Our community's strategy for achieving the rights of marriage continues to be successful. The Democratic presidential candidates have pledged to support "all of the rights of marriage" on a federal level. However, our community's strategy for achieving same-sex marriage has not only failed, staggering backlashes have diminished our rights nationwide. Before we can figure out which direction our community should choose, it is important to figure out where we have been.
For almost four decades our community has had two different ways of trying to achieve equality for same-sex couples. One way was to achieve same-sex marriage; the other way was to achieve the rights of marriage. Mostly, theses two efforts have had different goals, strategies, and motivations.
The rights of marriage goal was to achieve tangible rights and benefits. The strategy was working through legislative bodies (city councils, state legislatures) and pressuring business to offer benefits. The motivation was seeking equality before the law and equal benefits from employers. Three states and the District of Columbia now offer some marriage rights. Six other states (including California) confer all their marriage rights under the titles domestic partnership or civil union. Thousands of companies offer benefits to same-sex couples. Backlash has been manageable and there have been few setbacks to this strategy.
The same-sex marriage goal was to achieve a legal status labeled marriage. The strategy was filing lawsuits. The motivation was seeking societal validation of same-sex relationships. Massachusetts is the only state with same-sex marriage. Massachusetts confers only state marriage rights and no federal marriage rights. The backlash to the lawsuits: 45 states have passed laws (19) or constitutional amendments (26) prohibiting same-sex marriage. Seventeen of those laws or constitutional amendments went further by also prohibiting civil unions and domestic partnerships. The backlash also brought the federal Defense of Marriage Act banning federal recognition of same-sex marriage and banning same-sex couples from attaining federal rights of marriage.
In December 1999 the two movements were forced together when the Vermont Supreme Court ruled it was unconstitutional to deny the "benefits of marriage" to same-sex couples. The court directed the Legislature to remedy the situation, saying the solution could either be marriage or a domestic partnership system.
Instead of being overjoyed at winning equality before the law, the attorneys who filed the lawsuit were dismayed because the court did not mandate the word "marriage." Vermont civil unions set the standard for marriage equality without marriage: "Parties to a civil union shall have all the same benefits, protections, and responsibilities under law ... as are granted to spouses in a marriage."
Many lesbian/gay organizations claim that state-enacted same-sex marriage is "marriage equality" even though it has no federal marriage rights. They claim that a federal civil union policy, which would include these rights, would not be "marriage equality" because it would not contain the word "marriage." This places rhetoric over reality. The opposite is true: federal civil unions would be marriage equality. Unfortunately, no state has the ability to grant federal rights. Therefore, no state has the ability to grant marriage equality.
A clear majority of voters, about 56 percent, support civil unions with all the rights of marriage, while opposing same-sex marriage. Illogical? Yes! But it is a fact we must live with. I am delighted a majority supports equality before the law. They just want to keep the word for themselves. Okay, I'll take the rights, they can have the word. Federal civil unions would grant us 1,138 more rights than "marriage" in California. Isn't that where we should be putting our energy? That seems a better choice than a lawsuit, which, if we "win," will guarantee three things:
1. A name change from domestic partnership to marriage without any additional rights or benefits,
2. A constitutional amendment on the ballot outlawing both same-sex marriage and domestic partnerships, which, judging from history, we will most probably lose, and
3. A diversion of our time, energy, and money from the real battle of achieving tangible rights through federal civil unions.
Lasting progress is always made step by step. Lawsuits have been a poor strategy in righting the injustices against same-sex couples. Even when "successful," these few advances were crushed when 45 states and the federal government created an entirely new body of anti-gay laws. In contrast, since 1981 the step-by-step progress of domestic partnerships and civil unions has given our people tangible benefits, changing lives and increasing security for our families.
We are at a historic crossroads. Forty-five states have foreclosed the possibility of same-sex marriage. However, federal civil unions are within our grasp. It is time for us to work for federal civil unions to get the federal rights that "are granted to spouses in a marriage." Six states already have marriage equality through domestic partnerships or civil unions. A majority of the public supports marriage equality through civil unions. If we use our energies wisely we can make federal civil unions a reality thereby achieving national marriage equality.
Bay Area resident Leland Traiman is a founder of http://www.EqualityWithoutMarriage.org.