Legal

Same Sex Is The State Of Marriage In The State Of California

port1080.

Posted to Legal on Fri May 16, 2008 at 11:30:18 AM EST (promoted by 1fastdog). RSS.

California's Supreme Court has ruled that a voter-approved referendum banning homosexual marriage was unconstitutional, setting the stage for its complete legalization in the most populous US state. The ruling came even though California already allows gay couples to enter into civil unions which, under the law, had all the same rights, privileges, and obligations of heterosexual marriage.

With this ruling, California joins Massachusetts as the second state to legalize same sex marriage. In addition New Jersey, Connecticut, New Hampshire, and Vermont all have civil union laws (and Hawaii, Maine, Oregon, and Washington recognize "domestic partnerships"), although some of those states (as California had) combine those laws with an absolute ban on same-sex marriage. With the addition of California, about 69 million people (slightly less than 1/4 the population) live in US states where same-sex relationship receive some sort of legal recognition. On the other hand, almost all the rest of the states have passed statutory or constitutional laws which explicitly ban same sex marriages.

Can this situation of legal limbo persist indefinitely? Homosexual couples getting married in California or Massachusetts move into a legal limbo if they move into any other state, and face little legal protection in cases of separation or divorce. The situation becomes even more complicated in cases where the federal government is involved (such as taxes, federal prisons, etc.) as the federal government does not recognize same sex marriages. The 1996 Defense of Marriage act attempted to codify this ambiguous situation by not requiring states to recognize same sex marriages performed in other states; although the law is constitutionally questionable, so far the US Supreme Court has declined to rule on it one way or the other. In any case, the question is still not settled even at the level of the states which have legalized same sex marriages; groups in both Massachusetts and California continue to agitate for constitutional amendments to bay gay marriage and overturn the court decisions which legalized it in their states.

Tags: written by port1080, edited by 1fastdog, California, same sex marriage, legal (all tags)

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1

Here we go again

gerrymander.

Fri May 16, 2008 at 12:10:01 PM EST

5.00 (astute)

If nothing else, this ruling will help the Republican "get out the vote" campaign. Pass or fail for the proposed "one man, one woman" amendment in November, California just became a swing state.

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Nationally, neither party has a dog in this hunt.

MayorBob.

Fri May 16, 2008 at 12:41:45 PM EST

5.00 (informative, astute)

If you take a look at what Clinton, McCain and Obama have said about gay marriage, it's pretty much that they are opposed to it. All three say they believe gays should have the same legal protections as heterosexuals which can be rendered under civil unions. All three have said the question must be left up to the states to decide. Plus, as far as it being a campaign issue which brings out Republicans in droves, it's noteworthy that Governor Schwarzenegger (who has vetoed two bills which would have legalized gay marriage) has said he would not be in support of the proposed amendment. I'm not seeing the electoral vote just tipping in McCain's favor over this. Not with the main issues at the top of the national ticket being the war and the economy. I have a feeling this nation is about gay marriaged-out, pro and con, and has other, more pressing concerns.

Illegitimi non carborundum.

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Arnold

profwhat.

Sat May 17, 2008 at 07:29:33 AM EST

5.00 (astute)

And now Gov. Arnold Schwarzenegger says he supports the court's decision and will also campaign against the constitutional amendment to ban marriage.

His views are complicated but not necessarily contradictory.  When he vetoed the bills creating gay marriage, he explained that he didn't think he could do it -- because of the voter initiative.  Now that the initiative is no more, he's free to support it.

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Re: Nationally, neither party has a dog in this hu

pO157.

Sat May 17, 2008 at 09:00:14 AM EST

none

If you take a look at what Clinton, McCain and Obama have said about gay marriage, it's pretty much that they are opposed to it.

Until polls indicate 70-80% of the electorate wants gay marriage approved then watch Clinton et al flip.

I have a feeling this nation is about gay marriaged-out, pro and con, and has other, more pressing concerns.

Like flag pins? I hate to be so glib, but there were pressing concerns in the '04 election but most of the street level political discussion I heard at the time centered around whether or not Kerry earned his war medals.

