Gay Marriage in New Jersey

Congratulations to all the gay couples in New Jersey who are finally able to get married today!

(And wow – my family’s rabbi helped officiate the first ceremony just after midnight.)

What’s that, you say? It’s not actually marriage, but just a civil union, grumble grumble spineless New Jersey legislators grumble grumble?

Well actually, it is marriage – state marriage, not federal marriage, but marriage nonetheless – no matter what the statutes and the licenses say. Gay couples in New Jersey, as of today, are entitled to all the rights and responsibilities that straight couples can have. All the exact same ones. You can take your spouse’s name, you can adopt your spouse’s biological children, your children are “legitimate,” you can’t be forced to testify against your spouse in court, you can leave your property to your spouse, you have automatic hospital visitation rights, and so on. It’s marriage.

While the technical term is “civil union,” gay couples who are civil-unioned need to begin referring to themselves as married – which they are legally allowed to do. (The New Jersey Supreme Court stated in its opinion last fall that after the new law goes into effect, “same-sex couples will be free to call their relationships by the name they choose” no matter what name the legislators give to the unions.) Only by referring to themselves as married – only by referring to their relationships as marriages – will gay couples help their fellow New Jerseyans realize that civil unions and marriages must be treated the same way legally. And it will help those relationships become more accepted socially as well.

I’m tired of hearing people complain that all they can get is this civil union thing and it’s not really marriage. If you keep up that attitude, other people are going to start believing it. So stop it.

Yes, the legislature stopped short of using the word marriage. So what? You’re married. Make sure everyone knows what that means.

Congratulations!

Greenwald on Lewis

Great post on the New Jersey case:

Either the New Jersey State Constitution — as defined by the governing precedents applying it — compels the legal conclusion reached by the New Jersey Supreme Court or it does not. That is the only relevant issue. It’s not a matter of picking and choosing which issues we think it would be nice for a court to resolve and which ones we’d sort of prefer — given our subjective druthers — the court leave to the will of the majority.

Courts have no right to “stay out of” debates over laws if those laws violate constitutional guarantees.

It is impossible — at least without falling into total recklessness — to simply look at the result of a court case, decide whether or not you like it, and then pronounce it as either judicially sound or judicially irresponsible. Yet that is what virtually all of these commenters are doing who are condemning the New Jersey Supreme Court for “judicial activism.”

Read the whole thing – it’s really good.

Bush on Lewis

President Bush said today:

“Yesterday in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage. I believe that marriage is a union between a man and a woman.”

But remember, the court didn’t order the legislature to create gay marriage. It said that the state constitution requires equal rights for gay couples, and it will let the legislature decide whether this will come in the form of marriage or of civil unions.

And remember, as I noted yesterday, that President Bush has stated that he doesn’t oppose civil unions. “I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so,” he said shortly before the 2004 elections. He also said, “I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others.” (Emphasis added.)

So: the New Jersey Supreme Court did not order the legislature to create gay marriage. If the legislature decides to create civil unions, Bush would presumably not have a problem with that. But if the legislature goes the extra step and creates marriage for gays, that would be entirely the legislature’s choice; the court would not be imposing it.

Therefore, Bush is wrong. The court did not “raise doubts about the institution of marriage.” It mandated no more than civil unions, something the president has already stated he supports.

So Bush is a flip-flopper.

But let’s give him the benefit of the doubt. The only interpretation that would show consistency in Bush’s statements is that he believes civil unions should be entirely a choice of the legislature and that courts should stay out of it. But it’s a court’s job to interpret the constitution; that’s the principle of judicial review, a principle that goes back to the founding of our nation. And when the constitional principle of equal protection is combined with New Jersey’s longstanding Law Against Discrimination that bars differential treatment based on sexual orientation, equal rights for gay couples is obvious. The members of the New Jersey Supreme Court unanimously agreed on this. It was entirely within the court’s purview to order equal rights.

Bush is just plain wrong.

(Big surprise.)

GSE Press Release

Press release from Garden State Equality:

Those who would view today’s Supreme Court ruling as a victory for same-sex couples are dead wrong. So help us God, New Jersey’s LGBTI community and our millions of straight allies will settle for nothing less than 100% marriage equality. Let decision makers from Morristown to Moorestown, from Maplewood to Maple Shade, recognize that fundamental fact right now.

