Second Thoughts on Civil Unions and Federal Law

Last week, I had a post that was skeptical of the claim that current law requires the federal government to recognize state civil unions as marriages. Reading through this brief recently filed by the state of New Jersey, I am no longer so sure. (The brief is a defense of New Jersey’s civil union law — which allows same-sex couples to have civil unions with the same legal status as marriage, but not technically marriage itself — but the brief also argues that the federal government is required to recognize the civil unions.)

For one thing, state civil union laws sometimes contain language that defines the word “spouse” to include unioned couples in addition to married couples. (See, e.g., the Illinois civil union law I discussed here.) And some federal provisions use the word “spouse” rather than the word “marriage,” although it is not clear they intended for “spouses” to include people who are not in a “marriage.”

For another thing, it almost looks like New Jersey law already defines civil unions as a form of marriage, by stating that marriage includes civil unions. NJSA 37:1-33 says:

Whenever in any law, rule, regulation, judicial or administrative proceeding or otherwise, reference is made to “marriage,” “husband,” “wife,” “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” “widow,” “widower,” “widowed” or another word which in a specific context denotes a marital or spousal relationship, the same shall include a civil union pursuant to the provisions of this act.

Of course, everybody in New Jersey appears to assume that the state has not extended marriage to same-sex couples so there may be some reason that provision doesn’t mean what it seems to me to say.

Finally, it is at least possible that the logic of Windsor extends to those in civil unions as well as marriages, for reasons given in New Jersey’s brief.

I’m still thinking this through, and it seems to me that the answer may depend on the exact texts of both the various states’ civil union laws and the various federal laws at issue, but I thought I’d note that there’s a good case that the issue is not as cut-and-dried as I asserted earlier.

UPDATE: Commenters provide an alternative reading of the New Jersey statute. As Andrew Hyman puts it:

When it says “the same shall include a civil union”, the words “the same” refer back to the words “any law, rule, regulation, judicial or administrative proceeding or otherwise”. They do not refer back to the word “marriage” or the words “marital or spousal relationship”, any more than they refer back to “widower”. That’s my reading, anyway.

That would make some sense. Even if that’s so, it does appear that some state civil-union statutes do redefine the word “spouse” itself, like the Illinois statute that says “‘Party to a civil union’ means, and shall be included in, any definition or use of the terms ‘spouse.'” And since there are federal statutes that use the word “spouse,” at least some state-law civil unions may be included some of the time for purposes of federal law. (And as the brief discusses, there are some federal agencies that may do so in practice.)