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Re: Nationally, neither party has a dog in this hu

MayorBob.

Sat May 17, 2008 at 09:46:38 AM EST

5.00 (astute)

"Until polls indicate 70-80% of the electorate wants gay marriage approved..."
Trust me, that isn't about to happen. According to the latest Gallup poll results I looked at (May 15th or such), while a majority of the population agrees that gays shouldn't be discriminated against, a slight majority disagrees that gay marriage should be legalized.
"... there were pressing concerns in the '04 election but most of the street level political discussion I heard at the time centered around whether or not Kerry earned his war medals.
Considering that the election came down to a few narrow election districts in Ohio, I wonder how much of Bush's "win" can be attibuted to inconsequentialities like Kerry's war medals and how much can be attributed to not wanting to change horses in midstream combined with Rove-driven mischief. I don't know, perhaps the startling revelation that OBAMA FATHERED A BLACK BABY will prove the election's tipping point.

Illegitimi non carborundum.

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Re: Nationally, neither party has a dog in this hu

postillion.

Sat May 17, 2008 at 12:23:10 PM EST

none

Until polls indicate 70-80% of the electorate wants gay marriage approved then watch Clinton et al flip.

I think it's too risky a topic to even depend on polls.  I think that what either Clinton or Obama would do (probably Obama at this point since he will win the nomination), is to sit on the fence during the election, wait until the Democrats secure the Supreme Court justices since there will most likely be anywhere between 2-3 seats coming up, and then consider what their chances are on the Supreme Court level.  

That would, of course, mean if there is a very strong case somewhere around that time involving gay marriage, but I am sure there are plenty of gay rights advocates who would be willing to work with the Democratic party to find the right case at that time.

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Four Years Gone

uncarved block.

Sun May 18, 2008 at 09:20:45 AM EST

5.00 (astute)

    Maybe, maybe not. You've spoken at length (somewhat out of character, and thanks for the extended comments) about why this matters to folks. But will it be an issue this fall, as it was in 2004? Dems have been accused before of trying to win the last campaign-- could it be the Republicans turn this time around?
    It's quite possible, IMO. In 2004, the court decisions seemed rather sudden, though they'd been in the system for years. Republicans in general, and Bush in particular, were able to get away with the implied, sometimes direct, sales pitch that they were going to do something about it, that they were a party who could deliver on at least this one issue, even if they hadn't on things like smaller government, and hadn't yet on, say, the Supreme Court. Bush didn't say much on the campaign, but conservatives were willing to believe he was ducking the issue in order to deny Kerry- or rather Dem activists, or the press- an issue that might give them traction.
    That's not the case any more. Almost all the action has been at the state initiative level, and W, as had happened before, crapped out on the issue. Are there any major Republican Senators willing to stand up and be the face of a national effort to reverse this trend? I can't think of any, though I haven't been following politics as closely as usual. McCain certainly doesn't seem itching to make it a major issue.
    So sure, conservative voters may turn out in slightly higher numbers than was expected, given their lackluster support for McCain. But how will this issue play with those so-called swing voters, that 10% in the middle who are more interested in results than partisanship? I believe Republicans face an uphill climb, possibly a steep one, if the message is essentially, "no really, this time we'll do something." Or maybe not.
    This won't really put California in play, though, because any gains McCain makes with this he's already given away with his stance on immigration. Unless he pulls a full pander a month or two from now, I can't see these two issue playing out as anything but a wash. YMMV.

Ex ignorantia ad sapientiam; e luce ad tenebras

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Nope, no change at all

logan.

Fri May 16, 2008 at 04:59:25 PM EST

none

A firm stand either way on same-sex marriage is of no benefit to any of the candidates and all three candidates will do everything they can to stay out of this one. McCain is already shifting to the right to pander to the Evangelicals and the Libertarians, but an actual values issue pits the two camps against each other and loses McCain a chunk of the middle.

