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.