So today, without missing a beat, Garden State Equality announces that Assemblyman Wilfredo Caraballo, the Assembly Speaker Pro Tem, joined by Assemblyman Brian Stack and Assemblyman Reed Gusciora, will introduce marriage-equality legislation. Thousands of us will now hit the streets, the phones and the hallways to get this legislation passed.

As the late Lt. Laurel Hester and too many other cases across New Jersey have shown, half-steps short of marriage — like New Jersey’s domestic-partnership law and also civil union laws — don’t work in the real world. Hospitals and other employers have told domestic-partnered couples across New Jersey: We don’t care what the domestic partnership law says. You’re not married.

That’s why it wouldn’t matter if the legislature added all the rights in the world to the current law without calling it marriage. Marriage is the only currency of commitment the real world universally understands and accepts.

We’re not seeking marriage merely for some moral, ethereal victory. We’re seeking marriage because New Jersey has proven that marriage is the only way a gay civil rights law will ever work in the real world…

As you’ve seen from Garden State Equality’s hundreds of events and thousands of e-mails over the past few years — a breathless pace of activity that’s not going to abate, so help us God — we never give up and we never give in to those who tell us no.

Hell no. Over our dead bodies will we settle for less than 100% marriage equality. The people of New Jersey wouldn’t want us to. According to the 2006 Zogby-Garden State Equality Poll, New Jersey favors marriage equality by 56% to 39%. Every other recent poll in New Jersey also shows a majority of voters favor marriage equality.

Don’t count gay marriage out in New Jersey. Its supporters are going to fight, and fight hard.

Lewis Analysis

This is a great day for gay couples in New Jersey. The state supreme court has granted them the right to marriage in all but name. The important thing to realize is that they have won full legal equality for their relationships. The action now moves to the state legislature, which has until April 25, 2007 to decide whether to call these relationships marriages, civil unions, or something else.

Here are some of the rights that gay couples in New Jersey will be able to receive as of next April 25, none of which they can receive now:

  • joint property ownership,
  • the right to employer-granted health insurance coverage for a spouse,
  • statutory leave for the purpose of caring for an ill spouse,
  • presumption of dual parentage to the non-biological parent of a child born to one partner (second-parent adoptions no longer necessary),
  • survivor benefits should a partner die,
  • tax deductions for spousal medical expenses,
  • the right not to testify against one’s spouse in court,

and tons of others. All the rights that married couples have, in fact.

In mandating that the state legislature grant gay couples all the rights of marriage but letting the legislature choose what to call this package of rights, the New Jersey Supreme Court has become the first state high court to follow Vermont’s lead. Anyone interested in what happens next in New Jersey should read a great book about how the legislative and statewide debate played out in Vermont in 1999-2000: Civil Wars: The Battle for Gay Marriage, by David Moats. After the Vermont Supreme Court’s decision mandating equal rights, it was not a foregone conclusion that the state legislature would grant only civil unions. It might well have granted marriage, and there was a substantive, emotional debate over whether it would do so. It’s likely that a similar debate will now happen in New Jersey. As the court writes, “Plaintiffs’ quest does not end here. Their next appeal must be to their fellow citizens whose voices are heard through their popularly elected representatives.”

Much has changed in seven years. Civil unions were a radical idea then, but they have since become the moderate position. Even President Bush supports letting states create civil unions (although he wouldn’t endorse them were he still a governor). A CBS poll almost two years ago found that 57% of people supported either marriage or civil unions, while 41% opposed any such recognition. That was in Feburary 2005, and the numbers have likely increased since then; (or at any rate have not likely decreased).

What’s amazing about this decision is that all seven of the justices supported, at the very least, equal marriage rights, no matter the name. That was unanimous. Four justices said the name should be left up to the legislature; three said this was not enough and that the court should have granted marriage, including the departing chief justice, Deborah Poritz. That’s even more judicial support than equal rights received in the high courts of Vermont or Massachusetts. [Correction: the Vermont vote was 4-1, with the 1 in favor of full marriage.] That is absolutely wonderful. Of course, it helps that New Jersey already had a Law Against Discrimination that banned discrimination on the basis of sexual orientation, among other characteristics. That was the key to this decision. New Jersey has long been in the forefront of protecting gay rights.

