It seems to me the New Jersey Supreme Court has -- perhaps non-accidentally -- denied Republicans the powerful base-mobilizing weapon that a ruling mandating gay marriage would have given them. Sure, New Jersey proponents of gay marriage have been more or less invited to return to court if the legislature doesn't call the equal package of rights it grants gay couples "marriage." But by kicking the nomenclature question to the legislature, and giving them 180 days to resolve it, the New Jersey justices avoided having the state instantly become, in AP's pre-anticipatory words, "the nation's gay wedding chapel."That is, we don't have the instant spectacle of people suddenly going to New Jersey to get married. (Going to New Jersey to get married sounds like the least cutting-edge thing in the world to do, doesn't it? But throw in the gay and nothing's boring.)
The first link in Mickey's quote is to Dale Carpenter's analysis of the New Jersey court's decision. Carpenter doesn't see much of a way for the New Jersey court, once it's stepped onto this particular slippery slope, to keep from going all the way to a right to same-sex marriage:
[H]aving started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. What’s the basis for granting a select list of the rights but not the others?...So the court shifts the attention back to the legislature. If the legislature doesn't choose full-scale marriage, things will go back to the court, and I think you know what to predict. The court has at least slowed down the process and involved the legislature, giving people a chance to respond -- adapt? -- to the change the court has set in motion. Mickey Kaus suggests that the court's motivation was not quite that kind of interest in the political process, but a politically engaged concern about how the opinion would affect the next election.
It is difficult to understand how withholding the remaining “rights and benefits” from committed same-sex couples is compatible with a “reasonable conception of basic human dignity and autonomy” [recognized in the state domestic partnership law]. There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships....
The state had nothing left in defense of the rights gap except an unadorned “tradition” that the state itself had steadily undermined in its public policy....
Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.
As it is, what the court did is complicated enough to mute the effect. And there are no exciting pictures to show on the news and splatter on YouTube.
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42 comments:
I'm not so sure about the comparison of anti-gay marriage to anti-miscegenation. I think it might be more like anti-abortion. In thirty years, there will still be a large group that is adamantly opposed.
As it is, what the court did is complicated enough to mute the effect.
I tend to doubt that. Opponents don't have to answer the court's opinion in detail - all they have to do is come up with a short, catchy phrase summing it up and proceed apace to make hay with it. Which I expect they will.
If in 30 years, we will look back and marvel that it was an issue, then I would suggest that we shall also marvel that you could only marry one person, or maybe even be limited to humans.
One issue that these liberal activist courts adamently refuse to consider is that if homosexual marriage is acceptable, then why not polygamy? After all, polygamy has over gay marriage that:
- it is traditional, supported by the Bible, etc.
- it's primary purpose is childrearing.
I don't think that the legal theorists who are pushing this so hard have adequately addressed the slippery slope problem: where do you stop? Why stop with homosexual marriage? If two gays can marry, why not two siblings? Parent/child (great way to beat the Death Tax - marry your child or children)?
I agree with the Emperer, it is far more likely to be like abortion, inflaming passions and converting liberals to conservatives because liberal activist courts bypassed the legislatures, again.
I don't think that it will be that hard to come up with a catch phrase, for example: NJ Supreme Court to the people of NJ: give us gay marriage, or we will force it on you.
That’s what so lurid about this decision. Here you have a Court not just being politically activist in the public policy sense; but being activist in the strategic sense. How exactly all the incidents of marriage are well within the courts purview – yet the nomenclature something to be left to the legislature?
Its like saying the court will rewrite the property laws to define all private property to be owned by the state; yet it will allow the legislature to come up with a new term for property (if it wishes).
This courant mealy in this culture war demonstrates two things:
#1. The shameless political-ization of the courts… beyond mere activism and into adroit players in manipulating public opinion.
#2. The absolute need for incidents of marriage clauses in all State constitutional amendments.
I disagree that this isn't going to have some effect on energizing the anti-gay marriage crowd. Sure, the NJSC punted, but it also made clear that it intended to do something about the problem if the legislature didn't.
