Wednesday, December 10, 2008

Separate but equal isn't equal? Who would've thought it!

New Jersey's Civil Union Review Commission has released their final report, entitled "Consequences of New Jersey's Civil Union Law." The result?
In its final report, a copy of which was obtained by The Associated Press, the state's Civil Union Review Commission concluded that the state's two-year-old civil union law doesn't do enough to give gay couples the same protections as heterosexual married couples.

"This commission finds that the separate categorization established by the Civil Union Act invites and encourages unequal treatment of same-sex couples and their children," the report says. The findings of the commission's 13 members were unanimous.

The commission found that the rights afforded to those in civil unions were not always well understood, and that allowing gay couples to marry would alleviate the problem. For example, there have been instances when people in civil unions have been prevented from visiting their partners in hospitals and making medical decisions on their behalf, the commission found.

It's not like we couldn't have seen that coming. Still, opponents of gay marriage were outraged.
Gay marriage opponents criticized the report, saying the commission was made up of members who favored gay marriage and calling its recommendations predetermined.

"If you look at the membership of that committee, they're all advocates. It's an advocacy group," Pat Brannigan, the executive director of the anti-gay-marriage New Jersey Catholic Conference, said Tuesday. "It doesn't mean that that is the conclusion that society and people in general will come to."

People advocating for gay marriage after finding that civil unions don't work? People advocating for equal treatment of all their citizens? What a nefarious, conspiratorial plot! I'm sure they concocted all the evidence that civil unions aren't equal to marriage, and since only 10 of the people testifying before or writing letters to the committee were opposed to gay marriage, clearly the committee must have stifled all the opposing views that Brannigan assures us are there! Is there no evil to which proponents of equality won't stoop?

Oh wait... no. The committee
specifically solicited the testimony of the New Jersey Family Policy Council, the New Jersey Catholic Conference, the League of American Families and PFOX (Parents and Friends of Ex-Gays and Gays). Of these groups, only the New Jersey Catholic Conference provided testimony in response to the invitation.

The report is available here (click on the graphic at the top--I overlooked it at first).

Skipping to the happy ending, the unanimous recommendations are these:
(1) The Legislature and Governor amend the law to allow same-sex couples to marry;

(2) The law be enacted expeditiously because any delay in marriage equality will harm all the people of New Jersey; and

(3) The Domestic Partnership Act should not be repealed, because it provides important protections to committed partners age 62 and older.

The opening section gives an illustration of some of the troubles involved with civil unions: one woman had trouble getting medical information on her partner while she was in the emergency room, because the doctor "did not understand, and hadn't heard of civil unions before". But, one might argue, wouldn't that go away with time? Surely people will come to understand civil unions and that they are "equal" to marriage. Probably not. The report points out that Vermont, which has had a civil union for eight years now, still has the same problem as New Jersey with people not treating civil unions as equal to marriage. So, they conclude, it's unlikely that this will lessen with time. As they quote later, "Time cannot and does not mend the inequality inherent in the two separate institutions."

But even if it would become truly equal (at least legally) with time, that still wouldn't be good enough. Echoing what we've been saying all along and agreeing with my pithy title, they say:
Even if, given enough time, civil unions are understood to provide rights and responsibilities equivalent to those provided in marriage, they send a message to the public: same-sex couples are not equal to opposite-sex married couples in the eyes of the law, that they are "not good enough" to warrant true equality.

This is the same message that racial segregation laws wrongfully sent. Separate treatment was wrong then and it is just as wrong now.

Bravo! This isn't hypothetical, either. The commission cites "mental health experts" who have demonstrated "the significant psychological damage caused by not recognizing marriage for same-sex couples." Treating certain people as inferior and not good as the rest of the population has damaging consequences. That was true 54 years ago in Brown v. Board of Education, and it's true today. As one portion of testimony put it,
The socially sanctioned right of gay marriage which is qualitatively different than civil unions, the right to choose one's spouse, has a positive impact on self-esteem, sense of being validated in the eyes of the community, and on the internalization of ideas of commitment and responsibility to others, something that is sorely needed in our society currently.

In addition to psychological damage caused by being treated separately, there are tangible inequalities involved here (which of course only exacerbates the psychological damage from being discriminated against). For instance, even though 20 months have passed since this, insurers haven't gotten any better about offering insurance to people in civil unions. In fact, it may have gotten worse:
Since its first report, the Commission has gathered evidence that employers' invocation of ERISA has not lessened with the passage of time. If anything, the worsening economy seems to be encouraging employers to cut corners wherever they can, with equality for LGBT employees and their same-sex partners being among the casualties.

