The 9th Circuit Court of Appeals this week made a ruling that was about as expected as the sun rising in the east, overturning laws in Idaho and Nevada banning marriage equality (and likely having the same effect in Arizona, Montana, and Alaska as well). In a week where marriage equality spread to a wide variety of unexpected places, from Main Street in Moscow, Idaho to Pack Square Park in Asheville, the start of weddings in Nevada was, well, a bit anticlimactic to outsiders. Aside from the discussions of Elvis impersonators and drive-through marriage equality, it's all been seen before in many places across the country--and most likely, will be seen in those places still holding out quite soon.
But the start of marriage equality in Nevada marked the end of a different form of legal recognition for same-sex relationships: the final state granting civil unions as a substitute for marriage now had full marriage equality, less than fifteen years after the first civil unions were established, with much controversy, in Vermont.
(Two points before continuing: one, civil unions discussed here also includes domestic partnerships; in both cases they were a substitute for same-sex recognition of marriage, no matter what the term used. Second, there are some domestic partnerships that don't fit this category, which I'll discuss briefly below.)
The first civil unions came from Vermont, where a 1999 state Supreme Court ruling stated that same-sex couples were entitled to the same protections as opposite-sex couples. However, they didn't mandate the opening of marriage to same-sex couples; instead, they required that the state legislature find a solution to include same-sex couples.
The answer they came up with was a status that would get those couples the recognition they needed, but without using the term "marriage" that had so panicked others in the previous few years--remember, this was only a few years after the Defense of Marriage Act passed, spawned by a lower court ruling in Hawai'i.
In theory, the idea may have been that setting up a separate but equalish (at least at the state level) status would make these laws less likely to be overturned or challenged--after all, since so much of the conservative opposition seemed to be based on opening up marriage to those who conservatives thought were immoral, wouldn't using a separate concept like civil unions make for less opposition?
Obviously, it didn't turn out that way. Opposition was fierce in Vermont, and several legislators who voted for the legislation got beaten in the 2000 elections. November 2000 also saw the passage of Nebraska's state constitutional amendment banning same-sex marriages, civil unions, domestic partnerships, or anything that kind of looked like any of the above.
If it wasn't clear before, it sure was after November 2000: the goal of the opposition to marriage equality wasn't based on the term marriage, or even on the concept of marriage. It was about keeping same-sex relationships from being recognized at all, and by narrowing down the framing to marriage vs. nothing, they figured opposition to marriage equality was strong enough that nothing would win.
By contrast, if the conflict had civil unions as an alternative, that might emerge as a moderate alternative for people, and since the conservative goal was no recognition at all, civil unions had to be closed off as well. Barely four months after being first established, civil unions were doomed as a national alternative.
And for a time, the conservatives were right: between marriage equality and nothing, voters would back nothing, and amended state laws to that effect.
But the blockage of civil unions also limited strategic options for same-sex couples looking for recognition. If the opposition blocks all the doors and boxes you in, what's the best response? Creating a new door didn't help, but it did show that how same-sex couples got recognized didn't matter to the opponents as much as the existence of recognition at all.
As it turned out, the solution was to smash through the locked door of marriage. When Massachusetts' top court ruled in 2003, civil unions were discussed as an alternative to full marriage equality, but when legislators proposed legislation, the court made it clear separate but equalish wouldn't work this time and despite efforts by legislators and Governor Mitt Romney, full marriage equality came to Massachusetts in May 2004.
From then on, for backers of same-sex recognition, civil unions were the second-class alternative to full marriage equality. Over time, several states would pass civil unions or domestic partnerships, such as Illinois, Colorado, and Nevada, but in most cases these were passed because the states had constitutional amendments banning marriage equality, and hence civil unions were as far as the legislature could go at that time.
The Windsor ruling by the Supreme Court last year, and the subsequent application of federal regulations reflecting the ruling made the boundaries clear: marriage would be recognized by the federal government as fully equal regardless of gender as much as possible; civil unions, however, having not been designated at the federal level (only in states) would not have the same benefits for those who are civilly unionized (we never did come up with a term for this, did we?). If there was no federal recognition and no benefits to a civil union that couldn't be gotten in a stronger and more understandable way with marriage, what was the point of having civil unions as a marriage substitute at all?
A few conservatives have ruefully noted that, had conservatives been willing to not oppose civil unions in 2001 or 2002, they might not be facing imminent defeat on marriage equality. That would have required more foresight than was likely at the time, not only for conservatives but for most others as well (I'll admit I thought civil unions might work as an alternative form of recognition in the early 2000s), but it certainly is theoretically possible that a different path might have emerged. But that would have required all states and the federal government to recognize civil unions, and in retrospect, that wasn't going to happen in the early 2000s.
Civil unions, as an alternative form of same-sex recognition, were a failure, pure and simple. Yet, much as the civil rights laws of the late 1950s (which did little) opened the door for the much stronger ones later, the existence of civil unions clarified the issues involved around same-sex relationships, and their failure helped to prove that there was only one true way to equality in marriage, despite the strong opposition on the right.
And, while civil unions as an alternative to marriage equality are dead, they and domestic partnerships survive in several states as alternatives to marriage, largely for older couples concerned about the loss of financial benefits, thereby opening an option that wasn't there before for those couples.
It's probable that civil unions, over the long term, will be largely forgotten as a step in the marriage equality process, but they deserve better than that. Civil unions helped to clarify what options might work for recognition, and more importantly, what options wouldn't, and helped to move the process of recognition forward in places where marriage equality was banned for a time. Civil unions won't be missed by many, but they deserve a bit of a cheer as they disappear from the landscape.