Now That DOMA Is Dead, What Happens To Civil Unions?

Facebook ad by Illinois Unites for Marriage illustrating the inequality of civil unions

The Supreme Court’s ruling Wednesday striking down the Defense of Marriage Act (DOMA) as unconstitutional means that married same-sex couples in 13 states and the District of Columbia will be entitled to full federal recognition of their unions. But because the ruling only applies to marriages, those couples in states that only allow civil unions or domestic partnerships will now find their recognition even more unequal.

Currently, Colorado, Hawaii, Illinois, and New Jersey allow civil unions but not marriage equality. While Colorado has a marriage inequality amendment in its state constitution, efforts to expand to full marriage have stalled in the other three states. Nevada and Oregon offer broad domestic partnership protections, also short of marriage and unrecognized by the federal government.

While legally married same-sex couples will now have access to hundreds of federal rights — including Social Security benefits, joint tax filing, family leave, and Green Cards for immigrant spouses — none of those rights will be available to couples in civil unions or domestic partnerships.

Some state legislators have, to date, justified their opposition to marriage equality by suggesting that civil unions accomplished the same thing. Illinois State Rep. Sue Scherer (D), told the State Journal-Reigster in January that she was not ready to back marriage equality because, “We worked long and hard at a bill out there for civil unions [and] I think we need to let that work through the system.”

And New Jersey Gov. Chris Christie (R), who vetoed a bill to allow same-sex marriage last year, attempted to couch his opposition claiming, “I think we can have civil unions that help to give the same type of legal rights to same-sex couples that marriage gives them.”

While the importance of the name “marriage” to same-sex couples always left civil unions and domestic partnerships a second-rate option, this ruling now demonstrates that — legally speaking — they do not confer equal rights.

In an interview earlier this month, Garden State Equality founder Steven Goldstein told ThinkProgress that some New Jersey legislators may see the DOMA ruling as the final push they need to back civil marriage. “I hear from legislators all the time,” he said, “who are on the fence or are pro-equality but haven’t voted that way in the past, who are looking for a new external reason. They’re proactively mentioning DOMA.”

But if the legislative process does not bring marriage equality to these states, the judiciary might. New Jersey’s Supreme Court ruled in 2006 that while same-sex couples were fully entitled to “the rights and benefits of civil marriage,” it would leave to the “democratic process” what to call those rights. Under that standard, the state’s civil unions law is now clearly in violation of the state constitution.