It’s more than that, though. As Chief Justice Poritz wrote, significantly: “the majority is able to conclude that no interest has been advanced by the State to support denying the rights and benefits of marriage to same-sex couples.”

Here are some quotes from the majority opinion:

[W]e must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State. That being said, this Court will never abandon its responsibility to protect the fundamental rights of all of our citizens, even the most alienated and disfavored, no matter how strong the winds of popular opinion may blow.

On the rights of children:

Disparate treatment of committed same-sex couples, moreover, directly disadvantages their children…. There is something distinctly unfair about the State recognizing the right of same-sex couples to raise natural and adopted children and placing foster children with those couples, and yet denying those children the financial and social benefits and privileges available to children in heterosexual households. Five of the seven plaintiff couples are raising or have raised children. There is no rational basis for visiting on those children a flawed and unfair scheme directed at their parents. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, we cannot discern any public need that would justify the legal disabilities that now afflict same-sex domestic partnerships.

On marriage vs. civil unions:

Raised here is the perplexing question — “what’s in a name?” — and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself — independent of the rights and benefits of marriage — has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples.

On the Legislature:

The Legislature is free to break from the historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done.

On the future:

New language is developing to describe new social and familial relationships, and in time will find its place in our common vocabulary. Through a better understanding of those new relationships and acceptance forged in the democratic process, rather than by judicial fiat, the proper labels will take hold. 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.

So, as of Wednesday, April 25, 2007, you will be able to drive through a long stretch of territory from the southern tip of New Jersey near Delaware, up through New Jersey, and (with the glaring exception of a few minutes passing through Manhattan or driving up and over the Tappan Zee Bridge), up through Connecticut, Massachussets, and Vermont, all the way up to the Candian border, where Americans live in states that grant their relationships full equality.

It’s disappointing that the court, by one vote, declined to call it marriage. As the Chief Justice wrote in her concurrence/dissent, “We must not underestimate the power of language. Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law.” The majority did not convincingly explain, in fact barely explained, why interracial couples in Loving deserved the word “marriage” but gay couples today do not. (One wonders if interracial couples would have been limited to entering “civil unions” if the concept existed 40 years ago.)

The power now lies with the legislature. Supporters now have to convince the legislature that gay couples deserve to have their relationships legally defined as marriages. Six months of debate lie ahead.

Still, the importance of this decision should not be understated. Gay couples in New Jersey will now have solid, tangible equal rights and legal protections for their relationships. Equal rights for gay couples.

Outstanding.

Star-Ledger

Star-Ledger: Supreme Court backs civil unions, but not same-sex marriage.

The high court adopted an approach similar to that taken by the Vermont Supreme Court in 1999, which ruled lawmakers can reserve the term “marriage” for the union of one man and one woman, but must grant all couples equal legal protections. Vermont lawmakers responded by allowing same-sex couples to form “civil unions.”

Even so, today’s ruling exponentially increases the legal benefits available to same-sex couples who formalize their unions. A 2004 law allowing same-sex couples to form “domestic partnerships” gave them only a fraction of the more than 800 rights conferred by marriage, albeit some of the most important ones.

Lewis v. Harris

New Jersey Supreme Court rules that the legislature must enact either marriage or civil unions for gay couples.

“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, they followed Vermont.

The legislature has 180 days to create a framework.

Here is the decision.

Lewis This Week?

New York Times | Speculation on Gay Marriage Ruling Swirls in New Jersey

Will the New Jersey Supreme Court issue its same-sex marriage decision this week?

Maybe not.

This in-depth article from tomorrow’s New York Times states that although Chief Justice Deborah Poritz retires on Thursday, the case doesn’t have to be announced by then. A retired justice can apparently vote and write opinions in cases that he or she took part in hearing. The decision could be announced after Election Day – perhaps way after Election Day. Apparently a recent decision in another case was issued 20 months after oral arguments. (It’s been only eight months since oral arguments in Lewis, the marriage case.)

Also from the article: “the small circle of obsessive court-watchers here are stuck staring at the Supreme Court’s Web site, www.judiciary.state.nj.us/supreme/index.htm, where a list of decisions to be issued the next day is posted each weekday at 10 a.m.”