That should first worry the people of NJ, who indirectly put that court in place through its choice of governors and legislators. And secondly, it should energize the anti crowd in states like CO here that have gay marriage bans and initiatives on the ballot this time.
Gay male domestic violence shelters, that's what comes to my mind. We know women have shelters and services for domestic violence and to a lesser extent do men. Won't with the assertion of equality for same sex unions there be a mandate for more services for male victims of domestic violence? X amount of tax dollars are already allocated for addressing male victims of domestic violence. I mean men can't stay in women's shelters, right? Or has that changed too? If we are all just really the same, it shouldn't matter, but that's another issue. With the Court's assertion of equality, then there must be reciprocation on the part of the People to sustain said equality. Is there a higher rate of same sex male domestic vioence in said relationships as compared to violence against males in hetro relationships? I don't know and it doesn't matter. I just wonder how this particular aspect of equality is being and will be addressed. If you're given an inch but deserve a mile, why not go for it? The real test of equality can never be separated from economic considerations. The tax payers of RI should not take issue with more expenditures to address this concern, if indeed they are as fair minded as purported to be.
“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.”...
But (of coarse) the classes are not similarly situated in the least. Indeed, the court fails to distinguish the brute biology that fails to “situate” these distinct classes of people in any remotely similar way
Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that can never produce children. Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.
If the NJ decision says that the legislature must decide what to call the Court's new law they just created, then the whole decision is a political whitewash. Essentially, the court is saying "pass gay marriage or we will pass it."
I think Kaus is wrong. People will figure this out real quick.
"It was easy to say, I'm for gay rights, but through the legislative process. Never thinking that day would come, until you were "ready"."
Well... I'm not so angry I guess because I never said this. The only "gay rights" I'm for are those enumerated in our constitution. Like the right to bear arms ...or the all important right to vote. You know, popular sovereignty.
I’m happy to defend marriage come what may. Upholding the idea that children should be raised by their own Mother’s & Father’s in a married household is a discernable, unique, and morally persuasive concept. Its also a very old one. Ideological fervors like this sexual revolution were having will pass.
When the dust settles, and the revolutionaries go to their grave, those that stood for tradition will have the endorsement of history.
"It is difficult to understand how withholding the remaining “rights and benefits” from committed same-sex couples is compatible with a “reasonable conception of basic human dignity and autonomy”
I'm still waiting for someone to enumerate just exactly are these remaining rights that are being withheld. As I understand it, there already exists a domestic partnership legal structure and most if not all companies provide coverage for the domestic partner (same sex or not same sex).
Instead of vague references to "rights", how about some clarity in what is trying to be accomplished.....unless clarity is too revealing. Maybe that is the point?
Derve
"It's a symbolic power loss for the idea that only the majority gets to decide on this specific issue."
Yes Derve you are correct This is a major blow to democratic self-government and sound judicial review.
As it is, what the court did is complicated enough to mute the effect.
Oh, I don't think so at all. I'm concerned about the strategic thinking going on there, but I'm also completely unimpressed by the court's inability to see how this would affect the upcoming elections. There is no realistic scenario now in which this decision does not impact the election, and in favor of the Republicans. It doesn't matter that the court didn't write the law itself, it only matters that the court directed the legislature to write the law, and to write it in a very particular way because it will come under scrutiny.
For the life of me I can't understand why they didn't just sit on this decision for a couple of weeks. I guess they believe all the reporting that says the Democrats are going to win big and take over both houses, so they figured it was safe to release this now. Bizarre.
Joan - They didn't sit on it because the Chief Justice had to retire. This was her last decision.
I think Derve hits the nail on the head here. If you haven't already done so, read Dale Carpenter's commentary at the Volokh Conspiracy.
That said, it seems to me that the New Jersey state legislature has two choices: grant full marriage rights (and use the term) or get out of the marriage recognition business.
I thought this was spot on (and funny) from powerline
"Although under the Domestic Partnership Act same-sex couples are provided with a number of important rights, they still are denied many benefits and privileges accorded to their similarly situated heterosexual counterparts. Thus, the Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples."
