What is a Civil Union and CAN they legally be banned?

Most polls show that Americans are generally opposed to SSM but are OK with Civil Unions. But what the hell is a “Civil Union” anyway, and how do we know we’re all talking about the same thing? When the dust settles, what will a typical Civil Union look like? I actually have no idea, so I’m interested in hearing what those who’ve thought about this believe.

Then we have the fact that some of the 11 states which voted to ban SSM also voted to ban civil unions (the wording is usually something along the lines of “marriage or its equivalent”). Some of these amendments will be ruled void since states often require amendments to address only one issue. But beyond that, is it possible to ban civil unions without screwing up contract law in general? Which “incidents of marriage”, if any, would it be simply impractical for a state to ban or that would have severe negative repercussions elsewhere?

Once we answer the question in the 2nd paragraph, does that pretty much tell us the answer to the question in the 1st paragraph? Input from our resident lawyers is especially encouraged!

IANAL but will throw my $0.02 in till an attorney comes around.

I obviously cannot say what a Civil Union will look like but to me it essentially means that a couple legally defines themselves as attached to the state (probably in front of a judge). Once that happens the same, exact rights that automatically accrue to a heterosexual couple who marries applies to the same-sex couple. Even beyond “rights”, the cruddy bits too like the marriage tax penalty. Good or bad they get the lot…inheritance laws, divorce laws, being able to make medical decisions for an incapacitated spouse and so on (long list).

I’m not sure what you mean by “screwing up contract law in general”. One of my brothers is gay and he and his life partner pay VERY close attention to writing up agreements to cover things married couples take for granted (e.g. strict wills defining property ownership should one of them die). My brother is very intelligent and can afford an attorney to help in this. Essentially, he has, wherever possible, written contracts between him and his partner to account for the things that would come automatically were he married to a woman.

Even so, he still runs into issues. His partner was very sick and in the hospital and this particular hospital was decidedly unaccomodating to him. They kicked him out when visiting hours were over (unlike most spouses who are allowed to stay at the side of their loved ones) and hassled him left and right about allowing him to make medical decisions on behalf of his partner when his partner could not do so for himself. My brother had to get attorneys involved the following days but in the meantime the hospital was calling his partner’s estranged parents to make decisions. I should say, it turned out no one had to make a decision for the sick partner…this was drama while it was unclear how things would pan out and the hospital was trying to get its ducks in a row should a decision need to be made but he got better. Nonetheless it highlighted a very real and scary issue to my brother.

So, not sure how contratc law is affected but it seems if you still enter into a contract with another individual than fine. You just have to enter into many, many such contracts to cover what you get for saying “I do” to a consenting person of the opposite sex.

John Mace, your reference to contract law suggests to me that you think civil unions are simply another type of contract. That’s not what people are proposing.

Contract law only binds the parties to the contract, not anyone else. So even if a same-sex couple has a complete 50 page contract that covers everything imaginable, it still wouldn’t put them in the same position legally as a married couple. Married couples have rights that are “good against the world” so to speak. Others have to respect those rights.

Whack-a-mole’s hospital example provides a good illustration. Even if the two individuals sign a contract with each other, saying that each has the right to visit the other in hospital, that only creates a contractual right between the two of them. It doesn’t bind the hospital, which is not a party to the contract. The hospital can just say, “We only allow legally married spouses extended visiting rights. You’re not a legally married spouse, so shoo!”

Similarly, married couples have automatic rights in relation to inheritance and probate laws when the other dies (assuming no wills, for the purposes of this discussion). Other relatives of the deceased usually rank behind the surviving spouse in terms of inheritance and the right to administer the estate, because that’s what the law says. For a same-sex couple, they may try to get the same result by carefully drafted wills, but it’s always open to the relatives of the deceased to try to have the will set aside (e.g. - that legal recognition of same sex relationships goes contrary to public policy). So there’s greater potential for litigation, and not nearly the same certainty in one’s personal affairs that a married couple has.

And, even if it were possible to tie off every possible issue by contract, and make a private contract equally as effective somehow as the marriage relationship, the cost to pay a lawyer to draw up such a contract would be considerable. You couldn’t just boiler-plate it - it would have to be carefully designed for the couple in question. And you’d probably need two lawyers involved, one for each party, to ensure that both get independent legal advice, to ensure that the contract can’t be set aside on grounds of undue influence. All told, likely a lot more expensive than your average marriage licence and civil ceremony.

