Friday, October 27, 2006

wedding bells ringing in new jersey

This week, the Supreme Court of the State of New Jersey ruled that, while same-sex partners were not entitled to marry, the equal protection clause in their state constitution required an offering of the same benefits available to straight couples. This was a middle-of-the-road ruling in the style of that of the Vermont Supremes seven years ago.

Predictably, this caused a spectrum of reactions, such as the reflexive 'judicial activism' of the President, despite this being a conservative decision which puts the ball in the legislative court as to how to actualize gay couples' rights and despite the fact that the President himself has supported the idea of civil unions in the past. Then again, this football gets tossed back and forth between legislatures and courts even as the goalposts are frantically moved: legislatures in Connecticut and Vermont approved civil unions, while courts in New York and Washington State denied gay marriage. Of course, none of that hair-splitting matters when his party is so down in the polls during an election year and they are desperate for anything to motivate evangelicals to the polls. Really, now that dozens of states have banned gay marriage or anything like it in a series of endless amendments and poll questions, how will they get people out to the polls without fear of the gays? While Bush is talking about gay marriage, gay Republicans were protecting Mark Foley, a child sex predator for the past few years.

Of course, some people look at Massachusetts and think well it should be all or nothing, but it misses the point that the gay marriage movement is winning the argument. Absolutism, while ideologically consistent, causes unnecessary harm to gay couples who stand to gain so much in the short term for a little bit of patience with people squeamish about semantics. Even if a federal court opinion were to overrule the various anti-gay state amendments, this would just pitch gay marriage into the same perpetual battlefield as abortion following Roe vs. Wade.

Meanwhile conservative law bloggers like Glenn Reynolds and Eugene Volokh place a higher substantive value on the rights of property owners as in the Kelo decision than on the rights of gay people, hiding behind specious claims about the horror of outing by obscure lefty bloggers and hominems about judicial restraint. Not that they can be botherred to provide any evidence that this is some kind of tyrannical activism, they just know, deep in their souls, that it is. Others are arguing that it would simply be "better" if courts stayed away from gay marriage rulings and left it to legislatures to decide. But this is not what the law requires, that decisions are based on the judge's personal opinions of policy ooutcomes but instead that outcomes should be based on what the New Jersey Constitution says. Courts doon't have the ability to stay out of debates over laws if said laws violate constitutional guarantees. Whether you like a ruling or not does not determine whether it is judicially sound or not. Constitutional guarantees are the only way to limit majority will in some circumstances, even if it would be 'better' in some ill-defined political way to leave it for the majority rule.

This decision does exactly what almost everyone opposed to gay marriage seems to argue for: leave the term 'marriage' meaning the union between a man and a woman while provided comitted gay couples the protection of law. Of course, that's not really what the conservatives want, merely a cudgel to beat up liberals as destroyers of society and drive evangelicals to the voting booth. Marriage is ultimately something best left to religious institutions, but the rights of 'marriage' are the only place where government has a need to intervene. Perhaps the solution is to offer civil unions for everybody -- heteros, homos, transpeople, what have you -- and let the religious institutions determine who gets the blessing of their sacred word magic.

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