Thursday, October 26, 2006

New Jersey Court's Decision Not As Bad As It Seems

For gay rights activists, the New Jersey Supreme Court's decision yesterday might seem like a positive development. For those who haven't read the decision, the court decided that the state cannot deny benefits to same-sex couples if it affords those benefits to opposite-sex couples. However, the court stopped short of requiring an expansion of the definition of marriage to include gay couples, and only forced the legislature to create a legal regime that would provide equal benefits to all couples, regardless of sexual orientation. Gay rights activists won a victory without having to convince the legislature or the people of anything.

However, the decision is not as favorable as it seems. Remember that New Jersey's courts are notoriously liberal, probably more than New York. If any court outside of Massachusetts was going to require same-sex marriage, it was going to be New Jersey.

Supporters of SSM often make a number of arguments and the court rejected most of them:

First they argue that due process requires recognizing a right of marriage broad enough to encompass SSM. While the NJ court recognized a right to marriage (a right also found in the federal Constitution according to the Supreme Court), it did not find a right to SSM. In other words the court viewed the question at a lower level of generality, viewing the right as a narrow right of same-sex couples to marry, a right obviously not found in any American constitution.

Second, they also argue that bans on SSM are inherently discriminatory on the basis of gender. The argument goes like this: Tom can marry Sally but Jane cannot, and the only reason why Jane cannot is because of her gender. Therefore the discrimination is on the basis of gender.

In my mind this is the best argument gay activists have. I only skimmed the decision, but the court seems to have ignored this entire construction and considered the issue one of discrimination on the basis of sexual orientation.

Third, the court also rejected the argument that denying same-sex couples the right to marry is discriminatory. They severed the benefits of marriage from marriage itself and allowed other arrangements to rectify the discrimination.

At most they recognized that same-sex and opposite-sex couples are similarly situated and cannot be distinguished on traditional grounds. Obviously I disagree, but this ruling is fairly narrow.

Moreover the political ramifications might be negative for gay rights activists. Legislatures don't like being told what to do and NJ's will probably just do the minimal amount to fulfill the court's ruling. In other words, they'll probably create civil unions but not allow SSM. In the absence of a court decision requiring them to fix this problem, they might have allowed SSM, considering how a majority of the state supports it. This ruling might create a backlash in a fairly liberal state.

Lastly, this ruling is really just another arrow in the heart of the gay rights movement's attempt to get the courts to impose SSM. Despite lawsuits in numerous states, only one has recognized SSM and only Vermont and NJ will have civil unions because of their courts. Only one court accepted the gender discrimination argument (and Hawaii then passed an amendment to ban SSM), and none has recognized a due process right to marry. Since Goodridge, two large liberal states have rejected their arguments totally (New York and Washington) and only one has accepted their weakest argument. Things seem to be moving backwards for them.

I hope they realize that the litigation strategy is failing and try to move through more democratic means.


Blogger Charlie Hall said...

I'm not so sure things are moving backward for Gay rights -- Connecticut's legislature passed a civil unions law this year despite the complete absence of court pressure. And it was signed by a Republican governor who will probably be re-elected in a landslide. And New York is about to elect a governor who supports same sex marriage.

10/26/2006 11:37 PM  
Blogger Ezzie said...

BOTW had an interesting point about the ruling as well...

10/27/2006 12:23 AM  
Blogger Classmate-Wearing-Yarmulka said...

Charlie- So one blue state has adopted civil unions, and another blue state is going to elect a governor that hasn't exactly made SSM his campaign platform.

Meanwhile, state after state are amending their constitutions to ban SSM.

Not exactly progress in my book.

10/27/2006 9:35 AM  
Blogger Nephtuli said...


NJ was pretty much the last chance gay rights activists had to get SSM created by the courts (California's decision is still pending but the court is less liberal). If they lose this state (because the legislature is being forced to deal with the issue) that'll be a big setback.

And CWY is right. In the absence of the litigation strategy I doubt so many states would have amended their constitutions. They'll lose those states for a long long time.

And frankly while I don't think SSM is the end of the world, I want them to face setbacks because it'll teach the next group to give democracy a chance.

10/27/2006 2:22 PM  

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