Gay couples have the same marriage rights as heterosexual couples under the New Jersey state constitution, the state Supreme Court rules. Visit CNN for the latest.
UPDATE BY BRENDAN: According to the AP:
New Jersey’s highest court ruled Wednesday that gay couples are entitled to the same rights as heterosexuals, but that lawmakers must determine whether the state will honor gay marriage or some other form of civil union. …
[T]he high court stopped short of fully approving gay marriage and gave lawmakers 180 days to rewrite marriage laws to either include gay couples or create new civil unions.
As a proponent of gay marriage, I’m happy with the result. As one who hopes the Democrats take back at least one house of Congress, I am fearful of the backlash.
But perhaps the possibility of “civil unions,” as opposed to “gay marriage,” will blunt the backlash somewhat. Most voters seem broadly supportive of gay civil unions, so long as they aren’t called “marriages.” Presumably, Democratic candidates in close races from sea to shining sea will now respond to Republican attacks by reiterating that they support “civil unions,” not “gay marriage.” Of course, anything short of full equality is wrong, IMHO, but pragmatically, that’s what they’ll need to do. And maybe it’ll work.
Also: maybe the Republicans will overplay their hand. If Bull Moose is right that moderates who are sick and tired of divisive partisanship are the key to this election, then transparent GOP harping on this “wedge issue” could actually hurt the Republicans. We can hope, anyway.
Still, one of the biggest hopes for Democratic success in 13 days (and let’s all pause to consider the potential cosmic significance of this news coming thirteen days before the election) has been the likelihood that a higher-than-usual percentage of the Republican base won’t turn out on Election Day, choosing the Derbyshire Strategy of punishing the wayward GOP by staying home. The resurgence of gay marriage as a live issue would seem to guarantee that some percentage of social conservatives who were otherwise planning to stay home, won’t. The key question is: what percentage? The majority in the House and Senate may hinge on the answer to question.
Anyway, I think we just officially entered the endgame of Election 2006.
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October 25th, 2006 at 3:49:59 pm
…and Republicans will keep the House and Senate.
October 25th, 2006 at 4:01:12 pm
From a news story on the decision:
“the court ordered the legislature to either (1) change the
definition of marriage or (2) “enact an appropriate statutory structure”
that is “parallel” to marriage and that would allow same-sex couples to
“enjoy the rights and benefits” and “bear the burdens and obligations of
civil marriage.”"
I agree with point number 2 there. In fact that is my position. I support equal rights for homosexual unions, just don’t call it a marriage.
I’m not sure if it wins them back Congress, Brendan, but if it wasn’t back on the fence/leaning against GOP, it is solidly split between the two now/leaning for GOP.
October 25th, 2006 at 4:12:54 pm
Following your logic, USC should have dropped in the polls as well. The past three weeks, they barely beat 3 unranked teams (only one of which has a winning record at 5-3).
October 25th, 2006 at 4:14:16 pm
Tony, I think you may have meant to post that comment on the thread below. LOL.
October 25th, 2006 at 4:24:42 pm
Brendan,
The problem here is with an unelected court saying to a legislature that they must pass a law. I thought the courts were there to enforce/interpret laws, not declare that the legislaturethe court the court says. If this issue is such a winner, debate it in open session of the legislature and get it passed by the representatives of the people.
Decisions such as this are exactly why same sex marriage amendments get passed by 65% of the vote. Judicial tyranny is still tyranny.
October 25th, 2006 at 4:29:23 pm
I seriously doubt this means anything this election year. I think it should be evident now to the God Squaders that the Republican leadership doesn’t give a rat’s ass about their concerns - see Foley.
October 25th, 2006 at 4:29:45 pm
Russ, they were telling the state that their laws needed to reflect the State Constitution. That’s completely within the limits of the court’s power.
