Are civil unions “separate but equal”?

In my posts on the Marriage Cases, (1, 2) I’ve tended to agree with Justice Corrigan in dissent that so long as California allowed gay couples to form civil unions with the same substantive protections as straight couples, it does not violate the Constitution for the state to denominate the former “civil unions” and the latter “marriages.” That, to emphasize, was what was decided in yesterday’s decision—not whether gay couples can actually form such unions, which was already legal in California.

But what about this argument: for the state to permit gay and straight couples to create substantively identical partnerships, but with a different name, is “separate but equal,” and therefore a violation of the spirit, if not the words, of Brown v. Board of Education?

This argument is quite appealing at first, given that the primary reason for making the linguistic distinction was indeed nothing more than discrimination and hostility toward homosexuals. The “separate but equal” idea in Plessy v. Ferguson was that it does not violate the Constitution to provide substantively identical protections for blacks and whites, but then to keep those accommodations separate. Plessy embraced the purely theoretical—and factually absurd—idea that the separate accommodations were in fact equal. In repudiating Plessy, the Brown Court found that even if those accommodations were actually equal, which everyone knew was not the case, it was still unconstitutional because separate is inherently unequal. (“Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.”)

So isn’t it inherently unequal for gay marriages to be described by a different word than straight marriages, even if the two types of legal contracts are substantively identical?

There are a couple of problems with this argument. First and most obvious is that separate but equal never was equal: it was a device for oppressing a disfavored minority, and part of a unique and overwhelming social institution that violated both the form and substance of equality. And that device is just not comparable to the open and genuinely equal mechanisms of California law with regard to marriage. The oppression of blacks under Jim Crow is just not the same as the treatment of homosexuals in California. Maybe in other states it might be different, but in California the idea that the state is devoted to creating a disfavored class of citizens based on sexual orientation is not credible.

Second, it’s not at all clear that there was any actual “separation” at issue here. In Brown, you had two genuinely separate systems of schools (not to mention other facilities). People were literally separated from one another. Here, gays and straights intermix easily, with no discrimination against their substantive rights, whether it be in schools, at the lunch counters (if those exist anymore) or the water fountains. Gay couples could arrange to celebrate their unions in whatever ceremonies they chose, and were free to exercise all the private and public attributes of marriage—wearing rings, changing their names, whatever.

Third, the use of the term “civil union” instead of “marriage” was not derogatory. Had California chosen to denominate such partnerships by an offensive term, the argument might be stronger, but there are legitimate, nondiscriminatory reasons for using the term. Whether those reasons are enough to persuade you or me to agree that these unions should be called “civil unions” instead of “marriages” is not relevant—what’s relevant is whether there are sufficiently good reasons to allow the majority to decide on that issue. The answer to that seems to be yes: choosing what non-derogatory term to apply to such unions is properly a matter for political, not judicial, resolution.

One valid criticism of Brown has always been that it found separation to be inherently unequal because of modern-day “psychological knowledge” rather than on the principles of constitutionalism. I agree with this criticism; I think the case ought to have been resolved on the grounds of Justice Harlan’s dissent in Plessy—that our Constitution neither knows nor tolerates classes among citizens. But under either rationale, the distinction between the words “civil union” and “marriage” presents an unconvincing analogy to the separate but equal facilities eliminated by Brown. Not an unreasonable analogy—just an unconvincing one.