Obama and Clinton have pretty much the same problem: they don't want to alienate the left by coming out against same-sex marriage. By the same token, they're trying to attract moderate conservatives who have been turned off of the GOP by the war, the economy and the recent scandals and don't want to alienate them by coming out for same-sex marriage.

I don't see this becoming an issue in the next 6 months without a major event that directly relates. What entails a major event is beyond me, considering that Mary Cheney's orientation was well-known during the 2004 election but no one in the GOP's voting block seemed to care about the contradiction between Bush and Cheney's support of the Defense of Marriage Act. Moreover, the various and sundry arguments conservatives tend to use against homosexuality (it's a choice, it's the result of child abuse, it's immoral, gays abuse children) tend to fade out when you ask them to apply those statements to Mary Cheney or Maya Keyes. The only thing I can come up with would be if one of the candidates appeared at an actual gay wedding. That ain't gonna happen.

-=Logan
Research, facts, a Republican needs not these things.

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Re: Nope, no contradiction at all

zyxwvutsr.

Fri May 16, 2008 at 08:28:55 PM EST

none

...considering that Mary Cheney's orientation was well-known during the 2004 election but no one in the GOP's voting block seemed to care about the contradiction between Bush and Cheney's support of the Defense of Marriage Act
What contradiction?

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Re: Nope, no contradiction at all

Lou.

Fri May 16, 2008 at 10:38:30 PM EST

5.00 (funny)

What contradiction?

Hate the sinner...hate the child.  Unless of course the child comes back all prodigally.  Even then Mr. Keyes will probably want to see the blood and semen stained sheet proving that her daughter no longer lusts for the ladies of Lesbos.

It's the end of the world as we know it, and I feel fine

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Re: Nope, no contradiction at all

zyxwvutsr.

Sat May 17, 2008 at 08:24:34 AM EST

none

In other words, there is no contradiction.

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Re: Nope, no contradiction at all

Lou.

Sat May 17, 2008 at 10:16:21 AM EST

5.00 (astute)

You may be right.  When I said contradiction, I meant mean spirited, 15th century assholedness.

It's the end of the world as we know it, and I feel fine

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Re: Here we go again

PenitenziAgite.

Sat May 17, 2008 at 12:57:32 AM EST

none

A swing state in what sense?  That McCain will win it?  CA Supreme Court (mostly appointed by Republicans) strikes down a referendum driven state law that passed by a thin margin, and now California goes red?  

I don't think so.  

sierra tango foxtrot uniform

9

Deep misgivings

profwhat.

Sat May 17, 2008 at 07:41:01 AM EST

5.00 (astute)

I want gay marriage, for both political and personal reasons.  But the use of litigation and courts to get it gives me deep misgivings.  It seems strategically unwise:  it will not change minds or build consensus. It leaves you with an annoyed and slightly pissed-off public who is ready to vote for constitutional amendments that take away not just marriage but domestic partnerships, too.  This didn't happen in Vermont or Massachusetts because it is really hard to amend their state constitutions, but in California you can amend the constitution so easily they occasionally do it by accident.

I haven't read the opinion yet, so I can't give an intelligent opinion about whether it is an activist opinion or not.  But, count me worried about that score, too.  There is a fundamental problem with relying on courts to make major structural changes in favor of civil rights: it might be fun when you win, but when the court's composition changes the losses will start to hurt you like a bitch.  These marriage decisions could become Roe v. Wade for gay people, and that is not a good thing: controversial, legally unsupportable opinions that we nonetheless have to fight for in judicial nomination after nomination (well, in California, I guess the judges are elected).

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About "Activism"

uncarved block.

Sat May 17, 2008 at 09:39:16 AM EST

5.00 (astute)

    That tag was apparently very much on the mind of the court-- check out Dahlia Lithwick at Slate. She ultimately closes with some kind words for Schwarzenegger, despite an earlier "wuss": "when you citizens and/or their legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what's constitutional." But the buzzwords will fly no matter what, it seems.
   

Ex ignorantia ad sapientiam; e luce ad tenebras

6

Re: Same Sex Is The State Of Marriage In The State

postillion.

