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Home , Civil union, Outing

11 arguments for 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 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. 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 They consistently fail legal tests of for opposite-sex couples. equal treatment. They have been 5. Recent inquiries have reached The 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 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 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 , 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 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 , 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 or legal signifi cance of civil union status as equivalent to marriage in the non- 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 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 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 . 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 Aend 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 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. to discuss their same-sex relationship so, but it is also possible that some However, it was not merely a lack with friends and family, so confusion organisations are ignorant of the need of familiarity that created diffi culties in communication compounds what for this relatively minor bureaucratic for individuals in this study. Some is already for some quite a delicate change. people found the use of the word situation. Furthermore, the lack of ‘civil’ created a cold and uninviting Continued next page. a shared language continues to impression, whilst others expressed reinforce the privilege and concerns over the lack of obvious of heterosexual relationships over grammatical equivalents to traditional and above homosexual relationships. marriage terms.

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 4 Continued from previous page.

The implication of having forms that into revealing their The problem highlighted here is are not updated is that gay people where they might not have chosen to particularly acute in the UK because its do not know how to respond when do so otherwise. Any circumstances civil partnership scheme is only open to the options given do not match their which require disclosure of marital/ same-sex couples. However, civil union circumstances. Although individuals partnership status would inevitably schemes that are open to both same- have a responsibility to provide correct lead to a personal revelation unless sex and opposite-sex couples are not information, organisations have a information is explicitly withheld or immune to the problem. Where marriage responsibility to facilitate this. There false information is given. is not open to same-sex partners and is a distinct lack of clarity regarding the only choice is a civil union, same-sex This potential for forced outing has the legal position of individuals and partners are over-represented among been termed a ‘socio-legal’ issue on the organisations with respect to situations civil union partners. basis that the individual has a legal where the organisation has failed to duty to provide correct information in For example, in New Zealand and enable the individual to be truthful. certain circumstances and yet may not 80 per cent of recognised Perhaps the most serious problem want to do so due to the potential for partners are in same-sex relationships, of all is outing. The Citizens Advice social embarrassment. For a minority creating a situation where many people Bureau notes: of the participants, the concern about would assume that a recognised revealing their sexual orientation relationship is a gay relationship. Since the introduction of the Civil would be suffi cient to respond with Obviously, the situation would be Partnerships Act, gay individuals an incorrect answer, in order to avoid reversed and the problem eliminated may be put in a situation where the outing themselves. if same-sex couples were permitted to fact that they have formed a civil marry. partnership may pressurise them

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 5 Civil unions don’t offer the same social acceptance or status as equality in marriage, and actually reinforce stigma and entrench discrimination

he above-cited US reports According to many witnesses, denying The impact of this discrimination and describe at length how civil same-sex couples access to the widely stigmatisation is felt most keenly by the Tunions fail to provide the same recognized civil institution of marriage families and children of same-sex civil level of social acceptance as marriage. while conferring the legal benefi ts union partners: The Vermont report states: under a parallel system using different Many witnesses noted that the nomenclature, imposes a second-class According to many witnesses, denying labeling of civil union couples, not as status on same-sex couples and sends same-sex couples access to the widely married but in a civil union, has a the message that it is permissible to recognized institution of marriage detrimental effect on their families, discriminate against them. while conferring the legal benefi ts showing children that their parents under a parallel system with different Many witnesses said they would not are different or somehow less than terminology sends the message that have encountered the same level others, which can lead to teasing and same-sex couples are different from of resistance (to the recognition of bullying. Many witnesses observed or inferior to opposite-sex couples their relationships), or no resistance that when the government treats and unworthy of inclusion in the at all, had they been able to identify people differently, it emboldens private marriage laws. In an attempt to themselves as married. Witnesses citizens of any age to follow suit. create a separate but equal status, called the two-tier system created The Commission has heard testimony many who testifi ed stressed that the by the Civil Union Act ‘an invitation from mental health experts. They very existence of a separate track for to discriminate’ and a ‘justifi cation to described the deep psychological harm same-sex couples is unfair and creates employers and others’ to treat same- that civil union laws can infl ict on an inferior status for same-sex couples sex couples as ‘less than’ married lesbian, gay, bisexual and and their families. couples. According to the testimony, youth, as well as on straight youth the Civil Union Act amounts to a Indeed, the reports go further, being raised in same-sex families. The tacit endorsement of discriminatory outlining how civil union schemes Commission also heard from affected treatment. actually encourage discrimination and youth themselves. stigmatisation. The New Jersey report states:

