Last month brought historic change to the lives of thousands of same-sex couples, but not as a result of any judicial ruling. On March 21, with none of the fanfare that greeted the Supreme Court’s hearings on California’s Proposition 8 and the Defense of Marriage Act, Colorado Governor John Hickenlooper signed into law a bill legalizing civil unions. The law represents a significant break in the state’s recent history: In 2006, Colorado amended its constitution to outlaw gay marriage, and similar civil union legislation had been stymied by Republicans in the state legislature as recently as two years ago. “Once and for all,” state Senator Pat Steadman, a Democrat, announced at the signing ceremony, “LGBT Coloradoans are not strangers to our laws.”
The success of the bill may also signal a renewal of the flagging prominence of the civil union as a public policy. Once thought to be the most promising route to equality for same-sex relationships—and an important element of Howard Dean’s liberal appeal in the 2004 presidential election—the limited legal status saw its brief moment of relevance last decade vanish as popular sentiment began its stunningly quick shift in favor of gay marriage. Year by year, as each new state extended full legal recognition to gay couples, civil unions slowly transformed from a liberal fantasy into a forgotten half-measure both insulting to gays and their supporters and still largely anathema to the Republicans’ evangelical base.
As Colorado shifts away from its benighted record on gay rights—only 20 years have passed since voters there approved the infamously draconian Amendment 2, which forbade any laws characterizing gays and lesbians as a protected class—it joins Hawaii, Delaware, and Rhode Island as the fourth state since 2011 to enact civil union laws, even as litigation over the constitutionality of marriage restrictions has drawn most of the media attention. While gay marriage has become the norm in a handful of left-leaning coastal enclaves (and Iowa), it remains a heavy lift throughout much of the rest of the country.
In the meantime, politicians in the 39 states which have expressly proscribed it, either by statute or constitutional provision, are beginning to turn to civil unions as a possible stopgap. Ft. Lauderdale Mayor Jack Seiler, a Democrat thought to be positioning himself for a gubernatorial run in 2014, has endorsed them even as many in his party lunge leftward on the issue. Ohio Governor John Kasich, a Republican, briefly used his support of civil unions to distance himself from fellow Ohioan Senator Rob Portman, the first nationally prominent member of his party to back gay marriage; after Kasich took heat from the right for his stance, his aides walked the statement back. Even Utah Senator Orrin Hatch, once regarded as a vanguard conservative, recently expressed his approval of civil unions as a permanent alternative to gay marriage.
The most interesting test case is in Minnesota, where a small faction of Republican representatives is coalescing around civil union legislation even as the Democrats who control both houses of the state legislature anticipate the passage of a gay marriage bill in the coming months. The group is led by Representative Tim Kelly, one of the only Republicans to cross the aisle and vote against last fall’s failed constitutional ban (Minnesota became just the second state to beat back such a law; the first, Arizona, later reversed itself and adopted a ban a few years later), and its members claim that they are merely trying to avoid a destructive conflict over social issues. The Democratic leadership is less skeptical than openly scornful: Scott Dibble, who first introduced the gay marriage bill in the state Senate in February, dismisses civil unions as “a silly, sidebar distraction,” adding that the largely Republican measure has “gotten zero traction in the legislature.”
The same could likely be said of legislation currently under consideration in Florida’s state Senate. The bill, SB 196, which would create a statewide domestic partnership registry, will almost certainly die without coming to a vote when the body’s legislative session ends in two weeks. Its primary sponsor, Democratic Representative Eleanor Sobel, has unsuccessfully introduced the proposal, in some form, each year since 2009; in a symbolic victory, the legislation finally made it out of Sobel’s committee in the first week of April. “This is the first time in the history of the legislature that civil unions were ever dealt with. … It deals with death and dying situations, it deals with real-estate situations, it deals with hospital visits,” Sobel says. “It’s not marriage.”
Attitudes fluctuate among swing-state activists toward the idea of incomplete matrimonial rights. Elyzabeth Holford, the executive director of Equality Ohio, is suspicious of any compromise short of full marriage rights. “The question is, how do you achieve full equality? And civil unions aren’t full equality,” she says. While acknowledging that she “wouldn’t rule them out as a possibility,” Holford says that public opinion was ultimately trending away from the idea.
Some marriage supporters see utility in the policy. Ted Martin, Holford’s equivalent at Equality Pennsylvania, warns against making the perfect the enemy of the good. “Let me put it to you this way,” he says. “In Pennsylvania, there’s still no legal protection against getting fired for being gay, or being evicted from your house. If there were discussions [about civil unions], I would certainly be there.” Minnesotans United spokesman Jake Loesch says his group prefers to push for gay marriage, but that civil unions could be a viable option in less progressive climes: “In states where marriage isn’t yet a possibility, civil union status might be a step up, yeah.”
A surprising roll call of states that supported President Barack Obama in the last two elections—reliably Democratic Wisconsin, Oregon, and Michigan among them, along with newly blue Virginia and Nevada—fit Loesch’s description. This is the territory on which the fate of civil unions—either as a last-ditch substitute for universal marriage equality, an equality patch until a more progressive public consensus evolves, or a relic of twentieth-century culture wars—will be decided.
Gay activists and their allies, like Sobel, vow to play a role in determining that fate. “I’m going to continue filing this bill. This is the fifth year,” she says. “You can’t run to marriage—the first bill was almost marriage, and they went ballistic on that one. So we made it reflective of current law, so that we could bring along more people and gather momentum.
"You have to build a following," she adds, "and we’re beginning that.”