Sat May 17, 2008 at 12:41:17 AM EST

none

My understanding is that civil unions are not the same legally as marriage, and that marriage is actually a much stronger legal definition.  Part of the weakness of civil union, of course, is that each state has a different definition of civil union and many states don't allow it. But I also think there are other difference differences concerning right of kin for making medical decisions, or certain rights that are part of being a survivor if a spouse dies, along with the federal tax issue.

I was going over this recently with a friend who I always worry about because she has a tempestuous relationship with her girlfriend, and though they both pay into a mortgage, the mortgage is legally in the girlfriend's name.  My feeling is unless they get married with all the formal ugliness of a potential divorce, if they break up, my friend will end up losing all the money she spent on the mortgage.  I've been trying to convince her for a couple of years that she must get her name on the mortgage, just to cover herself financially.  

It's one of the many things I don't get about red herring politics.  Why don't conservatives embrace gays and lesbians getting married?  I would think they'd love it; it's like gays and lesbians embracing the heterosexual lifestyle instead of the more partying lifestyle that the gays had during the 80s, or that they still have in San Francisco.  

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Re: Same Sex Is The State Of Marriage In The State

gerrymander.

Sun May 18, 2008 at 12:31:05 AM EST

5.00 (interesting)

Why don't conservatives embrace gays and lesbians getting married? I would think they'd love it; it's like gays and lesbians embracing the heterosexual lifestyle instead of the more partying lifestyle that the gays had during the 80s, or that they still have in San Francisco.

Like anything other major societal issues, there are a lot of mindsets which can get you to the same point.

First, there are the religious, who see specific Scriptural admonitions for one man/one woman marital arrangements, those who don't like gays, and those who just don't like change. These are fairly straightforward reasons, and the most easily and most frequently caricatured.

Another reason is, "we've changed enough." These are the people who are most swayed by "slippery slope" arguments, because they see an ideals of marriage family as having been kneecapped over the years. Where marriage was "until death," now it's "until inconvenient." Where single parents were once rare, they're now common. And every change has been for the worse: single women with children are the mostly likely to be living in poverty; unmarried men live shorter, less happy lives. The expectation is that gay marriage will, on par, make society worse off, too -- as will any change that might follow it.

Complementing those are the conservatives who aren't averse to change, but need a better reason than for the sake of change. The aphorism which sums best sums this up is, "don't tear down a wall until you know why someone put it up in the first place." A world where gay marriage activists think sitting in traffic is an effective, adult protest, and where pro-gay marriage columnists like Dan Savage refer to monogamy as an "alternate lifestyle" are not displaying a sufficient understanding of why marriage matters to 95% of the population. They make marriage look frivolous, which exactly the opposite of what devoting your life to another is supposed to be.

Lastly, there are those who are all for gay rights -- as gays considered them 20 years ago. Back in the 70s and 80s, gay activism could not have been more against marriage. It was inconvenient to the party atmosphere you describe, and many gays had chosen to live in the closet. Being out was (understandably) liberating. Now that that lifestyle has had its flaws open for everyone to see, the new line is how marriage is good again. Well, maybe. But it's enough to give a person whiplash -- and again, the frivolity appearance becomes a problem. Last decade bad, this decade good; are we going to have to go through this all again in the 2010s, if/when gays decide marriage doesn't work out for them very well either?

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Re: Same Sex Is The State Of Marriage In The State

Lou.

Sun May 18, 2008 at 10:29:21 AM EST

5.00 (astute)

Good points, but I would like to add that during the 70s and into the 80s, straights were pretty involved in that party atmosphere as well...with many choosing to take a pass on marriage and live that disco lifestyle.  And even though the disco has passed, marriage still seems to be highly optional among hetero couples.  This is my own purely anecdotal observation, but I insure a lot of unmarried couples who are buying their first home...oh they'll get married "some day".  Interestingly enough, that someday gets closer when I tell them (the younger ones anyway) that I can save them close to two hundred dollars a year once they get married.

It's the end of the world as we know it, and I feel fine

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That's good news, Lou

JimmyHavok.