Dallas Voice

Dallas Voice | New Jersey ruling could be blockbuster

Quotes from an article about New Jersey’s pending gay marriage decision:

Conventional wisdom says the New Jersey Supreme Court will decide whether or not to legalize same-sex marriage on or before Wednesday…. But conventional wisdom has been wrong before.

True. But conventional wisdom is usually right.

Unlike Massachusetts, New Jersey does not have a residency requirement, so a door that opens in the Garden State will be open to all Americans. Surely hundreds of couples will make a beeline to the state, and just as surely the far right will fire up the engines on its next backlash machine.

That’s also true – and a reason why I’m worried.

The mainstream press appears oblivious to this impending development, so expect the ink to flow and the strings to pull out of the chatty Cathys on the cable news channels as reporters and analysts suddenly come to grips with a decision that has been in the works since February.

Again, true. The New Jersey case seems to be very much under the media’s radar. It’ll be fun to watch all the breathless analysis.

Whither Lewis?

Why is the New Jersey Supreme Court taking so long to issue a decision in Lewis v. Harris, the same-sex marriage case? The word is that the decision will be announced by October 25 (eight days from now), the day before Chief Justice Deborah Poritz reaches mandatory retirement age and must step down. That’s just 13 days before election day.

Same-sex marriage hasn’t been a galvanizing issue for Republicans in this election cycle, but a decision from New Jersey’s high court in favor of it could certainly make it one. New Jersey has a relatively liberal high court compared to other states; the New Jersey Supreme Court, after all, is the body that ruled that the Boy Scouts had to let in gays, before that decision was overturned by the U.S. Supreme Court. New Jersey is more likely than New York or Washington to issue a pro-gay-marriage decision.

The court heard oral arguments in the case in February. That was eight months ago. The U.S. Supreme Court doesn’t take this long to issue decisions. Why are state courts taking this long? New York took a long time to issue its marriage decision, and Washington State took fifteen months. Courts must be aware that the issue is a big hot gay potato, and perhaps the judges take time to craft their language. (That doesn’t explain the shoddy workmanship and thinking behind the anti-same-sex opinion in New York, though.)

I want the decision to be announced already. Enough is enough.

Corzine Nonstatement

From the AP:

New Jersey Gov. Jon S. Corzine will not approve legislation banning gay marriage if the state’s highest court rules that such unions are legal, a Corzine spokesman said Thursday.”

There’s no point to that statement; it’s meaningless. The New Jersey Supreme Court won’t rule on whether same-sex marriage is legal; it will rule on whether a ban on same-sex marriage is constitutional. If the court says such a ban is unconstitutional, there’s nothing the legislature can do about it. Corzine is basically saying that he wouldn’t do something that he wouldn’t be constitutionally permitted to do anyway.

And it’s too bad the governor is personally opposed to same-sex marriage.

It’s also too bad the governor appointed a machine Democrat to fill his old Senate seat, one who’s fighting a harder-than-expected contest to retain a Democratic seat in a Democratic-leaning state (although he’s gaining ground, which is good, because if the Democrats win just enough seats to take back the Senate, only to lose the New Jersey seat, heads will roll), and it’s also too bad the governor’s budget cuts made me lose my job, but that’s neither here nor there…

At any rate, a decision in the New Jersey marriage case is expected by October 25.

Oh, For a Helicopter

New Jersey’s two Democratic senators, Frank Lautenberg and Bob Menendez – the latter of whom is in a tight race against Republican Tom Kean, Jr. – both voted for the president’s awful torture/enemy combatant/habeas-corpus-stripping bill yesterday.

If I were still a New Jersey resident, I would consider not even voting for U.S. Senate this year. If Democrats can’t stand up for themselves, they don’t deserve to control either house of Congress.

Except.

Except that Glenn Greenwald makes an excellent point.

But a desire to see the Democrats take over Congress — even a strong desire for that outcome and willingness to work for it — does not have to be, and at least for me is not, driven by a belief that Washington Democrats are commendable or praiseworthy and deserve to be put into power. Instead, a Democratic victory is an instrument — an indispensable weapon — in battling the growing excesses and profound abuses and indescribably destructive behavior of the Bush administration and their increasingly authoritarian followers. A Democratic victory does not have to be seen as being anything more than that in order to realize how critically important it is.

