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.
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