In a story that attracted little attention outside of the state (except on gay news websites), the Washington State legislature on Wednesday gave final approval to a bill that expands the state’s existing domestic partnership registry to grant same-sex couples the same benefits as married couples. Opponents have sprung into action, but have little chance of undoing the legislation in a state that’s prepared to take at least this step.
What does it say about the state of the marriage equality movement when “virtual marriage” has become the compromise norm in a growing number of states? (New Hampshire, New Jersey, Oregon and California now have laws approximating marriage for same-sex couples.) And it’s a norm that elicits a collective “ho, hum” from all but the most apoplectic equality opponents. It’s still not true equality, of course. I recall hearing Andrew Sullivan say, a few years ago, that these “virtual equality” laws are really “pure” discrimination. That’s exactly right: Once equality of benefits is granted, all that separates the two “classes” is status, or a kind of legal caste. Here’s one opponent of the domestic partnership legislation, in a comment posted to the Seattle PI’s website:
“Your [sic] not equal. You’ll ALWAYS be two same sex people who THINK they have what I have being MARRIED to one man for 27 years. You will never be equal to me.”
She might have added: “So, there!” But she’s right, as long as the law continues this separation. Further, this verbal foot-stamp is in fact no different from that of more sophisticated equality opponents. Consider Maggie Gallagher’s statement, speaking of why civil unions were better (from her perspective) than marriage:
If the 15 words “Marriage in the United States is exclusively a union of one man and one woman” are placed in our Constitution, we can point to those who claim civil unions are marriages and say with confidence, “Not in the United States.”
It’s likely for this reason that courts have started to look much more closely at arguments that civil unions and domestic partnerships don’t satisfy equality guarantees built into state constitutions. This is from the Connecticut Supreme Court’s marriage equality decision, Kerrigan v. Commissioner of Public Health: “Despite the truly laudable effort of the legislature in equalizing the legal rights afforded same sex and opposite sex couples, there is no doubt that civil unions enjoy a lesser status in our society than marriage.”
To even more pointed effect, In Re Marriage Cases (from California): “[R]etaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise—now emphatically rejected by this state—that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.”
Of course, these courts are correct. So are the civil union commissions in both Vermont and New Jersey, both of which came to a conclusion even Sarah Palin could understand (if not articulate): Civil unions don’t confer equality. Yet I’m starting to like civil unions and domestic partnerships. They’re training wheels, of a sort; not for the couples, but for the larger society. By granting formal recognition and the (state-conferred) benefits of marriage to gay couples, they bring us much closer to equality in the short term, and simultaneously give root to the idea that these couples pose no threat to marriage. Soon thereafter, the citizens become more confident; the training wheels are removed, and full marriage equality is achieved. It’s already happened in Vermont, and I expect it to happen in New Jersey and New Hampshire soon.
Civil unions? Domestic partnerships? Ho, hum… in the short run.