That’s why civil unions are being proposed, as a matter of state law, as has been done in Vermont: the state has created a new legal category that carries the same legal rights and obligations as marriage. The whole point of such a law is that it’s not dependent entirely on contract law.

But can they be banned? Why not? from some of the posts recently about the s-s marriage initiatives, it sounds like some of them are drawn broadly enough to raise at least an argument that civil unions are now constitutionally banned in some states. Doing that wouldn’t screw up contract law - there’s always been categories of contracts that are considered void for public policy grounds (e.g. - contract between consenting adults to exchange money for sexual services). You can ban certain types of contracts on public policy grounds without changing the fundamental rules of contract law.

First of all - IANAL.

But couldn’t simple contract law get you 95% of the way there? Surely there is no problem with two guys or two gals - whether they are gay lovers or just friends - drawing up wills that give their assets to the other party at the time of death. Your example of the family of the deceased challenging such a will strikes me as a bit of a stretch. I have no doubt that it wouldn’t happen, but wills involving straight couples are challenged all the time by family members when enough is at stake. Nor can I imagine these same couples - whether straight or gay - having a problem with buying property or other assets together, and being equally obligated for the debts incurred.

The example of the hospital visitation and medical decisions, one of the most often mentioned examples in this debate, strikes me as an issue having more to do with hospital bureauracracies than the law. (Warning - I must admit that I’m speaking from ignorance here.) For starters, it is not uncommon for someone in their declining years to give power of attorney to someone else. Normally that is a family member but not necessarily. Wouldn’t that give the empowered person the right to make decisions normally reserved to a spouse?

With respect to the hospital visitations, are there state or federal laws that **require ** hospitals to let spouses stay overnight and **forbid ** others from doing so? I don’t think so (still speaking from ignorance here). I think it’s just hospital policy.

As I said in the beginning, it seems to me that some basic boilerplate contracts would take care of 95% of the issues that normally come with marriage.

I await better legal minds than mine to comment.

The marriage license doesn’t set out the terms of the legal rights.

I see no reason why the states or federal government couldn’t setup a simplied form, bundleing the rights two singles can now contract for by separate written contracts.

Call it sometime benign, like a “Concord Agreement”. The government would have to establish procedures to dissolve the agreement etc but that doesn’t seem too tough. Such an agreement would not have relate to gender or motivation. Unmarried individuals of various sorts could find it useful.

Some of the reamining issues, like joint insurance, federal tax returns could then be fought out on the merits of the individual issue.

Contract law is binding only as between the parties to the contract and their possessions.

I can write you a quitclaim deed that for $10.00 I will surrender to you all my right and ownership in Bricker’s real and personal possessions. I come out of it $10 richer, and you own something of highly questionable worth – since it doesn’t bind Bricker to anything.

That’s the trick – enforcement of the rights of the couple who has established a civil union by contract as against third parties. They’re not interested in establishing rights and relationships legally with each other – they consider themselves partners for life, equivalent to married. What they need to do is to ensure that the effect of the laws of the state and third parties, including relatives that may condemn their union but have legal rights under the law to their property, are bound to respect their wishes.

And at this point, a nasty concept called “public policy” comes into play. If it is the “public policy” of Texas or Idaho not to recognize the contractual relationship between the members of a gay couple, then the best-crafted legal documents can be overturned in a court of law, and anything that those documents purport to guarantee made null and void.

I understand all that. Remember I’m talking about ordinary contract law getting you 95% of the way to a true “civil union”, not 100% there. If Bob wills his earthly belongings to Steve, and Steve wills his earthly belongings to Bob, their respective families may not be happy with it, but how would it not be legally binding?

I have a hard time believing that such a “public policy” law would pass Constitutional muster. Are there actually states that have such laws? Wouldn’t that mean that if a gay couple bought a business or a car together, that any legal documents they signed in the process would be null and void? And since gays can’t be “officially” married how would the state know or determine that they were a “real” gay couple?