A desire for a Democratic victory is, at least for me, about the fact that this country simply cannot endure two more years of a Bush administration which is free to operate with even fewer constraints than before, including the fact that George Bush and Dick Cheney will never face even another midterm election ever again. They will be free to run wild for the next two years with a Congress that is so submissive and blindly loyal that it is genuinely creepy to behold.

Greenwald also makes the point that Supreme Court Justice John Paul Stevens is 86 years old, so Bush might get another court appointment in the next two years. If the Republicans keep the Senate and Stevens dies or becomes incapacitated, then Bush can get nominate whomever he wants in his place, meaning that “the Supreme Court will be composed of a very young five-Justice majority of absolute worshippers of Executive Power — Thomas, Scalia, Roberts, Alito and New Justice — which will control the Court and endorse unlimited executive abuses for decades to come.”

Or, as she puts it:

Imagine you are stranded on your roof in rising floodwaters. Sooner or later you’re going to drown if you aren’t rescued. Yet you refuse to be rescued in an old rowboat because it might be leaky and you are waiting for a helicopter.

Well, folks, the Dems are the rowboat, and there ain’t gonna be a helicopter.

Sigh.

The Presumption of Liberty

I recently finished reading a brilliant book that’s greatly affected my thinking about constitutional theory: Restoring the Lost Constitution: The Presumption of Liberty, by Randy Barnett. Here’s a summary of the book. Barnett, a law professor at Boston University, is a libertarian and a believer in an originalist interpretation of the Constitution. Because there is no true way for 100 percent of the population to consent to the Constitution, Barnett believes there should be a “presumption of liberty” – people have the right to be left alone unless it’s really necessary for them not to be. He states that the courts have wrongly eviscerated the Ninth Amendment – which protects unenumerated rights from the federal government – and the Privileges or Immunities clause of the Fourteenth Amendment – which he contends protects unenumerated rights from the state governments. These unenumerated rights are a subset of natural rights, which philosophers like John Locke said are the rights we hold merely because we are human beings, even before government comes into existence.

He disagrees with the Supreme Court’s creation of the doctrine of “fundamental rights,” or rights that deserve greater protection than others. Rights are rights, Barnett says, and there should be a presumption in favor of all of them. One thing I really like about this book is how Barnett criticizes many Supreme Court doctrines, such as the doctrine of fundamental rights and the doctrine of the various levels of scrutiny used in equal protection analysis. These doctrines are nowhere to be found in the constitution and don’t always make sense. (While I’m on this, I’d really like to find out more about the original meaning of the Fourteenth Amendment’s equal protection clause. Was it meant to apply exclusively to racial classifications? And does “equal protection of the laws” really mean what we say it means today?)

Barnett’s reason for being an originalist is very persuasive. Unlike many ideologues, such as Bork and Scalia, he’s not a results-oriented originalist. He believes in originalism because he believes in the importance of a written constitution. He says that if you believe in a “living constitution,” what you’re really saying is that you believe the constitution is flawed and needs to be changed. He finds nothing inherently wrong with this position, but he says that its proponents should acknowledge it so that there can be an honest debate. There is a valid way to change the constitution, of course: via the amendment process.

The only problem I have with this theory is that I’m not sure how much it protects equal rights for minorities. Barnett barely discusses equality in his book. Constitutional amendments require the support of supermajorities, and majorities are not usually concerned about granting equal rights to minorities. James Madison himself was concerned about oppression by a majority as well as by a minority.

Specifically, of course, I’m most interested in how Barnett’s theory applies to gay rights. Barnett supports the outcome of Lawrence v. Texas, stating that Justice Kennedy properly grounded his opinion in the right to liberty rather than the iffier right to privacy. (The article linked in the previous sentence is a great introduction to Barnett’s thought, actually.) But Barnett doesn’t discuss same-sex marriage in his book, and I can’t find anything online about whether he thinks same-sex marriage bans are constitutional.

Is marriage a natural right? A liberty? Technically it’s a government benefit. Libertarians probably believe there should be no marriage at all. I’m not a libertarian and I disagree. At any rate, you can argue that although the government is not required to allow marriage, because it does allow it, it should do so on an equal basis. But is that necessarily a justiciable court claim? Hard to say.

I would much prefer that same-sex marriage be permitted by legislatures instead of by courts. I think litigation is a last resort.

What do you do when something is right, but the legislature won’t allow it? That’s the question.

Stop Fighting?

