A Historic Victory: Civil Unions for Same-Sex Couples -- What's Next!

In a momentous legal victory, same-sex couples will be able to enter into "civil unions" in the State of Vermont beginning July 1, 2000. Thanks to the Vermont Supreme Court's ruling in December 1999, and the enactment of the civil union law in response to the decision, same-sex couples now have the option of forming a civil union. Whether you should enter a civil union, and what it all means, are questions this publication is meant to address.

In the midst of such unprecedented legal change, Gay & Lesbian Advocates & Defenders, Lambda Legal Defense & Education Fund, the American Civil Liberties Union Lesbian & Gay Rights Project, and the National Center for Lesbian Rights have compiled this pamphlet to help lesbian and gay couples considering entering into a civil union.

Inevitably you will have questions to which there are simply no definitive answers at this time. In a moment of social change like the present, there are no guarantees and those who come forward and participate in the civil union process will be "pioneers" of a sort. Those of you who enter into civil unions also will be "ambassadors" by showing the non-gay world that our families exist and need the protections of law many other families take for granted.

What is a Civil Union?

A civil union is a comprehensive legal status parallel to civil marriage for all purposes under Vermont state law. As of July 1, 2000, a same-sex couple from any state -- where each person is at least age 18, competent, and not closely related by blood -- may apply to Vermont town clerks for a civil union license, have that license "certified" by a judge, justice of the peace or willing member of the clergy, and then receive a civil union certificate. This process parallels Vermont law on entering into a civil marriage.

According to the Vermont civil union law, spouses in a civil union will enjoy the same state law protections and responsibilities as are available to spouses in a marriage. Thus, under Vermont law, all legal rights which apply to "family," "immediate family," "dependent," and "next of kin" also apply to spouses in a civil union. The civil union law is supposed to be "construed broadly in order to secure eligible same-sex couples the option of a legal status with the benefits and protections of civil marriage...."

There will be questions about how other states and private parties will treat the civil unions of non-Vermonters, or of Vermonters who simply travel to another state. These are addressed below.

Legal Status of Vermonters Entering into a Civil Union

Vermonters who enter into a civil union with a same-sex partner will be treated as married for purposes of the laws of Vermont. They will go from being "legal strangers" to being "legal next of kin" as described above.

The protections in the Vermont civil union law include preferences for guardianship of and medical decision-making for an incapacitated spouse; automatic inheritance rights; the right to leave work to care for an ill spouse; hospital visitation rights; control of a spouse's body upon death; the right to be treated as an economic unit for (state) tax purposes under state law; greater access to family health insurance policies; the ability to obtain joint policies of insurance and joint credit; parenting rights; and the right to divorce and to an ordered method for ascertaining property division as well as child custody and support. The law applies to private parties (like banks and insurers) as well, and discrimination against parties to a civil union is considered both marital status and sexual orientation discrimination.

Legal Status of Non-Vermonters Entering into a Civil Union

Same-sex couples from outside Vermont can also enter into valid civil unions in Vermont. What is less clear is the status of their civil unions in their home states. The legal commitment of couples who have entered civil unions deserves respect. Same-sex couples and their families need the same kinds of assurance as non-gay couples that their legal relationships are secure when they cross state lines. We think spouses in a civil union should be accorded the rights, protections and responsibilities accorded by state law to spouses, families, dependents and next of kin under each state's laws. Even though a couple in a civil union cannot claim to be "married," they can claim to have a civil legal status that is equivalent to civil marriage in order to secure access to the same laws.

We hope and expect that many private entities will treat parties to a civil union as married, or eligible for the rights and responsibilities of married people. The private sector will not likely respond with one voice. There will likely be some confusion about your legal status for banks, schools, retirement plans, credit card companies and in other transactions. Even though some states and other public entities will discriminate, we hope that some will not, and that they may come to recognize civil unions for some purposes even if not for all purposes. And of course, there are powerful arguments that civil unions should be given effect by all states.

What Would It Mean If My Partner and I Enter into a Civil Union?

If you have ever thought about getting married, you may now be thinking about entering into a civil union. It is an important commitment and should be considered carefully. It will have implications for other parts of your life. Since a civil union is supposed to confer all of the state law-based benefits, protections and responsibilities of marriage, entering into that status could affect many aspects of your public and private life.

