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    October 26, 2006

    Wrong on the law, right for gays

    Posted by: Chris

    "Those who would view [the New Jersey] Supreme Court ruling as a victory for same-sex couples are dead wrong," said an impassioned Steven Goldstein, head of Garden State Equality, one of the gay groups that brought the marriage lawsuit. 

    I disagree, even though I support completely the very next words from Goldstein: "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."  What's more, I would agree with Goldstein and others that the New Jersey court was dead wrong on the law for allowing the state's Legislature to adopt civil unions, rather than simply amending the marriage law to include same-sex couples. But I still view the decision as an important victory.

    By ruling as it did, the New Jersey court followed the middle-of-the-road example set by the Vermont Supreme Court seven years ago, when it struck down that state's heterosexual-only marriage law but left to the legislature to develop a replacement legislative scheme.  Back then, gay activists in Vermont were thrilled and didn't even try to overcome opposition to full marriage from the legislature or then-Gov. Howard Dean.

    Margaretmarshall Since then, as we all know, the Massachusetts high court struck down that state's marriage law, and when the legislature came back to the court three months later to ask whether civil unions were sufficient, the court said no. "The history of our nation has demonstrated that separate is seldom, if ever, equal," wrote Chief Justice Margaret Marshall (pictured), in words that ought to echo today in New Jersey.

    But since the example of Massachusetts, conservatives have nonetheless succeeded in passing laws and constitutional amendment banning gay marriage in dozens of states.  In the few states where they haven't succeeded, it's been because moderates and gay activists have often argued that such measures are unnecessary because gay marriage isn't a pending threat

    Judges aren't immune to political developments, and they know the harm done to the authority and credibility of the courts if their rulings are overruled by the people in constitutional amendments, as happened in both Hawaii and Alaska in the '90s over this very issue. It's not surprising, then, that the high courts in New York and Washington state couldn't muster majorities in favor of equality for gay couples, and instead decided this summer that the issue properly belonged in the legislatures to resolve.

    Follow the jump for why the fight is better fought in legislatures:

    Gay activists have always known that the marriage fight must be won in both the courts and the legislatures, and the dangers of bypassing the democratic process too much are grave, as the experience of the last few years dictates.  Gay couples in Massachusetts can marry, but in dozens of other states, that option is now written out of the very state constitutions their judges would apply.

    Even if those state amendments are somehow overruled through a federal court opinion, a scenario I explored here but an unlikely result given President Bush's recent Supreme Court nominees, a nationwide victory imposed by the courts would consign gay marriage to the same perpetual battlefield as abortion, which is still the nation's most divisive social issue more than three decades after Roe vs. Wade supposedly settled the question.

    The New Jersey court yesterday threw the issue into the state's legislature, where democratically elected representatives can have a full debate. If gays succeed in winning marriage there, "activists judges" won't be blamed, except by the extreme right that is unreachable at any rate. Yesterday's majority opinion contains powerful language about the inequity done to gay couples by excluding them from marriage, and the dissent adds in strong terms why nothing short of the name will be truly equal.

    Now it's up to Goldstein, Garden State Equality and their allies in the legislature to carry the ball the last few yards, as difficult as they may be. (The governor and leaders of the House and Senate — all Democrats — have said they will oppose full marriage.) Much better to fight out in the Legislature, this year and in the future, whether to merge civil unions into marriage, than to see another court victory stolen by constitutional amendment, and judges in other states intimidated into closing completely the courthouse door.



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    1. BobN on Oct 26, 2006 4:27:36 PM:

      While I agree with much of what you've said, I disagree with this:

      "a nationwide victory imposed by the courts would consign gay marriage to the same perpetual battlefield as abortion, which is still the nation's most divisive social issue"

      The two issues are fundamentally different. Abortion foes can point to an un-ending number of victims (their word, not mine). That provides a sort of permanent urgency.

      The imposition of same-sex marriage (your words, not mine) would be more akin to racial desegregation or the integration of women into the workforce. Some people would remain vehemently opposed, but most would see that the change was not the catastrophe some made it out to be.

    1. Jeff Byrne on Oct 26, 2006 4:39:57 PM:

      Hi Chris, I'm enjoying your blog -- good to still be able to read your voice on issues. Hope you're doing well in your new home.

      The "marriage" label seems lost in NJ. I'd love for activists there to tell the legislature that "civil union" has become offensive to the lgbt community, a second-class label made to sound benign. If "marriage" is not possible, reject their bland/gutless/insulting terminology and demand "Separate-But-Equal Union" -- force them to be honest about what they're really creating, wear it with pride and a sense of how history will view this chapter. Who gets to decide what our legal relationships are called?

