Fully updated with actual commentary on the decision.*
And updated once more to recommend Pam Spaulding’s commentary at Pandagon.
From the New York Times: N.J. Court Expected to Rule on Gay Marriage. More to follow.
Okay, so here’s what follows: The NJ Supreme Court has ruled in favor of same-sex couples seeking the right to marry. Sort of. In a 4-3 decision, the court wrote:
“At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but 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 the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.”
The court is sticking strictly to an equal protection argument and declines to get into the business of whether marriage can be labeled a fundamental right. At least, the majority does. The dissent is interesting, because it’s not opposition to the equal protection argument. Instead, it’s an argument in favor of just going for gay marriage full out. No reason to punt the question of semantics back to the legislature (which now has 6 months to decide on a label: domestic partnerships, civil unions, etc.): just do it. The dissenters also argue that there is a fundamental right to same-sex marriage encompassed in the liberty clause of the NJ State Constitution, so we’re now at a point where there’s a 7-0 consensus on the recognition of same-sex partnerships, which, frankly, is a major step up from the previous string of defeats for SSM advocates.
Now, there is some debate about who “wins” here. At Americablog, it’s argued that this isn’t a victory, because this is still “separate but equal”. (There’s also a comparison between the Court’s ruling and Bush’s purported views on same-sex marriage, which I find wholly unconvincing. I think Bush’s version of “let the states decide” is “let the states ban it, rather than the federal government”, much like Scalia on abortion.)
There’s a similar sentiment in the NY Times article:
Steven Goldstein, the chairman of the gay-rights group Garden State Equality, said the court’s decision was disappointing.
“Those who would view today’s ruling as a victory for same sex couples are dead wrong,” he said. “Half-steps short of marriage — like New Jersey’s domestic-partnership law and also civil union laws — don’t work in the real world.”
I will be the first to concede that this isn’t an all out victory for the plaintiffs, but I have a hard time seeing it as a loss. In plenty of cases, half-steps are what ultimately gets you to your goal. For example, there is a long line of Supreme Court cases prior to Brown v. Board of Ed which explicitly undermine the notion of separate but equal. They’re not the definitive statement that Brown is, but they’re essential in the court’s reasoning. The Volokh Conspiracy claims this means the slippery slope argument is real and that the court’s review of its evolving treatment of gays and lesbians is enormously significant.
I suspect it’s a position of enormous privilege to be able to say that incremental is better than nothing, but I’m tossing the question to everyone here. Do we call this win, lose, or draw? And does anyone care to speculate about the political fallout/response?
*I’m just editing this post rather than starting a new one since there are already some good comments in this thread.
{ 23 comments }
Well, 99.9% yay. The court holds that same-sex couples, under law, are due ALL of the same benefits of marriage as het couples. They also rule that what to name this state of affairs is a legislative question not a legal one.
The decision is based in the NJ constitution, not the US, so it can’t be appealed. To overturn it would require a NJ constitutional amendment, which looks — from my quick reading of the constitution — unlikely.
Also, someone on CNN called this a “4-3 decision,” but by my reading the judges were unanimous in finding the right to civil unions, and the three-judge minority dissented only in wanting to go further and find a right to marriage in name as well as practice.
99.9% yay is right. This is a great ruling.
The ruling is available here:
http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf
I’m posting analysis on my blog as I read through it.
Brooklynite: Yes — the dissents were for just naming it “marriage” right now, so the 4-3 is misleading.
I hate it when the news mangles legal reporting.
Yeah, Aravosis is very busy spinning this at Americablog and it’s annoying. He’s clearly doing it so as to try to prevent Republicans from using it as a rallying cry, but truly his disingenuousness is galling (claiming, as one example, that the NJSC said “no” to marriage — which they most certainly did not). It’s a great ruling and the feral gay-bashers were already going to vote in droves for the Rs anyway.
I was wondering why Aravosis was spinning it that way (and his commentators are mostly calling him on it.)
WOOHOOOOO!
*throws confetti and dances about happily*
Except it isn’t quite “separate but equal” — in the next 180 days, the NJ legislature is going to decide whether same-sex marriage will get a different name from het marriage. In a state where nearly 60% of the residents are pro-gay marriage (and the polls in fact use that word), I find it very likely that the leg. will in fact say yes, of course, it’s marriage and everyone will wait in the same line at the clerk’s office.
