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'A Failed Experiment': Why Civil Unions Are No Substitute for Marriage Equality

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'A Failed Experiment': Why Civil Unions Are No Substitute for Marriage Equality 11 arguments for marriage equality rather than civil unions ‘A failed experiment’: Why 1. Civil unions do not offer the kind of legal civil unions are no substitute equity that comes with marriage 2. Civil unions do not offer the same practical for marriage equality benefi ts as equality in marriage 3. Civil unions lead to many day-to-day problems, including outing ivil unions do not provide civil unions by enacting equality as closely as possible for same- 4. Civil unions do not offer the same social same-sex couples with the in marriage. Australia must learn sex couples without using the acceptance or status as equality in marriage, same legal rights and social from the mistakes others have term ‘marriage’ and do so within C and actually reinforce stigma and entrench acceptance as equality in marriage. made rather than repeat them. jurisdictions which allow marriage discrimination They consistently fail legal tests of for opposite-sex couples. equal treatment. They have been 5. Recent civil union inquiries have reached The New Zealand civil union found to create many problems Defi nitions and damning conclusions scheme is an example of this. in daily life, lead to forced distinctions Such a scheme at a national level 6. Political support for civil unions overseas is outing, and reinforce stigma and in Australia would be another shifting to the right discrimination. The term ‘civil union’ generally encompasses all schemes for the example. In our view schemes 7. Same-sex partners overseas prefer marriage Same-sex couples in other formal recognition of personal of this kind are established to civil unions countries who have the choice relationships that are not as substitutes for equality in 8. Civil unions overseas have not, in themselves, of civil unions or marriage prefer marriage. This includes schemes marriage, but do not fi ll this goal. led to marriage equality marriage. Australian same-sex for the offi cial recognition and Australian Marriage couples say if they had the choice registration of civil unions, 9. In Australia civil unions are not signifi cantly Equality generally supports civil they would also prefer the right civil partnerships, personal more acceptable to the general community union schemes which do not to marry than the right to enter a partnerships and signifi cant than equality in marriage purport to replicate marriage, and civil union. relationships. which, in the Australian context, 10. In Australia same-sex partners prefer marriage to civil unions More and more countries are However, our particular focus exist at a state and local level moving on from what has been is on those civil union schemes where marriage is not already 11. In Australia the LGBT community is united labelled the ‘failed experiment’ of which seek to replicate marriage offered to opposite-sex partners. on marriage but divided on civil unions ISSUES PAPER PREPARED BY AUSTRALIAN MARRIAGE EQUALITY IN MAY 2009 Civil unions don’t offer the kind of legal equity that comes with marriage ourts across the western world Like Canadian courts before it, the Most recently, the Iowa Supreme are of the opinion that civil California Supreme Court found that Court also rejected civil unions for the Cunion schemes do not meet the the fundamental right of equal treatment simple reason that they do not satisfy test of equal treatment of all citizens. For is not only not satisfi ed by civil union the requirement of equal treatment. example, in Barbeau v British Columbia the schemes, but is breached by them: After declaring the state ban on same- British Columbia Court of Appeal sex marriage unconstitutional, the Iowa One of the core elements of the right found that redefi ning marriage to include court went on to state: to establish an offi cially recognized same-sex couples is ‘the only road to family that is embodied in the A new distinction based on sexual true equality for same-sex couples’. California constitutional right to marry orientation would be equally Further, the Court stated that the is a couple’s right to have their family suspect and diffi cult to square granting of marital rights through an relationship accorded dignity and with the fundamental principles of institution that is not marriage is not a respect equal to that accorded other equal protection embodied in our remedy for this breach of the right to offi cially recognized families, and constitution. equality: assigning a different designation for Thanks to decisions such as these, the family relationship of same-sex Any other form of recognition of civil unions have acquired a reputation as couples while reserving the historic [their] relationships, including the separate and unequal, in direct reference designation of ‘marriage’ exclusively parallel institution of [civil union or to those US laws which enforced racial for opposite-sex couples poses at least civil partnership], falls short of