This is consistent with the modern view seemingly held by many judges, under which a statute is analogous to a rough draft of a student's essay that is turned in to a teacher, perhaps to return with an instruction to do better next time.
What is left to the legislature, apparently, is the discretion to decide whether the name "marriage" will be appended to the fully equal scheme of homosexual union:
"The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process."
Well, that's a relief, I guess. We wouldn't want the court to impinge on the democratic process. As the court itself acknowledged, it has no mandate to resolve issues of social policy:
"To be clear, it is not our role to suggest whether the Legislature should either amend the marriage statutes to include same-sex couples or enact a civil union scheme. Our role here is limited to constitutional adjudication, and therefore we must steer clear of the swift and treacherous currents of social policy when we have no constitutional compass with which to navigate."
A better satirist than me could have some fun with such passages. All I can say is, those who believe that fundamental decisions of social, economic and security policy should be made democratically, not by judicial fiat, are losing the battle. If they stay home on November 7, that trend can only accelerate.
On the strength of its belief that there can be no rational reason in a civilized society for favoring traditional marriage, the New Jersey supreme court has dictated to the people of New Jersey and their elected representatives that they are henceforth prohibited from granting or recognizing any kind of priviledged status to the unique relationship between one man and one women that has traditionally been termed "marriage". This forceful command is said to be consistent with democracy.
I'm afraid that this ruling will do nothing but undermine the legitimacy of the New Jersey supreme court.
Fitz, et al.
Please recall that what the Constitution does or does not say about homosexuals is irrelevant, based on the Bill of Rights:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In Recent Supreme Court ruling on same-sex “marriage” courts do specifically reject the most egregious illogical conclusion of Goodridge, that procreation is some kind of bad faith post-hoc invented reasoning to hide the “real” reason marriage is a husband-wife institution.
From the Washington State Decision
“Plaintiffs also rely on Goodridge, where the Massachusetts court rejected the argument that procreation justified limitation of marriage to opposite-sex couples. The court said that “{t}he ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.” Goodridge, 440 Mass. at 333. The court held that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Goodridge, 440 Mass. at 332.
“But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”
Note the court appropriately applies Loving, etc.
The plurality makes strong criticisms of the concurrence and two of the dissents at the outset of its opinion, including charging the main dissent with “sadly overstep[ping] the bounds of judicial review” for suggesting that supporters of marriage laws are bigots. Besides calling the lower court decisions “transparently result-oriented” and a reflection of “the dominant political ideas of their local community,” the concurrence says: “[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington’s definition of marriage.”
The opinion employs a traditional legal analysis, deciding that sexual orientation is not a suspect classification and that there is no fundamental right to marry a person of the same sex. The plurality was very deferential to the reasons the state advanced in support of its marriage law. The concurrence was even stronger, arguing that the marriage law was supported by compelling interests because of “its exclusive link to procreation and child rearing.”
180 days? So this issue will pop up just in time to be exploited during the start of the presidential campaigning?
Fun stuff
I feel my rights are violated by not allowing me to have four wives. Leastways, I can't see why the NJ rule wouldn't apply to me in that situation, since I am currently being discriminated against.
Furthermore, this discrimination against animals should not be tolerated. Horses rose as high as consul during the Roman empire, surely we can find an animal-american to run for Chief justice of the state of New Jersey.
Will the South Park compromise idea work in New Jersey?
(it didn't seem to please anyone in South Park)
Also, if you could gay marry, who would you gay marry?
(because real men contemplate with whom they would gay marry, here's my list of five folks)
XWL
My list would be
(because real men contemplate with whom they would gay marry)
1. Thomas
2. Alito
3. Scalia
4. Roberts
5. Bork.
(Going to New Jersey to get married sounds like the least cutting-edge thing in the world to do, doesn't it? But throw in the gay and nothing's boring.)
Ann, I think you have this wrong, again, when you imply "...going to New Jersey to get married..."
As far as I know, again the decision doesn't rule in favor of gay marriage (nor against) But it wouldn't allow out of state residents to get married in NJ either.
I don't mean to play a "gotcha" game with you, but your thread titles, and opinions on them seem so misleading sometimes.
