flee marriage while SAME-SEX couples continue to demand it.

JohnCulhane October 20, 2011 at 6:09 pm

Good catch! You're right, of course, and the error has been corrected.

k8rude October 21, 2011 at 2:30 am

It is sort of ironic that the efforts to defend marriage actually contributed to its dilution in the creation of civil unions (“marriage lite”). If marriage equity hadn’t been contested, marriage as an institution for everyone would be stronger, and there might never have been civil unions, domestic partnerships, etc.

JohnCulhane October 21, 2011 at 9:16 am

k8rude: You might be right about this. But I wonder whether the pressure for other kinds of relationships, given the reality of people's lives, might have resulted in something similar anyway. And you're spot-on about the irony!

jcm57 January 27, 2012 at 10:27 am

I'm wondering if one of these opposite-sex couples might have standing for an 14th amendment equal protection case? I also would be interested to hear thoughts on a potential 1st amendment violation of the establishment clause since marriage is historically, and still today, considered a religious union. I'm not Constitutional scholar but since an opposite-sex couple wouldn't bump up against DOMA, I'm wondering if a 1st & 14th argument might work (not on this Supreme Court, but perhaps on a more reasonable group).

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