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Geoffrey R. Stone

Geoffrey R. Stone

Posted April 5, 2009 | 05:12 AM (EST)

Civil Unions in Illinois: One Small Step


By a vote of five-to-four, an Illinois House committee on Thursday approved House Bill 2234, the Religious Freedom and Civil Union Act. If adopted, the Act will provide those individuals who enter into civil unions, including both same-sex and opposite-sex couples, with "the same legal obligations, responsibilities, protections, and benefits" as are afforded by Illinois law to married individuals. What were the four representatives who opposed the Act thinking? After all, we let murderers, pedophiles, drug dealers and rapists get married. But they don't want to let people who love and care deeply for each other, people who have led good and decent lives, even to have civil unions - because they are gay? What could they possibly have been thinking?

It's possible, of course, that they thought they were merely supporting the views of the majority of Illinoisans. After all, we live in a democracy, so it is only natural that elected representatives should follow the wishes and preferences of their constituents. On this view, their votes were an example of democracy in action. Think again. Every public opinion poll in recent years shows that a substantial majority of Americans favors the recognition civil unions (if not same-sex marriage). Indeed, a compilation of a dozen such polls, ranging from Fox News, to Gallup, to Newsweek, to CBS, to ABC/Washington Post, to Quinnipiac, reveals that Americans favor the legal recognition of civil unions by an overwhelming 60% to 34%.

Of course, it's possible that Illinois is out of the mainstream. Perhaps these legislators are reflecting the views of Illinoisans rather than of Americans. But that seems hardly plausible in a state that is today one of the bluest in the nation - a state with two Democratic senators, a Democratic governor, 58% of whose House members are Democrats, and that also happens to be the home of Barack Obama. But perhaps being a Democratic is not a good proxy for a citizen's views on the issue of civil unions. Think again. In fact, Democrats favor the legal recognition of civil unions by 63% to 32%.

But elected representatives are not always supposed to represent the views of the People. Sometimes, we hope they will be independent and even courageous. Sometimes, we hope they will protect us against our own biases, prejudices, and intolerance. Sometimes, we hope they will live up to our highest ideals and aspirations, even when a majority of us have lost sight of those values. Sometimes, we hope they will be better, wiser, fairer than We the People.

Certainly, there are some admirable examples of such principled and courageous behavior by elected representatives. Those officials, for example, who opposed racial segregation, challenged laws forbidding miscegenation, criticized denial of the right to vote for women, condemned the internment of Japanese-Americans, or voted against the Patriot Act -- even in the face of overwhelming majority will -- were truly heroes of our nation. They were far-sighted men and women who saw beyond the horizon in order to champion our most fundamental commitment to equality, due process of law, and individual liberty.

Are the four Illinois representatives who opposed the Religious Freedom and Civil Union Act American heroes of this ilk because they stood fast in the face of the majority will? Merely to ask the question is laughable. They are not far-sighted, but blind to our nation's values and to its constant striving for moral progress. They cling to a closed-minded "tradition" that is no more consistent with American's principles of equality and individual dignity than those who defended segregation, miscegenation, and the view that a woman's place is in the home rather than in the voting booth.

They will be, and already are being, run over by moral progress. The same polls I invoked earlier demonstrate the nature and magnitude of that progress, for Americans under 30 favor the legal recognition of civil unions by a resounding 67% to 27%. Even more dramatically, among my students at the University of Chicago Law School and the NYU School of Law in a course on Constitutional Decisionmaking, 94% assert not only that the law should recognize civil unions, but that the denial of same-sex marriage violates the United States Constitution. Of course, the young are not always right. But sometimes they can see more clearly than those of us who remain dully set in our ways, even when those ways are rigid, simplistic, ignorant, and cruel.

What does explain the four Illinois representatives? Perhaps it is mere political partisanship. After all, Republicans oppose the legalization of civil unions by 46% to 50%. But that's hardly an overwhelming majority. That split might explain why some Republicans would oppose civil unions, but it certainly doesn't explain lockstep partisan voting.

A more likely explanation, I suspect, involves religion. It is clear from the polls that the vast majority of those who oppose same-sex marriage and civil unions do so for religious reasons, and freely admit to this explanation. Indeed, the groups most vehemently opposed to civil unions are white Evangelicals (29% to 67%) and those who claim that they attend church every week (36% to 57%). But religion is not a sound basis for making law in a free society committed to the separation of church and state.

On the subject of separation of church and state, it is worth noting that the Act is self-consciously titled the Religious Freedom and Civil Union Act, because it expressly states that nothing in the Act shall interfere with "the religious practice of any religious body" or compel any religious body "to solemnize or officiate a civil union." That does respect the separation of church and state. What does not respect that profound American principle is the insistence of some religious bodies on telling other religious bodies - and the state - what they may and may not legally recognize.

For these four representatives to vote to deny individuals the fundamental freedom to form legally-recognized civil unions because a minority of citizens opposes that policy for religious reasons is simply a disgrace. I want to propose a thought experiment for them. Imagine it is twenty-five years from now and you are fortunate enough to be having a conversation with your grandchildren or great-grandchildren. They ask you whether you ever voted, back in the old days when you were in the Illinois legislature, on the issue of civil unions. What answer will make you shrink in their eyes?