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  • « Gay couples (sort of) win in N.J. | Main | Wrong on the law, right for gays »

    October 25, 2006

    My take on N.J. gay marriage ruling

    Posted by: Chris

    "What's in a name?" That's the question asked and answered this week by the New Jersey Supreme Court, which ruled the state must provide all the rights and benefits of marriage for gay couples but can call the institution by a different name.

    All seven justices of the court, which is known as among the most progressive in the country, agreed that depriving gay couples of the rights and benefits of marriage was a violation of the New Jersey Constitution's guarantee of equal protection.

    But by the slimmest of margins, 4-3, the court decided that it does not violate the equal protection of gay couples to limit "marriage" to straight couples, so long as everyone gets the same rights and benefits.

    Deborahporitz Chief Justice Deborah Poritz (pictured), whose mandatory retirement at the age of 70 on Wednesday led to the release of the court's decision, led the three justices in dissent.

    "What we 'name' things matters," she wrote, "language matters."

    The seven gay couples who brought suit back in 2002 challenging New Jersey's marriage law "express a deep yearning for inclusion, for participation," Poritz added, "for the right to marry in the deepest sense of that word."

    The four justices in the majority were unwilling to go so far and instead gave the New Jersey Legislature six months to either amend the state's laws to allow gay couples to marry, or in the alternative to enact a civil  unions law like those adopted in Vermont and Connecticut, that extends the rights and benefits of marriage but by another name.

    Justice Barry T. Albin wrote on behalf of the court majority that by asking for the name "marriage" and not just the same rights and benefits, the gay couples were seeking "social acceptance," which is not something the court is empowered to provide.

    "To be clear," Albin wrote, "it is not our role to suggest whether the Legislature should either amend the marriage statutes to include same-sex couples or enact a civil union scheme. Our role here is limited to constitutional adjudication, and therefore we must steer clear of the swift and treacherous currents of social policy when we have no constitutional compass with which to navigate."

    It is also clear that the four justices in the majority also agreed that gay couples were better off, in the long run, winning the name "marriage" from the Legislature than the courts.

    "The great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society," wrote Albin. "Plaintiffs' quest does not end here. Their next appeal must be to their fellow citizens whose voices are heard through their popularly elected representatives."

    Early reaction from leading national gay groups was mostly positive and focused pressure on the Legislature to move forward with full-fledged marriage, not civil unions.

    "Today's unanimous New Jersey Supreme Court ruling is a recognition of the equal needs and common humanity of committed same-sex couples and their kids," said Evan Wolfson, director of Freedom to Marry. "As the legislature moves now to implement the constitution's command of equality, we are confident that legislators will see that the right way to end discrimination in marriage is, indeed, to end discrimination in marriage, not repackage it."

    "This is, at its core, a pro-family, pro-equality decision," agreed Human Rights Campaign President Joe Solmonese. "It is now in the hands of the Legislature to do the right thing, and recognize that all New Jersey families should have the protections that only marriage provides."

    For Wolfson, the solution is a straight-forward, if not simple one.

    "The easiest next step is not to cobble together a separate new system with two lines at the clerks' office," he said, "but rather, to end the exclusion from marriage itself with two simple words, 'I do.'"

    Follow the jump for why gay activists in New Jersey disagree:

    Even before the New Jersey Supreme Court ruled on Wednesday, both sides in the culture wars were preparing for a fight in the state's Legislature.

    Assemblyman Richard Merkt (R-Morris) announced that if the court forced the state to marry gay couples, he would introduce legislation to impeach the justices in the majority.

    "This would be an unconstitutional invasion of the Legislature's power by the Supreme Court," Merkt told the Associated Press before Wednesday's ruling. "This decision must come from elected officials, not an unelected judiciary."

    Even though a majority of justices have agreed not to force the state's hand on "marriage," Merkt apparently still plans to move for impeachment of the entire court.

    Within hours after the ruling, Garden State Equality announced that its allies in the Legislature will introduce a bill providing for full marriage rights, something the gay group said is already favored by the state's populace, by a 56-39 margin according to one recent poll.

    Steven Goldstein, chair of Garden State Equality, didn't mince words and parted ways with leading national gay groups.

    "Those who would view today's Supreme Court ruling as a victory for same-sex couples are dead wrong," Goldstein said in a statement. "So help us God, New Jersey's LGBTI community and our millions of straight allies will settle for nothing less than 100-percent marriage equality."

    Lambda Legal Defense & Education Fund, which along with Garden State Equality represented the New Jersey gay couples bringing suit, also called on the Legislature to extend marriage, not civil unions, given popular support.

    "The question for the Legislature is an easy one," said David Buckel of Lambda Legal, the lead counsel in the case, "whether to follow through on the support of the majority of voters in this state to allow their gay friends and neighbors to marry."

    Democratic Gov. Jon Corzine has welcomed the court's decision but opposes full marriage for gay couples. Likewise, the Democrats leading both the state House and Senate issued a joint statement indicating they will back civil union legislation, according to today's New York Times.

    In the most contentious statewide election this year, both Democratic Sen. Robert Menendez and Thomas Kean, Jr., his GOP challenger, oppose gay marriage while backing civil unions, but Kean reportedly told ABC News last week that he backs a constitutional amendment stalled in Congress that would ban states from marrying gay couples.

    The New Jersey court's ruling, while not the full victory on marriage sought for gay rights advocates, at least reverses a trend of defeats on the contentious legal issue. Since the gay marriage victory in Massachusetts high court in 2003, and a subsequent advisory opinion from that court that civil unions would be separate and inherently unequal, the rulings have gone the other way.

    The highest courts in New York and Washington state both ruled that their state constitutions do not guarantee gay couples the right to marry. The New York opinion particularly embittered gays by accepting that one justification for excluding gays from marrying was the "intuition" that children are better served by having opposite-sex parents.

    The New Jersey court didn't embrace that idea, partly because the state did not even offer it as justification for traditional marriage laws. Even still, Chief Justice Poritz and her dissenting justices went out of the way to dismiss the idea, citing the large body of social science evidence to the contrary.

    Lawsuits challenging heterosexual-only marriage laws are still pending in California, Maryland and Iowa, and the "compromise" reached by the New Jersey justices may offer a compelling way out of the issue for the high courts in those states.

    If they do follow suit, it will complete something of a circle in how courts have dealt with constitutional challenges to state marriage laws.  The supreme courts in Hawaii and Alaska ruled in favor of gay couples on the question in the 1990s, but before their rulings could go into effect, they were overturned by amendments to their state constitutions.

    When the question next reached the Vermont Supreme Court, the justices took what many saw as a compromise route to avoid being overturned in similar fashion, and they sent the issue to the legislature with a six-month deadline.  By the end of 2000, then-Gov. Howard Dean had signed the nation's first civil unions statute into law; marriage was never even really considered an option at the time.

    The landmark Massachusetts ruling has been followed by a flood of similar amendments on ballots across the country — including eight that will be decided on Election Day in two weeks. The four justices on the New Jersey court may well be bowing to that political reality, concluding that separate-but-equal civil unions are far better for gay couples than constitutional amendments that ban them from marrying.



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