Gay Marriage in New Jersey
posted by Mike Dimino
Courtesy of Howard is this article from Newsday describing the case pending in New Jersey which challenges that state’s restriction of marriage to opposite-sex couples. In the interest of full disclosure, I favor allowing gay couples to marry, but I would prefer that decision be made by state legislatures. I am not yet convinced that the Equal Protection Clause of the federal Constitution requires state recognition of gay marriages, though I understand the parallels to Loving v. Virginia.
I am curious to see what the New Jersey Supreme Court does with the case, from a political perspective as well as a legal one. Assume that the court thinks the proper result is to strike down the restriction. Should the court “vote its sincere preferences,” as political scientists say, the practical effect in the short term will be a tremendous electoral advantage for the Republicans, as happened in response to the Massachusetts ruling perhaps including the re-election of the President. Surely the last thing the New Jersey Supreme Court wants to do is help Republicans. Heck, that court’s decision in the Doug Forrester case in 2002 was far more transparently partisan than any ruling in Bush v. Gore. Some political science suggests that the court will shade its interpretations so as not to antagonize the other branches, which are not accepting of gay marriage, but the evidence is far from conclusive. See, e.g., Jeffrey A Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28 (1997); William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 Cal. L. Rev. 613 (1991).
For this reason, however, the court is in a no-win posture. If the court mandates gay marriage, it triggers the ire and votes of Republicans as well as opening itself to criticism for being judicial legislators. If it defeats the claim, it will be accused of doing so for political reasons rather than legal ones. Vermont-style civil unions are another option, though the article reports that New Jersey already grants domestic partnership developments. If the court tries to mandate civil unions its ruling may be the least defensible of all, for it would allow the state to create two classes of couples while effectively conceding that there is no reason not to give homosexual couples all the advantages of marriage.
It’s interesting that the provision apparently at issue is the New Jersey Constitution’s provision that “all persons are by nature free and independent” — not any provision explicitly invoking the ideal of “equality.” I know nothing of the way in which this clause has been interpreted in the past, but isn’t it ironic that the persons invoking the clause want the state to recognize their dependence on their partners, and for the state to recognize a continuing obligation to care for them? Free and independent indeed.
February 14, 2006 at 9:47 am
Posted in: Constitutional Law
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Responses (27)
Dave - February 16, 2006 at 9:50 am
The whole equal protection and “civil rights” arguments are bogus with regards to homosexual co-habitation. As a heterosexual male, I can not marry another male of any sexual preference. There is no descrimination here. All are treated equally. And every legal protection or arrangement garnered through marriage can be obtained via legal contract. With marriage you do get it as a package deal.
What homosexuals seem to want is recognition that their choice is normal, of course, it is not. They also seem to want the government to force private corporations to provide “spousal” benefits. In other words, they want money!
default - February 16, 2006 at 9:54 am
“the practical effect in the short term will be a tremendous electoral advantage for the Republicans, as happened in response to the Massachusetts ruling perhaps including the re-election of the President.”
Do you have a source for this? I think it’s a bit of a stretch to blame the Mass. Supreme Judicial Court for losing the 2004 presidential election. Can you point to some other measure of the “tremendous electoral advantage” that Republicans gained from Goodridge?
-dsr- - February 16, 2006 at 10:31 am
Here in Massachusetts, of course, we have seen a vast increase in pederasty, bestiality, child abuse, rivers of blood, plagues of vermin and rains of frogs.
(None of these things have happened. Instead, a small group of people have legally celebrated their unions, and generally been made happier by that.)
There seems to be a gender equality issue here. As a male, I am forbidden in New Jersey from marrying another male, while I am allowed to marry a female. Shouldn’t I/we have the right to marry anyone I/we want to? Isn’t preventing that rampant sexual discrimination?
rogue - February 16, 2006 at 11:36 am
“far more transparently partisan than any ruling in Bush v. Gore. ”
You mean the per curiam opinion in Bush v. Gore?
pssst, look up “per curiam” in Black’s.
rogue - February 16, 2006 at 11:38 am
“Shouldn’t I/we have the right to marry anyone I/we want to? Isn’t preventing that rampant sexual discrimination?”