October 25th, 2006 at 4:51:20 pm
Well, if were wobbling whether to punish the ‘pubbies before, I am no longer. I’m enough of an historian and constitutional law scholar to know that there is NO constitution currently in effect in the United States, federal or state, whose authors even remotely considered that anyone would ever think homosexual marriage would be even entertained, let alone required. Equating it with slavery is different, because there were plenty of people who considered slavery wrong at the time of the writing of the constitution. If those who think homosexual marriage ought to be legal can convince legistures to vote fore it, or the people in states with initiative statutes, fine, but to impose it by judicial fiat remains to my mind both unacceptable and possible only with the most tortured readings of the law and history, totally inconsistent with the intentions of anyone who ever made laws in the United States.
October 25th, 2006 at 4:56:10 pm
You are such a caspermilquetoast….
October 25th, 2006 at 5:01:35 pm
Wobbly,
The court can declare a law unconstitutional, and therefore throw it out, but it cannot dictate what an elected legislature can do. It should’ve said that they can’t pass a law declaring same sex marriage illegal, but it can’t turn around and say that they must pass a law declaring it legal. What then prevents the courts from ruling the nation through fiat?
October 25th, 2006 at 5:14:57 pm
You know what, the more I read the decision, the more I agree with Russ. The court is dictating legislation to the state congress and that is a plain violation of separation rules. The court decides the validity of rules, not provide framework for the laws they demand congress to pass.
October 25th, 2006 at 5:25:12 pm
The court isn’t violating the “separation rules.” It is telling the legislature what would need to be done so that there isn’t a violation of constitutional rights. That is totally different and in no way oversteps the authority or role of the judiciary.
October 25th, 2006 at 5:37:35 pm
“As a proponent of gay marriage, I’m happy with the result.”
So, you’re happy that 7 “judges” decided to rewrite the laws of the State of NJ to bring those laws into accord with the “judges” personal desires. Hmm. Let’s quote from the decision:
3. New Jersey’s marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced same-sex marriage. (pp. 25-28)
So, the people passing the Marriage laws explicitly ruled out homosexual marriage. The people who wrote, and who approved, Constitutional Article I, Paragraph 1 in question did not believe they would, and did not intend to, create a Constitutional Right for same sex couples to marry.
Yet the NJ Supreme Court “used” Article I, Paragraph 1 to overturn the laws written by the elected Representatives of the People of New Jersey.
And you find this good? you are “happy” with this?
Do you claim to believe in democracy? Do you claim to value the Rule of Law? Do you think of yourself as a principled person?
Or do you admit to yourself that you’re one of those people who has no principles, that the only thing that matters to you is getting what you want?
BTW, as a “fan of homosexual marriage”, you’re a fool. A NJ Court ruling against teh plaintifs might have lead to one or more of the anti-gay marriage ballot proposals on the ballot this November losing. That would have been an honest victory.
As it is now, they’re all going to win, by a lot. Congratulations.
October 25th, 2006 at 5:37:44 pm
du Lac,
So you’d have no problem with the legislature telling the courts how they must rule on certain laws, as opposed to just confirming judges?
Once again, if they wanted to throw out a law that says same sex marriage is illegal, that’s something else to argue about. However, they are telling the legislature to write a new law. What gives the courts that power?
October 25th, 2006 at 5:41:23 pm
Greg D, why did you put the word judges in quotes? Are you implying that those who sit on the highest court in New Jersey are not, in fact, judges? Wow, you must be a total dilrod.
October 25th, 2006 at 6:13:20 pm
Grammar freak
Judges interpret the existing laws and Constitution, doing their best to follow “what is”, not “what they wish was there”.
Dictators force their beliefs on others, irregardless of what the laws and Constitution say.
Their title says “judge”, their actions say “dictator”, or at least “oligarchy”.
October 25th, 2006 at 6:23:46 pm
As I read what they have set down, the SONJJs seem to have said (paraphrasing) - “The NJ State Constitution doesn’t forbid Gay Marriage; Legislature - you have 180 days to pass a Law that is Constitutional to cover that - OR - in NJ, Gay Marriage is legal” …
That doesn’t seem to “dictate” to any legislative body what they must do … it *does* seem to give ‘em a heads-up that there are consequences to NOT paying attention to the suggestion …
By the way, in the State of New Jersey, are they NJ Supreme Court Justices ? Or are they NJ Supreme Court Judges ?
