New Jersey Supreme Court Boots Gay Marriage Thing To Legislature

MayorBob.

Posted to Politics on Sun Oct 29, 2006 at 10:50:48 PM EST (promoted by port1080). RSS.

Just when you thought the gay marriage issue had just about died out, along come seven jurists in New Jersey to stir it back up again. In a 4-3 decision, the Garden State's Supreme Court dropped the ball in the state legislature's court and gave it 180 days to come up with a solution. It didn't order the legislature to pass a gay marriage law, because the court split on was what to call gay and lesbian unions. However, one thing the judges did agree upon was that gay and lesbian unions should have the same legal status as heterosexual marriages.

When the Massachusetts Supreme Judicial Court issued its ruling, it left no wiggle room for the legislature - it said that the union had to be called a marriage and that civil unions were not an acceptable alternative. In the New Jersey decision (90 pg pdf doc) the judges tiptoed past what you might call it and especially stayed away from the "M" word. The majority decision read: "At this point, we do 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. 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." The court gave the legislature the option of either amending existing marriage law to include same sex unions, calling them marriages, or come up with a "parallel statutory structure", calling it something else. Justice Barry Albin wrote for the majority:

"We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. 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."

The jurists also ruled that the legislature must not make it any more difficult to enter into a same sex union as it is to enter into a heterosexual marriage. Chief Justice Deborah Poritz joined two fellow justices in issuing a partial dissent which essentially said that, despite what the majority might believe, New Jersey's Constitutional guarantee of "liberty" does not constitute a due process right to same-sex marriage. The hesitancy to use the word marriage in the decision can be encapsulated by Poritz's observation that "we must not underestimate the power of language" or the symbolism that a word like marriage carries with it. Opponents and supporters of the decision agree with Poritz.

Evan Wolfson, a gay rights advocate, said: "You wear it on your hand. Language matters. Symbols matter. One of the main protections that comes with marriage is the vocabulary that everyone understands." Maggie Gallagher, from the Institute for Marriage and Public Policy, said: "Ideas matter. Marriage as a legal structure is not nearly as important as it is as an instrument of civil society." Andrew Koppelman, a law professor, believes the decision is good way of finding a middle ground on this issue, "The word `marriage' seems to push people's buttons in a major way." Thus far, Massachusetts is the only state where the judiciary has ruled that same-sex unions must be officially designated as marriages. Courts in eight states have ruled against conferring the name marriage to describe same-sex unions and the state of Washington's Supreme Court reaffirmed its decision to stick to its guns. Meanwhile, in New Jersey, the fine line the court took in its decision hasn't really clarified the situation for either legislators or persons involved in same-sex relationships.

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Tags: edited by Port1080, politics, law, gay, gay rights, New Jersey, gay marriage, same-sex unions, civil unions, marriage, written by MayorBob (all tags)

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16	Meanwhile, in the Sunshine State. MayorBob. Tue Oct 31, 2006 at 09:15:35 AM EST 4.33 (funny, funny, funny)

There was a televised debate between Republican Charlie Crist (currently state Attorney General), an independent candidate, and incumbent Representative Jim Davis -- all vying for Davis' St. Petersburg district seat. They were asked their stands on gay marriage and Crist answered he opposed it. Why? Because "it's a sacred relationship -- like I had, before I got divorced."

Who needs comedy writers anymore?

Illegitimi non carborundum.

16

Re: Meanwhile, in the Sunshine State.

Thalia.

Tue Oct 31, 2006 at 03:54:14 PM EST

none

I've always wondered why so many of the advocates of "family values" have had such ugly divorces.

Thalia

1	What Awful Reporting Shy Elf. Mon Oct 30, 2006 at 03:13:27 AM EST 4.00 (informative)

What you would never guess from reading the press reports is that New Jersey already has a civil union law. The ruling was that instead of being almost exactly legally equal to marriage it had to be equal.

It's actually the right decision here, with the civil union law already in place, but In general, I don't think courts spending their political capital on wedge issues like this is a good idea. It leads to a counterpush to appoint courts out of the stone age like we currently have federally.

