04/18/2011 05:52 pm ET Updated Jun 16, 2011

Delaware's New Civil Union Law -- Read It Before You Applaud

The Delaware governor, Jack Markell, is prepared to sign into law a new Civil Union bill, making Delaware the 8th state to pass a law that creates a civil status functionally equivalent to marriage (at least on a state level until DOMA is repealed). These laws have come to be called "Everything but Marriage" laws.

The new Delaware law, unlike the one recently enacted in Illinois, applies only to same-sex couples. So in Delaware different-sex couples get marriage, same-sex couples get Civil Unions. I've blogged earlier about why I think the more inclusive approach to Civil Union laws is a good idea. I don't know the back story in Delaware about why this new legislation was pushed as a gay-only second-best measure, rather than as an alternative to marriage for both gay and straight couples, but it's too bad an opportunity was lost here.

But perhaps even more troubling than the exclusion of different-sex couples, the new law contains several provisions that are affirmatively objectionable. While I don't know for sure, I suspect that these provisions made their way into the law not because the advocates for civil unions lobbied against them and lost, but because they were never objected to at all. Joe Solmonese, the President of the Human Rights Campaign, has blogged with HuffPost in a way that indicates that the bill turned out just as they'd hoped. This illustrates, once again, the limitations on full citizenship and the narrow conceptions of kinship that some advocates of civil unions were willing to put up with in order to gain legal status for some same-sex couples:

  • Becoming civilly unioned is a two-step process. First the couple must obtain a license from a public official (Clerk of the Peace) after having attested to satisfying all of the eligibility criteria (more on that below). Once the license has issued the law states that "A civil union entered into in this State shall become valid only upon completion of a solemnization in accordance with this section." This means you have to have a wedding. You can't just go get civil unioned by proving to a public servant that you are eligible and then walk away with a license. No, after getting the license you must have a ceremony presided over by a person the law identifies as empowered to preside over the solemnizing ceremony (clergy, judge, justice of the peace, a Mayor, or if all else fails the Clerk of the Peace) and the ceremony must take place before two reputable witnesses (for some of us, this may pose a considerable problem). The ceremony doesn't have to be religious ("Solemnization may be entirely secular or may be performed according to the forms and usages of any religious society") but you must have a separate wedding-like event in order for the Civil Union to be valid. Delaware is not alone in requiring a solemnization ceremony, but why reinscribe the wedding ritual in the Civil Union law? Sure, if you want to have a wedding-like event to celebrate your new legal status, go right ahead. But why require it?
  • Of greater concern is the requirement in the new law that if one or both of the parties seeking to be civil unioned is on probation or parole, they must obtain the written consent to the civil union from the chief officer of the court that issued the probation or parole. This provision applies no matter what kind of criminal conduct resulted in the person being on probation or parole -- tax fraud, insider trading, shoplifting, vehicular homocide, illegal steroid use by a professional baseball player (Barry Bonds, look out), whatever. What is more, the law grants the court officer who must consent to the marriage complete discretion in doing so: the officer "shall supply such consent in whatever form such officer deems advisable to such applicants for civil union license as such officer believes may properly enter into a civil union." (Who wrote this stuff?) While it is troubling that persons on probation or parole must go through this extra and quite punitive step in order to gain rights anyone else could access without gaining a public official's consent, there is one objection to this provision that goes to the heart of the civil rights issue the bill is supposed to address. Not too long ago Columbia Law School's Sexuality and Gender Law Clinic was involved in the successful resolution of a lawsuit against the Massachusetts Parole Board. The suit alleged that openly homophobic comments were made by members of the parole board when an openly gay man came before them on a parole hearing. Of course it's not surprising that parole and probation officers might be homophobic -- and the Delaware civil union law now requires gay men and lesbians involved in the criminal justice system to come out to their parole or probation officers and ask for their permission before they can get unioned. It's not hard to imagine that many people will choose not to take the risk of engendering a homophobic response, and possible retribution, from a public official who already has enormous control over your life. A civil union might be nice, but the price might be too high for many, many gay men and lesbians who live under the supervision of the criminal justice systems.

    This provision of the new Civil Union law is so troubling it would be grounds for defeating the bill outright, even though it no doubt repeats language in the Delaware marriage law. To my mind, its presence in this new law favoring same-sex couples undermines much of the civil rights gain the law purports to accomplish.
  • The law repeats incest/filiation taboos commonly included in marriage laws by excluding from eligibility any person who seeks to be civilly unioned with "his or her ancestor, descendant, brother, sister, half-brother, half-sister, uncle, aunt, niece, nephew or first cousin." This is curious since the typical justification for prohibiting marriages between persons of this degree of relation is concern about genetic mutations in off-spring, which concern clearly doesn't apply when the union is between two persons of the same sex. But the incest exclusion is problematic for another reason. Nowhere in the eligibility criteria does the law state that the two parties have to be romantic or sexual partners. One can be civilly unioned with a friend, a colleague, a stranger (anyone watching Grey's Anatomy?), really anyone -- just not a relative. Yet there are thousands, if not millions, of people in the U.S. who live with their sister, their mother, their aunt or some other relative, functioning as domestic partners. These people are unable to have those domestic partnerships legally recognized by the new civil unions law because the law is intended to look as much like a marriage law as possible. What the law doesn't do is take up an idea of family in a larger, more realistic way that captures interdependency rather than old-fashioned notions of the nuclear family (cue Nancy Polikoff here). So, the incest taboo survives to rule another day, and once again limits the rights available in a new, ostensibly progressive, change in the law.

The text of the new Delaware law is here.

Much hand-clapping and hoop-dee-dooing issued from almost every precinct of the lesbian and gay community when this bill was sent to the Delaware governor for his signature. As Lambda Legal's press release put it: "Yesterday, the Delaware House of Representatives voted 26-15 to approve a civil unions bill that will provide same-sex couples who enter into such civil unions the same rights, protections and obligations now granted in Delaware to married couples." The fact that the Civil Unions law grants same-sex couples the same rights, protections and obligations that married couples enjoy is the problem. This law leaves you with the impression that it was written with the aim of merely slipping some same-sex couples into the law, rather than seeking to reform marriage law while doing so. The new law is being celebrated as the next step on the way to full marriage rights for same-sex couples in Delaware. But can't we do better than marriage-lite when we advocate for law reform in this area? The provisions I have highlighted above give us ample reason to be concerned about the social cost of securing legal rights for a narrow group of same-sex couples in Delaware at the expense of many, many others.

Follow the Center for Gender & Sexuality Law on Facebook