Americans have undergone a stunning reversal in their attitudes toward same-sex marriage over the last decade. Around the turn of the millennium, less than 30 percent of the country believed that gay couples deserved marriage rights equal to those of heterosexual couples, according to public opinion polls at the time. Last year, however, three different polls found for the first time ever that a small majority of Americans now approve of same-sex marriage.
So the tide of public opinion is turning — but, as always, our laws lag several years behind. Martin Luther King Jr. famously said, "The arc of the moral universe is long, but it bends toward justice." America's slow and uneven march toward gay rights is proving him right. Since 2003, seven states and Washington D.C. have legalized same-sex marriage. In the same period, 26 states amended their constitutions to expressly ban same-sex marriage, and two states — Maine and California — passed and then repealed bills legalizing it.
New Jersey became the latest state to take on the issue yesterday, when the state Senate voted 24-16 to approve a bill that would legalize same-sex marriage. The state Assembly is expected to pass the measure as well and send it to the governor's office for approval, at which point it will likely die by the veto of New Jersey's chief executive, Chris Christie.
To Christie's credit, he hardly boasts the anti-gay credentials of, say, Rick Santorum, who throughout his career has compared marriage between two men to marriage between siblings, among five people, between a man and a child and between himself and his mother-in-law. Christie has said he supports New Jersey's current laws giving gay couples the right to enter into civil unions, which in theory are supposed to provide all the same protections to gay couples that marriage provides to heterosexual couples.
Christie may well want to do right by New Jersey's gay community, but to anyone who has studied the African American Civil Rights Movement civil unions should ring an alarmingly familiar bell. "Separate but equal" was the post-Civil War doctrine that permitted the segregation of public facilities (most famously, schools) for blacks and whites as long as the accommodations met an amorphous — and, in reality, completely nonexistent — standard of equality. Legal segregation resulted in black schools that were grossly inferior and underfunded compared to white schools and was eventually ruled unconstitutional in the Supreme Court's landmark Brown v. Board of Education of Topeka (1954) decision.
That's not to say that the struggle for racial equality and the struggle for gay rights are perfect parallels of each other. The histories of the two movements are very different, and it does justice to neither to try to pigeonhole them together. Still, substituting true marriage rights with civil unions is a modern incarnation of the "separate but equal" concept, and history has shown that it won't work.
As a legislative principle, it doesn't make any sense. If two things are equal, why do we need to separate them? Likewise, if marriage and civil unions provide all the same protections, why do we need to create a distinction? By providing gay couples with an alternative to marriage — rather than, simply, marriage — their unions are inherently judged as less valuable.
This is more than a philosophical difference; there are practical issues with civil unions that make them an inferior substitute for marriage. Although the New Jersey civil union law states that couples engaged in civil unions are entitled to equal treatment as married couples, many employers continue to deny gay couples equal health benefits. In Massachusetts and other states where gay couples enjoy full marriage rights, discrimination in health benefits is much less common.
Also, couples that enter into civil unions have no choice but to publicly acknowledge their sexual orientation. When a gay person fills out a job application and identifies her marital status as "in a civil union," she opens the door to discrimination by her potential employer. The ability to check off "married" avoids this problem and makes job discrimination much less likely.
In theory, civil unions provide the same medical decision-making benefits as marriage. In practice, doctors and other healthcare personnel are unfamiliar with the law, and gay spouses are constantly asked to provide documentation of their legal status as a couple and even to summarize the legislation that gives them legal power of attorney. They're asked to do these things while their partner is in the midst of a medical crisis.
A report by the New Jersey Civil Union Review Commission found that many professionals are confused by the term "civil union" and are unsure how to treat clients who have entered into them. As a result, the report cites countless anecdotes from couples who have had to navigate bureaucratic nightmares in everything from managing bank accounts to determining end-of-life care. People in the United States are taught to classify adults as either single or married, and carving out a third classification for gay couples has forced them into an awkward, poorly understood middle ground and led to all manner of logistical headaches.
Civil unions are a failure, an experiment gone wrong. Christie has expressed his commitment to upholding the rights of gay couples in New Jersey but, right now, his veto threat is the only thing standing in the way of a dramatic step forward on that score. If that commitment to gay rights is anything more than political rhetoric, Christie should sign the same-sex marriage bill when it arrives on his desk.
