CORRECTED TITLE: Sorry for the rushed title earlier. I shouldn't have said "marriage," but "unions." I'll read the case and have more later. It's been a busy day...
MORE: Here's the PDF of opinion. Here's the NYT article:
“There has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this state,” [the judges] wrote.I'm not hot to stir up this issue. I personally support gay marriage, and I hope Wisconsin voters vote "no" on the amendment that's on the ballot here. But I have to say that I don't think the New Jersey court's carefulness about the limited step it's taking "at this point" will undercut the amendment proponents and others who want to get voters excited about judges who get out in front of what the majority wants.
But the justices wrote that their mission in this case was a narrow one.
“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,” the court wrote.
“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 the court ... said that denying same sex couples “the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose.”
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51 comments:
I guess we don't need to worry about activist judges after all.
From a practical standpoint, the Massachusetts court decision made little impact nationally because the state has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states.
New Jersey has no such law.
The WI amendment is almost certain to pass now, and I would expect that social conservatives will be even more likely to turn out and vote (which runs contrary to most punditry, save for Dick Morris and a handful of other "experts" out there).
I stand by my expectation that the Republicans will lose ~ 10 seats in the house, but retain control of Congress.
Same-sex marriage goes so well with single-sex education, don't you think?
It says to the right, "See, activist judges really are a problem."
It says to the left, "See, activist judges really are our salvation (unless they're the wrong kind of activists like Scalia)."
I have not read the opinion yet, but the few excerpts I've seen actually seem respectable -- no fundmental right to same-sex marriage, and no rational basis smack-down on marriage. But what seems to be an equal protection argument on gender lines.
I still expect that, unless they've come up with some super-duper reasoning I've never yet seen, I'm going to think they let their prejudices get ahead of their reason . . . but the preliminary sense I'm getting is that it's not going to raise hackles as much as previous gay-marriage decisions have done.
Oh whoops -- it's a sexual orientation equal protection issue. Well, that's a state law matter, and some states have given sexual orientation protected status. New Jersey may be one of them.
Do you really think anyone hasn't made up his or her mind yet? I don't think so. This will have no effect.
I guess it's quaint to wish to be governed by legislators and executives these days.
I guess we don't need to worry about activist judges after all.
You know, it would help if you two read the damned ruling before you started complaining.
This underscores the reason that so many states have addressed marriage equivalents in their state marriage amendments. Those (like Ann) on this blog who have been arguing that these kinds of provisions in the pending Wisconsin amendments are unnecessary have been effectively rebutted by the New Jersey Supreme Court.
I haven't read the opinion yet, but the headlines say that the Court requires that New Jersey gay couples be given the same civil rights as married couples. This is going farther than a "civil union" especially for something such as adoption.
For example, an adoption agency will not be able to give preference to a mom-dad marriage because that would violate the civil rights of a gay couple in the sense that the marriage is not being treated the same.
I personally support civil unions, however, I do not support the Court mandating such unions, which the NJ Court essentially has done. The court is forcing people to accept something (gay marriage) that we are not sure if they are ready to accept. It is bound to fail...
"The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process."
When its worded in exclusively equal protection language such as this it really starts to beg the question of …polygamy, single people, relatives…ect.
Try this link
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/09/13/nsisters13.xml
Does anyone consider that the 19th Amendment was adopted AFTER the 16th & why women ever needed to go to such trouble?
gj,
Lighten up, and read the Prof's post again. She says nothing about the ruling because she hasn't read it yet. She asks a question--what's the political impact?
Irresponsible commenter?
For example, an adoption agency will not be able to give preference to a mom-dad marriage because that would violate the civil rights of a gay couple in the sense that the marriage is not being treated the same.
Sounds about right to me.
Given that New Jersey already prohibits discrimination based on sexual orientation, this decision is not terribly surprising. It seems to me that it's saying that the state government must treat everyone equally, but doesn't have to use marriage as the vehicle to get there.
I think we'd be better off if state governments just gave everybody civil unions, and left the "marriage" business to churches and private individuals. Much of the problem here is the confusion between a legal institution (where equal protection is not only reasonably expected, but in everyone's best interest) and social and religious customs, which are rightly beyond the realm of the law.
Should all just wait to hear about it from Dr. Edward and Mr. Lad?
This totally helps Kean. It helps Kean because the largest voting bloc in New Jersey is comprised of Italian-Americans and Italian-Americans in New Jersey are strongly Roman Catholic and devout Roman-Catholics will factor this into their vote and of the two candidates Kean is more trustworthy on the issue. It's a small slant, but it's enough.
