Finally, we've got real, live multiple-gummint-sponsored evidence that we were right all along.
I give you the New Jersey Civil Union Commission tasked with exploring the issue of whether civil unions sucked enough to warrant going to the trouble of changing the law to permit civil marriage for same-sex couples. They entered an interim report on it last February because their initial findings were so striking about the actual harm being done by their civil union law as opposed to using the marriage standard and their subsequent findings were equally as compelling enough to cause them to issue their final report both early and unanimously, on my birthday, December 10, 2008, no less, finding actual harm that they assessed would not be resolved by the passage of time necessitating a recommendation to the governor and legislature that the law be changed to provide for civil marriage for same-sex couples.
The reports and the testimony they're based on are beyond amazing and I encourage a full reading of all of them -- they're available on the Commission website in full. But I've pulled some of the many highlights for you to read here. Caution, have hanky handy, 'cause some of the testimony is pretty darned moving.
For instance, the final report states: "In a number of cases, the negative effect of the Civil Union Act on the physical and mental health of same-sex couples and their children is striking, largely because a number of employers and hospitals do not recognize the rights and benefits of marriage for civil union couples." This is despite ample press coverage and official state notification, including to all healthcare providers, of the new law and what it covered.
The report is unequivocal:
... the provisioning of the rights of marriage through the separate status of civil unions perpetuates the unequal treatment of committed same-sex couples.
Even if, given enough time, civil unions are understood to provide rights and responsibilities equivalent to those provided in marriage, they send a message to the public: same-sex couples are not equal to opposite-sex married couples in the eyes of the law, that they are 'not good enough' to warrant true equality.
They were certain that time would not solve the problem:
The Commission is compelled to issue its final report now because of the overwhelming evidence that civil unions will not be recognized by the general public as the equivalent of marriage in New Jersey with the passage of time.
They noted that their conclusions were not localized to New Jersey but that New Jersey's experience was echoed in other civil union states, noting, in particular, another report issued in 2008 in Vermont:
Since the Commission issued its February 2008 [Interim] report, a similar commission in Vermont has issued a report detailing how the Vermont civil union law - in effect since July 1, 2000 - still does not provide the legal, medical and economic equality of marriage. Nearly a decade later, civil union couples in Vermont report the same obstacles to equality that New Jersey civil union couples face today.
They emphasized that, although federal DOMA would remain a significant barrier to equality, in the area of job benefits, particularly in health insurance where ERISA, the federal Employee Retirement Insurance Security Act that regulates companies that self-insure, and health insurance under collective bargaining union contracts was concerned, using the "marriage" instead of the "civil union" or "domestic partnership" terminology drastically improved coverage levels for families headed by same-sex couples, noting that ERISA, not antigay animosity, was the most cited reason by employers for noncompliance with the intent of the civil union law to provide equal benefits as marriage and that experience in Massachusetts of the benefit of using marriage terminology to overcome that was conclusive.
The report says that the fiscal/job- and insurance-related suffering and harm are not limited to isolated cases. In contrast, "In fact, the word 'marriage' can and does make a
difference to employers [and, consequently, to health insurance coverage], even within the constraints of federal law."
Noting the near-absence of ERISA-based discrimination against civilly married same-sex couples in Massachusetts, one union organizer stated, "It is not that ERISA-covered employers in Massachusetts don't understand that federal law allows them to refrain from providing benefits to same-sex married couples. It's that employers also understand that without the term 'civil union' or 'domestic partner' to hide behind, if they don't give equal benefits to employees in same-sex marriages, these employers would have to come forth with the real excuse for discrimination. Employers would have to acknowledge that they are discriminating against their employees because they are lesbian or gay" -- something that employers are increasingly unwilling to do, understanding that the public increasingly understands benefits to be a part of one's job compensation package and are increasingly unwilling to tolerate such blatant examples of unequal pay for equal work.
As GLAD testimony stated regarding when civil marriage terminology is used instead of civil union,
A company that makes coverage available to the spouses of heterosexual employees has to depart from its general rule covering married employees and draw a new line of discrimination in order to deny benefits to some married employees but not others ... [and, in Massachusetts,] companies ... have been unwilling to draw that line of discrimination and do, indeed, provide the same benefits to both their same-sex and opposite-sex married employees.
Further, as the civil union status makes both partners co-liable for their debts but simultaneously can be used to prevent them being both covered by insurance, some couples have faced the necessity to dissolve their civil unions rather than put their entire family financial well-being at risk.
As for psychological harm, the report was direct and left no doubt that civil unions literally cause it: "Equally important is psychological harm that same-sex couples and their children endure because they are branded with an inferior label. ... [quoting from their February Interim report] The Civil Union Act has a deleterious effect on lesbian, gay, bisexual, transgender, and intersex youth and children being raised by same-sex couples. ... and the Civil Union Act has a particularly disparate impact on people of color" which is even further exacerbated when couples find it necessary to access the legal system for help in redressing grievances.