So I would say, well, it’s hard for me to say even that we’re in limbo right now — since it was 7-0 for straight-up equality under the law — I would say we’re drinking a really great crémant de bourgogne right now, and I’d bet we’ll be switching to champagne soon.
Absolutely a win. But I’ll wait to say how much of one until the legislature figures out what it’s doing now that the ball is in its court.
I think calling this a loss is, well, kind of silly. As for “Steven Goldstein, the chairman of the gay-rights group Garden State Equality”, those half-steps short of marriage sure ain’t perfect, but they’re providing me with health insurance and the right to make important life and death decisions if my girlfriend suffers a horrible accident. So I’ll take incremental over nothing, thanks. Plus, I’m not sure yet whether this even does represent something incremental, really — again, it’s wait-and-see re: the legislative process.
Political fallout? I don’t think it’ll be much of anything. The rabid anti-gay folks were probably going to vote anyway, and to be honest I think their flogging of the gay issue has just about spent itself in usefulness. But that’s a gut feeling, I don’t have much to back it up.
I consider it a win. We got the benefits, we got the judicial support, and we may get the name too. It is a small victory, but one none the less.
And knowing that 7-0 ruling will piss off the religious right just makes it a little sweeter, even without the word marriage.
Yeah, but there’s still the question of Gov. Corzine, who is pro-civil union, but not SSM. I wonder what he’ll do if the legislature tosses it to him as “marriage”.
I hope I am not being naive, but I really think that Corzine was bullshitting when he said that. I can’t imagine that he cares so very much that he would veto a bill calling it marriage, all signed and handed to him and beribboned. That seems like something a true-believer would do, and I just don’t think he is. But I really may be insanely naive.
Is it a victory? Hell yes.
The majority agreed that the benefits and obligations of marriage must be extended to all couples who wish to take that responsibility for one another. That’s an unqualified triumph, because DP and civil union laws have not provided marriage in practice, they have provided a version of marriage-lite.
Note that this decision is quite distinct from the Vermont decision that mandated the legislature to ‘do something’. The something they did, civil unions, is not the equivalent set of benefits to marriage…someone who’s a VT lawyer correct me if I’m off, I’m working from my memory of the outstanding book ‘Civil Wars’, a reporter’s account of the process through which VT developed civil unions.
So the spin designed to say this isn’t marriage, is spin. From what I know about NJ politics, which is some but not all, it’s well within the realm of the possible that the Lege will decide that it’s cheaper to change the marriage license forms than to spend 6 months debating what to call the non-marriage status that contains all the rights and privileges of marriage and how to document it in all state laws.
I second Kyra.
Apparently it’s not likely in N.J., but …
Say this happened in another state where the legislature might not be so inclined. The court here, whose job it is to interpret the law, has told the legislature, whose job it is to make the law, what to do. What would happen if the legislature told the court to stuff it, and refuse to enact any such law?
I really like that allusion to Brown v. Board of Ed. Things take time and every step towards progress is good.
It is disappointing to hear Harold Ford and Corzine (and presumably many other Democrats in tight races) pre-emptively issue broadsides against full equality for the purpose of electoral convenience. It is understandable, given the chickenshit nature of our 1.3 party system and how courage rarely intersects with politics, but still.
I recently read the most amazing argument, and I don’t recall where. Possibly Pandagon or Punkassblog. The concept was that because sexuality is not constitutionally protected, but sex is, then the argument for same sex marriage should actually stem from equal protection for the sexes. As a woman, I am given the capability, legally, to marry a man. Men aren’t given that capability. They can’t marry men. We’re denying men a legal protection for their relationships with men. And vice versa.
I’ve been wondering how well that would perform in court.
Esme: In my brief time doing employment law, that was the first way that sexual orientation received protection: by arguing that a gay man harassed for being attracted to men would have been treated differently than a similarly situated heterosexual woman. Hell, it worked in Texas.
The Dahlia Lithwick take is interesting:
http://www.slate.com/id/2152216/
Quoting Lithwick:
I heart Dahlia Lithwick. She’s awesome.
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