14	How many laws... Thalia. Tue Oct 31, 2006 at 03:28:17 AM EST 4.00 (interesting, astute)

When the civil union thing first came in, I spent a little time on the California laws site, trying to total up the number of laws that use the word "spouse" or "marriage" or something similar. The number is staggering. It covers everything from paying taxes, to receiving insurance benefits, to visitation rights in prison. If we need to amend each of these laws in each of the states, we're going to be here for a while.

I suggest that we call it "Biblical marriage" for the religiously minded, but let the term "spouse" and "marriage" apply to both types of partnerships.

Thalia

2	Party like it's 1999 gerrymander. Mon Oct 30, 2006 at 12:10:03 PM EST none

Gay marriage has come full circle. This New Jersey decision puts the debate almost exactly in the same place it was before the Massachusetts lawsuit of 2001: a lack of accommodation for gays would not pass Constitutional muster, but any legislative accommodation which granted the same rights as marriage would even if it weren't called "marriage." In other words, civil unions work just fine. If it weren't for all the "one man/one woman only" amendments which followed in the wake of legal activity and some examples of executive overreach (yes, I mean you, Mayor Newsom), the country would be right back as square one.

But there's the rub: Civil unions weren't good enough for gay rights activists in 2001, hence the Massachusetts lawsuit for marriage qua marriage. Would civil unions be more acceptable now? According to at least one commentator, maybe:

he New Jersey court yesterday threw the issue into the state's legislature, where democratically elected representatives can have a full debate. If gays succeed in winning marriage there, "activists judges" won't be blamed, except by the extreme right that is unreachable at any rate. Yesterday's majority opinion contains powerful language about the inequity done to gay couples by excluding them from marriage, and the dissent adds in strong terms why nothing short of the name will be truly equal.
Now it's up to Goldstein, Garden State Equality and their allies in the legislature to carry the ball the last few yards, as difficult as they may be. (The governor and leaders of the House and Senate -- all Democrats -- have said they will oppose full marriage.) Much better to fight out in the Legislature, this year and in the future, whether to merge civil unions into marriage, than to see another court victory stolen by constitutional amendment, and judges in other states intimidated into closing completely the courthouse door.

3 2	Re: Party like it's 1999 coquito. Mon Oct 30, 2006 at 01:52:33 PM EST none

a lack of accommodation for gays would not pass Constitutional muster, but any legislative accommodation which granted the same rights as marriage would even if it weren't called "marriage." In other words, civil unions work just fine.

My understanding was that "civil unions" are not "just fine," precisely because of the fact that they have never "granted the same rights as marriage."

Shifting gears slightly: when I got married, we didn't do it in a church and we had no religious official of any stripe involved. Short of a 20-second prayer offered by my wife's father, it was a secular affair and yet completely legally binding all across the United States. And anywhere I go, I can say "I'm married." Not, "I'm in a civil union." What's so damn hard about letting gay people do the same thing?

Now with caps!

7 3	Well... 1fastdog. Mon Oct 30, 2006 at 03:01:33 PM EST 5.00 (brilliant)

And anywhere I go, I can say "I'm married." Not, "I'm in a civil union." What's so damn hard about letting gay people do the same thing?

'Cuz it apparently offends the biblical sensibilities of people who've got no sensibility of their own.

Somewhere in my soul, there's always Rock -n- Roll... Joe Strummer

4	Simple proposition port1080. Mon Oct 30, 2006 at 02:15:50 PM EST none

Remove marriage from state jurisdiction. Marriage is a cultural and religious tradition that has been enforced by state law, but that doesn't mean it should be. There are plenty of other cultural / religious traditions that we used to enforce with state law, but we don't anymore (Jewish dietary laws, mandatory tithing, etc.). The state should allow anyone that wants to get into a contractual union - but that should be open to whoever wants it. If two close friends want to enter into a platonic civil union, no problem. People who want to maintain the current institution will be free to get a church marriage and an accompanying civil union, but they should be two separate things.

Ce n'est pas une pipe. C'est une signature.

