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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 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.

Nuts & Bolts: How to Get a License, continued:

The essential requirements for entering a civil union are:

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.

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
Lambda Legal Defense and Education Fund
National Headquarters
120 Wall St., Suite 1500
New York, NY 10005-3904
www.lambdalegal.org  212-809--8585
ACLU Lesbian and Gay Rights Project
125 Broad St., 18th Floor
New York, NY 10004-2400
www.aclu.org  212-922-800

 

Forwarding Message From Bob Pillegi at LLDEF


PDF (Adobe Acrobat Reader) versions of this document are currently available at http://www.glad.org/ and at http://www.lambdalegal.org/

Feel  free  to use the publication in responding to local inquiries, or for distribution to others.

Civil  Unions  are  an incredible step forward toward full equality and the freedom  to  marry!   Your  continual  engagements  with non-gay allies and community  leaders  will  keep  us  moving there.  For more info and action steps  on  fighting  for the freedom to marry, and for a National Overview, visit Lambda's Marriage Project action page at:
http://www.lambdalegal.org/cgi-bin/pages/documents/record?record=531

Bob Pileggi, Legal Assistant
The Marriage Project
Lambda Legal Defense and Education Fund
120 Wall Street, Suite 1500, New York, NY 10005
212.809.8585 / 212.809.0055 fax
marriage@lambdalegal.org
http://www.lambdalegal.org