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October 26, 2006

Fairness and Equality

Color me pleased by New Jersey's ruling on gay marriage, which elegantly recenters the debate away from the semantic wars that have come to define it and back on fairness and equality. Indeed, more so than San Francisco and Massachusetts, I think this ruling could be pivotal for the gay rights movement:

The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples. There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed same-sex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships.

It's a helpful ruling, too, because it clarifies the battle lines. Those who believe in equality but, for whatever reason, think there should be a specific label for unions including both types of genitals, can be comforted by the Court's unwillingness to demand that "marriage" is the terminology. Then there are those who insist on discrimination, on inequality, on legislated bigotry. Let them stand up in the light, and expose their prejudice for what it is. For now, they may be a majority, but it'll be a damn hard one to keep.

Update: According to the polls, majorities of Americans support "allowing gay and lesbian couples to enter into legal agreements with each other that would give them many of the same rights as married couples." They oppose gay "marriage," but not equality. There's a danger in assuming Americans will hew to closely to their reported preferences, but it's an encouraging sign.

October 26, 2006 | Permalink


Horrendous timing, though. This decision will probably get Virginia's marriage amendment passed.

Posted by: SamChevre | Oct 26, 2006 10:45:08 AM

Would have been better, in my opinion, to just be rid of all of these "who you can do" regulations period.

Let's get the government out of the marrage business all together and let people leave their property to whomever they like and let employers insure whomever they like too.

Trying to eliminate the latter in Virginia (by my understanding) is just silly.

Posted by: Guy Montag | Oct 26, 2006 10:53:27 AM

I don't know... it's going to be hard to sensationalize this decision in a way that creates a broad-based turnout of the right - the decision only instructs the legislature to (eventually) make the same benefits available to same sex couples and it doens't have to be called to marriage. Although it's easy to lump every opponent to gay marriage in as a homophobic bigot, there are distinct groups who want the legislative composnent, and a larger component who would be fine with something that isn't called "marriage." That's a lot of nuance to overcome, especially in two weeks, when much of the media (especially in a race like VA) is already saturated.

Posted by: weboy | Oct 26, 2006 10:54:06 AM

Horrendous timing, though. This decision will probably get Virginia's marriage amendment passed

No - the VA marriage amendment was well ahead before this ruling came out. Don't read defeat into a legal victory.

"Fifty-three percent of likely voters said they would vote for the amendment, and 43 percent would oppose it", according to a Washington Postpoll published October 17.

Posted by: Andy | Oct 26, 2006 10:57:48 AM

Let's get the government out of the marrage business all together and let people leave their property to whomever they like and let employers insure whomever they like too.

It's not that simple, Guy - there are documented at least 1049 laws, rights, benefits, and statuses at the federal level that are affected by marriage. It goes to more than just inheritance (and your simplistic example ignores the huge financial and legal differences between automatic rights of survivorship and going through probate) and who employers offer insurance to - there are all sorts of issues involving special treatment of taxation, pension benefits, medical decisions and hospital visitation, child adoption and custody, property rights, bankruptcy rights, crime victim and wrongful death causes of action and rights of recovery, and domestic violence protection to name a few - all the things that make up what a "family" is - and all SPECIAL LEGAL RIGHTS enjoyed by heterosexuals to the exclusion of everyone else.

For better or worse government is and has been in the "marriage" business for a very long time in the way it defines who gets to enjoy these rights and statuses.

Minimizing the issue doesn't make it go away.

Posted by: Andy | Oct 26, 2006 11:14:43 AM

I'm not as happy with this ruling as many are. It's good to recognize the equal rights and responsibilities of those who wish to enter same-sex unions. That the separate-but-equal solution is still considered an acceptable option for that shows a lingering reluctance on the part of the court to insist on full equality. I don't see why the plaintiffs should have had to even argue that (contrary to the plain sense of the words) there is a fundamental right to same-sex marriage "deeply rooted in the traditions, history, and conscience of the people of this state." New Jersey's constitution has an equal protection clause; that should be enough. To the extent that marriage is a unique institution worth preserving for its benefits to its partakers, it should be open to same-sex couples on the basis of equal protection.

A step in the right direction, but not a complete one.

