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Tuesday, September 20, 2005

Civil Unions and Full Faith and Credit

As many of you know (particularly if you are avid readers of this blog), Connecticut recognizes same sex civil unions.  These unions are virtually identical to "marriage" (for state purposes), with some minor (though not unimportant) differences.

Connecticut Attorney General Richard Blumenthal issued an opinion today regarding recognition of same-sex relationships from out of state.  The short end of the stick is that Connecticut will recognize Vermont and California civil unions (whatever official names they go by), but not Massachusetts same-sex marriages.

The basic reasoning:

  • At present, our courts will conclude that Connecticut law and the Full Faith and Credit Clause of the United States Constitution require Connecticut to recognize Vermont civil unions and California same-sex domestic partnerships. Other out-of-state, legally authorized same-sex domestic partnerships may be recognized as civil unions in Connecticut depending on how specific provisions of other States' laws compare to ours.
  • . . . .

  • The Connecticut General Assembly has specifically determined that same-sex marriages are contrary to Connecticut law. Because the legislature has determined that marriages in Connecticut may only be between a man and a woman, same-sex marriages performed under laws of any other State violate Connecticut's expressly articulated public policy and are not required by the Full Faith and Credit Clause of the United States Constitution to be recognized here.
  • Putting aside whatever you think about same sex marriage in general (I'm in favor, as I've said many times), and the constitutionality of bans on same sex marriage (I'm torn), and focusing just on the intent of the Connecticut legislature, I think this does make some sense.

    I wonder, however, if it would make more sense for same sex couples married in Massachusetts to automatically attain the status of "unioned" in Connecticut.  It seems to me that while the Connecticut legislature did not want to recognize same sex marriages, it clearly did want to convey the benefits and responsibilities associated with marriage on same sex couples who committed themselves in the manner we normally associate with marriage.  So why not just convert the marriages to civil unions at the border? 

    There is an argument that it would be the province of the legislature to make that call; but remember that Attorney Blumenthal is advising State employees and residents as to how the legislature's words should be implemented in this case.  Converting foreign same sex marriages to the local category of civil unions seems as plausible (not to mention efficient) as refusing to recognize them altogether.

    Posted by Hillel Levin on September 20, 2005 at 05:23 PM in Hillel Levin | Permalink


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    I've made essentially the same points on the blog and elsewhere in the past--that we need to divorce (pardon the pun) marriage from civil unions, either legally or just conceptually.

    This post was meant instead to deal with the practical status quo: Given the legislature's action, what is the most reasonable way to proceed?

    Posted by: Hillel Levin | Sep 21, 2005 4:58:12 PM

    WOuld it not make sense for state legislatures to recognize that "marriage" is a religious institution, and that taking demographic information, passing out licences, and regulating divorce is a civil function resulting in (or dissolving) a "civil union".

    The whole confusion of the subject and a great deal of fire in the disagreements, comes from the wrong impression created in the public mind that a State makes people religiously married and subject to the judeo christian limitations on that institution.

    Posted by: TomH | Sep 21, 2005 3:51:17 PM

    That's the first I've heard of where a state has actually formalized the distinction between recognizing out-of-state "unions" versus "marriage." Is there any difference between the Massachusetts marriages and the Vermont unions? And, if not, anyone think that drawing the distinction fails the Lemon test?

    Posted by: Paul Gowder | Sep 20, 2005 6:10:39 PM

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