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Thursday, October 26, 2006
First Reaction to the New Jersey Same-Sex Marriage Decision
Though I haven't had a chance to read the New Jersey Supreme Court's decision as carefully as I would like, I wanted to join the rest of the blogospehere and get in my two cents.
My first reaction on skimming the case is that it is a very progressive decision . . . for 1999.
I mean that in two ways. First, and more positively, it is amazing how far and how quickly public attitudes and legal opinion have shifted on the issue of same-sex marriage. When the Vermont Supreme Court issued a similar decision less than a decade ago, that court was staking out new ground and pushing the boundaries of public opinion. In contrast, when yesterday's decision came down it was widely portrayed as a statesmanesque compromise that closely mirrors popular attitudes on the issue.
More disturbingly, however, the decision seems to suffer from a very impoverished understanding of the ways in which law shapes cultural attitudes and public behavior. Intelligent and well-meaning people can disagree on whether in a constitutional democracy courts--as opposed to legislatures--have the power to accord full civic equality to groups who were not historically accorded such status and whose inclusion in the civic community requires the restructuring of traditional institutions. Once, however, a court commits to the proposition that it has the power--and the obligation--to insure civic equality, there is no principled reason for drawing the line where the New Jersey court did. To argue that extending the substantive rights and privileges of marriage while withholding the word "marriage" nevertheless accords gays and lesbians true civic equality is to ignore the expressive power of law. When the law announces that a set of families are entitled to the pecuniary benefits accorded to other families but that they are--for some unstated reason--not entitled to the titular honorifics that are normally accorded to such families, the state is marking their difference and strongly implying their second-class status. That is not true equality.
To say that civic equality is about equal access to public services and benefits is to miss the point of the civil rights movement. After all, the back of the bus gets you to your destination just as quickly as the front of the bus.
Posted by amsiegel on October 26, 2006 at 02:03 PM in Constitutional thoughts, Current Affairs | Permalink
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Comments
True enough but Brown didn't lead to Loving in 1959. It took about fifteen years, about twenty years after CA ruled in the Perez case.
I agree with the partial dissent and its citation of Dworkin's recent NY Review of Books article that labels matter.
But, courts don't go all the way all the time. Imperfection is troubling but why stop here? And, given only one other state supreme court since 1999 ruled this way since 1999, the idea the court is somehow behind the times (esp. after NY's stupid ruling) is a bit unfair.
Posted by: Joe | Oct 28, 2006 6:11:58 PM
I agree. I think reasonable judges could conclude either that gay couples need be given no marriage-like rights at all or that they must be permitted to marry on the same terms as heterosexual couples, but the middle approach is untenable. Even applying a pretty deferential form of the rational basis test, there must be a reason to deny gay couples -- once the couples are provided all the substantive rights associated with marriage -- use of the term "marriage," and here the only reason is to express disapproval of the unions. I can't see legislative name-calling as a legitimate state interest and certainly not one sufficiently important to deny gay couples the right to use a term that means so much to their relationships.
Posted by: Mike Dimino | Oct 26, 2006 4:24:10 PM
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