5 4	Re: Simple proposition coquito. Mon Oct 30, 2006 at 02:31:30 PM EST none

The result would have to be that, for tax and legal purposes, these civil unions would have to be all treated equally, or exist in certain classes. Take, for example, a hetero "marriage" and a gay "marriage" or whatever you call your new civil union. There would have to be a class created that makes them equal (or makes them exist in certain categories), so that, for example, one's partner could be him at the hospital in an emergency, or be the legal inheritor of his estate, etc etc. If you had to write out everything like that for every individual kind of union (friends, lovers, roommates, Elvis fans) it would be a legal mess.
I think the simpler solution is to acknowledge that the state grants marriage rights in this country, not the Church. So God doesn't get to tell the state who can be married, and the state need not discriminate, in fact, I'd argue that it cannot (I realize this is arguable), and therefore, from the state's perspective, marriage is open to couples be they straight or gay. Churches are free to recognize marriages at their leisure (which they already do, take for instance, the Catholic Church).

Now with caps!

12 5	Re: Simple proposition port1080. Mon Oct 30, 2006 at 05:35:01 PM EST none

Take, for example, a hetero "marriage" and a gay "marriage" or whatever you call your new civil union. There would have to be a class created that makes them equal (or makes them exist in certain categories), so that, for example, one's partner could be him at the hospital in an emergency, or be the legal inheritor of his estate, etc etc. If you had to write out everything like that for every individual kind of union (friends, lovers, roommates, Elvis fans) it would be a legal mess.

Would it really be that hard? I'd propose the creation of two classes - a "restrictive" contract that is similar to current marriage contracts, and a "lite" contract that is similar to the "lesser" civil union contracts that are in place in some states. To satisfy those who think marriage should be about family, the "restrictive" contract should be more difficult to get out of, but allow for adoptions, family benefits, etc. The "lite" contract would deal more with the caregiver aspects of a relationship (i.e. hospital visitation rights, etc). I'm not sure exactly how to best flesh it out - and perhaps we could even settle on three or four categories - but considering how willing we are to put up with convoluted tax brackets, I don't see how a few civil union categories will be all that hard for people to grasp.

Ce n'est pas une pipe. C'est une signature.

12

Re: Simple proposition

coquito.

Mon Oct 30, 2006 at 06:20:22 PM EST

none

You and me, maybe (I mean, I don't think it's that hard, personally) but I think "selling it to the American People" would be a b*tch. I think you'd have an easier time convincing everyone in Texas to get gay-married.

Now with caps!

6 4	Re: Simple proposition cloudofdust. Mon Oct 30, 2006 at 02:45:51 PM EST none

People who want to maintain the current institution will be free to get a church marriage and an accompanying civil union, but they should be two separate things.

In order to erect that wall between a state-sponsored union and a religious union, religious leaders would have to be prohibited from performing a function of the state and acting as the legal officiant of a state recognized union.

11 6	Re: Simple proposition port1080. Mon Oct 30, 2006 at 05:34:46 PM EST none

Exactly, that's my point - I'm not sure if you misread me, but what I meant was that you would go to the courthouse and fill out the documents for your civil union. At that point you would be "civilly unified" with all the legal benefits entailed by that. If you wanted to, you could then have a clergy-person marry you in your church - but if you didn't feel like doing that, no big deal. Conversely, a couple married by a cleric would have absolutely no legal rights until they were "civilly unified." Make sense?

This isn't a big stretch - Lutherans (and I believe it works similarly for Catholics) already have a ceremony (confirmation) that officially makes the confirmed an "adult" in the church, but that doesn't make you an "adult" outside the church. I was confirmed when I was 14 - so I could vote in church elections and so on, but I still couldn't vote in public. Conversely, a non-confirmed 50 year old can't vote in church elections. I see no reason why marriage can't be looked at as the same sort of ceremony.

Ce n'est pas une pipe. C'est une signature.

11

Re: Simple proposition

cloudofdust.

Tue Oct 31, 2006 at 08:41:07 AM EST

none

I didn't misread you and I agree your idea. I think a lot of the muddle over this issue comes from the confusion and commingling of the religious and secular aspects of marriage. I was trying to point out that this confusion is built into the system.

One thing I noticed in looking at who can perform a marriage is that the officiant is generally required to make a filing with the state so the marriage can be recorded. I don't think the costs involved in replacing the many priests, ministers, rabbis, etc. with a state official is necessarily trivial since a marriage contract as it exists now needs to be signed by the spouses, one or two witnesses and the officiant. Plus, since most states require a waiting period between the issuance of the license and its execution, that signing has to take place at a later date meaning a second trip to city hall.