Bryan of Faggoty-Ass Faggot writes that the gay-rights movement is focusing too much on gay marriage:

If you truly believe that we should just keep doing more of the same – harping on one issue, getting shot down by voter initiative after court decision, believing that some miracle will come along to bring us the all-encompassing victory without winning the incremental fights first, forgetting that only a small percentage of our community will actually benefit from same-sex marriage when all of the community would benefit from employment, housing, education and hate crime laws – then come stand in front of me, nose-to-nose, eye-to-eye, and tell me straight to my face.

There’s some merit in this view. Granted, he doesn’t say that we should stop fighting entirely. But he’s not the only one who’s discouraged by the recent losses. Some wonder if the fight has even hurt us.

However, I urge people to read this paper: The Backlash Thesis and Same-Sex Marriage: Learning from Brown v. Board of Education and its Aftermath, by Carlos Ball. (At the bottom of that page you can download the entire paper.) Particularly the final section beginning on page 33.

Ball argues that the gains from same-sex marriage litigation have outweighed the losses.

One, some gay couples in the U.S. are now married. That, in and of itself, is a gain. Furthermore, the example of Massachusetts will show people that society doesn’t fall apart when gay people are allowed to marry.

Two, look what the gay marriage fight has done: it’s made civil unions the moderate position. Even George Bush has said he supports civil unions! The struggle has opened people’s eyes to why gay couples need at least some sort of legal recognition.

Three, the gay marriage fight has led to progress on other gay rights issues by making some people more willing to support other forms of equality for gay people.

That said, however, at this point there do seem to be diminishing returns from the litigation strategy. We’ll see what the New Jersey Supreme Court decides, probably next month. After that, a strategy shift might be necessary.

One final thing, though. It seems that we’re damned if we do fight for gay marriage and we’re damned if we don’t. The thing is, though, any social movement is going to lead to social disruption. We can’t get anywhere if we don’t fight at all.

Law School Shouldas

Lately I’ve wished that I’d taken better advantage of being in law school when I was there. I floated through those three years like a ghost. I didn’t make any good friends among my classmates; I didn’t become close to any of my professors; I didn’t join any extracurricular groups, except for the lesbian and gay law student group during my final year, the only year of law school that I was out of the closet, and that group didn’t do much. I managed to graduate without leaving any impression on anyone. I didn’t do a judicial clerkship (although I did intern with a federal judge after my first year), and I didn’t work as a summer associate with a law firm. I had no idea why I was there.

I didn’t particularly like my first-semester classes, which were all mandatory: torts, contracts, civil procedure, criminal law, and legal writing. My torts professor was a joke; my contracts professor taught the concepts in the reverse order (we didn’t even learn the definition of a contract until the end of the semester); civ pro and criminal law were manageable, or at least they would have been without the monkeywrench thrown into the works: my legal writing class. On top of that, the law school was undergoing renovations during that first semester; there was lots of plywood. Every day I had lunch with a group of male classmates in my section, but I was the odd man out, because they insisted on talking about concepts from class, which I had no desire to discuss, or sports, in which I had zero interest. Plus, several of them were married and a few years older than me, while I was only 22 and a closeted homosexual with nobody to confide in.

I asked myself why I’d been foolish enough to go to law school. The reason I went was because I spent the year after college remaining at UVa, working for the university as a temp, with no idea what to do with my life. That Thanksgiving, I went home to visit my parents, and I saw their beautiful, stable house filled with beautiful, stable furniture and their beautiful, stable marriage, while my life felt totally slapdash and directionless. I needed direction. I’d taken the LSAT during my last year of college at the prodding of my parents and I’d done well, and my mom had continued to suggest law school even after I’d graduated college. It finally seemed like the answer, so when I got back to Virginia after Thanksgiving I applied to UVa Law and nowhere else. If I got in, great; if not, no big loss.

I got in, and from the first day it seemed like a mistake.

In November, people started outlining their notes for December’s final exams. Outlining? I had no idea what that was – it seemed like everyone knew so much about law school before they’d even started, except for me. I balked at outlining my course notes; I wasn’t about to do something I’d never heard of just because everyone else was doing it. Instead I studied in my own traditional way. I wound up getting the mean grade in two classes and below the mean in two others. (Legal writing was pass/fail; fortunately I passed.)