But you do, my good sir. You do. Marry away. I’ll google the nearest unitarian/universalist church to help you out even.
You simmply don’t have a “right” to force society (i.e. the State) to recognize that marriage.
Huggy - February 16, 2006 at 11:39 am
Advice to -dsr- chill out. You’re more likely to get your fairness, what others would call an unfunded mandate, if you don’t come across as a raving lunitic.
“all persons are by nature free and independent” would fit more with no legal recognition of marriage at all. Lots of young strait men think that would be great. Most gays don’t realize this because they think more like women and want society’s approval before they fart.
The end result of all this is a weakening of respect for laws in general and judges, lawyers, gays specifically. In my opinion. Which has the same rule of law as yours. None!
Randy - February 16, 2006 at 11:45 am
This whole argument about “I should have the ‘right’ to marry anyone I want” is ridiculous. Do we then permit polygamy, since that is what “I want”? Of course not.
If marriage is perceived as a fundamental right, which I do not believe it is, then gay marriage should be permitted. However, if marriage is instead perceived as a privilege of some sort, then the states are within their authority to regulate or even prohibit it in certain circumstances.
Howard fan - February 16, 2006 at 11:47 am
I would bet money that there is no ruling from the N.J. Supreme Court until after the election, and that after the election, they will hold that the law at issue is unconstitutional.
Stentor - February 16, 2006 at 11:58 am
Like “default,” I’m a bit skeptical of the degree of backlash that the Mass. SJC created (and hence of the amount the NJ court would be likely to create). In the 2004 Massachusetts state elections, not a single legislator who supported marriage was defeated, while pro-marriage candidates ousted two anti-marriage incumbents and picked up six of eight open seats.
J. - February 16, 2006 at 12:03 pm
Weren’t four of the seven justices on the N.J. Supreme Court appointed by a Republican? (In fact, doesn’t N.J. require that no more than four justices be from the same political party?) If so, aren’t some of the assumptions underlying this post fairly tenuous?
KeithK - February 16, 2006 at 1:42 pm
The gay marriage issue may not have any significant implications in Massachussets. But it certainly did nationally. As a result of the Mass. Supreme Court ruling many states had anti-gay marriage initiatives on the ballot. The issue was a rallying cry for conservatives and probably helped with turn out. Did it directly decide the presidential election? Who knows? Did it have an effect? I’d say it did.
Clint - February 16, 2006 at 1:57 pm
Dave-
Do I correctly understand that you believe that Loving v. Virginia was decided incorrectly?
In that case, every black man could marry any black woman, and any white man could marry any white woman. It was only disgusting (*) interracial marriages that were unrecognized by the state of Virginia.
By your argument, there was clearly no equal protection argument to be made in that case. Have I understood you correctly?
* In the opinion of the vast majority of Americans of both races at the time — though not in mine.
Clint - February 16, 2006 at 2:04 pm
Mike-
I couldn’t agree more.
We’re winning this battle easily in states like California and New Jersey, with slowly expanding Domestic Partnership laws, moving at a pace the voting public is comfortable with.
The big risk here isn’t a political backlash that gets Tom Kean, Jr. into the U.S. Senate. The big risk is voter backlash rolling back the gains we’ve made on Domestic Partnership laws in a state where the voters will be perfectly comfortable legislatively enacting same-sex marriages within another generation — unless they feel like they are being railroaded into it.
Lis Riba - February 16, 2006 at 2:39 pm
BTW, the Laurel Hester situation (until public outcry shamed officials into doing what’s right) shows the inherent inequality of the domestic-partnership/Vermont-civil-unions/separate-but-equal solution.
Parris - February 16, 2006 at 2:47 pm
Dave says:
“And every legal protection or arrangement garnered through marriage can be obtained via legal contract. With marriage you do get it as a package deal.”