As much as I like your idea, I do think there would be objection to that extra step as well as objection to the diminishing of the role of religion in the the process.

8 4	Re: Simple proposition nmiguy. Mon Oct 30, 2006 at 03:06:17 PM EST none

That's not a simple solution, that is an OVER simplistic "solution".

You don't want to destroy marriage to save it. That is silly. There is social value to marriage and monogamy. Society values the union of two people for a number of valid reasons. and it is in society's best interest to support marriage and provide marriage benefits. To make it an entirely religious affair is to take away civil society's support for the institution.

This is not a difficult argument. On the issue of marriage, civil society (non-religion) says you can marry whomever you please as long as that person is not of the same sex. That is discriminatory against gay people who wish to marry the person who is their life partner. And it is wrong. The New Jersey Court and the Massachusetts courts have seen the obvious discrimination as going counter to the precepts of equal treatment under law.

I disagree with a lot of people I care for in this issue. People I love and adore have made arguments that amount to pure bigotry. But I don't see the solution as being to take marriage away from civil oversight. That does EXACTLY what a lot of the bigots claim gay marriage will do (destroy the institution of marriage.) I do NOT feel my marriage is in any way theatened by gay marriage. I am happy that we condone and support married couples, the more the merrier. I am happy for any two people who marry for love.

9 8	Re: Simple proposition coquito. Mon Oct 30, 2006 at 04:51:43 PM EST none

Hi nmi,

Nice to see we agree for once! :D

Question though:

But I don't see the solution as being to take marriage away from civil oversight. That does EXACTLY what a lot of the bigots claim gay marriage will do (destroy the institution of marriage.)

That's interesting. I would think that making "marriage" the exclusive province of the Church (which is what it feels alot of religious people already think it is) would make the "fundies" (lack of a better term) happy. It would finally make the state unable to ruin marriage, and leave it nice and pure like God made it. OK, that was some sarcasm. Sorry.
Anyway... I think it's interesting. It sounds like a contradiction to me that those opposed to gay marriage on religious grounds would also be opposed to making marriage the Church's thing and taking the State out of it. Is it a concern, perhaps, that instead of less mixing between Church and State, they want more?

Now with caps!

17 9	Re: Simple proposition nmiguy. Tue Oct 31, 2006 at 10:38:49 AM EST none

Coquito, my problem with making marriage solely in the realm of religion is that society no longer has a stake in marriage.

Right now, married status offers survivor benefits, medical decision making, property rights and a lot of other benefits that make for a smooth transition in a lot of critical areas, including family decisions, situations involving child care etc. Society must have a stake in this, civil government is served by supporting marriage. When the institution of marriage is solely in the realm of religion, this ownership becomes an area that is no longer challenged by secular society and becomes an area that is fertile for abuse. For examples of this one need only to look at societies that are ruled by religion (fundementalist Muslim governments like the Taliban as an example) where marriage becomes a "slave-property" situation.

The benefits of marriage should extend to the non-religious world as well as the religious world. By making marriage teh realm solely of religion would lead to further discrimination against homosexuals.

17

Re: Simple proposition

coquito.

Tue Oct 31, 2006 at 11:07:34 AM EST

none

Coquito, my problem with making marriage solely in the realm of religion is that society no longer has a stake in marriage.

I think the idea that was offered up of making a distinction between a the "state" version of marriage and the "religious" version intended to maintain all the rights you mention for anyone going the state route (including gay couples). So in that case, society would still have a stake in marriage, as you put it, but religious groups would stop having to worry that somehow the gov't was going to start forcing churches to marry gays or donkeys or whatever (I'm not making that fear up. OK, maybe the donkeys).

The benefits of marriage should extend to the non-religious world as well as the religious world.

Agreed, and they do already. Really, I think the idea is ultimately not needed. We already have this situation to some extent. As I've mentioned before, I had no religious body whatsoever "bless" my union to my wife, but we're considered just as married - by the state at least - as are my older sister and her husband, who went with a Catholic wedding (OK, not a traditional one, but still...). So, there's already a division between marriages sanctified by the state and those sanctified by God. I think the original poster's idea was to make the split more explicit, to really separate Church and State by acknowledging that there is a difference between marriage in a secular sense and marriage in a religious one: if you want the marriage benefits granted by the state, go get a "State Marriage" or whatever. If you want to make God happy, hie thee to the Church on time.
Again, I think this might be an unnecessarily convoluted thing and actually, more to the point, one that would confuse the hell out of people. But I do think more people should be made aware that marriages are already the province of the state, and as such, discrimination of the basis of gender should not be tolerated (there's other reasons too, imo).