Married couples get an array of rights, regardless of whether or not they have children. In fact, married couples get right whether or not the couple is physically able to have children. Accordingly, as far as I'm concerned, the argument that the state needs to limit marriage to heterosexuals because irresponsible boys and girls are always making babies that would become wards of the state but for the incentives given by the state to married couples is pretty patently false on its face.
Furthermore, the New Jersey state legislature has acted in accordance with the public policy set forth by the state legislature. It doesn't make sense to give gay individuals the same rights as straight individuals, but then to deprive gay couples of rights given to straight couples. If you think that's activism, then I don't know what to tell you. The Court cannot be described as activist any time it overturns a lower court.
Derve has a knack for employing the worst metaphors ever. One-off, circuitous, and self-congratulatory all at once. Oof.
Re: "It doesn't make sense to give gay individuals the same rights as straight individuals, but then to deprive gay couples of rights given to straight couples."
Yeah, screw centuries of learning passed on as tradition. What did it ever do for me? Why, gay marriage has been tops on the to-do list for almost 5 whole years! All of its problems are solved! People who disagree are bigots!
Gimme state-endorsed gay marriage, polygamy, polyamory, NAMBLA, man-weds-LLC, incest, and even man-weds-cat.
On with the second Dark Ages!
"No doubt someone here will try and make something of it. *shrug* ask me if I care."
We don't care that you're stupid either. Straight people aren't STD "incubators" (gee, what a warm, human metaphor)?
"Gimme state-endorsed gay marriage, polygamy, polyamory, NAMBLA, man-weds-LLC, incest, and even man-weds-cat.
On with the second Dark Ages!"
Pogo, I often like you and agree with you, but take a chill pill, will you?
Can you please refrain from the sleazy NAMBLA/gay people comparisons? I consider it blood libel, akin to saying that Jews bake matzo with gentile blood.
Okay, I need a quick Con Law lesson (I am a lawyer but practice criminal law).
Does the "legal" (Constitutional) argument for gay marriage depend on whether or not sexual orientation is a suspect class? Or does it depend on whether the right to marry is a fundamental right, or both? It seems to me that there is a reluctance on the part of the judiciary to come right out and say "being gay is like being black therefore, you cannot keep gay people from doing things because they are gay that you would be prohibited from keeping black people from doing because of their color."
R3e: "Can you please refrain from the sleazy NAMBLA/gay people comparisons? I consider it blood libel, akin to saying that Jews bake matzo with gentile blood."
Chill pill it is.
There is no comparison between these groups, which really couldn't be further apart. Except one.
They share one distinction only: they cannot marry the desired other. My argument is that of the slippery slope: If gay marriage, then why not these others? I can see no defensible reason for exclusion once one group is granted that right. You may disagree.
I fully understand why no one wants NAMBLA on their team. Straights deny they're straight, gays deny they're gay. I have several friends and family as victims of pederasts, so I detest them on a personal level.
My sincere apologies, especially as I consider your opinion valuable and learned, even where we disagree. One cannot discuss the slippery slope without naming the consequences, so I hope that argument isn't deemed out of bounds simply as to avoid conflating these unrelated groups.
(Did I just take the red pill, or the blue one?)
Blue Moon -- you're right about the judiciary's reluctance. The New Jersey Supreme Court came out and said that it could not find a constitutional right to get married in the state. Instead, it used equal protection: If the stated goal of the legislature in passing marriage benefits is to promote stable relationships, and the stated goal of other New Jersey legislation is to prevent discrimination against homosexuals on the basis of orientation, then the legislature can't choose to give marriage benefits only to heterosexual couples and not to homosexual couples.
Garage: Read the post. I didn't say what you think I said. It's a hypothetical scenario.
They share one distinction only: they cannot marry the desired other. My argument is that of the slippery slope: If gay marriage, then why not these others?
For the same reason that legal recognition of hetero marriage didn't put us on a slippery slope to allowing men to marry *female* children -- children can't consent.
Re: "children can't consent"
Any culture that can redefine marriage will have little trouble redefining age of consent (14 being currently acceptable -with momma's okay- in Texas, Utah, and Alabama).