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 6 Recent civil union inquiries have reached damning conclusions

he fi nal conclusions of the understood to provide rights and Meanwhile, Lynn Fontaine Newsome, Vermont and New Jersey responsibilities equivalent to those president of the New Jersey State Bar Tinquiries are damning: provided in marriage, they send a Association, said that the New Jersey message to the public: same-sex Civil Union Act is ‘a failed experiment’: Vermonters with civil union licenses couples are not equal to opposite-sex testifi ed that they are being denied We believe the civil union law created married couples in the eyes of the the full promise of Act 91. They have a burdensome and fl awed statutory law, that they are ‘not good enough’ to encountered a multitude and variety scheme that fails to afford same- warrant true equality. of instances where they fi nd the sex couples the same rights and promise of equality to be unfulfi lled. But the last word on the matter remedies provided to heterosexual They fi nd many of these instances must go to two experts who appeared married couples as required … to be signifi cant, if not substantial, before the New Jersey commission. Dr by the New Jersey Supreme Court defi cits in the civil union law, with clear Marshall Forstein, an associate professor and its landmark Lewis v Harris and negative fi nancial, economic, and of psychiatry at Harvard Medical School, decision. From the Bar’s perspective, social impacts on their lives and the told the Commission: civil unions are a failed experiment. lives of their children and families. They have been shown to perpetuate Based on research and my years of In addressing the Commission’s unacceptable second-class legal status. working with gay people who have charge, these witnesses fi nd ‘legal and Members of the Bar Association tell experienced stigma or discrimination practical challenges (with civil union) me more stories of the countless on the basis of sexual orientation, I … as compared to heterosexual additional hours of work that must believe that second-class citizenship, marriage couples’. go into representing gays, , now institutionalized in some states in bisexual clients and their families. The provisioning (in New Jersey) the form of civil unions, contributes to of the rights of marriage through increased rates of anxiety, depression the separate status of civil unions and substance-use disorders in perpetuates the unequal treatment marginalized populations. of committed same-sex couples. Even if, given enough time, civil unions are

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 7 Political support for civil unions overseas is shifting to the right

iven evidence of the failure of for doing the right thing; for being a At the other end of the political civil unions, it should be no human being. Put human rights above spectrum, civil unions were recently Gsurprise that in the United politics.’ In response some former civil endorsed by Republican Governor of States civil unions have shifted in less union supporters said they regretted not Utah Jon Huntsman, a Mormon, in than a decade from being an expedient supporting marriage equality a decade response to growing support for same- response to marriage equality amongst ago. sex marriage across the United States. social progressives to being an expedient The Mormon Church has said it will The same shift can be seen in response among conservatives. not oppose his initiative. legislators who have not previously been An example of social progressives responsible for civil union schemes. For who have shifted ground is the former example, the Governor of , John Governor of Vermont, Howard Dean, Baldacci, after declaring his support for who was a global pioneer of civil unions marriage equality in that state, wrote: in the early years of this century, steering In the past, I opposed gay marriage his state to the United States’ fi rst civil while supporting the idea of civil union scheme in 2000. unions. I have come to believe that However, during the recent this is a question of fairness and of Vermont debate on marriage equal protection under the law, and equality, Governor Dean urged Vermont that a civil union is not equal to civil legislators to support equality in marriage. marriage instead, declaring: ‘Stand up