Now with caps!

10 8	Re: Simple proposition port1080. Mon Oct 30, 2006 at 05:34:27 PM EST none

There is social value to marriage and monogamy. I don't necessarily disagree - but explain to me what the difference is (from an instrumental standpoint) between a man and a woman going to the justice of the peace and getting married in a completely non-religious ceremony, and two people getting a civil union under my revised plan? There isn't any difference, none at all. If non-religious marriages are okay now, then what is wrong with my plan?

Ce n'est pas une pipe. C'est une signature.

10

Re: Simple proposition

nmiguy.

Tue Oct 31, 2006 at 10:48:02 AM EST

none

Well there would be differences. Tehre are differences between those married in a church and those married by a justice of the peace. My main complaint with the "civil Union" versus "marriage" argument is that it is a different status, a different title and thus a sdifferent class for homosexuals. There is no "seperate but equal". In teh past there were water fountains for blacks and water fountains for whites. The argument was that there were seperate water fountains, but they were equal. There is no equality when people are treated differently based on their group identity.

If it is just like marriage then call it marriage. Having different names for even the same rights does not serve any practical purpose except to seperate people, and placate bigotry.

In this country, we are all supposed to be equal under the law, so lets treat people as equals with equal respect and equal treatment. Since I was afforded the luxury of marrying the woman I love, I would want all to be able to marry the person they love and wish to commit their lives to.

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MayorBob.

Posted to Politics on Sun Oct 29, 2006 at 10:50:48 PM EST (promoted by port1080). RSS.

Meanwhile, in the Sunshine State.

MayorBob.

Tue Oct 31, 2006 at 09:15:35 AM EST

4.33 (funny, funny, funny)

16

Re: Meanwhile, in the Sunshine State.

Thalia.

Tue Oct 31, 2006 at 03:54:14 PM EST

What Awful Reporting

Shy Elf.

Mon Oct 30, 2006 at 03:13:27 AM EST

4.00 (informative)

How many laws...

Thalia.

Tue Oct 31, 2006 at 03:28:17 AM EST

4.00 (interesting, astute)

Party like it's 1999

gerrymander.

Mon Oct 30, 2006 at 12:10:03 PM EST

2

Re: Party like it's 1999

coquito.

Mon Oct 30, 2006 at 01:52:33 PM EST

3

Well...

1fastdog.

Mon Oct 30, 2006 at 03:01:33 PM EST

5.00 (brilliant)

Simple proposition

port1080.

Mon Oct 30, 2006 at 02:15:50 PM EST

4

Re: Simple proposition

coquito.

Mon Oct 30, 2006 at 02:31:30 PM EST

5

Re: Simple proposition

port1080.

Mon Oct 30, 2006 at 05:35:01 PM EST

12

Re: Simple proposition

coquito.

Mon Oct 30, 2006 at 06:20:22 PM EST

4

Re: Simple proposition

cloudofdust.

Mon Oct 30, 2006 at 02:45:51 PM EST

6

Re: Simple proposition

port1080.

Mon Oct 30, 2006 at 05:34:46 PM EST

11

Re: Simple proposition

cloudofdust.

Tue Oct 31, 2006 at 08:41:07 AM EST

4

Re: Simple proposition

nmiguy.

Mon Oct 30, 2006 at 03:06:17 PM EST

8

Re: Simple proposition

coquito.

Mon Oct 30, 2006 at 04:51:43 PM EST

9

Re: Simple proposition

nmiguy.

Tue Oct 31, 2006 at 10:38:49 AM EST

17

Re: Simple proposition

coquito.

Tue Oct 31, 2006 at 11:07:34 AM EST

8

Re: Simple proposition

port1080.

Mon Oct 30, 2006 at 05:34:27 PM EST

10

Re: Simple proposition

nmiguy.