In other news:
Bob Corker is a tax-raisin', abortion-lovin', illegal immigrant employer.
Bob Corker is a liberal.
Bob Corker is a liberal.
Bob Corker is a dirty, closet liberal.
Come on out of the closet, Bob!
Similarly, social conservatives will be moved to vote because of this issue.
Yes, depending on what else happens between now and Nov 7. The ruling does make you wonder how many more republicans will be holding their noses and voting now. I'm sure the people a Fair Wisconsin would rather have had this decision outcome delayed by a few weeks.
Prof Althouse
This was a horrid, and factually incorrect post. My God.
In your rush to put something in print that fires up the fundie base, you neglected to read the decision. Apparently.
When you read the decision, please let us know exactly where "New Jersey Supreme Court finds right to same-sex marriage" is found.
---------------------------------
"Mr. Bush has previously said that states should be permitted to allow same-sex unions, even though White House officials have said he would not have endorsed such unions as governor of Texas. But Mr. Bush has never before made a point of so publicly disagreeing with his party's official position on the issue."
"In an interview on Sunday with Charles Gibson, an anchor of "Good Morning America" on ABC, Mr. Bush said, "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so." ABC, which broadcast part of the interview on Monday, is to broadcast the part about civil unions on Tuesday."....
"I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others."
I would just add once again that Prof. Althouse either doesn't understand the decision or didn't take the time to read it before making silly claims about what it says. Yes, yes, it is difficult for GOPers to contain themselves in their desperate search for anything that will turn out the bigot vote.
There is an obvious solution to the whole "gay marriage issue": since these court decisions rightfully point to the equal protection components of state constitutions, why not push for the removal of equal protection? That way if there ever is a legal ban on gay marriage (either by law or by constitutional amendment) it won't bump into the inconvenience of people being equal under the law in this country. After all, if you are going to deny people rights, at least do it consistently.
"The Court holds that under the equal protection guarantee of Article I, paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes."
So, how does this ruling differ from an upholding of same-sex marriage? Well, the Legislature can call it something else. It's only identical in practice.
Look, you know there's no difference. I know there's no difference. And the American people know there's no difference. This sort of "we'll mandate it but we'll call it something else"-ism is precisely why these state amendments, like the one on the ballot in Wisconsin, add those fuzzy "legal status identical or substantially similar to that of marriage" clauses. Because everybody knows it is gay marriage.
So let's stop futzing around. The NJ court, for all purposes but those of political conmen spouting Newspeak, has mandated that marriage in New Jersey be extended to gay couples. Pretending this ruling didn't do that is noting more than lying.
So let's stop futzing around. The NJ court, for all purposes but those of political conmen spouting Newspeak, has mandated that marriage in New Jersey be extended to gay couples. Pretending this ruling didn't do that is noting more than lying.
Ann, change that title back!
Edward said:
"...depriving many different kinds of couples, including some heterosexual couples, of basic legal protection."
Question for legal precedent experts:
Could this precedent be used in New Jersey to extend civil unions to any other form of civil union besides m/f, m/m, and f/f?
I'm beginning to really question the reading abilities of some commenters here. Ann said pretty much zip about the decision itself. She links to a newsstory (after all, how many ordinary voters are going to read the decision? For that matter, how many who read it will understand it?) which is probably what most voters will get in terms of information.
She then asks what effect this (the story/spin about the decision) will have on the nearby elections?
Oddly enough, I don't see how one has to pore over the decision, parsing carefully, to make a decent guess about what impact voters' (quite possibly limited) understanding of the *meaning* of the decision is.
On a personal level, I wish my committed gay couple friends could have legal and social acceptance that works for them. On a political level, I think that courts that get too far in front of public opinion run a great many risks.
I suspect that conservatives will try to use this decision (regardless of what it *really* says, whoever decides that) to rally the troops, and I suspect that in some areas it will succeed. In addition, I am willing to bet that any amendment/law at the state level that isn't polling 2-1 in favor of gay rights to marriage/whatever is going to get beat. People lie about their feelings on these issues.
Thus far nobody has pointed out that the court used equality laws passed by the legislature to bootstrap itself into finding a constitutional right to equal protection in the area of marriage (or equiv.) One wonders if the legislature repealed the laws, would thew court reverse itself? of course not, the court would now further bootstrap an opinion that the repeal of the equality laws was now illegal because of the court decision (itself built on those laws)
http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf
The Volokh Conspiracy
http://volokh.com/
has an excellent piece on the slippery slope argument.
This will hurt democrats in the GOTV area. It also certainly demolishes the "it can't happen here" argument by opponents of outlawing Gay marriage by referendum
Firing up Ann's "fundie base"?
