Legalizing same-sex marriage is a great step toward greater equality in Illinois; but it is only a partial step in the right direction. As always--when it comes to same-sex marriage--the public's excitement over this momentous achievement can prevent us from looking at the broader picture. In this regard, an unheralded step that Illinois took last week is far more consequential than the more headline-grabbing change trumpeted by the media: at the same time that it legalized same-sex marriage, Illinois held onto its civil union system.
Unlike some of its counterparts, such as Vermont and Connecticut, Illinois did not abolish civil unions when it voted to allow same-sex marriage. Nor did it require all civil-union couples to "upgrade" their unions to marriage, as Connecticut did (without asking for their permission). Rather, Illinois has become one of the few states that offer marriage and civil unions--and the two institutions are now open to both opposite- and same-sex couples. In this way, Illinois is similar to the Netherlands: when same-sex marriage was legalized in that country, the legislature decided to maintain civil unions in order to create a menu of options for the state's recognition of relationships.
However, it warrants looking at what has happened since the Netherlands started to offer options for relationships. Today, although civil unions are important to a significant (but not large) number of couples--because it gives them the rights and benefits of marriage without marriage's name--the majority of people choose other ways to organize their relationships. Most couples prefer to live with a cohabitation agreement or as married. Indeed, the Netherlands has considered abolishing civil unions because it seems like a legal option of no practical value.
The lesson is not that civil unions are unnecessary; it is not inevitable that civil unions will become just another dead letter in the code. Rather, civil unions can serve an important function when they are more than just marriage without the name. To be more than just an unused legal institution, civil unions must offer extra flexibility that does not exist in marriage. For example, civil unions could be open to other types of relationships, not just romantic ones (friends, for example). In order for civil unions to be open to and suitable for more types of relationships, they must be more elastic: they must allow people to decide what kind of rights, benefits, and obligations are included between and among the partners.
In fact, Illinois needs flexible civil unions more than the Netherlands does. This is because, unlike the Netherlands--actually, unlike most other states--Illinois does not enforce contracts between unmarried partners regarding their economic rights. So, in Illinois couples have very little choice: being married, or being married without the name. Certainly, then, flexible civil unions could serve an important function in Illinois.
The relationships revolution has not ended in Illinois and elsewhere. Same-sex couples--and other partners--do not simply meet and get married; generally, several relational stages precede this decision. Additionally, other people do not want to get married or simply do not get married, for no particular reason. Some enjoy other partnerships, rather than intimate relationships, and also need the protection of the state. For these people, civil unions and same-sex marriage are not the answer.
The legislature's vote on same-sex marriage in Illinois was a giant step in the direction of equity. Other states that consider legalizing same-sex marriage should follow Illinois' path. But that's not the end of the story. To make relationship-recognition fair and meaningful for all our citizens, we must advocate for Illinois to move ahead in two critical directions: make civil unions more flexible and meaningful, and create an option for nonregistered partners to contract about their relationship.