ERISA, the federal Employee Retirement Insurance Security Act, says that self-insured "companies which create their own insurance plans but may hire outside agencies to administer them are governed by federal law rather than state law." That means many of these companies invoke DOMA to deny benefits and insurance to people in civil unions. So one could logically ask, would allowing gay marriage in New Jersey change this? The committee says yes:
The Commission concludes that a marriage law would provide that remedy, despite the existence of a federal prohibition on the recognition of same-sex relationships.

As the Commission reported in its interim report, the marriage law in Massachusetts has led many employers in that state to ignore the ERISA loophole and provide equal benefits to same-sex wives or husbands. The Massachusetts experience dispels any notion that so long as federal law does not recognize same-sex relationships, it would make no difference whether a particular state uses the term "marriage" or "civil union" to describe a same-sex couple's relationship. In fact, the word "marriage" can and does make a difference to employers, even within the constraints of federal law.

The report cites one person's testimony:
Adding civil union partners is virtually impossible to do at this time in this climate at the bargaining table. However, we already have benefits for married couples in our agreements. The key here, as is often in contracts, as you all know, is the language. Simply calling the joining of two people 'marriage' rather than 'civil unions' means we don't have to negotiate or rewrite the contract language....

The fact is that just changing the language 'civil union' to 'marriage' changes the situation, because everyone agrees that married people and their spouses are entitled to health insurance and pensions. It's already in our agreements.

Wanting something called "marriage" rather than "civil union" is not just nitpicking on our part. People understand marriage--it has huge cultural and social significance. This is not the case with civil unions. The Supreme Court for Connecticut recognized this:
Although marriage and civil unions do embody the same legal rights under our law, they are by no means 'equal.' As we have explained, the former is an institution of transcendent historical, cultural and social significance, whereas the
latter most surely is not.

And of course, since most people don't really understand the concept of civil unions, they aren't going to treat them the same even though the law says they should, as was demonstrated by the woman who couldn't get information on her partner while she was in the ER. Nor was this an isolated incident:
In another case, a witness from Plainfield testified that when he was admitted to a New Jersey hospital for emergency surgery in April 2007, his civil union partner was not allowed to see him, and was removed by hospital security.

The report concludes this section,
This testimony demonstrates that the civil union law has resulted in economic, medical and psychological harm for a number of same-sex couples and their children. This Commission believes that as long as New Jersey maintains two separate systems to recognize the unions of same-sex couples and opposite-sex couples, same-sex couples and their children will face a challenge in receiving equal treatment. Under a dual system, these and future families will suffer economic, medical and psychological harm.

The Commission finds that even if all employers in New Jersey were suddenly to provide benefits to employees in civil unions equal to the benefits provided to married employees - an unlikely proposition in itself - such compliance would not cure much of the inequality perpetuated by the civil union law.

Further, even if some employers were to continue to invoke the federal ERISA loophole under a prospective marriage statute - notwithstanding the evidence from Massachusetts that fewer employers would invoke that loophole - a marriage statute would cure much of the harm perpetuated by the existing civil union law as reflected in the collected testimony.

The report also includes a section on the financial impact allowing gay marriage might have in New Jersey. While I don't disagree, and it might sway some people who otherwise would be unmoved (especially with today's economy), it feels degrading to have an issue of civil rights, equal treatment, and justice for all boil down to "it's profitable." Still, the legislature set this as one of their tasks, so I can't hold it against the committee. Actually, they pointed out something that I hadn't considered. I've heard some people argue against gay marriage because giving benefits to gay couples will raise expenses for the state, so it'll cost more, and that would result in higher taxes. But the report points out that just letting gays marry would probably be cheaper than setting up civil unions:
[M]arriage may lead to reduced costs in some instances. Joseph A. Komosinski, the State Registrar of Vital Statistics, testified that money would be saved because there would be no need to print alternative forms, and there would be one standard procedure for the Bureau of Vital Statistics. Dr. Gabel-Brett noted:
In these financial times, ... why or how can we waste state money, taxpayers' money, making forms, making changes, making a separate structure that has to be administered, for no other purpose than to set people apart?....

Every time you change a state program, whatever it might be, some benefit, some program, some eligibility requirement, you are going to have to change it in two parallel structures. You are going to have to spend more time sending out notices, changing websites, changing computer forms. So it is not going to end."

Finally, the report gets to a section examining the opposition to gay marriage. In response to the old "marriage must be between a man and a woman", they raise this point:
The Commission believes that it is precisely because marriage has a meaning in society beyond the legal concept of marriage that it should be offered to same-sex couples. The Commission has heard time and again how permitting same-sex couples to marry would make a qualitative difference in their lives and the lives of their families and has heard no testimony that allowing these couples to marry would harm opposite-sex couples who are married.


Via Pam's House Blend.

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