That's kind of like firing up Rush Limbaugh's socialist base. Or The Nation's libertarian base.
If it walks like a duck, and quacks like a duck, it stands to reason that it is a duck.
The Court is saying that the legislature is free to decide so long as it decides correctly.
Replace "correctly" with "legally" and you're on the right track.
On the same day as the New Jersey Supreme Court decision, we are being treated to the latest installment of the left-wing gay witch-hunt to eradicate enemies of the people.
According to Marcos Moulitsas of DailyKos fame,Charlie Crist, GOP candidate for Governor of Florida now stands accused.
Edward: So you're saying there is no slippery slope to other kinds of marriage and I'm supposed to trust you on that?
57-43 = Oregon.
59-41 = Michigan.
62-38 = California.
62-38 = Ohio.
66-34 = Utah.
67-33 = Montana.
71-29 = Kansas.
71-29 = Missouri.
73-27 = North Dakota.
75-25 = Arkansas.
75-25 = Kentucky.
76-24 = Georgia.
76-24 = Oklahoma.
78-22 = Louisiana.
86-14 = Mississippi.
ADD +8
Rack em up, add N.J.
Should be a prime topic at the next SCOTUS hearing!
Tom Kean on the Decision
"I still believe that marriage is and should be between one man and one woman and I would support an amendment to the state constitution reaffirming that definition. The eyes of the country are on New Jersey and the people deserve to hear from my opponent on this issue."
WASHINGTON-House Majority Whip Roy Blunt (Mo.) today issued the following statement expressing outrage at the New Jersey Supreme Court's decision to order the state to recognize same-sex marriage or its equivalent, taking the definition of marriage out of the hands of New Jersey voters:
"Beginning in 1996 with the Defense of Marriage Act and in subsequent years with votes on the Federal Marriage Amendment, House Republicans have fought to defend the will of the people each time a court has sought to redefine marriage.
"The Democratic Leader Nancy Pelosi has opposed each and every one of these efforts.
"Given the actions of the New Jersey Supreme Court today and the fact that similar cases are pending in four other courts, the American people deserve to know whether a Pelosi-led House would defend marriage."
45 states acting by referendum or through their legislatures have enacted state laws or state constitutional amendments blocking same-sex marriage. Yet, activists continue to seek to use the courts to overturn these laws. In fact, cases similar to the New Jersey case are currently pending in California, Connecticut, Iowa and Maryland.
AND
STATEMENT FROM GOVERNOR ROMNEY ON NEW JERSEY GAY MARRIAGE RULING
“I believe that the best and most reliable way to protect traditional marriage is through a federal marriage amendment, as opposed to letting activist judges make policy on a state by state basis.”
God, I hope the Gays don't get to marry.
I'm doing pretty well with my wife and I'd hate to have to divorce her if The Gays get to marry and they break it.
I don't think the New Jersey court's carefulness about the limited step it's taking "at this point" will undercut the amendment proponents and others who want to get voters excited about judges who get out in front of what the majority wants.
Well - actually this IS what the majority wants. All recent polls have shown that New Jerseyans want gay marriage to be legal. And I'm not talking about civil unions which have an even stronger support in the state.
And let's not forget that New Jersey has already legalized domestic partnerships for gay people.
This decision will be popular in New Jersey. Good for the New Jersey Supreme Court for not letting politics (election is in two weeks) or the bigots in other states stop the courts from making a good decision based on the NEW JERSEY Constitution. How many people here are really experts on New Jersey law? Not many.
I hail from New Jersey. And I will add - I predicted this decision back in February.
http://kipesquire.powerblogs.com/posts/1139936343.shtml
Now the real question is where to buy real estate? If the gays move to New Jersey (I prediction Union City and Newark and Camden) you have a great chance to make a killing.
I plan to start looking for real estate this weekend. Personally, I think Camden is the better bet - since Pennsylvania will not be legalizing gay marriage anytime soon. I figure this is a good chance for me to make another couple of million out of this decision.
Also - I'll remind people that most New Jerseyans get their news from the New York market. And that's the tri-state area, which also includes Connecticut and New York. Connecticut already has civil unions (yawn) and Elliot Spitzer is campaigning for Governor vowing to legalize gay marriage. Spitzer is almost 50 percentage points ahead of his competitor in the polls.
The Governor of New Jersey is backing the decision too.
New Jersey is not a bigoted state. For those predicting a backlash - they are mistaken.
According to Marcos Moulitsas of DailyKos fame,Charlie Crist, GOP candidate for Governor of Florida now stands accused.