Mon May 19, 2008 at 03:58:16 AM EST

none

My girlfriend and I have vowed not to marry until it is legal for gays.  It's gotten to the point now where it's a little bit inconvenient to be unmarried, so this came just in time.  We plan to get married the next time we are in California.

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Re: Same Sex Is The State Of Marriage In The State

gerrymander.

Mon May 19, 2008 at 01:19:02 PM EST

none

during the 70s and into the 80s, straights were pretty involved in that party atmosphere as well...with many choosing to take a pass on marriage and live that disco lifestyle.

I don't disagree, but remember that we're talking about conservatives here. Even among the general population, the perception of the "swinging 70s" is greater than the prevalence of actual 70s swinging.

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of barn doors and hinges and heterosexuals

1fastdog.

Sun May 18, 2008 at 10:40:51 AM EST

5.00 (brilliant, brilliant)

Interesting comments gerry, but what really stands out is the fact that all of those arguments, as you acknowledge in your first para, can also be applied to heterosexual marriage. Indeed, one could argue that the vast majority of all those points regarding how seriously marriage is undertaken, can and should be applied to heterosexual marriage. I mean, if any group of people have "kneecapped" (as you described) marriage and have blatantly disregarded the whole "sanctity of marriage" (typical descriptor), it's been christian, heterosexuals who've done the most damage to wedded bliss.

are not displaying a sufficient understanding of why marriage matters to 95% of the population. They make marriage look frivolous, which exactly the opposite of what devoting your life to another is supposed to be.

Again, the only group of folks causing damage to the institution of marriage are the heterosexuals who disregard their vows with wild abandon. It's pretty clear that the only real reason for being against gay marriage has nothing to do with gay marriage tainting/kneecapping heterosexual marriage, as it's abundantly clear that heterosexuals have not adhered to the principles of marriage as outlined by most opponents of gay marriage; the real reason lies within those basest of human instincts: fear of what's not understood, loss of control (and therefor power), and plain old Haterade™. Meanwhile, we're treated to an almost nightly regaling of the latest pol, preacher, or pundit who has been caught carrying on in a manner that's blatantly at opposition to their stated positions.... So you'll have to excuse my dismissal of your frivolity argument, as the heterosexual population has already blown that particular barn door right off its hinges.

Somewhere in my soul, there's always Rock -n- Roll... Joe Strummer

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Re: of barn doors and hinges and heterosexuals

gerrymander.

Mon May 19, 2008 at 12:47:46 PM EST

none

the only group of folks causing damage to the institution of marriage are the heterosexuals who disregard their vows with wild abandon.

1fastdog, this is somewhat of a tautology. Because only straight marriage was recognized, and because gays only represent 5% of the population, then by definition the greatest percentage of damage to marriage as an institution has come from heterosexuals.

That said, I think it's still very incorrect to say straights are the only group to harm marriage. One can point to the number of divorces from the 70s through the 90s where one closeted gay partner came out, and longed for sexual freedom. In earlier times, gays would stay married. On one hand, this was somewhat deleterious to marriage; one or both partners might cheat, or suffer in more passive/aggressive ways. On the other hand, it solved another problem which certainly does arise for modern gay couples: children. Gay men didn't have to adopt, lesbians didn't have to look outside of their relationship to conceive. And let's not forget the children, for whom straight matches are going to be the important pattern the majority of the time.

But does any of that get any better if we add gay marriage? The deleterious parts don't, necessarily. Gay men certainly seem to be no less prone to cheating just because they can be in relationships with other men; in some ways, it appears that cheating is endemic to gay culture. As for gay women, "lesbian bed death" has been part of the discussion since the 80s. And as per above, having children becomes a problem, too.

Railing against marriage as imperfect is one thing, but supporting an even less perfect alternative just seems foolish.

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Re: of barn doors and hinges and heterosexuals

postillion.

Fri May 23, 2008 at 01:55:44 AM EST

5.00 (interesting)

Railing against marriage as imperfect is one thing, but supporting an even less perfect alternative just seems foolish.