October 25th, 2006 at 6:36:35 pm
Whatever one’s feelings on the merit of the issue, the court should have either 1) let the law stand or 2) declared it unconstitutional. I was not surprised by the result as it was a NJ result; any law student who read the Mount Laurel series of cases in first year property would have seen this coming when they saw which state we were dealing with. Basically, the court gives a time limit and the substance of what now, by judicial order, must be passed. Legislature, still being elected, rewords or only enacts parts (legislative process is still one involving deliberation and compromise, or at least it arguably should be), and more litigation occurs. The cycle continues as such until either the court or the legislature gives up.
October 25th, 2006 at 7:11:54 pm
I am glad the Court’s are still letting the legislature at least participate in the ordering of the republic.
We could have saved the republic a lot of spilled ink over Substantive Due Process, Equal Protection, and Fundamental Fairness, could we not have, by writing a constitution that said “The Great Laws of this nation shall be just and good. The Courts shall see that the law is followed.” The Courts would have then found it necessary and proper to create an administrative office to handle taxes, zoning (except for the part involving pornography) and paper shuffling.
It’s odd that in regards to another hot issue - abortion - soft-footed fence sitters are often saying that we must change the culture before the law. cart before horse here. won’t get too far.
October 25th, 2006 at 7:24:33 pm
D’oh. Got so excited to post, that I put it in the wrong section. Damn it all to hell.
I don’t even give a crap about the coming election.
October 25th, 2006 at 7:47:26 pm
Would that be considered as a sort fo “Own Goal” ? (grin)
October 25th, 2006 at 8:07:36 pm
At Gettysburg Lincoln said “that we here highly resolve that these dead shall not have died in vain–that this nation, under God, shall have a new birth of freedom–and that government of the people, by the people, for the people, shall not perish from the earth.”
Do you agree with that sentiment? Do you believe that “government of the people, by the people, for the people” is a good thing? That it is the proper underlying principle for our government?
If so, how do you square that with approving some “judges” deciding to toss out laws written by the people’s representatives, “justified” by the “judges” “reading” of a Constitutional Article, an article that the “judges” admit was not meant to say what they’ve decided it will say?
If not. If you don’t value democracy, what is the principle of government you favor?
Or do you have no principle? Is it just “whatever I want is good, whatever I don’t want is bad, nothing else matters if it gets in my way”?
October 25th, 2006 at 9:53:27 pm
i disagree with the characterization of state sponsored marriage as a right. As I see it, (and this is only my opinion) that the state has the right to confer benefits on some groups and not others based on real or perceived benefits to society. the relationship between people and government is a contract, nothing more, and in any contract both sides must gain something of value (again, be it real or perceived).
You can currently marry anyone and anything you want. This it not in dispute. However, the state only confers benefits on those marriages it considers a value to society. Currently, you cannot get state recognition if you marry someone underage, too closely related, if you marry an animal, or for polygamy or polyandry. all these things are still marriages, but they do not recieve state sanction. ( As far as those examples, they are all done under the auspices of various religions, and I make no judgement here as far as their moral value. i also make no judgement here as far as homosexual moral value.)
IMHO, adding homosexuals to the list of who gets state benefits for being married requires the supporters of expanding this privilege to state clearly what benefit society gets from it, and also what benefits they hope to obtain that they cannot get through other legal means.
Btw, being married, the only benefit that I gain from marriage is that, in the event of my wife being in a coma, i can make medical decisions for her without requiring another legal document. and that would only happen as long as no other adult with an interest in her health (i.e parent, adult child, sibling) challenges my decision. (i.e. Schiavo) There are no tax benefits, there are no property benefits, and with the tightening of the HIPPA regs, I dont even get informed of any medical matters unless my wife specifically allows it.
In a semi-related aside, I reside (at the moment) in TN. We had a constitutional amendment on the ballot effectively banning same sex marriage. I voted against the amendment, but it’s because I don’t feel that the state constitution is the correct place for this. I feel it is a legislative matter only. (and yes, we have early voting here)
I feel that the NJSC overstepped its bounds here. They conflated rights with privileges, and invented a new right where one did not previously exist.