Really?
- So I can be protected from having to testify against my partner via contract?
- So I can get immigration for a foreign partner thru contract?
Forward me a copy of those contracts.
BobVB - February 16, 2006 at 8:00 pm
Gay citizens can already marry – they do in churches, private ceremonies, and by personal commitment across the nation, done so for decades and will continue to do so. The government can no more make you ‘married’ than it can make you ‘tall’ or ‘smart’.
The current brouhaha is just about the civil contract licensed in support of marriage by the state. Marriage is about two people building a life together so the idea that married gay citizens don’t have the right to do so with their spouses but do with the one group they wouldn’t want to ‘build a life’ is disingenuous at best.
It is an equal access issue – some married citizens are able to license this totally secular civil contract and some are not. There does have to be a justification why this disparity exists.
Jeremy Pierce - February 18, 2006 at 9:32 am
Clint, the structure is different. In the case of interracial marriage bans, someone who is black is prevented from marrying someone who is white. Someone who is white is prevented from marrying someone who is black. What that means is that white men have the same rights as other white men — to marry white women — while black men have a different set of rights — to marry black women. So there’s a clear equal protection violation if the equal protection clause is taken to cover any sort of different treatment by the laws (which affirmative action advocates don’t believe, but Loving did assume that). One racial group has different marriage rights from another.
But then with gay marriage you don’t have that. You don’t have any racial issue at all. All men have the same marriage rights — to marry any woman (well, any unmarried woman who consents). All women can marry any man. There’s no equal protection issue in terms of any group of men not having the same rights as any other group of men, as there was with the interracial case. What you do have is men not having the same rights as women, but there’s no constitutional right related to that. The Equal Rights Amendment has failed every time it’s come up, and for good reason. If it passed, we’d have problems with girls’ soccer leagues, men’s and women’s bathrooms, fraternities and sororities that aren’t co-ed, and so on. States with such a ridiculous (and unenforced) equal rights requirement for gender probably do have to say that banning gay marriage is unconstitutional within that state. California is one of these, interestingly. But I think there’s more reason to remove such constitutional requirements than to apply it inconsistently by requiring gay marriage but not making all bathrooms, sports teams, and fraternities co-ed.
There’s also another issue with interracial marriage that doesn’t pop up with gay marriage. The ban on interracial marriage stemmed in large part from the view that one race is superior to another and shouldn’t pollute its genes by miscegenation. That inherently racist view grounded the laws in question. There’s nothing like that here. It’s not as if this is about men being superior to women (or vice versa) and thus not being allowed to marry them. Both partners are the same sex, and one of the most important reasons why banning interracial marriage was so immoral doesn’t apply at all in this case. That’s at least one factor that makes interracial marriage bans more evil than gay marriage bans at least in that respect, and it cautions against comparing them as equivalent even aside from the different sort of structure that you find with respect to equal protection.
italiangm - February 18, 2006 at 10:04 am
“And every legal protection or arrangement garnered through marriage can be obtained via legal contract.”
Please advise how my assets (real estate, IRAs, etc) can be transferred to my same-sex spouse without incurring gift or inheritance taxes when I die.
Chairm - February 19, 2006 at 5:33 am
The anti-miscegenation system used a racist filter to selectively segregate the sexes. It went further than marriageability to include prostitution, cohabitation, casual sex relations, and even, in some states, what could be described as dating. It was based on prohibiting sexual relations and the legitimzed procreation of certain combinations of men and women. The racist filter was the flaw in the system — it was the basis of the system of course — and Loving was not about correcting a supposed flaw in marriage.
In fact, the racist filter on marriageabiity determined racial classification by looking at ancestory and projecting the line of decendants. It was rooted in the procreative core of the social institution of marriage.
But there is one human race. Human beings do not crossbreed and do not produce hybrids neither of race nor of sex. There is no hybrid man/woman; no hybrid black/white race. Men and women are not of different species; humankind is two-sexed and not subdividied into subgroups — subspecies and races.
