Wednesday, October 25, 2006
Gay Ol' Times
Ed Brayton at Dispatches from the Culture Wars beat me to the New Jersey Supreme Court's decision on gay marriage.
As Ed notes, the Court ordered that, within 180 days:
... the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.As long as the scheme "provides full rights and benefits to samesex couples" the choice of whether to call the civil union "marriage" or some other term, is "a matter left to the democratic process."
A few other things to note: The decision was based on the New Jersey State Constitution's equivalent of the Due Process and Equal Protection Clauses of the Federal Constitution. As such, the ruling cannot be overturned by the Federal Courts, as the New Jersey Supreme Court's interpretation of its own Constitution is definitive. The Federal Courts could only overrule this decision on the basis that it, itself, violates the Federal Constitutional rights of some individual. Mere disagreement as to whether there is or should be a constitutional right to same sex marriage is not enough.
The three dissenters did not wish to deny same sex unions. They wanted to skip the "middleman" of the Legislature and find an outright entitlement of gays and lesbians to marriage in name as well as substance:
We must not underestimate the power of language. Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law. By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. (Concurring and dissenting opinion by Chief Justice Poritz, and joined by Justices Long and Zazzali p. 76)That makes it a strong decision that shouldn't be affected by anything less than seismic changes in the personnel of the Court.
Now comes the real question: will this turn out to be, you should pardon the expression, a godsend to the Republicans, energizing the Righteous Right and allowing them to hang onto Congress?