commentary
Beyond the Briefs
Forget Prop 8: Gays may get last laugh with civil unions
Published Thursday, 05-Mar-2009 in issue 1106
Next week, the California Supreme Court will hear arguments regarding the legality of Proposition 8. The Court will most likely uphold the voter initiative, and same-sex couples will feel awful because they won’t be able to marry. But there’s a silver lining: The concept of civil unions now promoted by President Obama includes federal benefits for same-sex couples – the same benefits married straight couples receive.
Consequently, Obama’s civil unions would be superior to both domestic partnerships and to same-sex marriages neither of which provide federal benefits. Further, ending one wouldn’t require more than filing a notice of termination, which is what domestic partnership law generally allows now, although longer partnerships, property issues and custody matters, require court involvement.
President Obama’s civil-union plan is similar to the Civil Solidarity Pacts (PAC) in France, introduced 10 years ago to legalize same-sex unions. PAC is akin to marriage in France, but it omits the religious specifics of marriage required by churches. PAC also avoids the pitfalls of marriage dissolution laws, namely having the government determine whether couples can dissolve and how their property will be divided. PACS provides near-identical financial and administrative protection as formal marriages, including the possibility of providing joint tax returns and enjoying deductions. French councils also treat PAC couples like married couples when assigning benefits or accommodation.
PAC has become so popular in France that some 150,000 couples opt for PAC annually. And, although it was designed for same-sex couples, 130,000 of PAC applicants are straight! In 1999, around 6,000 straight couples entered PAC agreements, and the figure is now 25 times that amount. Today more than 90 percent of French straight couples favor PAC over marriage.
More than 90 percent of French straight couples favor Civil Solidarity Pacts over marriage.
So before you start crying that civil unions aren’t equal to marriage, you might want to consider the ways in which they’re superior to it.
Yes, civil unions would still be a separate system. But separate can mean distinctive, not unequal. Remember, prior to 2005, domestic partnership was indeed separate but it was far preferable to marriage because partners opted in advance as to how they wished to acquire property, either separately or communally, and because dissolving partnerships did not require court involvement.
It wasn’t until the GLBT Legislative Caucus started decrying the “inequality” of domestic partnership and eliminating its benefits to make it similar to marriage that it began to lose allure. Today, state law presumes domestic partners share property, and, depending upon the length of the partnership, the extent of property holdings, and the presence of children, domestic partnerships can only be resolved in family court.
When looking to join ourselves in love, let’s look to the French as our example. After all, they know a thing or two about romance.
Robert DeKoven is a professor at California Western School of Law.
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