This problem is additionally compounded for all same-sex couples with fiscal challenges: "The State Public Advocate acknowledged the particular difficulty for lower-income same-sex couples who encounter discrimination because they have fewer resources with which to seek legal counsel and redress and who have difficulty meeting expenses if faced with reduced healthcare benefits" which is further complicated by their relative lack of backup documentation due to the added expense of obtaining it. They did, however, find that, among the non-poor, the prevalence of those seeking typically expensive backup documentation was very high, as experience with civil unions alone was proving very unsatisfactory.
They found that "denying same-sex couples access to the widely recognized civil institution of marriage while conferring the legal benefits under a parallel system using different nomenclature, imposes a second-class status on same-sex couples and sends the message that it is permissible to discriminate against them."
The report states that civil unions institutionalize second-class status with predictable negative effects that, according to a Harvard Medical School psychiatry professor, "contributes to increased rates of anxiety, depression and substance-use disorders" due to being "branded with an inferior label."
Quoting further from their Interim Report, the Commission notes additional negative effects of civil union versus civil marriage equality, including that the "requirement that same-sex couples declare civil union status, a separate category reserved for same-sex couples, exposes members of the United States military to the 'Don't Ask, Don't Tell' policy" and that the "classification of civil union may place marital status in question when one of the partners is transgender."
As the report notes, civil marriage, in contrast, has positive benefits in this regard, "The socially sanctioned right of gay marriage which is qualitatively different than civil unions, the right to choose one's spouse, has a positive impact on self-esteem, sense of being validated in the eyes of the community, and on the internalization of ideas of commitment and responsibility to others, something that is sorely needed in our society currently.
"Nothing is more basic from a mental health perspective to happiness and liberty than the right to love another human being with the same privileges and responsibilities as everyone else."
In other words, the words do matter: "... the difference in terminology, between 'marriage' and 'civil union,' stigmatizes gays and lesbians and their families because they are singled out as different. Witnesses stressed that words are incredibly important and powerful and that marriage is a term of 'persuasive weight' that everyone understands and respects."
The report noted testimony on a variety of types of harm and suffering to children of same-sex parents as well as to LGBT children as a result of the stigmatization of separate and unequal that is civil unions "which can lead to", among other things, "teasing and bullying", noting that, "when the government treats people differently, it emboldens private citizens of any age to follow suit."
I found the testimony of the observations of schoolteachers of the behavior of even very young students particularly enlightening as well as the psychiatric testimony regarding that, although children born to parents in civil union contracted relationships are legally legitimate, they are often not viewed as such by their peers due to the perception that only marriage conveys legitimacy and that this is a strong source of stimatization of these children, forty-three percent of whom face, at minimum, "verbal harassment" by peers in school.
The civil union status of their parents also affects children's perception of the stability and safety of their families: "youth ... report that hearing that their family can't have the same rights as other families leads them to feeling scared or confused ... They say that they think somebody is going to come and break up their family."
In contrast, children of the civilly married psychologically benefit from their parents being in a relationship defined by a word that is universally understood. For them, "It's a big deal." They have a "sense of validation of being part of a real family" -- something particularly profound for adopted children and children of divorce. As one young man so eloquently described:
Every time [when I was younger] I let somebody in and I said, 'Hey, I have to tell you something,' I'd say, 'My parents are gay,' and no matter what they said, my next reaction was, 'Don't tell anybody.' And that's no way to grow up.
After my parents got their marriage license, all that changed. For the first time in my life I could stand there and I had a word to describe my family and that word could describe it to everybody because everybody already knew what a marriage was. You know, they didn't have to question.
It's been the biggest thing in my life. You know, I can't stop talking about my parents. It's easier for me to go around and talk to friends that I've had for 20 years, to go up to them and speak about my family openly now and they get it. When you say that your family is married, they just get it and there's not a question. I just wish it would have happened when I was little, so I didn't have to go through all this stuff.
It was just the best feeling I ever had. And part of it, too, I think was I felt like finally I was protected. My parents' fears probably creeped into my subconscious mind too as a kid, that they would lose me for some reason.
I've watched young gay couples, teenagers, 15 year olds, walk up to my parents and say, 'You guys are heroes.' And you can see in their eyes that finally there's hope that their relationship is just as good as anybody else's. There's a future in their relationship. I was happy for every other little kid out there, that they didn't have to go through the same stuff.
I see the huge weight lifted off my parents' shoulders. When they talk to their co-workers at work or their boss, it's huge. To not tell your lifelong friends or your boss for 20 years about your spouse, it's a tough thing to live with, and it's something that people shouldn't have to live with, especially the kids.
But that was the story of a young man whose parents had a real civil marriage, not a civil union.
LGBT youths report that the civil union situation has left them feeling "angry, confused, and upset." Reported one, "Today (a classmate) asked me, 'Do you have a boyfriend?' I said, 'No, actually, I have a girlfriend. You might know her.' And he said, 'You have a girlfriend? That's wrong, that's a disease. You need to go get help for that.' And I was like, 'Why is it a disease?' And he was like, 'You can't get married. Well, that's why, you can't get married. Obviously something is wrong with it.'"