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 8 Same-sex partners overseas prefer marriage to civil unions

iven all the problems with Same-sex marriage is not available in the highest priority of a majority of civil unions outlined here, it New Zealand so we cannot say whether respondents, despite a government Gshould come as no surprise same-sex partners in that country would proposal to enact a civil partnership that wherever the option of a civil opt for marriage in greater numbers scheme. Few, if any, LGBT community union or marriage is available to same- if they could. However, if we compare voices have been raised in support of sex partners they prefer to marry. For New Zealand to culturally comparable that scheme. example, every year from the inception jurisdictions and adjust for population of same-sex marriage in the we fi nd that (a) the number of civil in 2001 the number of same-sex unions in New Zealand and Tasmania is has exceeded the number of exactly the same and (b) the number of same-sex registered partnerships. civil unions in these jurisdictions is half that of same-sex marriages in . This means that the percentage of married same-sex partners now exceeds Even in places where neither that of registered same-sex partners same-sex marriage nor civil unions even though registered partnerships are available, the lesbian, gay, bisexual were introduced nationally in 1998 and and transgender (LGBT) community provincially in 1995. The same is true of overwhelmingly prefers the former. For Canadian provinces such as and example, a recent LGBT community where same-sex marriage survey in the and some form of civil union is available. found equality in marriage to be

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 9 Civil unions overseas have not, in themselves, led to marriage equality

ne lesson often sought from For example, quite a few US states civil union scheme spends the political the international situation is with civil union schemes that were capital required for marriage equality, as Owhether, regardless of their established several years ago have appears to have been the case in Britain intrinsic merits, civil union schemes are moved, or are moving, towards marriage and New Zealand, further progress will a step towards equality in marriage or equality (Vermont, , Maine, be indefi nitely delayed. Given that the a step away from it. This question is California, ). However, Australian marriage equality debate has diffi cult to answer because there are there has been no signifi cant progress so far been conducted at a level far more counter-examples to both propositions. towards marriage equality in the UK like the UK and New Zealand than the For example, the Netherlands appears and New Zealand, and the prospects US, it seems reasonable to predict that to have moved steadily from the for such movements are very low, even a national civil union scheme will not recognition of same-sex civil unions at though the civil union schemes in these advance us any further towards marriage a provincial level, to their recognition countries were established at about the equality. nationally, to equality in marriage. On same time as their US counterparts. the other hand, in debate on The one factor that distinguishes the US equality in marriage appears to have from Britain and New Zealand is that been stymied by the existence of a civil the former has a sustained, multi-source union scheme for almost a generation. marriage equality debate. The one generalisation we can make The implications are clear. The with confi dence is that civil unions do prospects for marriage equality are not lead to marriage equality in the increased if the momentum for this absence of a sustained debate about, reform is maintained during and after and signifi cant organised support for, the the enactment of a national civil union latter. scheme. However, if the enactment of a

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 10 In Australia civil unions are not signifi cantly more acceptable to the general community than equality in marriage

upport for same-sex marriage for civil unions. A recent opinion poll has increased dramatically conducted by Galaxy polling in LGBT community views Sin Australia in the past few found this is not the case: on marriage years, from 38 per cent in 2004 to 54 per cent of respondents to that poll 57 per cent in 2007. Notably, this latter supported equality in marriage while Do you favour or not favour fi gure is higher than the percentage of only an extra 6 per cent supported civil same-sex marriage? Canadians who supported same-sex unions. This would suggest that those Of 1,281 respondents, 86.3% favoured marriage when it was allowed across members of the community who oppose same-sex marriage and 13.7% did not that country in 2005 (42 per cent) and same-sex marriage and support civil favour same-sex marriage. only slightly lower than the percentage unions as an acceptable substitute are who supported same-sex marriage a more vocal than numerous. Achieving the right to same-sex year after it was allowed (59 per cent). marriage means achieving full equality. Do you agree, disagree, But despite the high level of support feel neutral? for equal marriage in Australia, it is often assumed that there is signifi cantly Of 1,266 respondents, 57.5% agreed, wider support in the general community 31.4% disagreed and 11.1% nominated neutral. Marriage is outdated. Do you agree, disagree or feel neutral? Of 1,256 respondents, 44.2% disagreed with this statement, 27.9% agreed and a further 27.9% felt neutral. Source: Victorian Gay and Lesbian Rights Lobby survey 2005