Consider these few issues:

• Once you are spouses in a civil union, you are not "married"; but you are not "single" either. There are many forms (tax, insurance, memberships) which require you to select either "married" or "single." These limited options will pose challenges for everyone, and it will be important to state consistently that you are not "single." At the same time, you may experience discrimination and be denied the protections accorded to "married" people in some circumstances, particularly if you are not in Vermont. You may need to ask that a new box be created to describe your marital status.
• Under Vermont law, a civil union can be terminated in Vermont only if at least one of the parties is a resident for a year. Other states may or may not allow you to "divorce" under their state law. If they do not, the only way to terminate your civil union may be to move to Vermont and meet the residency requirement, or perhaps to another state which provides access to divorce for spouses in a civil union.
• Entering into a civil union may affect your ability to adopt as a "single" person both domestically and internationally. It may affect other parenting rights, too.
• The military still provides that an "attempted marriage" to a person of the same sex is a ground for discharge, and may view a civil union as the equivalent of a marriage for these purposes. In other words, entering a civil union is likely to violate the "don't tell" provisions of the military's anti-gay policy, and cause separation from military service for that reason.
• If an employer-sponsored domestic partnership plan requires you to be "single," then questions may arise as to your eligibility to participate. If it only requires that you be "unmarried," you could honestly state you are not married.
• Some states require married partners to support their spouses, and the same should be true of parties to a civil union. A civil union may well trigger community and marital property provisions which would apply at divorce.
• Some states also require spouses to assume the other spouse's debts to creditors, and this might apply to spouses in a civil union.
• If a person receives government assistance from a program which looks at your income, once you have entered a civil union, they may also take into account your spouse's income. This may affect your continued ability to receive benefits.
• People who receive pension, retirement or disability benefits through a formerly deceased spouse may no longer have access to those benefits once they enter into a civil union with a new spouse.

It is critical that you make an informed choice about whether to enter into a civil union based on your relationship with your partner and the unique circumstances of your life. Call the organizations listed in this brochure and near your home state for help finding a "gay friendly" attorney in your home state.

What is the Effect of a State's So-Called "mini-DOMA" Law on a Civil Union?

In our view, the existence of an anti-marriage law, or so-called "DOMA" (state "Defense of Marriage Acts") does not foreclose your state from providing legal protection to spouses in a civil union. Those laws forbid marriage of, or the recognition of marriages of, same-sex couples. It follows then that this does not exempt a state from recognizing the civil unions, or the "family" or "next of kin" or "dependent" relationship of the spouses in a civil union. In other words, even if a state has withheld the word "marriage" from same-sex couples, it is fair to argue that it has not withheld and may not withhold the state-created rights and benefits of marriage from those families.

Moreover, anti-gay and anti-marriage laws fly in the face of numerous constitutional guarantees. We cannot guarantee that all courts or policy makers will see this issue the way we do, but the record is replete in most states with these laws that they were trying to prevent same-sex couples from marrying, and were not withholding rights, protections and responsibilities from gay and lesbian couples. We regard these laws as unconstitutional and are carefully considering how best to secure their elimination over time.

These states have anti-gay, anti-marriage laws

(as of June 20, 2000)

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Michigan
Minnesota
Mississippi
Montana
North Carolina
North Dakota
Oklahoma
Pennsylvania
South Dakota
Tennessee
Utah
Virginia
Washington
West Virginia

How Can I Best Protect My Family?

All persons who enter into a civil union -- whether Vermonters or not -- should still maintain wills, powers of attorney, health care proxies, and partnership and parenting agreements to safeguard their families during this period of uncertainty. If second parent adoption or co-guardianship is an option in your state, it is still critical that you protect your relationship with your children by going through that process. Call any of our organizations for help finding an attorney who can help you.

Legal Status of A Civil Union Under Federal Law

Just as Vermont is powerless to change the law of other states, it is powerless to affect federal law on its own. For now, because of the so-called federal Defense of Marriage Act (DOMA), the U.S. government almost certainly will claim it need not recognize the civil unions of same-sex couples under 1,049 federal laws, benefits, programs, rules and regulations which apply to spouses in a marriage. This includes areas such as federal taxes, social security, and immigration among many others.

Your Role: Changing People's Minds

Bringing an end to our country's discrimination against same-sex families, civil unions, and marriages of lesbian and gay couples will take work both inside and outside legislatures and courtrooms. Every couple with a civil union certificate will be a living, breathing example to their families, neighbors, employers and communities -- changing the minds of people around them as people have done for the last 30 years by "coming out of the closet." This process, taking place across the United States, is as important as the legal and legislative work. In deciding to hold themselves out as the equivalent of a married couple, same-sex couples with civil unions will be on the front lines of social change.

