NEW YORK – When is a marriage not a "marriage"?
For same-sex couples in various parts of the country — many who call their mates by the traditional terms of husband or wife — the question is a tricky one. Nowhere in the nation can they have a legal marriage but in various places they can enter into a "civil union" or a "domestic partnership."
But because of a decision by the Massachusetts Supreme Judicial Court (search), gay and lesbian couples in that state very likely will be able to get married beginning in May.
Bay State lawmakers on Wednesday were holding a constitutional convention to discuss the ban on gays and lesbians marrying. Masses of gay couples, conservative groups and others converged at the Statehouse in Boston to plead their case.
"From our perspective … the reason the 'm' word is so important is that if government denies access to marriage, it is sending a message that those denied access are inferior and less worthy human beings. That's just the bottom line," said David Buckel, director of the Marriage Project for the Lambda Legal (search), a gay rights legal organization.
The Massachusetts court, the highest legal body in the state, said a proposed marriage ban for same-sex couples was unconstitutional and that nothing less than a full-fledged recognition of gay marriage was legal.
"The real reason they call it civil union or domestic partnership is because a lot of legislators cannot bring themselves to use the word 'marriage' with respect to same-sex couples," said Fox News senior judicial analyst Andrew Napolitano.
"Civil unions in Vermont are the same as marriages except for the name … it's basically a fight over terminology, it is not a fight over rights and obligations," he said.
Gay marriage opponents say allowing gay couples the "marriage" label will "redefine out of existence" the institution of marriage.
The Massachusetts court "has not left any wiggle room for state legislators who were hoping to bypass the controversial debate by simply granting homosexual couples civil union partnerships," said Tony Perkins, president of the Family Research Council (search).
"We are not just fighting to preserve marriage in Massachusetts. This case will determine the future of marriage throughout America," Perkins said.
Going for a 'Civil Marriage'
Civil rights groups and others fighting for gay-marriage rights refer to the marriage protections they're seeking as "civil marriage" because "marriage" often has a religious connotation, they say.
More than 1,000 federal and state protections in the form of hospital visits, Social Security benefits and tax benefits, as well as health care are afforded to couples whose marriage is legally recognized. It also brings benefits and discounts from employers, banks, insurers and businesses and establishes an automatic right to joint parenting, bereavement leave, divorce protections and other spousal privileges.
Because no state yet completely recognizes the right to marry, same-sex couples in some cases have sought to gain domestic partnership (search) status. States that recognize these relationships are California, Hawaii, Massachusetts, New Jersey and Washington, D.C.
States can set their own guidelines on just how much protection domestic partners receive.
California law, for example, grants registered domestic partners nearly all of the state-level legal protections and rights currently available only to married couples. These include child custody and child support requirements, the right to make funeral arrangements, community property, financial support during and after a relationship, mutual responsibility for debts, and death benefits for surviving partners of police and firefighters.
A new law in New Jersey, however, only affords domestic partners a handful of protections to partners who share a residence and have joint financial status or property ownerships. These include hospital visitations, medical decisions, exemption from state inheritance tax and equity for private insurance policies. The law also would allow a surviving partner to gain property rights and other survivors' benefits.
New Jersey also recognizes partnerships from other states. The law does not, however, change the state's marriage law, which says unions must be between a man and a woman.
Civil Unions: Demeaning or Effective Compromise?
Vermont is the only state that recognizes "civil unions," where same-sex couples have the same benefits as married couples under the law, such as the power of attorney, among other things.
But once couples leave Vermont, their status won't be recognized in all states.
"While we understand that some find civil unions to be a good compromise in this debate, the fact is it does not equal marriage and does not provide the same protections and rights that come with marriage," Mary L. Bonauto of Gay & Lesbian Advocates & Defenders (search), a Boston-based gay legal organization, said in response to the Massachusetts decision.
While these types of laws are helpful to the gay-rights movement, the varying state-by-state laws may do just as much harm as good, Napolitano said.
"Because of the patchwork, as it grows over the years, it will become increasingly difficult and unwieldy because anytime you put the kids in the minivan and you cross over the state line to a vacation to a national park, you don’t know, going state to state, what your status is if you have a car accident or a medical emergency," agreed Buckel of Lambda Legal.
But groups opposing gay marriage say no matter what you call it, official same-sex unions shouldn't be accepted.
The Coalition for Marriage (search), a consortium of groups fighting for traditional marriage, sent a petition to Boston with thousands of citizen signatures urging the Legislature to approve a constitutional amendment defining marriage as the union of one man and one woman.
"A handful of lawmakers are trying to push through a compromise that makes a mockery of the Constitution itself," said Ron Crews, president of the Massachusetts Family Institute (search) and spokesman for the coalition.
"The citizens who signed these petitions were voicing their support for traditional marriage ... not a civil union amendment. We expect that lawmakers would recognize the difference."