Function Over Form

Regardless of which side of this dividing line you fall, you should know that this is not the end of the line for the same-sex marriage debate in New Jersey. It is just a signpost along the way. Now that the New Jersey Supreme Court has declared that same-sex unions ("marriage" or whatever else it will be called) are permitted under the state's constitution-- or at least aren't prohibited by it-- the battle will move on to the state house. Same-sex marriage foes will try to get around this ruling by pushing to get a proposed constitutional amendment banning same-sex marriage onto the next ballot (perhaps in time for the 2008 presidential election). Same-sex marriage supporters, meanwhile, will lobby those same politicians at the very same time to try to ensure that the rights and privileges recognized today by four state supreme court justices are called "marriage" privileges and nothing else.

In other words, today's close and politically correct ruling will spawn a whole new generation of legal and political wrangling that is likely to roll on for years. And, you heard it here first, we all could be back a few years from now, waiting for a New Jersey Supreme Court ruling that tackles some of these new-generation issues. There are two summary paragraphs in particular that tell you all you need to know about where the Court itself drew the line on this topic. They are instructive because they tell us the limits to which the Court's majority was willing and able to go in wading into this morass.

The Court pointedly announced: "At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about unequal dispensation of benefits and privileges to one of two similarly situated classes of people. (p. 48)"

The Court's majority also declared: "The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union. Because this State has no experience with a civil union construct, the Court will not speculate that identical schemes offering equal rights and benefits would create a distinction that would offend Article I, Paragraph 1, and will not presume that a difference in name is of constitutional magnitude. New language is developing to describe new social and familial relationships, and in time will find a place in our common vocabulary. However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship. (pp. 57-63)."

In other words, the Court said, we are for the time being going this far and no further and we hope to not have to deal with this again. It could have been a lot worse for proponents of same-sex marriage. But it could have been a whole lot worse, too.

By Andrew Cohen |  October 25, 2006; 12:50 PM ET
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This was not a "close decision." According to the summary posted by the Office of the Clerk and linked on nytimes.com, the majority opinion (4 members) ruled that the rights of marriage must be provided, but the legislature need not call it marriage. The dissenting opinion (supported by the other 3 members) said the state must grant the rights of, and the name of marriage. So the vote is 7-0 that the state MUST (not MAY, as Cohen says above) confer the rights of marriage to gay couples. The majority in essence said "separate but equal" (e.g., calling it civil unions with the same rights) is good enough, while the dissenters said "separate but equal" is not sufficient and full marriage in name as well as in fact is required.

The summary of the dissenting opinion from the nytimes.com link:
***********
CHIEF JUSTICE PORITZ has filed a separate CONCURRING and DISSENTING opinion, in which
JUSTICES LONG and ZAZZALI join. She concurs in the finding of the majority that denying the rights and
benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the
equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution. She dissents from the majority's
distinguishing those rights and benefits from the right to the title of marriage. She also dissents from the majority's
conclusion that there is no fundamental due process right to same-sex marriage encompassed within the concept of
"liberty" guaranteed by Article I, Paragraph 1. She is of the view that persons who exercise their autonomous liberty
interest to choose same-sex partners have a fundamental right to participate in a state-sanctioned civil marriage.

**********

The nytimes link:
http://graphics8.nytimes.com/packages/pdf/national/20061025_decision.pdf

Posted by: Glenn Cassidy | October 25, 2006 06:17 PM

From a political standpoint, the New Jersey ruling is untimely for Democrats.

Two weeks before Election Day in a campaign that has seen the most loyal Republican constituency -- religious conservatives -- become increasingly disenchanted with Congress and resistant to appeals based on values, the New Jersey court took an argument some conservatives had stopped listening too and turned the volume way up. "Activist judges" is once again a slogan with a face, and could be used effectively by Republican campaigns to keep voter turnout by a key part of their base at pre-Foley levels.

Posted by: Zathras | October 25, 2006 07:22 PM

It's pure Rovian spin to cast a victory for civil rights as bad for the Democrats and good for the Republicans. For weeks, even months, we've been reading one article after another in the WaPo and other papers about growing dissatisfaction among Republicans with the President, the war, the corrupt and bungling Republican Congress, as well as disgust with various scandals. All of that has been magnified by bad news in every cycle. It's too late for this decision to change minds about voting at all (that is, staying home) or voting against the Repuublicans. Even Idaho is turning more blue. Rove et al. will try to spin this as a disaster for the Democrats but every day will continue to bring more bad news from and about Iraq. "It's the war, stupid."

Posted by: Lev Raphael | October 25, 2006 07:48 PM

I would guess that this will put the Virginia marriage "protection" amendment over the top and that will guarantee that Webb is pulled under with it in the same state's Senate race....

Posted by: Bad for Webb.... | October 25, 2006 08:33 PM

GREAT DAY FOR GAYS AND LESBIANS! CALIFORNIA WILL BE NEXT!

Posted by: WILLEM | October 25, 2006 09:59 PM

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