There are a few key issues missing from this discussion…

State civil unions cannot provide the following (no claim to be a complete list):

  1. Social Security survivors benefits, or any other federal benefits dependent upon marriage;

  2. The ability to use the married federal income tax rate, which is often beneficial;

  3. The ability to own real property in the form of “tenancy by the entireties,” which provides significant protection for a non-debtor spouse from the debts of the other spouse;

  4. The right to employer-provided pensions, health insurance, etc.; and

  5. Any rights whatsoever if the couple moves to a state without civil unions. bnorton, you misunderstand “public policy.” It is not a particular law per se, instead it is the express or implied policies of the state in question. Every state has “public policy,” and they are constitutional.

Examples - a drug dealer pays for a disability insurance policy. If the drug dealer makes a claim, the insurer could refuse to pay on the grounds that the income insured by the policy was illegal income, and it is against the public policy of the state to encourage illegal activities by allowing them to be insured (even if there is no law explicitly saying so). Or
Two 13-year olds, married, move in to a state from a nation that allows 13 year olds to marry. The state may refuse to recognize the marriage as against public policy.

As there is not constitutional right to a civil union, a state certainly can consider an out-of-state civil union void as against public policy.


SuaSponte - Keep in mind that I’ve hijacked the OP a bit by focusing on how far plain old contract law could get you towards a true civil union. Some of the examples you gave such as Social Security survivors benefits are pretty significant limitations of contract law; others such as the “tenancy by the entireties” not so much.

Thanks for the explanation of the “public policy” concept. I see how it would apply to something like marriage but I’m skeptical that a will, for example, could be made void simply because the parties were gay. Remember I’m talking about using existing laws to *approximate * a civil union.

As I understand it (sorry no cite) France allows civil unions but doesn’t limit them to either gay couples or heterosexual couples. They are open to any two people who have lived together for several years and are simply a method for two people to legally and easily share certain legal rights and responsibilities.

Oscar Madison and Felix Unger (ie “The Odd Couple”, neither of whom had any yearning for carnal knowledge of the other) could have a civil union. So could a widowed mother and her spinster daughter. By opening up civil unions to such relationships it takes gayness and sex out of the question and thereby defuses the opposition by showing that civil unions can be a positive benefit to society as a whole.

The families can challenge the will, and in a disproportionate number of case have done so successfully. (One of our gay members can dig up a dozen or so cites, I’m sure – I’m just very well aware that it’s not at all uncommon to see this happen.)

Also, contemplate something like a living will or a durable power of attorney – that has to be recognized by a third party to have any usefulness.

You would truly be surprised what qualifies under “public policy.” I’ll let one of our strict constructionist attorney Dopers speak to this issue, because I find it hard to talk dispassionately about it.

I’ve mentioned before that, with no heirs but my wife, if anything happened to me and to the wife of the young man I consider son (former ward but no legal or blood relation), I’d seek a civil union with him, not because of sexual desire, but because he and his kids are where I’d want survivor benefits on my pension, any “family medical” rights I might accrue, etc., to go. They are in a very real sense my family. Some but not all of that can be accomplished with a will; part of it takes creating a civil union to accomplish.

Suffice it to say that lawyer who can’t figure out a way to use such a “public policy” to get stuff without paying for it, etc, needs to take a few more weasel lessons.

But families can challenge a will even if it were part of a codified civil union, and I suspect that in the case of gay partners the families would be more successful than they would be in challenging straight partners just because of the ick factor.

With respect to the young man you consider your son, would some sort of adoption process serve your purposes?

Fair enough. However, just so you know, non-married parties cannot contract to own a property by tenancy by the entireties. It is exclusively reserved for married couples.


The point is in what the state regards as “acceptable behavior” – legally recognizing a civil union means that the presumption is that the partners are acting within the scope of the state’s public policy in making each other their heirs. In a state that has prohibited “same-sex marriage or the equivalent” the presumption is that the state frowns on relations of this sort, so the challenge is much more likely to be upheld as challenging something contrary to the state’s public policy.

There’s a company here in North Carolina, selling table services, porcelain collectibles, and flatware, owned by a gay couple, who have become relatively wealthy from it. If they were in Vermont or Massachusetts, their wills would be effectively unassailable – they’ve formed a legally recognized relationship within the scope of the state’s public policy. But North Carolina does not recognize gay couples, and hence their relationship is not within its public policy – which means that their legal next of kin is not their life partner but a relative, who may well have disowned them as “living a perverted lifestyle” but who has legal standing to challenge and overthrow the will of his relative.