Posted by: Sanpete | Oct 26, 2006 11:29:39 AM


That is a misuse of the word simplistic.

I advocate the elimination of all special legal rights of adults.

Just because 'they always did it' does not mean they have to continue. You are advocating something that 'they never did before', what on earth is your dilemma?

One new federal law will eliminate all of those 1049 laws.

I do not advocate any special treatment for taxation, perhaps I was unclear there. Pretty simple, if you make money you should get taxed at an individual rate for that. (note the period)

Why must you make my position so convoluted with your redundancy? Pension benefits? Please see my comment on insurance and replace with any benefit you like, or make a list if that is your whim.

Posted by: Guy Montag | Oct 26, 2006 11:35:43 AM

I don't think this is over.

As with Mass., the conservatives in New Jersey will not just say "Well, the court ruled and that's that." They will follow the lead of many of the other states and push for an amendment defining marriage.

Posted by: Fred Jones | Oct 26, 2006 11:39:28 AM


If they were true Conservatives they would push for an amendment eliminating marriage.

Posted by: Guy Montag | Oct 26, 2006 11:43:19 AM

In what sense would that be "conservative," Guy?

Posted by: Sanpete | Oct 26, 2006 11:49:07 AM

I think Guy is thinking about libertarians....

Posted by: Fred Jones | Oct 26, 2006 11:49:52 AM


Conservative in the sense of government staying out of people's private business, of course.

On the federal level, I don't see an enumerated power for tossing about benefits according to who is allowed to do who, unless you are getting into the UCMJ power of the Congress and that is limited to the military only.

It is the same concept as finding it wrong for the government to tell us what to drive. Telling us who to drive is just as bad.

Posted by: Guy Montag | Oct 26, 2006 11:55:17 AM

Guy, radical departures from tradition aren't conservative in the primary sense. You're thinking of a typical quality of conservatism, based on the traditional principle of the government staying out of our business, but your suggestion is hardly conservative in the broader, more fundamental sense.

Marriage isn't a matter of who can drive whom, as you so delicately put it. Marriage is a publicly supported system of obligations and rewards to promote greater stability of family and personal life, something the state has a strong interest in.

Posted by: Sanpete | Oct 26, 2006 12:06:06 PM

"the conservatives in New Jersey will not just say "Well, the court ruled and that's that."

Don't think they will get too far in NJ. The AmTaliban doesn't have much traction in the state. And when the repubs have nominated right-wing candidates for stateside office, they lose by double-digits.
Most NJ residents didn't care that much that the former governor came out as gay - McGreevey's problem was corruption - he was just a few steps ahead of the investigation.

Posted by: CParis | Oct 26, 2006 12:57:16 PM

The NJ Supreme Courts decision is more nuanced than Ezra's post would seem to indicate. The majority did not say that 'separate but equal' is Constitutionally permissible. They did say they didn't have to decide that question NOW. The 4-3 decision did indicate that the matter may need revisiting after the legislature acts and evidence that actual equality isn't achieved by two parallel systems of marriage/union (or whatever the legislature chooses for the alternate name).

The minority, in a strong opinion written by the retiring Chief Justice, was prepared to say that separate but equal will never be equal. They emphasized that this isn't just a matter of semantics, but of true equality under the law.

The decision of the majority didn't address the case brought before the court (the constitutional requirement for a single civil-procedure and name that applies to all who wish to join in a civil partnership or union, but instead they side-stepped it.

Ezra was correct in a thing of importance though. The court is leaving the decision on naming up to the legislature, thus disarming part of the argument by the religious/conservative opponents who like to denounce activist courts.

My preferred solution is for states to change the name of their civil procedure to unite a couple in a civil partnership is to remove the word marriage, and substitute civil union or civil partnership. Let the churchs continue to use the word marriage if they choose, but the document should be signed by a public official (not a religious official) for ALL these processes. Then a church can have their own documents that have no legal standing and they can call their ceremony whatever they want to.

Posted by: JimPortlandOR | Oct 26, 2006 1:35:49 PM

I don't know that this ruling will end up being a net benefit for gays, especially those not in New Jersey.

Dale Carpenter at the Volokh Conspiracy makes some very interesting points in this post.

(And for those of you who don't know, Carpenter is a strong proponent of gay marriage and gay rights.)

