The "civil union" concept, an anachronism less than a decade after it was initially developed, was a foregone liberal compromise alternative to same-sex marriage liberties that never gained traction for a number of reasons. Most importantly, the extension of a regime of privileges, obligations, and benefits under civil unions, adopted first by Vermont in July 2000, was patterned to mirror the same privileges, obligations, and benefits of civil marriage. Returning to the federal Constitutional questions implicated by same-sex marriage that I considered in my previous post on this subject, however, the institution of the civil union, as designated in a number of states, enjoyed diminished interstate transferability under the terms of Article 4, section 2. The point here is that a civil union is not a civil marriage as designated by law. The separation of the legal designations, enacted as a measure to placate religious conservatives for whom any extension of same-sex marriage privileges would have diminished the spiritual value of holy matrimony, opened a technical/Constitutional loophole for conservative state government, especially in the Southern "Bible Belt," to deny same-sex couples recognition of marital privileges conferred by progressive, liberal state governments in the Northeast and Pacific coast through civil unions. As such, the dichotomization of civil unions and civil marriage posed an inherent inequality between two institutions crafted to be "separate but equal." The refusal of Republican Party conservatives to accept the transferability of privileges under the civil union ensured that supporters of marital privileges for same-sex couples would abandon the civil union concept if only for the impractical Constitutional nature of the designation.
In the present political/Constitutional environment, it is worth asking what it would have cost Republican Party conservatives in states like Alabama or Utah to assent to the civil union concept rather than allowing it to suffer the fate of irrelevance as advocates of full-blown marriage equality moved to a strategy of direct confrontation in the federal judiciary under the Fourteenth Amendment equal protection guarantee. The national Republican Party might have even gained some tread among moderate to conservative LGBT voters by aggressively supporting the transferability of civil unions. As with numerous other social and fiscal issues during the course of the Obama administration, the Republican Party has perversely opted to take a position against all compromise on GLBT rights. In the struggle against competing absolutes, the recourse of marriage equality advocates to argue claims for equal protection in the federal judiciary enjoyed a strong probability for success, even under a nominally conservative Supreme Court majority. If a "separate but (truly) equal" option had at least been advanced somewhere outside of the ranks of moderate to liberal Democrats, then an exclusively heterosexual institution of marriage might have survived, notwithstanding the present distaste for the doctrine of Plessy v. Ferguson.
To add my own perspective on this issue, I adhere to a particular standpoint on the institution of civil marriage that I have previously elaborated on this blog. First, civil marriage is above all a civil contractual relationship, no different in its function than the civil contract undertaken by individuals when they purchase a car or a house or agree to the obligations implied or otherwise stated when an individual enters into military service. A contract may be invested with diverse emotional sentiments, but in the end it remains nothing less than an agreement between two individuals or parties, enforceable in stipulated terms through the state, to enjoy particular benefits and incur specific responsibilities. Marriage is no different - a contract plain and simple.
Further, it is irrelevant what label a state places on such a contract or what privileges and responsibilities it extends to parties entering into the marriage contract, as long as the generalized existence of the contract is not impaired or modified beyond recognition when a couple crosses state lines. That is to say, if a state wants to take two consenting adult individuals, bring them together under a civil contract with particular privileges and responsibilities, and call it a "sandwich," it is perfectly fine, so long as other states recognize that the two individuals' bond, 'til death parts them or the contract is dissolved with the consent of one or both parties, must be honored as a contractual union if the two decide to reside in a different state even where the equivalent union is called something other than a sandwich.
Finally, the legal construction of civil contracts binding individuals with privileges and responsibilities, particularly with regard to the nurturing and care of children, however such contracts happen to be labeled, is an issue for state government and, beyond the assurance of interstate transferability in the institution, there is no federal question involved here. Acknowledging, moreover, that the federal judiciary has, as a matter of juridical invention, constructed a capacity to expand the authority of the U.S. Constitution to encompass a range of fundamental liberties nowhere enumerated or implied within the language of the document in order to hold certain state policies against "discrete and insular minorities" to a higher level of Constitutional scrutiny (see U.S. v. Carolene Products Co. (304 U.S. 144 (1938), Footnote 4), I am still too much of a defender of both the principle of federalism and the workings of the democratic process at the level of individual states to regard state policies on civil marriage or on a wide range of other issues not simply dispicable in a moral or philosophical sense but expressly unconstitutional by virtue of some judicial contortion of the scope of federal authority. Insofar as I remain politically committed to the notion of marriage equality, encompassing the liberty of consenting, adult same-sex couples, otherwise in compliance with applicable standards in any given state, to enter into marriage contracts, I continue to believe that advocates of marriage equality should have pursued a state-by-state legislative strategy and eschewed the idea that marriage equality could be forced down the throats of recalcitrant, conservative state governments through the vehicle of the Fourteenth Amendment equal protection clause. Emphatically, among certain conservative, religious constituencies, including some with an otherwise moderate social agenda, the manner in which same-sex marriage liberties became the law of the land will leave a bad taste in their mouths for some time to come.
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