It wasn’t until my second semester that I truly enjoyed a couple of classes: constitutional law and a course that profiled particular Supreme Court justices over the course of American history. I got an above-average grade in the latter.

I tried out for the Law Review and one other law journal that spring. I didn’t really want to, but all the other first years were doing it, and I figured that I should probably do it too. The tryout consisted of a writing assignment that was handed out on a Friday and due the following Monday. We received a packet of materials – cases, commentaries, et cetera – involving the existence or lack thereof of a constitutional right to die, and we had to turn in a sample judicial opinion resolving a made-up set of facts. Apparently I didn’t do so well, because I didn’t make it onto the law review or the other journal, even though it seemed like lots of people made it onto a journal.

It wasn’t until my final year of law school, year number three, that I enjoyed a majority of my classes: U.S. constitutional history, voting rights, federal courts, family law (mostly), and “Schools, Race and Money,” about school desegregation and school financing. I received my one law school “A” in U.S. Constitutional History to the Civil War.

(When I got that grade I was thrilled and stunned. I wanted to talk to my professor to find out what I’d done right – and also to get some praise, perhaps, which I’d ached to get from anyone for more than two years. I passed him in the hallway one afternoon and asked, “Professor H—-, are you on your way to your office?” He responded, very coldly, “No, I’m on my way to class.” I was so intimidated that I never followed up with him. He had no idea who I was; I’d never spoken to him before, and that was my one and only conversation with the professor who gave me an A.)

There are some things I truly enjoy about the law. I love constitutional law and constitutional history. I like scholarship. I like reading law review articles about it; I have a few downloaded on my computer that I want to read. I wish I could write one, even though I’m not a professor. I wish I’d had this book in law school.

Sometimes lately I think it would be fun to be a law professor, even if I’d like the research and writing aspects more than the actual teaching aspects. I don’t know if I’m a quick enough thinker to teach law, although it’s always possible that I am and I just don’t know it. And becoming a law professor is hard, I think, although I haven’t fully researched it. I didn’t have a good judicial clerkship or get great grades or anything like that.

I don’t necessarily think law school was a mistake for me, like I used to think. It’s just that I should have waited longer before going; I should have waited until I was out of the closet, and had a better idea of my interests and focus; and I should have applied to schools that might have been better suited to me socially.

Ah, well.

Andersen v. King County

Well, I’ve read the main opinion by the Washington Supreme Court stating that the legislature is empowered to limit marriage to opposite-sex couples. I have to say – although I disagree with the ruling (primarily on the issue of fundamental rights), the three justices who signed onto the main opinion go out of their way to be respectful of gay relationships. (Except for granting them any rights, of course.) This decision is much better written than the recent New York decision, which came out a mere month after oral arguments and appeared to have been a rush job. This decision took 17 months.

Basically, the decision says, “Gay marriage would probably be a good thing, but as judges our hands our tied.” For instance, the court acknowledges that the lack of the marriage option for gay couples can be harmful to them:

We do not dispute that same-sex couples raise children or that the demographics of “family” have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. …

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person’s property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

In its conclusion, the court states that “given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”

Some other points:

Washington Supreme Court justices are elected, not appointed. That might have had a bearing on the outcome.

Interestingly, the court states that the plaintiffs didn’t ask the court to consider civil unions or the rights inherent in marriage, but merely to consider marriage or nothing. If that’s true, one can ask whether that strategy was a good one. Still, I’m pretty sure that courts aren’t limited to considering the narrow issue before them, and this court could have ruled for civil unions if it was so inclined. Instead, it appears to have been very cautious.

The opinion singles out the author of the concurrence, Judge James Johnson, four times for criticism. The concurrence is somewhat more hostile in style, and the concurring judge refers to one of the dissenters as “paranoid.” (Judge Johnson also cited a discredited study finding that same-sex relationships don’t last as long as heterosexual relationships; it’s been pointed out that such studies don’t take into account the fact that marriage is not available to same-sex couples.)

In sum: while I’m not happy with the main opinion, at least it’s not mean.

What’s next? The forthcoming New Jersey opinion. Things are not looking good this summer for court-granted gay marriage. Legal strategies are bound to change and focus more on state legislatures, which haven’t been accepting of gay marriage.

At least the decisions of the Washington and New York courts show strongly why a Federal Marriage Amendment is unnecessary.