Bizarro Section 1982 and “civil union” — a thought experiment in unequal names

Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property’; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”

This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality.  We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names.  The confusion would be increased if different states chose different new for the new institution parallel to property.  (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately.   The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites.   (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved.  (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.

An unlikely scenario?  This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court.  I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief.  The litigation is about a different institution, though — not property, but “marriage” and its bizarro double, “civil union”.

Providing supposedly equal rights and benefits to marriage with a different name, as “civil union” does under current New Jersey law,  (1) creates and perpetuates confusion over the nature of the rights afforded same-sex couples.   “Marriage” is a word folks understand; “civil union” not so much.  (2) A dual naming structure requires continual sorting of folks into same-sex and opposite-sex couples, which will be understood as a sorting into gay and straight couples.  The dual naming approach lends the imprimatur of the state to a distinction with a history of invidious discrimination, and by requiring the sorting serves to perpetuate prejudice and discrimination.  (3) Same-sex couples and their families must expend considerable effort to claim the rights supposedly afforded by “civil union”, in part because of the different name for supposedly identical rights. (4) In some circumstances the different name forces a member of a same-sex couple  to disclose her/his same-sex couple status (read homosexual status) when s/he otherwise would not choose to do so. (5) Confusion due to the different name blocks access to the rights and benefits supposedly granted, both through genuine misunderstanding and because the different name provides opportunities to feign ignorance of the law.

Court decisions in four states — Massachusetts, California, Connecticut, and Iowa — have rejected an approach to marriage equality that allows a state to provide supposedly equal rights and benefits by a different name.   Vermont’s Supreme Court allowed it in 1999, but last year, after a commission report and eight plus years of experience with “civil union”, Vermont replaced “civil union” with marriage.  New Hampshire also enacted “civil union” and then in 2009 moved to marriage.  In 2006 the New Jersey Supreme Court allowed a different name, at the legislature’s discretion, but over a ringing dissent.  That 2006 decision is now under challenge, based in significant part on fact-finding by the New Jersey Civil Union Review Commission in a 2008 report.

The reasoning in the court cases is sometimes quite brief.  Typically it invokes a principle that separate can never be equal and always results in stigma.  See Brown v. Board of Education, 347 U.S.  483, 492 – 95 (1954).  That’s not wrong, but one could say more.  The Connecticut decision is helpful here.  It relies inter alia on an old state employment discrimination decision that held a newspaper liable for aiding and abetting sex discrimination by publishing separate employment advertisements for men and women.  The newspaper didn’t deny anyone a job based on sex; it simply facilitated a process of sorting job opportunities into sex categories, facilitating discrimination by others.   Kerrigan v. Comm’r of Public Health, 957 A. 407, 418 (Conn. 2008) (relying on Evening Sentinel v. National Organization for Women, 357 A.2d 498 (Conn. 1975)).

“Civil union”  in New Jersey (or full-rights “domestic partnership” status in California, Oregon, and  Washington) is not bad as a halfway measure.  That’s especially worth saying because a civil union bill has just reached the desk of Hawaii Governor Linda Lingle, who has 45 days to sign or veto it.  But a differential name for a fundamental social and legal category perpetuates inequality, creating an injury of constitutional dimension.  For deeply entrenched institutions — property and marriage alike — the official name makes a huge difference, not only in terms of granting or withholding a traditionally honored status, but of whether the state chooses to undermine or endorse a diffuse social process of sorting supposedly equal rights-holders into stigmatized and often suspect categories.

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