And your point only addresses one group. Polygamy yes?
step #2
(note the promenance of the signatories)
http://www.beyondmarriage.org/
" Legal recognition for a wide range of relationships, households and families – regardless of kinship or conjugal status.
Access for all, regardless of marital or citizenship status, to vital government support programs including but not limited to health care, housing, Social Security and pension plans, disaster recovery assistance, unemployment insurance and welfare assistance.
Separation of church and state in all matters, including regulation and recognition of relationships, households and families.
Freedom from state regulation of our sexual lives and gender choices, identities and expression.
Marriage is not the only worthy form of family or relationship, and it should not be legally and economically privileged above all others. A majority of people – whatever their sexual and gender identities – do not live in traditional nuclear families. They stand to gain from alternative forms of household recognition beyond one-size-fits-all marriage. For example:
Single parent households
Senior citizens living together and serving as each other’s caregivers (think Golden Girls)
Blended and extended families
Children being raised in multiple households or by unmarried parents
Adult children living with and caring for their parents
Senior citizens who are the primary caregivers to their grandchildren or other relatives
Close friends or siblings living in non-conjugal relationships and serving as each other’s primary support and caregivers
Households in which there is more than one conjugal partner
Care-giving relationships that provide support to those living with extended illness such as HIV/AIDS.
The current debate over marriage, same-sex and otherwise, ignores the needs and desires of so many in a nation where household diversity is the demographic norm. We seek to reframe this debate. Our call speaks to the widespread hunger for authentic and just community in ways that are both pragmatic and visionary. It follows in the best tradition of the progressive LGBT movement, which invented alternative legal statuses such as domestic partnership and reciprocal beneficiary. We seek to build on these historic accomplishments by continuing to diversify and democratize partnership and household recognition. We advocate the expansion of existing legal statuses, social services and benefits to support the needs of all our households.
We call on colleagues working in various social justice movements and campaigns to read the full-text of our statement “Beyond Same-Sex Marriage: A New Strategic Vision,” and to join us in our call for government support of all our households."
Any culture that can redefine marriage will have little trouble redefining age of consent (14 being currently acceptable -with momma's okay- in Texas, Utah, and Alabama).
That's backwards, in my opinion. We've never had any problem redefining the age of consent, and do so frequently. Indeed, when our nation was founded the idea that a teenaged girl would be legally forbidden from marrying with her parents' permission would have been just as shocking as the idea that she *wouldn't* be forbidden from marrying is today.
That people are seriously considering redefining marriage to cover gays is a *result* of our long-standing willingness to tweak what the institution means and who should properly be allowed into it -- not a precursor to some future willingness to do so.
And your point only addresses one group. Polygamy yes?
Oh, I'm entirely in agreement that court-mandated recognition of gay marriage puts us on a slippery slope to legalized polygamy. Since I think polygamy should BE legal, of course, that doesn't actually bother me at all. I do wish gay marriage activists would be more honest about it, though.
"Oh, I'm entirely in agreement that court-mandated recognition of gay marriage puts us on a slippery slope to legalized polygamy. Since I think polygamy should BE legal, of course, that doesn't actually bother me at all. I do wish gay marriage activists would be more honest about it, though."
They are...(see above)
"do wish gay marriage activists would be more honest about it, though."
They are...(see above)
Some are. Some strenuously deny that "people should be allowed to marry who they want to" means that polygamy's fine too. There's usually some flimsy rationalization about how "marriage means two people" -- why that's got any more historical validity than "one man and one woman" is left unexplained.
Thirty years from now society will look back on opposition to gay marriage the way society currently looks upon anti-miscegenation laws.
If that happens, American society will be moribund, because critical thinking will have entirely disappeared. It's getting fainter already, but thankfully, there are still people who think clearly without much training. The rest learn to reason from watching television commercials.
Your comment "Going to New Jersey to get married sounds like the least cutting-edge thing in the world to do, doesn't it?" just appeared with an attribution in a question on NPR's Wait Wait Don't Tell Me!
Susan: Thanks for telling me. I wish I'd been listening. That would have been weird!
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