    1. Jimmy Mac on Oct 26, 2006 7:56:08 PM:

      Give me and my partner all of the rights, benefits, priviliges and responsibilities that are the result of a "marriage" and you can call our union whatever you want. I don't care.

      It is time for the State to stop deputizing religious organizations to act on their behelf. Each state should issue a civil union license that grants all of the secular civil benefits to couples.

      After that, if a couple wants to go to a coven, a mosque, a Las Vegas wedding chapel, a temple or a church for an additional ceremony that matches their (ir)religious sensibilities, so be it. But that ceremony in and of itself has no bearing on legal and civil rights of the couple.

    1. John Howard on Oct 26, 2006 9:34:42 PM:

      I don't think gay couples in Massachusetts can really marry. First of all, their country doesn't recognize their marriage, so they don't get any of the federal social security benefits that married men and women get. Also, they can "unmarry" simply by moving out of state, so there is no security, no protection, no permancy. That can't really feel like marriage.

      I have the best plan to get civil unions recognized by the federal government as marraiges, and more likely to be be recognized in all fifty states, as part of a federal compromise in which gays would give up the name marriage and more significantly, the main right of marriage - conception.

      We need to prohibit genetic engineering, by having Congress enact an egg and sperm law which would effectively prohibit same-sex couples using stem cell derived gametes to have children together. They are very close to attempting this in humans, putting children at risk of genetic defects and other issues. We could probably get that done if it was supported by the left, who would get much more equality than is given by a single state calling them "married".

    1. joseph O'Brien on Oct 26, 2006 10:51:22 PM:

      Calling homosexual unions "marriage" is unnecessary, it only invites absurd opposition. New Jersey's court decision is a breakthrough no matter what you call it. Equal rights are what is important.

    1. Brian on Oct 28, 2006 6:38:00 AM:

      Equal Protection under Law IS the very heart of the democratic process, because without it, it is not Democracy rather it is unchecked majoritarian rule. No minority group can outvote a majority group and that it is why Equal Protection is the foundation of Democracy. U.S. Americans are not the first nation to override Democracy to instill a majoritarian-based system of government.

    1. Terrance on Oct 29, 2006 8:12:27 AM:

      As an African American gay man who grew up learning the history of the civil rights movement, there's a part of this argument that troubles me: the one that point to an end of minorities using the courts as a legitimate avenue to get justice on questions of civil rights.

      It seems we're moving towards putting civil rights to a majority vote. That implies two things. One, that might (in terms of numbers here) makes right. And two, that there are no "unalienable" rights, because what the majority grants the majority can also take away, and not just where gays are concerned but where any group that's outside of the opinion of the current majority is concerned. (The religious right should take note, in case they find themselves heavily outnumbered some day.)

      I understand that a court decision cannot change people's hearts and minds. But it can mandate how they treat people, regardless of what they believe. In the south, court rulings against segregation opened up educational opportunities that would probably not have been accessible to African Americans for at least a generation, maybe more. Had it not happened when it did, I might not have the opportunities I have or be where I am now. Without the courts as a means of gaining justice outside the will of the majority, people would've had to live with injustice much longer than they did.

      When it comes to our families, we're already engaging in "public education." Every time my family goes out as a family we're doing it. Even going to the grocery store or out to dinner, with our son constantly chattering to "Daddy" and "Papa" is an "outing" in the literal and figurative sense. The problem is that people see out families but don't see the stories of what it means not to have the same rights and protections, because those mostly come into play during crises like the illness or death of a partner, and even those tend to take place out of the public eye. I've covered many of them on my blog, mostly here.


      What I do know is that while we wait for the majority to finally support justice, we seem to be abandoning the idea that might doesn't equal right and that sometimes what the majority wants is the exact opposite of justice. And while we wait, our families do without the benefits and protections of other families. So, stories like the ones I've blogged about will continue to happen. And mostly without remedy, or justice.

    1. Citizen Crain on Oct 29, 2006 5:09:23 PM:

      I agree with my old friend Jeff Byrne, as well as several other commenters, that "civil unions" are inherently unequal and violate a basic aspiration of our democracy: equal protection under the law. That said, two centuries of the American experiment have taught that the checks and balances written into the law operate in ways that are more subtle than merely measuring a disputed policy against the standard set by a state or federal constitution.

      When the courts move too far ahead of the majority in holding the goverment to its guarantees of equality and minority protection, the "check" of constitutional amendment comes into play. If Brown vs. Board of Education, which ordered school desegregation by race, had been decided generations earlier, we probably would have seen the same reaction we're seeing to gay marriage today.

      So let's remove our rose-colored glasses and recognize that the courts can realistically advance the equal rights of a mistreated minority only so fast. It will take more time, and more work by our minority in building alliances and winning allies, for America to live up to its promise of equality for gays.

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