A Marriage by Any Other Name: Why Civil Unions Should Receive Federal Recognition

Indiana Journal of Law and Social Equality, Forthcoming

Northwestern Public Law Research Paper No. 14-59

19 Pages Posted: 24 Dec 2014 Last revised: 29 May 2015

Date Written: December 23, 2014

Abstract

The federal government now recognizes same-sex marriages as triggering rights and responsibilities under federal law. However, it still generally refuses to recognize alternative legal statuses — civil unions and domestic partnerships — that were created by states to serve as functional marriages. Even though all the states that created such alternative policies now permit same-sex couples to marry, this misguided policy causes ongoing harms. Some same-sex couples who entered into alternative relationships when marriage was not an option may now lack the capacity to marry. Couples who have since married may also be hurt by the federal government’s refusal to recognize civil unions or domestic partnerships retroactively, even in situations where it is now recognizing same-sex marriages retroactively.

This essay argues that the current federal policy is based on a mindlessly literalist approach to statutory interpretation that should be repudiated. Federal law generally looks to state law to determine valid marriages, and the state laws that created these alternative statuses defined them to be fully equivalent to marriages in all respects. Couples who enter into such unions thus make exactly the same legal commitments to each other that couples who marry make to each other. Just as the federal government routinely recognizes foreign marriages, even when called something other than “marriage,” it should recognize state civil unions or domestic partnerships that are likewise legally indistinguishable from (other) marriages.

Keywords: Gay rights, same-sex marriage, civil unions

JEL Classification: K10, K30

Suggested Citation

Widiss, Deborah A. and Koppelman, Andrew M., A Marriage by Any Other Name: Why Civil Unions Should Receive Federal Recognition (December 23, 2014). Indiana Journal of Law and Social Equality, Forthcoming; Northwestern Public Law Research Paper No. 14-59. Available at SSRN: https://ssrn.com/abstract=2542199 or http://dx.doi.org/10.2139/ssrn.2542199

Deborah A. Widiss

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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