Civil Unions and Federal Law

A commenter to my last DOMA/choice-of-law post asks– why not just have federal law recognize all state-law civil unions? Why insist that a legal union be labeled “marriage” to count federally as a marriage? There are two slightly different versions of this question, which in my view have different answers.

Version one: Under current law, do federal laws referring to “marriage” include unmarried couples in civil unions? My view is “no,” as a simple matter of statutory text. There are a lot of couples in various kinds of close relationships, but for whatever reason (presumably some combination of tradition and simplicity) lawmakers often choose to single out “marriage” when giving special legal status to a relationship. Indeed, for better or worse, that special legal status has become an important part of what marriage is. So when Congress refers to couples who are married, we ought to take it at its word. Civil unions, while functionally very similar to marriage, are formally not marriage. Indeed, that is often the very point of a civil union. If one thinks that the legislature is constitutionally permitted to regulate access to marriage in this way (a big if, these days!), then one ought to respect the choice of forms.

That said, here’s version two of the question: Ought we to amend federal law, so that wherever possible, couples in state-law civil unions have all of the same benefits as couples in state-law marriages? My view is “maybe so!” At the outset I’ll say that I’m strongly in favor of amending federal law to provide some predictable and consistent way of deciding what couples are married for purposes of federal law. Bills providing a federal choice of law rule have been introduced in both the House and Senate and would help avoid exactly the kind of messy problems we’re seeing in choice-of-law litigation now.

Incorporating all state-law civil unions could be one aspect of that. It would provide for quite broad recognition of a lot of same-sex relationships, which would be a very good thing by my lights. It would also help many couples who move across state lines, because many states that don’t recognize out-of-state same-sex marriages as marriages do recognize them as civil unions. On the other hand, it would not respect anybody’s choice not to be married — including opposite-sex couples who had deliberately chosen not to marry while still receiving a certain form of legal recognition. And it might conceivably also make it harder to convince states to enact civil unions as a compromise measure, since it would suggest that the difference between civil unions and marriage was even more modest than before.