Gay Marriage Wins a Big One in New Jersey

Allow me to quote from the Syllabus prepared by the Court Clerk of the Supreme Court of the sovereign state of New Jersey.

“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.”

In other words, equal protection under the law for same sex couples and the legal term to be used for that protection is left to the legislature. The legislature has six months to enforce the ruling of the court.

I’m surprised the court went this far. I fully expected it to simply leave the ball in the legislature’s court. The legislature can now either amend the marriage laws to extend marriage to same sex couples or create some other legal state with equal provisions and protections. Some additional quotes from the Syllabus, with commentary.

“There has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this State.”

That’s the Blue State of New Jersey folks. No matter how you twist and turn the argument against gay marriage it’s discrimination. The fact that this discrimination has a religious source is irrelevant. They quoted Genesis 9:27 as a justification for slavery and segregation too.

“…the Court will not speculate that identical schemes offering equal rights and benefits would create a distinction that would offend Article I, Paragraph 1, and will not presume that a difference in name is of constitutional magnitude.”

Creating a different legal state smacks a bit of “separate but equal” doesn’t it? We all know how well that worked out don’t we? Separate, or different, is inherently unequal. If the legislature goes this way, then I expect it to be challenged on the basis that a difference in name is a difference of constitutional magnitude.

“However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship.”

Regardless of what the legislature chooses to call it, it will be called marriage. If “different but equal” somehow manages to be stable then 10 or 20 years from now the fact that there are in fact two separate, but equal, legal states will probably become little more than an oddball bit of trivia.

“Article I, Paragraph 1 protects not only the rights of the majority but also the rights of the disfavored and the disadvantaged; they too are promised a fair opportunity for ‘pursuing and obtaining safety and happiness.’"

Some U.S. Supreme Court justices may have forgotten that the charter of the courts is to protect the minority as well as the majority but the New Jersey Supreme Court hasn’t forgotten it.

“Plaintiffs' quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives.”

Let the games begin! We all know that words and labels have meaning. New Jersey should become an absolute circus over the next six months while everyone tries to sort this one out. I can’t think of a better battlefield to fight the battle. Let’s see if we can get gay marriage legalized as well as dump the death penalty in New Jersey.

New Jersey, like Massachusetts before it, will need to take into account the issue of out of state residents. I suspect that a rule, similar to the rule in Massachusetts, limiting whatever the legislature comes up with to state residents only will be enacted.

A house divided against itself cannot stand. Just as the country couldn’t sustain remaining half slave and half free, it’s not going to be able to sustain two different de facto definitions of marriage.

I might also point out that the New Jersey decision opens the door for subverting even a constitutional amendment that prohibits gay marriage. Different but equal right? Equal protection under a different name is still the same. What did the man say, a rose by any other name? I think most people would draw the line at an amendment which prohibits equality under a legal state called something other than marriage.

By the way, don’t be confused by the statement that the decision was 4-3. The dissenting opinion concurred that the equal protection guarantee of Article I Paragraph 1 was being violated so the opinion there was 7-0. The dissent was “from the majority's distinguishing those rights and benefits from the right to the title of marriage.”

In other words, the three "dissenting" justices wanted to go for the whole enchilada.

Let’s hear it for the Blue State of New Jersey. I just wish the court would have waited a couple of weeks. I’m sure the Republicans will start spouting misinformation about what this decision means in order to rally voters of the Religious Right who might otherwise have passed up this election due to disillusionment with the Republican’s performance in office.