Give me a break. This is old news. I pointed this out on Ann's blog the other day.
Kos didn't out Crist. Crist's 21 year-old REPUBLICAN boy-toy outed him. And Crist is gay. So what? How is this going to hurt him?
Ah yes, I forgot - you are the expert about everything to do with being gay, gay politicians, and their boy toys. I should have asked you before posting such nonsense. It only stands to reason that you would have reported a different version of the same story last week, last month, or last year, perhaps, what with you being all-knowing and seeing when it comes to anything related to being gay or politics in the United States. I am surprised that Markos didn't check with you before publishing his story as if it were news.
I do hope you have fun making a few million more in Camden, or wherever it was you said you were buying property.
“the financial and social benefits and privileges
Exactly how does the Court plan on forcing people to treat homosexual "marriages" as if they're real marriages?
Isn't that what this has all been about? Homosexuals and their supporters want to use the power of the state to force the rest of us to pretend that homosexual couples are just as valuable and normal as heterosexual couples.
Not something I've really worried about, before now. But I really hate having a gun stuck to my head, so I'm certainly moving towards the "not really as god as" position.
The "majority opinion" is usually representative of loud-mouth idiots, not a rational, reasoned and reasonable position. Why should this case be any different.
As for "activist judges", this always seems to mean "judges whose decisions don't coincide with my opinion." The fact that judges simply follow the law does not seem to bother those same loud-mouth idiots who oppose "activist judges".
Why should we not refer to Scalia as an "activist judge"? He certainly does not hide his disdane for majority opinion on Supreme Court very often. But then one can ask another question--is he "activist" when he agrees or when he disagrees with the majority?
As you might have guessed from my comments, I don't see much behind the "activist judges" theory. I do see bigotry, desire to overcome separation of church and state, and demonization the opposition.
I don't think the Nazis had an "activist judges" problem--no one seemed to mind extermination of whole classes of people. Good thing we only draw the line at marriage...
A year from now, most people in NJ will realize the same thing that people in MA, as well as state politicians, realized after the MA court decision--their world did not end after allowing same-sex unions. Aside from a handful of nuts, MA is content with the situation. But it tends to be the nuts that drive political activism.
Fitz--two points.
First, note the correlation between the rankings on education and the voting margins you so carefully assembled. What do you think that says about those supporting these amendments?
Second, NJSC was very careful to outline the decision as a state constitution issue. How, exactly, is this going to raise it to SCOTUS?
Oh, and, Dave--please remove your obscene drivel!
This decision is based on the idea that marriage is a right. If marriage is a right, then a contested divorce is illegal. If for instance the wife wants a divorce and the husband does not, then it would be a violation of the husband's right to marriage to grant the divorce.
Are we really sure we want to be opening this Pandora's box?
Seven Machos, if constitutions are being changed in such a way that marriage is declared to be a right (and that withholding that right to gay couples is a violation of equal protection), then I cannot see from where your disagreement comes.
This decision is based on the idea that marriage is a right. If marriage is a right, then a contested divorce is illegal.
That is a really stupid argument.
Free speech is a right, but people are allowed to not listen to you. Firearms are a right, but people are allowed to choose not to sell or give them to you. Free assembly is a right, but people are allowed to leave a crowded room.
Why, therefore, would "marriage is a right" imply "the person you want to be married to has to live with it"? NO right works that way.
Marriage versus contract/civil union?
Is there any true difference? In the end none of this is really about marriage, and the ultimate result is obvious.
The gay community has long hoped that the lifestyle (or lives) they lead would be accepted without question, and the way to accomplish that is by state sanction. That has been accomplished in many places, and the tide rolls on.
If the prevalence of gay culture and gay rights is higher now than it was five years ago, or ten years back, you can expect the next few years to result in similar change.
For those who believe it is a lifestyle (as I do), and not necessarily an ideal one, we are on the losing end.
Why?
In the past you could probably argue against it in terms of:
Christianity: God in the Old Testament frowning on it, Jesus mentioning only marriage between men and women, various apostles preaching against it.
health: Men by nature are more sexual, and more careless, and further the rectum is not ideally suited to sex (nerve endings be darned).
kids:Depriving a child of a direct understanding of half the population by limiting them to one sex hinders their ability to understand how men and women should relate, thus rendering their own future parenting roles suspect (for can you be and understand what you have not experienced?)
Yuck factor: "I just don't understand how two men could..." yada, yada, yada.
But that was the past.