The same-sex marriage issue is not about sex discrimination as there is no attempt, or even an effect, of raising up one sex over the other; nor of treating one sex as inferior beneath the other. Marriage is not unisexed nor is it one-sexed. Like humankind, as noted in Loving, marriage and procreation are intertwined; marriage also is two-sexed.
The same-sex arrangment is a nonmarital alternative. It is based on reintroducing selective sex segregation into marriage law. It would overturn the sex equality intrinsic to equal participation of both sexes; it would directly contradict both responsible procreation and sex integration — both at the core of the social institution of marriage which the State accords preferential treatment and status.
The advocates of this form of selective sex segregation base their claims on elevating sexual orientation as an identity that must be given preferential status. Marital status is a preferential status at law. It is a relationship status that requires both man and woman. It is not an individualized right; no person can marry solo. The advocates of SSM mistakenly use classification by sex as proxy for classification by sexual identity. They would raise sexual identity above integration; and this they’d have in common with those in the past who used the racist filter to raise racial identity above integration.
The sex segregation of the same-sex arrangement may be laudible in the context of nonmarital alternatives, but not as marriage. Also, this form of sex segregation is, for the most part, far more benign than the sex segregation that used the racist filter. There are differences both of kind and degree, however, both the racist and the sexual identity filters distort marriage and cannot expand nor improve marriage.
crystal - March 1, 2006 at 4:55 pm
i wish they would pass the law so gays can marrie being a lesbian myself i would love to be able to be married to my girlfriend i just wish lyfe was just as easy for gays as it is for stight ppl
steve - May 31, 2006 at 3:18 am
Gays should not be allowed to Marry just like Interactial couples shouldn’t either. Its not normal. And they have no right to enforce that on our society.
Has the KKK taken over. In 20 years kids in high schools will be reading about this and ask Did this really happen?
Why are Americans so ignorant. Canada again beats us to it
sothurn - June 29, 2006 at 12:17 pm
Chairm -
“The advocates of SSM mistakenly use classification by sex as proxy for classification by sexual identity.”
I agree with your point. This is a legal problem here for the argument – I think the “gender discrimination” test does fail for this logical reason. However, SSM advocates use this argument more as part of a three-prong legal strategy. The reason is because gender discrimination holds a higher class than does sexual orientation discrimination.
However, logically, if you look at this as sexual orientation discrimination, I think the case that denying gay marriage (not to “same sex” couples, but to “gay and lesbian” couples) is compelling and as equal to the arguments in Loving. One has to go beyond the language of “marrying any person” – to the idea of “marrying a person of whom one would want to marry” or even “marrying a person with which one is capable of having an intimate, romantic relationship.” Here we are actually at the rub of modern marriage and whether marriage is merely an arrangement of convenience, or whether “romantic” marriage is a fundamental human right. This has certainly been a change over the last 100 years (i.e., look at the book for Fiddler on the Roof), but most American’s would agree I think that for at least the last 75 years in this country we have understood that marriage is about choosing one’s personal preferance for a life partner, not about an impersonal arrangement of family fortunes. So only gays and lesbians are not allowed to make this choice (since if a gay or lesbian person is forced to marry a person of the opposite gender, this is not a “romantic” relationship – identical, really, to a non-gay man marrying another man, which in my mind is another non-attraction marriage which should not be allowed – it should only be allowed for genuinely gay and lesbian, or bisexual, people…though how one would enforce an “attraction” test I don’t know.. But I do believe that ultimately a better “prohibition” on marriage would be to prevent people from marrying outside their orientation – i.e., prevent gay men from marrying women, straight men from marrying each other – this is much more logical).
