New Jersey’s civil union law: A real world mess

New Jersey’s civil union law took effect on February 19, 2007. Enactment of the law came in response to a New Jersey Supreme Court decision mandating that same-sex couples in New Jersey receive the same rights and benefits as opposite-sex couples. The Court left it up to the state legislature to decide whether the new law would allow same-sex couples to marry, or merely to enter so-called “civil unions.” Legislators chose civil unions. But they also said they would revisit the issue of marriage equality soon.

In fact, when the legislature passed the civil union law, it also created the New Jersey Civil Union Review Commission to evaluate the effectiveness of the law – specifically to evaluate whether civil unions are working to provide equality to same-sex couples as marriage would. This website presents videos of the 96 witnesses who have testified at the Commission’s public hearings, spanning eight hours thus far.

People often define civil unions, available in New Jersey, Vermont, Connecticut and New Hampshire, as providing all the state rights and benefits of marriage but without the name “marriage.” But as the evidence proves, civil unions do no such thing.

Since civil unions became law in New Jersey, Garden State Equality has received reports from hundreds of civil union couples who have told us their employers refuse to provide the equal rights and benefits the civil union law mandates. The failure rate of New Jersey’s civil union law, in fact, is at least one in every five – and likely way worse because the ratio encompasses only the complaints that have come to Garden State Equality.

If New Jersey’s civil union law were a person, it would be arrested for committing fraud.

In almost all the cases, the employers say they understand the law but that they will provide coverage only to married couples. The employers want to see the word “marriage.”

There goes the argument that New Jersey's civil union law is new, give it time. Look at Vermont, where a number of employers aren’t providing equal benefits to civil union couples to this day. Vermont enacted its civil union law back in 2000.

As Beth Robinson, a prominent Vermont attorney and civil rights leader, recently testified before the New Jersey Civil Union Review Commission: “Based on the Vermont experience, I can tell you that it’s just not true that if enough time passes, civil unions will achieve parity with marriage. Time does not fully mend the inequality inherent in two separate institutions.”

In a damning example of how New Jersey's civil union law is failing, a resident of Essex County told the Commission that her benefits administrator said no when she asked for benefits for her partner under New Jersey’s civil union law. But later, when she happened to mention that she and her partner had also gotten married in Massachusetts – the one state where same-sex couples can marry – the benefits administrator immediately changed its mind and granted the benefits. The word “marriage” made the difference.

That’s why New Jersey State Bar Association President Lynn Fontaine Newsome, testifying on behalf of the Bar Association, has called New Jersey’s civil union law “a failed experiment.”

What further proof?

In New Jersey, a number of companies are using a federal law loophole to avoid giving employees equal benefits under New Jersey’s civil union law. Federal law, not state law, governs many companies across the country – and federal law does not recognize same-sex relationships of any kind.

The federal law loophole also allows employers in Massachusetts not to recognize the marriages of same-sex couples performed there. But employers in Massachusetts are not using the federal law loophole like employers in New Jersey are. As Tom Barbera, a labor leader in Massachusetts, told the New Jersey Civil Review Commission:

“It's not that employers in Massachusetts don't understand that federal law allows them to refrain from providing benefits to same-sex married couples. It's that employers also understand that without the term ‘civil union’ or ‘domestic partner’ to hide behind, if they don't give equal benefits to employees in same-sex marriages, these employers would have to come forth with the real excuse for discrimination. Employers would have to acknowledge that they are discriminating against their employees because they are lesbian or gay. And employers in Massachusetts are loathe to do that, as they would be in New Jersey were you to enact a marriage equality law.”

The failure of New Jersey’s civil union law is having devastating real-world consequences. Take the heartbreaking case of a civil union couple from North Jersey named Pam and Chris. One of them told her employer about the new civil unions law and… you guessed it. The employer said, “We’re not going to provide you benefits. You’re not married.” The human resources department brutally confirmed that “nothing has changed,” in its own words, since the civil union law took effect.

The denial of benefits to Pam and Chris was inhuman. These two incredible, loving women, together 16 years, have adopted three special-needs children. One of the kids has severe ADHD. Another was born drug-addicted. And the third, whom this couple calls their “angel baby,” has autism.

Our society should be celebrating Pam and Chris. Instead, even with civil unions on the books, they and their children are denied equal protection under the law.

How, then, can our society credibly tell these families that civil unions provide all the state rights and responsibilities of marriage?

These families know first-hand the real definition of civil unions: Civil unions carry the everyday risk of none of the state rights and benefits of marriage.

Civil unions also pose psychological harm to children. Why should children of same-sex couples be stigmatized by their parents’ having a lesser label than of opposite-sex couples, whom society calls “married”? Some children are coming home in tears.

How ironic in New Jersey, the national pioneer in allowing same-sex couples to adopt.

Notwithstanding these horror stories, some still wonder why same-sex couples won’t settle for the term "civil union."

Indeed, Garden State Equality isn’t fighting for the name “marriage” merely to achieve some moral or symbolic victory. We’re fighting for the name “marriage” because it's the only label that will make an LGBT civil rights law work. Marriage is the only currency of commitment the real world consistently accepts.

For the very few who still ask, "So long as we get the rights, who cares what it's called?" the New Jersey experience has answered the question once and for all. You've got to care, because if a same-sex couple's relationship isn't called marriage, that couple may never see the rights.

And for others wondering, "Wow, employers in New Jersey seem to be in noncompliance more than their counterparts in other states with civil union or domestic partnership laws," that would be a misimpression. All the states with contraptions short of marriage equality are facing problems. Here in New Jersey, we're just very vocal when we see inequality. Heck, we’re New Jersey and we’re vocal about everything. It makes our state one of the best places in the world for the LGBT community to live.

To be sure, civil union couples like Pam and Chris have legal recourse. They can sue. They can file a complaint with our state government.

But that misses the point. What good is legal recourse when you or your loved one may have only moments to live, moments to obtain consent? Why should same-sex couples have to endure the time and cost burdens of legal recourse? Again, that’s not equal protection under the law.

If New Jersey defers marriage equality, how many more families like Pam, Chris and their children will get hurt?

Watch the videos on this website and you’ll see just the tip of the iceberg.

© 2008 Garden State Equality. All rights reserved.
Contact@GardenStateEquality.org 973.GSE.LGBT