Perhaps Not. Perhaps So.
That is not the question the Assembly should be considering when deciding the fate of the Marriage Equality and Religious Exemptions Act
The heart of the argument for same sex marriage advocates is that civil unions have not worked in establishing the rights and benefits that married couples enjoy to same sex committed couples, as the New Jersey Supreme Court ordered.
The anecdotal evidence that the gay community has provided to “prove” that civil unions don’t work has been compelling enough to cause some state legislators to change their position on same sex marriage since the issue was voted on in the Senate in 2006. Senator Shirley Turner voted YES for the marriage equality bill yesterday. She told Politickernj,
“I was wrestling with this,” said Turner, who was the 24th”aye” vote. “I felt we could accomplish it with civil unions but from what I have been hearing from gays and lesbians, they have been telling me it was not working. They were not being treated as equals, and I don’t want anyone being treated unequally.”
Assemblyman Peter Barnes, the chairman of the Judiciary Committee, is a Catholic who was previously opposed to same sex marriage. On February 2 he voted with his committee, 5-2, to move the Marriage Equality and Religious Exemptions Act to the full Assembly.
Barnes said it was the job of legislators to “tackle the difficult issues, whether we agree or disagree,” and his Catholic faith had put him at odds with this issue. Barnes told Politickernj,
“As a Catholic, as I really struggled with this over the past (few) years,” he said. “Tradition has not always been good, and it has not always been fair. Tradition can’t control our vote.”
“I will absolutely be voting for this out of committee today, and I am absolutely leaning in favor of voting for this on the floor,” Barnes said. “The civil union is not working…I don’t think reasonable minds can even disagree on that.”
“The civil union is not working….I don’t think reasonable minds can even disagree on that.”
A reasoning mind, which is very different from a reasonable would want more than heart wrenching stories and anecdotes from advocates before concluding that “the civil union is not working.”
One could easily make a reasonable argument that the civil union has worked. There were 5,790 civil unions registered from 2007 through 2011 and less than 20 civil rights complaints. If judged only by those statistics, a reasonable mind would conclude that civil unions have worked extraordinarily well.
But that is a reasonable conclusion, not a reasoning conclusion.
Patrick Murray, the Monmouth University pollster, blogged:
The New Jersey Supreme Court declared that the state must provide and protect identical legal rights for civilly joined same sex couples as it does for married heterosexual couples. Same sex marriage advocates argue this hasn’t happened in practice under the state’s civil union law. They have provided witnesses who give compelling stories of instances when their rights were denied. Opponents have argued these are isolated instances that can be corrected with improvements to existing law.
The researcher in me says there is a pretty easy way to determine this. Take a random sample of same sex civil union couples and a matched sample of heterosexual couples married at the same time and survey them. If the former group has had significantly more problems with health insurance, parental rights, having next of kin rights honored, etc. – then the argument that civil unions don’t meet the Court’s mandate would be strong. If not, perhaps the incidents are isolated and modifications to the current bill are all that is needed. This is something that should be examined honestly by our three governmental branches.
Murray’s methodology would bring far more reasoning to the debate than there has been to date. Such a study would be examined honestly by our three governmental branches, if they were serious about the issue and not playing politics. If Murray or another pollster could construct a poll that tested the veracity of the respondents while collecting the data, such a study would be very useful.
Yet, such a study would not resolve the issue.
If the study concluded that civil unions are working, gay marriage advocates would emphasize other arguments, “separate but equal” perhaps, in their fight to have their relationships called marriages.
If the study concluded that civil unions are not working, the reasonable approach, the approach that gay marriage advocates are pushing and reasonable minds are falling for, would be to call the relationships marriages.
A reasoning approach, assuming the objective is equal rights and benefits, would be to study why civil unions haven’t worked. Assuming that the relationships will not continue to suffer the inequities conveyed in the anecdotal stories the legislative committees have relied upon as evidence that civil unions are not working is not reasonable or reasoning. Changing the name of the relationships from civil unions to marriages will not be a panacea.
Civil unions were a completely new distinction in 2007. Employers, hospitals and others who have “caused” the inequities or inconveniences that same sex couples have suffered did not know what civil unions were. The forms that triage nurses used to admit patients into hospitals and the human resource personnel used to process employees did not have a box to check that said “civil union.” There was one heart wrenching story of a New York doctor saying “What the heck is that?” to a partner of a trauma patient explaining his relationship as next of kin. The doctor didn’t buy or understand that the partner was next of kin to his patient and the patient’s sister had to travel from Delaware to authorize “emergency” treatment. There will likely be other doctors who say “What the heck?” when a partner says “I’m his husband” when arguing that he is authorized to approve treatment.
Same sex couples argue that they shouldn’t have to carry official paperwork that explains and proves their relationship anymore than married couples should have to. All it will take is one multi-million dollar suit involving a partner who lies about martial status to authorize treatment that goes wrong before hospitals require all couples, gay or straight, to produce there relationship certificates before treating incapacitated patients.
“Why haven’t civil unions worked?” if they haven’t, is both a reasonable and reasoning question that should be asked if the objective of the Legislature is to ensure that same sex couples have equal rights.
There has been no effective method to ensure that civil unions work.
Garden State Equality, the gay advocacy group leading the way to same sex marriage has not wanted civil unions to work. They encourage their members to report discrimination to on their website. They don’t encourage civil rights complaints to the authorities. That explains why there is so much anecdotal evidence that civil unions don’t work and so few complaints.
Steve Goldstein, CEO of Garden State Equality, was Vice Chairman of the Civil Union Review Commission that concluded in 2008, one year after the civil union law became effective, that civil unions don’t work. Goldstein’s participation on the commission was clearly a conflict, especially in light of his work to ensure that civil unions not work by using stories of discrimination to advance his same sex marriage agenda and by encouraging his members to report discrimination to Garden State Equality rather than the Division of Civil Rights.
The question for legislators in the Assembly considering the Marriage Equality and Religious Exemptions Act should not be “Have civil unions worked?” Despite the reasonable evidence that they have worked—so few complaints with the Civil Right Division—there will be much work to do to ensure the civil rights of same sex couples even if their relationships are called marriages.
The question before members of the Assembly should be “What is marriage?”