To me, this is really the compelling logical argument. However, the legal problem is that homosexuality does not have the same “suspect class” standard as does gender (even though in my opinion it should). Rather than argue to update the class standard of homosexuality, some of these legal cases have chosen to use the gender test, which is stronger. However, the strategy these days seems to be a combination of all three tests (gender, sexual orientation, and oftentimes a third procedural argument). In my opinion it is better to win on the 2nd argument – which is logically more sound (and in some cases, such as California, where we win on all 3, I still think that precedent wise, it is better to establish this as a sexual orientation, rather than gender, issue, as it also strengthens the case for raising sexual orientation to a suspect class).
kitty w - July 3, 2006 at 1:31 am
i am not in favor of gay marriages marriagaes is designed by the “heavenly father” to be between a man and a woman so we can reproduce ourselves can’t a man and a man or a woman and a woman produce a child no they can not only a man and an woman can do that if nj or most of these states make gay marriages legal sodom and gommorah will be like a picnic compare to what he will allow to happen to this country. we have it real good now but 9/11 man that woke most of us up it looked like a war zone that day it didn’t look like the nyc i know you don’t think something like that could happen again i’m praying it don’t but it we allow this thing like gay marriages happen mark my words it is a “smack in God’s face”.
Elizabeth Thurston - September 12, 2006 at 6:43 pm
I was raised a Christian. I believe in God and all the Bible says. But i also believe in my wonderful son who is gay.I was one of those women who want to church every sunday and sat in the front row dressed to kill. I used to believe that gays and lesbians were evil and sinning. But 15 years ago my son came out and told me he was gay. It was very hard for me to take at first. I want my son to be happy and if that means he is gay so be it! I dont care that my son is gay. im proud of him! i wish him all the happiness in the world! I want to thank all the gays and lesbians. You have helped me and some of my church friends realize that being gay is NOT a sin! You are just like everybody else! And dont let anybody tell you different! I want everybody to know that there is nothing to be ashamed of! I think the ones who sit back and tell other people that their going to hell should be ashamed! im a mother of a gay son and nothing could make me more happier! GAY PRIDE!!!!
David Smith - September 12, 2006 at 6:49 pm
Let me tell you what a “smack in Gods face” is. Its the people who judge the gays and lesbians! If your so Holy you should know that God does say that he will judge you if you judge others! just think about that the next time you want to judge!
Amy - October 5, 2007 at 5:43 pm
My quarrel is that the equal protection clause says that someone shouldn’t be discriminated for any reason. Consequent revisions have made it so if there’s a rational reason why discrimination is needed, then it’s legal (i.e. men’s and women’s bathrooms are separate). However, i can find no reason to discriminate on the basis of gender in marriage. If someone tries to debate it’s about “gay marriage”, then it’s not. It’s perfectly legal for a gay man to marry a woman (straight, lesbian, or bisexual) and also possible for a lesbian to marry a man (straight, gay, or bisexual) and likewise for someone is bisexual. In other words, it’s not a discrimination based on sexual orientation. Instead, it’s discrimination based on sex which is illegal unless there’s a “rational” reason. Unless there is a rational reason, then gay marriage must exist in order for our system to be consistent, which currently it is not.
Amy - October 5, 2007 at 5:55 pm
i just wanted to reply to sothurn regarding a test for attraction. I think that’s not a very logical argument at all. Even if one could devise such a test, then it’s still limiting someone’s choice in a partner, which is problematic for the same reason that “gay marriage” is so hard to get passed.
Also, then it’s placing labels upon people and forcing them to fit into them. Then just like gender is a legal quantity, sexual orientation would become one as well. I don’t know how often or if possible to change one’s own sexual orientation, but gender, or actually sex, which is how it’s recorded isn’t much of a challenge. I for example am a legal male, however a transsexual. I haven’t yet begun my transition, but i have a lot of struggles ahead of me because the fact that i’m legally a “male”. No different than if i were “straight”, which i’m not, i’m attracted to women yes, but have never considered myself “straight”. Then not only would i have to repel the fact that i’m not a “man”, i’d also have to fight the fact that i’m not and never have been “straight”. That’s why I attack it from the position of gender, since it’s not a problem of sexual orientation, but one of gender.
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