Talking Points

What's the difference?

Framing the conversation: What's really at stake?

First, let's be clear. This discussion is about substance - not symbols. The human stakes are enormous. This document explains why civil marriage, and not civil unions, is the only way to make sure gay and lesbian couples have all of the same legal protections as other married couples.

Second, the discussion is about ending governmental discrimination against gay and lesbian families with respect to civil marriage and its legal protections and responsibilities-not about any religious rite of marriage. Every faith is and will remain free to set its own rules about who can marry and on what terms.

Third, marriage is many things to many people. But it is also a legal institution in which governmental discrimination has no place.

Let's compare civil marriage as a legal institution to civil unions as a legal institution.

What is marriage?

Marriage is a unique legal status conferred by and recognized by governments the world over. It brings with it a host of reciprocal obligations, rights, and protections. Yet it is more than the sum of its legal parts. It is also a cultural institution. The word itself is a fundamental protection, conveying clearly that you and your life partner love each other, are united and belong by each other's side. It represents the ultimate expression of love and commitment between two people and everyone understands that. No other word has that power, and no other word can provide that protection.

What is a civil union?

A civil union is a legal status created by the state of Vermont in 2000 and in California in 2003. It provides legal protection to couples at the state law level, but omits federal protections as well as the dignity, clarity, security and power of the word "marriage."

What are some of the limitations of civil unions?

Civil unions are different from marriage, and that difference has wide-ranging implications that make the two institutions unequal. Here is a quick look at some of the most significant differences:

-Portability:

Marriages are respected state to state for all purposes, but questions remain about how civil unions will be treated in other states.  GLAD believes there are strong arguments that civil unions deserve respect across the country just like marriages. But the two appellate courts that have addressed the issue (in Connecticut and Georgia) have disrespected them based on the fact that their states do not grant civil
unions themselves.

-Ending a Civil Union:

If you are married, you can get divorced in any state in which you are a resident. But if states continue to disrespect civil unions, there is no way to end the relationship other than by establishing residency in Vermont and filing for divorce there. This has already created problems for some couples who now have no way to terminate their legal commitment.

-Federal Benefits:

According to a 1997 GAO report, civil marriage brings with it at least 1,049 legal protections and responsibilities from the federal government, including the right to take leave from work to care for a family member, the right to sponsor a spouse for immigration purposes, and Social Security survivor benefits that can make a difference between old age in poverty and old age in security. Civil unions bring none of these critical legal protections.

-Taxes & Public Benefits for the Family:

Because the federal government does not respect civil unions, a couple with a civil union will be in a kind of limbo with regard to governmental functions performed by both state and federal governments, such as taxation, pension protections, provision of insurance for families, and means-tested programs like Medicaid. Even when states try to provide legal protections, they may be foreclosed from doing so in joint federal/state programs.

-Filling out forms:

Every day, we fill out forms that ask us whether we are married or single. People joined in a civil union don't fit into either category. People with civil unions should be able to identify themselves as a single family unit, but misrepresenting oneself on official documents can be considered fraud and carries potential serious criminal
penalties.

-Separate & Unequal -- Second-Class Status:

Even if there were no substantive differences in the way the law treated marriages and civil unions, the fact that a civil union remains a separate status just for gay people represents real and powerful inequality. We've been down this road before in this country and should not kid ourselves that a separate institution just for gay people is a just solution here either. Our constitution requires legal equality for all. Including gay and lesbian couples within existing marriage laws is the fairest and simplest thing to do.

How real are these differences between marriage and civil unions, given that a federal law and some state laws discriminate against all marriages of same-sex couples?

Would any of this change immediately with marriage of same-sex couples? Probably not, because married same-sex couples will face other layers of discrimination against their marriages. Right now, a federal law denies recognition of same-sex unions conferred by any state for purposes of all federal programs and requirements and over 30 state laws do the same. Ending discrimination in marriage does not mean the end of all discrimination, but using the term "marriage" rather than "civil union" is an essential first step to opening the door and addressing whether continued governmental discrimination against civil marriages of gay and lesbian people makes sense.

