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.
Finally, the die-hards in the gay marriage movement are set on getting marriage in NJ and in the country at large. A creepy and policing statement from Freedom to Marry (led by marriage guru Evan Wolfson) reads, “This is not about civil unions, and we should insure that we do not allow that sort of confusion to creep into the conversation. It is our responsibility to be VERY CAREFUL not to even address the civil unions issue…We’re not fighting for civil unions, so let’s not even let it enter the argument.”
If this sounds anxious, it’s because gay marriage advocates have every cause to be alarmed. When the court granted all the rights and benefits (and also all the “burdens and obligations”) of marriage to same-sex couples and allowed that civil unions could fulfill those rights and benefits, it set up a political situation in which gay marriage advocates will have to convince the legislature and the public that the symbolic title of marriage matters. It does, of course, in the sense that only marriage opens up the federal courts to gay marriage claims — but stripped of the compelling testimonials of gay couples denied material rights and benefits, the case became much harder.
For those located in DC and up at the ungodly hour of 6AM, I’m on Washington Post Radio (107.7 FM and 1500 AM) tomorrow (Thursday) to discuss the NJ decision. I’m also on OUT-FM/WBAI on Monday at 11:30. Tune in.
In a 4-3 decision the New Jersey Supreme Court held that “although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution.”
Translation? In short, the Court said that gay couples should receive all the rights and benefits of marriage that the state of NJ can provide. But it’s up to the legislature to decide whether or not that union is called “marriage” or “civil union” or some other term. Essentially, the NJ decision echoes Vermont’s. It mandates that the legislature resolve these inequalities within six months. Given that Corzine and other leading NJ Dems haven’t supported “gay marriage” outright, expect civil unions, and not gay marriage, to be the solution.
The distinction won’t matter within NJ per se– since the Court said that whatever the union is called, it must provide all the rights and benefits of marriage — but it could have implications nationwide. A gay marriage bill from the legislature would open up the possibility that the federal government and other states would have to recognize same-sex marriages from NJ under the full faith and credit clause of the US Constitution. A civil union bill would not have such ramifications. Massachusetts has a law barring out of state couples from marrying within state if their home state would not recognize the union; New Jersey does not. Hence, gay marriage advocates were eager for a definitive pro-marriage decision and, despite what they say to the press, surely a bit dissappointed at this ruling.
Chief Justice Deborah Poritz, joined by Justices Long and Zazzali, filed a concurring and dissenting opinion. Their opinion called for full marriage rights (thus the concurring part) including the right to the title “marriage” (the dissenting part).
I’ll file more later once I digest the entire decision.