October 25th, 2006 at 10:50:45 pm
You’re seriously going to try to argue that there are no tax or property benefits to being married, Pol? Unmarried people may not file taxes jointly, whether they wish to or not–and the large number of people filing jointly indicates that a relatively substnatial number see at least some benefit to it. Inheritance is also quite different in the event of being considered a legal spouse in most jurisdictions. Even in states like New York, inheritance gets handled differently (if you want a long article about it, see here. I’ve not read that particular article, but I have read about the differences elsewhere before.) That also leaves aside things like, say, adoption. Health care (more employers these days do provide it to domestic partners, but still fewer than provide it to spouses). People arguing whether these are rights or privileges I can understand; arguing that they don’t exist is something else entirely.
October 25th, 2006 at 11:05:38 pm
I wish that all states were forced to allow gay marriage. Not to engender some kind of backlash, but to show, as quickly as possible, that gay marriage is essentially detrimental to society.
If and When the government begins subsidizing the procreation of children, will gay “married” couples sue the government to legalize gay procreation? This is the essential question, as no one wants to deprive or repress anyone’s rights in a man made system. Unfortunately, we all have to answer to nature, and nature is one unforgiving bitch in my esperience. Will homosexuals ever be able to procreate offspring? Not without extensive genetic engineering. Therefore, I must assume homosexuality is an inferior choice. While heterosexuality combined with rapid procreation to be a superior choice.
October 25th, 2006 at 11:33:37 pm
As a general piece of advice, Joel, it’s not such a good idea to refer to somone’s orientation as a choice around here.
October 26th, 2006 at 2:05:27 am
Mike - I don’t think Joel realised how sensitive some of the commenters are about whether they look more right or left …
On a serious note, for most of my married life (in the US), there has been a marriage penalty rather than a tax advantage to being married …
October 26th, 2006 at 9:38:11 am
A new life for Atlantic City! My dog is horrified at this news as he has yowled repeatedly that it is not the way of Manitou.
October 26th, 2006 at 9:46:44 am
Brendan, to the extent you’re worried about your position on gay marriage prevailing because it is unpopular politically and may cost Dems a chance at control of one or both houses of Congress, you are obviously elevating power over principle. If you care about gay marriage as much as you claim to, and if you are are as independent as you claim to be, then it would seem to me the concern over a backlash against Dems should be a far distant second to your position winning out in NJ.
October 26th, 2006 at 9:32:48 pm
Mike, you’re seriously going to pretend that you responded to Pol, when you completely ignored his main point?
He said it very well, so I’ll just give you a little pointer: marriage benefits aren’t a “right”, they’re a benefit given to people who are doing things that generally benefit society (just like students with good grades get a discount on their car insurrance).
What is the evidence that homosexual marriages benefit society the way heterosexual ones do?
Lacking that, why should they get the benefits?
October 26th, 2006 at 10:08:03 pm
Greg D - lacking the ability to actually *have* gay marriages upon which to base studies, how the $#@%@$ do you suggest one collects evidence as to the benefits or otherwise to society of gay marriages ?
OY ! The D-list just found a prime candidate for charter membership !
October 26th, 2006 at 10:12:34 pm
I specifically avoided the debate on whether marriage benefits are a right or a privilege, Greg, because we’ve hashed that out repeatedly on Brendan’s blog in the past, and there’s little chance of changing another’s views on this sort of matter. I intentionally addressed a very small portion of his post, as that was clearly in factual error. I can understand why people don’t see these benefits as rights, even if I don’t agree with that assertion. I can see why people feel that it is up to those who would extend them to prove why other groups deserve them, rather than it being up to those who would keep them restricted to prove why other groups don’t deserve them. But the statement that there are not benefits other than in terms of making medical decisions is factually wrong, and one I therefore will not hesitate to refute.
September 3rd, 2007 at 2:59:24 pm
I found you via a Glenn Greenwald column. As you see, the “backlash” was non-existent. Isn’t that nice to know?