Our "religious" nation is only culturally religious, and not necessarily "practicing" religious. (That is, we don't read the Bible a lot, or pray to God). We have taken to enjoying porn (frequently filled with anal), mistreating our spouses (thus divorcing), and raising our kids as if we don't have any ("Yes, Darla, mommy will let you be a Slutty Bumblebee this Halloween").
Having tossed aside religion, or the higher ground of at least leading good lives, the only thing we can say is perhaps, "Ewe", when it comes to homosexuality, and that is mere bigotry.
If one cannot articulate a reason, then one is a bigot. And none of us really want to be that person at all.
So we hold up our hands and say, "Well, it's okay... I'm no bigot. To each his own. And it's love anyway and you can't deny people's love."
The gay community should feel quite encouraged. The biggest (and most legitimate) force against homosexuality is religion, but we happen to be in a world now where people are trying to practice religion in such a way that they are indistinguishable from the irreligious.
Such is life, and the results should be interesting. Civil unions? Marriage? Whatever.
Downtownlad says he'll invest in Camden real estate because he believes it's going to be the new gay mecca.
Camden? Surely any gay couple worthy of the name has got better taste than that.
I have read the opinion, and my view of it is that the court is trying to cut the gordion knot by holding concurrently that homosexual marriage is not a fundamental freedom protected by the New Jersey Constitution, but that if New Jersey confers certain benefits on married persons, those benefits must also be available to homosexual couples by one means or another.
The biggest winners here are actually the proponents of the Wisconsin amendment. Because now, supporters can point to New Jersey and say - accurately or not - "look at New Jersey! It isn't enough to ban marriage, you have to ban marriage or any substantially similiar status, because otherwise, the courts are going to go around it following the Lewis rationale. In point of fact, there's a very good argument that this reasoning is not portable to other states: in construing the language of the New Jersey Constitution, which clearly has no force outside of NJ, the court explained that the test is whether "a statute [that] is challenged on the ground that it does not apply evenhandedly to similarly situated people ... [the New Jersey test is] that the legislation ... distinguishing between two classes of people, bear a substantial relationship to a legitimate governmental purpose." But perceptions matter, and the problem for opponents of the Wisconsin amendment (and, indeed, more generally, the problem for GJ, who is only correct if he assumes that people who are hostile to gay marriage are, in the main, concerned with legal hairsplitting) is to explain why "it couldn't happen here."
downtownlad said...
"Well - actually this IS what the majority wants. All recent polls have shown that New Jerseyans want gay marriage to be legal. And I'm not talking about civil unions which have an even stronger support in the state."
If that were true, this supposed majority would not have needed a court to impose their preference on the state - the legislative process would suffice.
This west central WI voter will vote yes.
The Jerk said...
"You may be surprised to learn that lawsuits are brought by individuals, not majorities of the populace. Thus it is possible for a majority to favor a particular policy, and at the same time for an individual to bring a suit to achieve that policy before the majority's will is enacted by the legislature."
The lawsuits were brought three years ago, so there is simply no merit in your point. And even if there were, again, the courts have no authority to get ahead of the legislature and create new majority-favored law. If every citizen of the United States outside of the Supreme Court believed that the First Amendment should no longer protect free speech, the Supreme Court should not hold that the first amendment doesn't protect free speech on the theory that it's only a matter of time until that majority repeals the law. If you have a majority for a proposition that only requres a vote of the legislature, you don't need a court case. These people went to the courts not because the majority was taking too long, but because there IS no majority.
Courts don't make law. They apply law that is made by legislatures.
But all of the law the court used in its ruling *was* passed by the legislature.
I'd also like to point out that this nation was founded on the idea that the principle "a majority can do what it wants" was COMPLETELY WRONG. That's why we have a constitutional republic instead of a system of mob rule. The courts are not supposed to make law, but neither are they supposed to let the legislature get away with violating its own laws. A legislature cannot pass a law forbidding discrimination on the basis of domestic partner status and then keep discrimininating on the basis of domestic partnership when handing out government benefits.
The legislature makes the law. The executive enforces the law. The judge applies the law to disputes.
The judge also interprets the law. That has been the case for longer than this country has even existed, so tough cookies if you don't like it. That the law of New Jersey requires marriage benefits for gays was an entirely reasonable interpretation of the laws New Jersey had passed banning discrimination on the basis of sexual orientation and domestic partner status.
This country most certainly was founded on democratic principles -- tempered, representative majorities can get anything they want provided they are numerous enough
So if you want judges who are nothing more than sock puppets for the legislature, I suggest you either (a) muster a large enough majority to pass Constitutional amendments to castrate the Judicial branch or (b) pack your bags and leave.
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