Actually, I would say that both heterosexual couples as well as gay/lesbian couples have the same percentage of making their marriages work these days.  

First reason is that heterosexual couples have changed a great deal in the last few decades with the women's movement.  Since women can now earn equal salary to men, the reasons for marriage are radically different than the set roles of male breadwinner and female housewife.  If anything, I would say that the heterosexual marriage is in the midst of one of the most experimental stages where no one (or at least no heterosexual married person I know in my age group) knows exactly what they are supposed to be doing in their marriages.

Then, there have been many changes in the gay community. A recent New York Times article by a gay man in his early 40s noted that gay men in their 20s are more relationship-prone because they come out of the closet earlier, allowing them to spend their teenaged years and early 20s experiencing different partners and which wasn't available to gay men as much in the previous generations.

Given that, I would say that any couple has an equal percentage chance of making it work.  Actually, if I had to bet real money, I would bet on a gay couple since they might actually be more emotionally invested in making a marriage work these days.

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Re: Same Sex Is The State Of Marriage In The State

postillion.

Sun May 18, 2008 at 06:38:51 PM EST

none

Thanks, gerrymander, for your response to my question about why conservatives might be opposed to gay marriages.  It was a serious, as well as a seemingly informed, response about that sector is concerned about in regards to this issue.

I would have to agree with 1fastdog that the largest reason why marriage is not taken seriously is because of how marriages have turned out in the heterosexual population.  My friends and I, who are mostly in our early to late 30s, joke about now getting to an age where the marriage ceremonies are ending and the divorces are beginning.  As far as I can tell, this trend doesn't seem different whether the marriages are between conservatives or liberals.  For whatever reason, people in my generation seem unhappier in their marriages and do avail themselves of divorce.

Given the distress that some of my friends are feeling in their marriages, I don't know whether it's because they didn't take their marriages seriously.  In my parents' generation, yes, they would have just stuck it out.  But sticking it out in an unhappy marriage didn't necessarily give individual marriages more meaning even if it seemingly gave the societal definition of marriage more meaning.  By this, I mean that people in older generations who stayed in unhappy marriages didn't derive more from their marriages than people who now would divorce.  If anything, I would say that people who stay in unhappy marriages get less from their marriages than from a divorce.  But the institution of marriage becomes a legend of its own, an abstract for the construct of societal good even if it doesn't necessarily do individuals good.  The wording in this paragraph is awkward, but I hope you get what I am trying to say.

While it is difficult for single mothers with children to raise children and to work, I would say that the solution could be different rather than returning to older ideas of marriage. Couldn't we be working towards helping single mothers with children in numerous ways:

  1. we could give tax incentives to companies that offer childcare services

  2. for at-risk teenagers who somehow think parenthood is an expedient means to the authority of adulthood, there should be more grassroots programs to give these teenagers more meaningful ways of becomings adults such as internship programs, special classes to help them do better at school, etc.

  3. maybe society needs to encourage more men to rethink their understanding of fatherhood if there are so many willing to abandon their children financially?  In other words, biologically, the fathers are just as at fault for the poverty of single child mothers as the mothers.

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Re: Same Sex Is The State Of Marriage In The State

port1080.

Sat May 17, 2008 at 10:05:44 AM EST

4.00 (interesting)

My understanding is that civil unions are not the same legally as marriage, and that marriage is actually a much stronger legal definition.


According to Wikipedia (so take it with a grain of salt) in the states that call it a "civil union" the rights & responsibilities are legally exactly the same as marriage (this was certainly true in California, where they were functionally exactly the same).  Of course, the Feds don't recognized civil unions as marriage, but then, they don't recognized gay marriage as marriage either, so it's a wash.  I think what you're thinking of is the notion of domestic partnerships - these are basically civil unions-lite, and they don't necessarily have all the same rights / privileges that marriage does, depending on the state.  Still, it seems like there isn't full agreement on how the terms should be used, and I see many articles that would call everything either a domestic partnership (even if it included full marriage rights) or a civil union (even if it didn't) or articles that just conflate the two, so I don't know if it's settled definitionally, yet.

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