Wednesday, October 25, 2006

Joy in Jersey: Peek at Gay Marriage

Whether anyone calls it marriage or something else, the New Jersey Supreme Court is indifferent. In its ruling today, it held that equal rights under its constitution mean just that.

The legislature in Trenton has six months to amend the marriage laws to enable same-sex marriage or perfect a civil-union model. We're strongly betting on the former. With a small bit of attention, they surely learned from the fumbling and hiding by our governor and senate and house leaders who have yet to get around to the same order from our highest court.

There will be much analysis following this, here and elsewhere. A few of the highlights of the 90-page ruling follow. Note also that in our opinion:
  • As we have been predicting, New Jersey laws are similar to Massachusetts' in defining marriage as a civil contract, so this decision was likely.
  • The next most likely candidate is Rhode Island, which does not forbid SSM.
The New Jersey court did not order immediate implementation of SSM, not really. However, the majority decision did everything short of kicking the legislature into doing just that.

According to the ruling, the gig was up right at the top -- state constitution Article I, Paragraph I:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.
The court said that the facts were never in dispute -- seven same-sex couples were not allowed to marry. So, the decision came strictly to matters of law. Unlike those justices quivering in their robes in Washington and California, these did not twist the law to suit their emotions or those of voters.

Let courts who care for law and equality heed this ruling.

The questions of law here too were "whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name of marriage."

The court also drew on the standard adapted by the U.S. Supreme Court in construing the 14th Amendment for due process on the meaning of what makes a fundamental right. As today's ruling notes, "First, the asserted fundamental liberty interest must be clearly identified. In this case, the identified right is the right of same-sex couples to marry. Second, the liberty interest in same-sex marriage must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State."

Here, the basis of the court's unwilling to order the immediate implementation of marriage appeared. The ruling says, "Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution." This carries over in the decision, as the mandate for equality is paramount, but remains modestly tempered by the option to extend marriage or to replicate all of its privileges, protections and limitations by some other structure. Hence, the court stood on the threshold with the new spouse, but did not enter fully.

Here was perhaps the court's clearest statement of equality and civil rights. In stark contrast to other waffling decisions recently, it did not say that it was enough that the old way a man and a woman being the only marriage form. Instead it noted:
  • The 1912 state marriage statues limiting marriage to heterosexual couples were written without considering any options, and "Times and attitudes have changed."
  • At the local and national level, laws that discriminated against homosexuals have been struck down or overturned.
  • Article I, Paragraph I embraces "the fundamental guarantee of equal protection." That led the court to consider "whether same-sex couples have the right to the statutory benefits and privileges conferred on heterosexual married couples."
  • A 1992 state amendment made sexual orientation a basis for protection against discrimination, thus codifying this as a protected category. In 2004, domestic partnerships were included.
  • Discrimination on sexual orientation is also prohibited in criminal law and public contract law.
  • The recent The Domestic Partnership Act "has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples."
  • "There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed samesex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships."
  • New Jersey laws concerning same-sex couples "are more in line with those of Vermont, Massachusetts, and Connecticut than the majority of other states."
Another judicial éclat in the ruling was the dismissal of the wheezing discriminators' cliché of changing the nature of marriage by expanding it. 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."

Let us praise clearheaded jurists.

The resolution was thrown to the legislature. However, it was done as the Massachusetts court did, not the California one. The direction was "To bring the State into compliance with Article I, Paragraph I so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision."

Were I in the legislature there, I would mark well the ruling's comment on the next step. The justices wrote several times that they were not mandating marriage per se, but implied strongly this would be the easiest and most sensible way to conform to the constitution and the ruling. As they put it:
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.
We read that as an extremely firm suggestion to amend the marriage laws for SSM.

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