true segregation up until the 1960s. a serious risk of denying the family equality. This Court should not be relationship of same-sex couples such asked to grant a remedy which makes equal dignity and respect. same-sex couples ‘almost equal’, or leave it to governments to choose among less-than-equal solutions. AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 2 Civil unions don’t offer the same practical benefi ts as equality in marriage tudies of civil union schemes Many witnesses who have civil A common theme in the testimony currently operating overseas union licenses described situations, gathered by the Commission was Shave shown that these schemes in Vermont and elsewhere, when that while marriage is universally do not provide civil union partners with seeking the benefi t of the civil union recognized by the public, civil union the same rights as married partners, law, in which they were forced to status must be explained repeatedly even when the law says they should. explain their civil union status, what to employers, doctors, nurses, insurers, In federations like the United States, a civil union is, and how a civil union teachers, soccer coaches, emergency this is partly because of a lack of inter- by law secures a legal status and room personnel and the children of jurisdictional recognition. But there is consequences equal to marriage. The civil union partners. The testimony also the problem that civil unions are consequences of these conversations suggests that the need to explain the not widely recognised or understood include: (i) ‘outing’ oneself as gay or legal signifi cance of civil union status as equivalent to marriage in the non- lesbian in situations where this is to decision makers and individuals government sector. unnecessary, irrelevant, or a breach who provide vital services is more than of privacy; (ii) the frustration of the a mere inconvenience … comments For example, in the United Kingdom additional time it often takes to (were) provided by many witnesses leading insurers charge higher explain successfully what a civil union regarding medical personnel, school premiums for same-sex civil union is; and (iii) the diffi culties encountered offi cials and government workers who partners than for opposite-sex when using government, business, denied access and decision-making heterosexual partners because civil employer, and health care forms and authority to civil union partners, either union partners are regarded as ‘singles’. documents that do not contemplate or initially or completely, because of a Similar problems regarding the failure of appropriately deal with the status of lack of understanding of the rights hospitals, employers, schools, insurers being in a civil union. that fl ow from civil unions. and even state government agencies to recognise civil unions have been found The same problems are described Both reports also stressed that civil by inquiries into the operation of the in a report by the New Jersey Civil unions are not as widely recognised in civil union schemes in the US states of Union Review Commission issued in other jurisdictions as marriage and are Vermont and New Jersey. According December last year: therefore not as ‘portable’. to the Report of the Vermont Commission on Family Recognition and Protection issued in April last year: AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 3 Civil unions lead to many day-to-day problems, including outing report by the UK Citizens Other participants expressed a Ultimately, the inability to Advice Bureau, released at the preference for using the more communicate effectively locates civil A end of 2007, found several more familiar term ‘marriage’ or ‘wedding’ partnerships outside of mainstream day-to-day problems with that country’s to describe a civil partnership, but society. civil partnership scheme. These included pointed out that this creates further Similarly, the failure of offi cial forms to a lack of knowledge and information questions about the extent to which recognise civil partnerships is more than about the rights and responsibilities the traditional marriage discourse is a mere inconvenience, and can create associated with civil partnerships applicable. potential legal problems: because such partnerships were According to the Citizens Advice ‘new and unfamiliar’. There were also With respect to the obligations to Bureau, there is more to the language signifi cant problems with the language declare marital/partnership status problem than just confusion or lack of associated with civil partnerships and in various circumstance, participants familiarity: with their non-recognition on offi cial pointed out that some organisations forms: Social discomfort with homosexuality have not updated their paperwork to is brought into sharp focus as include the option of ‘civil partnership’. Inevitably the terminology associated individuals struggle to communicate. It is possible that such organisations with any newly constructed social Some individuals still fi nd it diffi cult are intending to but have not yet done entity will feel unfamiliar for a while.
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