Nuts and Bolts: How to Get a License

According to the Office of the Vermont Secretary of State, both members of a couple seeking a civil union need to go to a town clerk's office in any Vermont town. Vermonters need to go to the town clerk's office where one of them resides. The civil union application needs to be filled out and signed by both members of the couple. No blood test or medical exam of any kind is required. The license costs $20. Once processed by the town clerk, the application becomes a civil union license. Once certified by an "officiant," i.e. a judge, justice of the peace or clergy member, the license becomes a civil union certificate.

After receiving the license, the couple has 60 days to enter into a civil union. The license can be certified anywhere in Vermont whether the couple resides in Vermont or not. Once the license is certified, the officiant has 10 days in which to "file the certification" which then makes the status legally binding. The civil union is also "filed" and the record of the civil union is a public record available to anyone who asks for it (for a fee) from the town clerk's office or the Office of Vital Records in Vermont. The State will list the Secretary of State's office address as the residence for people who request this privacy measure because of a domestic violence or stalking threat.

The essential requirements for entering a civil union are:

• the couple must be of the same-sex;
• both parties must be 18 years of age;
• neither party may be so closely related that they would be barred from marrying;
• neither party may be in another marriage, civil union or reciprocal beneficiary relationship; and
• both must be of sound mind. If someone is under another person's guardianship, the guardian may consent to the civil union as long as the person is 18.

The application requires the applicants' ages and places of residence and the town clerk can request proof of both of these things, as well as divorce certificates from previous marriages, civil union dissolution papers, or the death certificate of a previous spouse if relevant. A driver's license should be adequate proof for age and residence. The application also asks for their parents' names and places of birth, though no proof is required for this information. Applicants must also answer questions about their race, occupation, total number of marriage or civil unions, how each of these marriages or civil unions ended, and each applicant's level of education. This information is not included on the civil union certificate and is kept confidentially at the Health Department for statistical purposes.

Clergy members from outside Vermont who want to perform civil unions there may become authorized to do so by going to a probate court and showing their credentials to the judge. Some courts may be willing to authorize out-of-state clergy through the mail.

The State of Vermont is currently preparing an explanatory document about the civil union process which they will be distributing to town clerks and other state officers. Couples can and should read it carefully at the town clerk's office before they apply. Among other things, it emphasizes that a person will need to be a resident of Vermont for six months in order to apply for a dissolution in that state, then remain a resident for another six months until the dissolution is made final.

Fighting Discrimination Against Civil Unions

Discrimination against lawful civil unions is wrong. We hope that all discriminatory anti-marriage laws (which we think don't apply to civil unions) will be repealed, and that other states will adopt civil union legislation or amend their marriage laws. If you need help to fight against anti-gay discrimination related to civil unions or marriage, contact one of the organizations listed in this publication. We invite you to join us in making this happen.

This is a thrilling victory -- and undoubtedly the beginning of a new era, but there's a need for patience, planning and strategic thinking in the work ahead for all of us. We are in a long term civil rights struggle. There is no quick fix for the discrimination we will encounter. The struggle to gain acceptance and to dismantle the legal regime erected against our families will take time.

Legal advocates do not recommend that lawsuits be filed in most instances of discrimination. We must proceed collectively and carefully, moving forward the best cases in the best places at the best times. The organizations listed below, in partnership with local lawyers, are happy to talk about the kinds of problems you are facing so that we can position ourselves with those few cases which will best move us forward toward full citizenship and equality.

There are valuable roles to play apart from litigation. The discrimination you face can be turned into a valuable educational tool when you share that experience with your community and with policy makers. We all need to talk with our elected leaders as well as our neighbors to persuade them that recognizing the "common humanity" of gay people (as the Vermont Supreme Court put it) and same-sex families is fair, necessary for strong families, valuable for communities and solid public policy. Join us in our collective work to win the Freedom to Marry, recognition and protection of all families, and full equality under law.

Lambda Legal Defense and Education Fund
National Headquarters
120 Wall St., Suite 1500
New York, NY 10005-3904
www.lambdalegal.org
212-809-8585

Gay & Lesbian Advocates & Defenders (GLAD)
294 Washington St., Suite 740
Boston, MA 02108
www.glad.org
617-426-1350

National Center for Lesbian Rights (NCLR)
870 Market St., Suite 570
San Francisco, CA 94102
www.nclrights.org
415-392-6257

ACLU Lesbian and Gay Rights Project
125 Broad St., 18th Floor
New York, NY 10004-2400
www.aclu.org
212-922-800