Thursday, October 26, 2006

Gay marriage in New Jersey

The New Jersey State Supreme Court has ruled that gay couples are entitled to the same rights as heterosexual ones [PDF]:

HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex 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 samesex couples, whether marriage or some other term, is a matter left to the democratic process.

What this means in practice is that the New Jersey state legislature will be forced to update its existing "domestic partnership" law to ensure that such partnerships are treated identically under the law to marriages, and provide exactly the same benefits at the same cost and effort, rather than discriminating as they do at the moment. Unfortunately, they will still discriminate in denying same-sex couples the name of marriage - exactly as our civil union legislation does.

The interesting bit, as noted by Kevin Drum, was that

the decision was essentially unanimous. Technically it was decided 4-3, but the dissenters all agreed that it was unconstitutional to deny equal rights to same-sex couples. The reason they dissented was that they felt the decision didn't go far enough. They argued that the right to marriage itself was as fundamental as all the other rights.

These judges are right. While "everything but the name" is an improvement on the current situation, this simply gets gays as far as "separate but equal" - something the Supreme Court found usually wasn't more than 50 years ago. I'd like to think that a "separate but equal" system of "black marriage" would not pass the constitutional laugh test in the United States anymore (though I'm sure Justices Thomas and Scalia would make a go of defending it); a system of domestic or civil partnerships designed to exclude and marginalise gays shouldn't either.


How generous of the court to leave the crumbs (the name issue) to the elected branches.

This kind of issue is best won via the ballot box and not the courtroom.


Posted by Anonymous : 10/26/2006 07:05:00 PM

However, unlike New Zealand, the United States does have a written constitution. Fortunately, too, as it acts as a break on social conservative populist macmovements that promote crackbrained ideologies with no evidence-based merit.

In any case, check out

Canada aussi!

Craig Y.

Posted by Anonymous : 10/26/2006 07:30:00 PM