So here are some more thoughts on today’s same-sex union decision by the New Jersey Supreme Court. First, while the decision is more expansive and pro-gay than New York’s and Washington’s, it’s hardly the ringing victory the gay marriage movement wanted. It’s also, despite eloquent portions, fundamentally flawed in the same way that those previous decisions were. By ruling that there is no “fundamental right to same-sex marriage” in the NJ constitution, the majority framed the liberty/due process issue in a narrow, circular way. Of course there’s no “fundamental right to same-sex marriage” in the NJ or US constitution.
But that’s not the point. As Judge Poritz points out in her dissent (citing Judge Judith Kaye’s dissent in the NY decision), when courts ask “whether there is a fundamental right to marriage rooted in the traditions, history and conscience of our people, there is universal agreement that the answer is ‘yes.'” In other words, the issue is not the right to same-sex marriage, but the right to marry period.
Second, in terms of the November elections, while conservatives like James Dobson of Focus on the Family (FoF) have railed against the decision as “a travesty,” it’s also clear that they can barely hide their disappointment at not getting the base-galvanizing, pro-marriage decision that they were dreading/anticipating.
An FoF article says that “today’s ruling in favor of same-sex unions must motivate values voters to get to the polls.” Dobson warns that “nothing less than the future of the American family hangs in the balance,” and attempts to drum up support for the eight state anti-gay marriage amendments on the ballot on Nov. 7. Bruce Hausknecht, FoF’s judicial analyst, speculates that “New Jersey could now become the gay-marriage capital of the United States,” and cautions that the decision could become “electric.” Sen. Sam Brownback (R-Kansas) rails against activist judges and says that the New Jersey decision “warrants swift, decisive action by Congress in the form of passage of the Marriage Protection Amendment.”
Try as they might, these right-wing attempts to ratchet up the gay marriage fear factor come off as rather lame. By leaving it up to the legislature to decide between gay marriage or civil union, the court dodged a bullet. And all signs indicate that the Democrat-controlled legislature and Gov. Corzine will take the easy way out and pass a civil union bill (like Vermont’s or Connecticut’s). It’s hard to see how even the right-wing machine could turn the incredibly slim chance that the NJ legislature would pass a gay marriage bill into a viable election issue. It’s a local issue now, not national. As I pointed out earlier, only same-sex marriage outright would create the possibility for gay couples to sue in federal courts for broader marriage benefits.