Posted by: Dave Justus | Oct 26, 2006 1:37:02 PM


You are assigning evangelical issues to Conservatism. Forced social conservativism isn't really Conservatism!

Those evangelicals are National Socialists who vote Republican as opposed to the National Socialists on this board who vote Democrat/Green/Socialist/Communist.

Posted by: Guy Montag | Oct 26, 2006 2:13:07 PM

My preferred solution is for states to change the name of their civil procedure to unite a couple in a civil partnership is to remove the word marriage, and substitute civil union or civil partnership.

What do you prefer about this to just allowing same-sex couples to marry?

I think it's a mistake to try to accommodate those opposed to same-sex marriage by changing marriage. Let religions opposed to same-sex marriage change the name of what they do if they prefer. We don't owe them any special consideration in this.

Guy, that marriage is in fact a traditional secular institution of some importance has nothing to do with evangelicals. Social conservatism, though, is surely a part of conservatism, in the proper generic sense of the word. You're trying to reserve the word for what you favor, but that's just you.

Posted by: Sanpete | Oct 26, 2006 2:31:26 PM


Yea? So?

Posted by: Guy Montag | Oct 26, 2006 2:42:01 PM


Actually, I was just now joking in the Oct 26, 2006 11:42:01 AM post.

I am not doing anything different than the people who changed the meaning of the word "gay" a few short years ago. Actually, I am doing the opposite and making a more narrow definition.

If you want to keep the government nose out of your tent then your probably a Leftist. If you want to keep it out of your neighbor's tent then you are most certainly a Conservative.

Evangelicals seem to want a whole host of laws and punishments for all sorts of private activity that affects nobody but the people willingly engaged in the activity. Same as Leftists, just on different issues. Both are National Socialists in my book. Pat Buchanan criticises the Evangelicals but he is just as bad as them and the Leftists.

And, no, I do not by any means mean that the federal government should not be allowed to determine the disposition of the enemy during war or during some imagined 'peace' period.

Posted by: Guy Montag | Oct 26, 2006 3:03:31 PM

Sorry for the posting flood, but I went back and looked in my journal for a post on this general topic from about two years ago: Montag Marriage Amendment. This discussion prompted me to a new catchy title.

You Leftists are definatly good at inspiring catchy titles and chants!

Posted by: Guy Montag | Oct 26, 2006 3:18:12 PM

I'm not thrilled with the ruling in itself--it approves a separate-but-equal status for gay couples, rather than affirming the right to marriage per se--but I am thrilled with the fact that the three dissenters opposed it on exactly those grounds (i.e., they wanted to rule for gay marriage as such). In other words, the New Jersey Supreme Court was unanimous in supporting (at least) civil unions. That, I think, is en enormously positive sign.

Posted by: Tom Hilton | Oct 26, 2006 3:35:50 PM

Actually, I do have a legal objection to this court ruling: They sound like they are telling the Legeslative branch to make legeslation. That is no more their role than the legeslature telling a court what ruling it wants on an issue.

Perhaps I am reading that in, but it sure reads like what I just stated.

Posted by: Guy Montag | Oct 26, 2006 3:40:24 PM

The reality is that all it will take is for a referendum to pass a constitutional amendment and then the court decision goes bye-bye, along with all of these lofty arguments.

Posted by: Fred Jones | Oct 26, 2006 3:49:38 PM

Guy, I think Fred was right to suggest that a better word for what you favor is libertarianism, at least in this case. Since I'm not a libertarian, I don't have any objection to tax and other advantages accorded on the basis of marriage. It's a societal good, in my opinion, and worth supporting through public policy. I suggest a different, not quite so catchy title for your proposal, the Montag Non-Marriage Amendment.

On your objection to the court ruling, the court is deferring to the legislature to meet its constitutional obligation as it sees fit, rather than just imposing a particular remedy. The court outlined the constitutional limits and left the rest to the legislature.

I am thrilled with the fact that the three dissenters opposed it on exactly those grounds (i.e., they wanted to rule for gay marriage as such)

Good point, Tom. It seems the tide is turning.

Fred, what you suggest won't happen in NJ.

Posted by: Sanpete | Oct 26, 2006 4:04:50 PM

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