Civil unions attack the basic dignity of adult same-sex couples, too, and put them in peril: "Many witnesses who are in civil unions described situations in which they were forced to explain their civil union status, what a civil union is, and how it is designed to be equivalent to marriage. These conversations include the indignities of having to explain [and often have to go to unusual lengths to prove] the legal nature of their relationship, often in times of crisis, and the obstacles and frustrations encountered when using government, employer, or health care forms that do not address or appropriately deal with the status of being in a civil union."
Further, as couples typically find it necessary to reinforce documentation of their relationship status using old standards such as powers of attorney and medical consent forms that use other labels besides civil union or marriage, "confusion as to the labels applied to same-sex relationships and resulting misunderstandings can lead to both intentional and unintentional discrimination and hardship", a situation that civilly married couples have fewer problems with, the report concludes.
The report also dashes the seemingly reasonable hope most typically given for taking the civil union shortcut -- that civil unions will provide protection in times of medical crisis: "Civil unions create challenges to equal health care access."
Civil unions are not infrequently considered suspect or fraudulent, documentation is demanded of civil union couples in New Jersey at far higher rates than for civilly married couples in Massachusetts, for instance, and, even when provided, testimony in case after case showed that proper access was unduly postponed until authorities could be made to understand the rights involved -- with enough near-tragedies that actual tragedies are reasonably predicted should the law not be changed.
As stated in the report, "In times of crisis, it is unfair and unreasonable to ask people in a state licensed relationship to have to explain that relationship [civil union relationship]; to explain why they are legally entitled to hospital visitation rights, to explain why they are legally entitled to make final arrangements for their deceased spouse. Yet, as a practical matter, civil unions impose this unreasonable burden."
People understand marriage. From the testimony of a Massachusetts married lesbian:
I do health and safety work with ... big construction unions. I went down to the labor training center a few weeks after [we got married]... . All these big burly guys come and say, 'Well, I guess we should say congratulations, huh?' And I'm like, 'Oh, oh, yeah. Thanks.' Then another guy walks in and says, 'How does it feel to be married now? How's married life?' You know, because that's what people understand ... And they get it.
Contrast that to the New Jersey civilly unioned/unionized/unified couple who showed the Commissioners a
flash drive that both ... keep on their key chains. Their flash drives contain living wills, advanced health care directives, and powers of attorney for the couple, as they fear being unable to adequately explain their relationship to emergency room personnel during a medical crisis. The witness testified that opposite-sex married couples need not live with this uncertainty because a mere declaration that someone is the 'wife,' 'husband,' or 'spouse' of someone who is ill will provide immediate access and decision-making rights.
Not to belabor the point but the commission, in its interim report called civil unions "an invitation to discriminate" and a " 'justification to employers and others' to treat same-sex couples as 'less than' married couples." The final report stated that "relatives, medical caregivers, and individuals in positions of authority take cues from the government's decision to categorize same-sex couples differently."
They found that:
the civil union law has resulted in economic, medical and psychological harm for a number of same-sex couples and their children. This Commission believes that as long as New Jersey maintains two separate systems to recognize the unions of same-sex couples and opposite-sex couples, same-sex couples and their children will face a challenge in receiving equal treatment. Under a dual system, these and future families will suffer economic, medical and psychological harm.
They further found that "even if all employers in New Jersey were suddenly to provide benefits to employees in civil unions equal to the benefits provided to married employees - an unlikely proposition in itself - such compliance would not cure much of the inequality perpetuated by the civil union law" and that, persistence of federal DOMA and ERISA-permissable discrimination notwithstanding, "a marriage statute would cure much of the harm perpetuated by the existing civil union law".
Reporting that time does not fix the problem, using Vermont as evidence, the Commission states, "even eight years after enactment, Vermont's Civil Union Law has not resulted in true equality although it purports to provide protections equal to marriage. ... [Quoting from the April, 2008, State of Vermont report,] 'Time cannot and does not mend the inequality inherent in the two separate institutions.'"
I advise reading the material in the report regarding what courts in California and other states have said regarding civil unions not being able to be made equal to civil marriage. The Supreme Court of Connecticut, in its October 10, 2008, decision on the matter is typical:
... in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. ...
... Although marriage and civil unions do embody the same legal rights under our law, they are by no means 'equal.' As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not. Even though the classifications created under our statutory scheme result in a type of differential treatment that generally may be characterized as symbolic or intangible, this court correctly has stated that such treatment nevertheless 'is every bit as restrictive as naked exclusions' because it is no less real than more tangible forms of discrimination, at least when, as in the present case, the statute singles out a group that historically has been the object of scorn, intolerance, ridicule or worse.
That court also found, as described by the New Jersey commission's Final Report, "Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure in which the children will be reared, educated, and socialized."
The Connecticut court also found, according to the New Jersey Final Report, that civil unions "discriminate on the basis of sexual orientation". Why would any of us ever actively promote that, especially merely to avoid what is, in reality, an unavoidable conflict and one we are getting ever closer to resolving in our favor? Are we so banal, so self-absorbedly short attention spanned, so short-sighted, and so childishly impatient to give in so soon? In light of the New Jersey and Vermont commission findings, the notion is, simply, obscene.