Marriage and civil unions remain different, both in practice and in
principle.

First, more than a dozen states have not taken a discriminatory position against civil marriages of gay and lesbian couples. In those states, civilly married gay and lesbian couples should be able to live and travel freely and without fear that their relationship will be disrespected.

Second, even as to those states with discriminatory laws, legally married gay and lesbian couples from those states may well face some discrimination in some quarters, but their marriages will also be treated with legal respect in other arenas. Marriages are far more likely to be respected by others than newly minted "civil unions."

Using the term marriage also prompts a discussion about fairness. Allowing same sex couples to marry (rather than enter a separate status) will allow gay and lesbian people to talk with their neighbors, their local elected officials, and the Congress about whether discrimination against their marriages is fair. Where gay and lesbian people and their children are part of the social fabric, is it right to continue discriminating against them in civil marriage? The federal government and states that have taken discriminatory positions against marriages of gay and lesbian couples could rethink those policies and go back to respecting state laws about marriage, as they have done for hundreds of years. In the end, we will not be able to have this discussion until gay and lesbian folks have what everyone else has: civil marriage.


Civil Marriage & Freedom of Religion

A myth: A major myth about ending discrimination in civil marriage is that it will somehow compel religious faiths to change their doctrine or practices about who they marry. This is flatly incorrect. We have freedom of religion in this country. When a court or legislature ends discrimination in civil (governmental) marriage, there is no compulsory impact on any faith. Each faith is-and will remain-free to define its own requirements for its marriage rite: who, what, when, where and why.

Some people say marriage is a sacrament. And it is for some religious faiths. But the government is not in the sacrament business. The only "marriage" to which the couples in the Massachusetts case are seeking access is civil/governmental marriage. Governmental marriage already exists side by side with each faith's different rules for their religious rite of marriage. Nothing can change that.

Two Types of Marriages

Though people may think about marriage in different ways, there are only two types of marriage - either civil or religious. In some ceremonies, both are celebrated at once. Couples may have one or both types of marriage. However, to receive the legal protections of marriage, a couple must have a civil marriage. It is only civil marriage that can be addressed by courts or legislatures.

Civil Marriage

Any couple can have a civil marriage if they meet the government's requirements. Right now, the requirements in Massachusetts are that the partners be adults, pass a blood test, and not be already married or closely related. Most of us also think about marriage as a public commitment of love and support by adult couples. The government does, too, and uses the commitment of marriage as a gateway to hundreds of legal protections, responsibilities and benefits established by the state, and over 1000 by the federal government. Ever since the founding of this country, states have regulated who may enter into a marriage and under what conditions.

Religious Rite of Marriage

Only couples who meet the requirements of a particular faith tradition can have a religious marriage. Religions have complete autonomy in deciding which marriages they will consecrate; they do whatever suits their faith tradition. Some religions will not marry people who were divorced, or people of different faiths, even though these same people could have a civil marriage. Every religious community always has the
right to perform or not perform any marriage rite it deems appropriate, regardless of the partners' sex. Religious marriages do not convey legal rights or responsibilities.

Freedom of Religion

The First Amendment to the U.S. Constitution protects every citizen's right to freedom of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." The founders of American government made it clear from the beginning that in this new nation religion and government would exist side by side, and the law would not define religious practice.

In addition to allowing free rein to religious practice, our Constitution protects freedom of religion by preventing any one religion from dictating the content of law. For all religious views to be protected and respected, it is critical that laws not be made with a particular religious viewpoint in mind, including laws about civil
marriage.

As a result of American freedom of religion, each faith can independently answer the question of whether they wish gay and lesbian couples to marry within their religious tradition, and this will remain true no matter what the government does with regard to civil marriage