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 11 In Australia same-sex partners prefer marriage to civil unions

f they had the choice, Australian same-sex couples would prefer LGBT community views on marriage v civil unions Ito marry rather than enter a civil union. This has been shown by surveys of the LGBT community in New South Marriage and civil unions always • 5% indicated that they didn’t care carry the same rights. Do you and . In 2007 the NSW • 2% selected ‘none of the above’ Gay and Lesbian Rights Lobby agree, disagree or feel neutral? • 2% nominated ‘other’ surveyed the views of over 1000 Of 1,264 respondents, 36.5% agreed, people on relationship recognition. 45.6% disagreed and 18.0% nominated Overall what forms of relationship The results showed that same-sex neutral. recognition should be available for partners: overwhelmingly want the Australian same-sex couples? Of Assume that all of these forms right to marry, would be more likely the 1,297 respondents: to marry than enter a civil union, only of relationship recognition were favour civil unions because they may be available. If you are, or were to • 74% thought that marriage should be more achievable and not because they be, in a , available perceive marriage to be outdated, and which one model would you choose for your relationship to be legally • 70% thought that civil unions should perceive marriage equality as the only be available alternative which offers full legal and recognised? Respondents were able social acceptance. to select only one choice. Of the • 60% thought that de facto status 1,260 respondents: should be available This is corroborated by a Victorian Gay and Lesbian Rights Lobby • 42% would choose marriage • 8% nominated ‘other’ survey in 2005 which found that • 33% would choose civil union Source: NSW Gay and Lesbian Rights marriage is the most favoured form of Lobby survey 2007 relationship recognition, far in excess • 17% would choose de facto of registered partnerships (which the Lobby considered synonymous with civil unions). The Victorian survey also found that support for marriage had increased dramatically since 2000.

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 12 In Australia the LGBT community is united on marriage but divided on civil unions

he other crucial point about the above Australian surveys Our conclusion Tis that they show the LGBT community is united behind the right of For all the reasons outlined above, communities, while civil unions have same-sex partners to marry. Purported Australian Marriage Equality opposes a been shown to have irreparable fl aws. community division over this issue was national civil union scheme instead of In short, civil unions are not a stage a rationale used by the Australian Labor equality in marriage. The evidence shows through which Australia must pass, but a Party in 2004 to support the Howard that, unlike marriage equality, civil unions mistake from which we must learn Government’s ban on same-sex marriage. do not fulfi l the aspiration of same-sex Australia must not embark on the civil partners for equal entitlements and If anything, the above studies show union experiment at just that moment equal acceptance. that the LGBT community is divided on when it has been dubbed a failure whether they should pursue a national A few years ago when civil union elsewhere. Instead we must seize the civil union scheme instead of equality in schemes were adopted in places like opportunity we now have to embark on marriage. This confi rms our experience Vermont, the United Kingdom and New a fully-fl edged debate about marriage which shows that some LGBT people Zealand, such schemes may have been equality, a debate that addresses the believe a civil union scheme is a step the only real hope same-sex partners celebration and solemnisation of same- towards marriage while others believe had of legal and social recognition. But sex love directly and honestly, rather it is a step away. Some believe it offers those times have gone. Marriage equality than through the distorted prism of a greater recognition while others believe is now a much more widely embraced proposal that is ‘separate and unequal’. it reinforces discrimination. Some believe aspiration in the LGBT and wider it is too much like marriage, while others believe it is not enough like marriage. If ‘the community is divided’ is a valid reason not to pursue change, then it applies far more to civil unions than to marriage equality.

AUSTRALIAN MARRIAGE EQUALITY WHY THERE IS NO SUBSTITUTE FOR MARRIAGE EQUALITY 13