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Cardozo Law Review de novo

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2011 was a good year for marriage equality in the United States. President Obama publicly renounced the constitutionality of the Defense of Marriage Act (DOMA) and determined that the Department of Justice would refuse to defend it in court. This determination was made despite the DOJ's “longstanding practice of defending the constitutionality of duly- enacted statutes if reasonable arguments can be made in their defense.” The DOJ concluded that there were no such reasonable arguments, making “[t]his ... the rare case where the proper course is to forgo the defense of this statute.” The President's “manifest ... conclu[sion] that the statute [wa]s unconstitutional” made even easier the DOJ's determination to forgo DOMA's defense. . .

But 2011 was not only a good year for marriage equality. It was also a good year for “civil union equality” in the U.S. In 2011, two states--Illinois and Hawaii--enacted laws legalizing civil unions between different-sex as well as same-sex couples. Civil unions, the first of which were recognized in the U.S. in 2000 by the Vermont legislature in response to the Vermont Supreme Court's ruling in Baker v. State, present same-sex couples with a system for recognizing their relationships “with legal status and benefits substantially equivalent to marriage.” Though there exist other alternatives to marriage, such as domestic partnerships, this Essay focuses only on civil unions because these alternatives are not only marriage alternatives but marriage equivalents--civil unions offer to couples all of the same benefits that would attend marriage in the same state even though they have a different name.. . .

Like other literature that seeks to “imagine a space beyond marriage,” this Essay's goal is to preserve those aspects of the LGBT rights movement that have been obscured by recent victories in the fight for marriage equality. By first describing civil unions in Part I, this Essay draws on insights from the same-sex marriage debate elaborated in Part II in order to argue ultimately in Part III that the civil union--though conceived as a temporary solution to the problem of unequal marriage rights--should remain as a permanent alternative to marriage that is available to all couples regardless of their members' sexes.



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