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Posted by aaron at 01:01AM, Tuesday, November 01st, 2005

Two Down - Marriage for... some more.

New Jersey's Supreme Court today announced that "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," because of the Equal Protection clause of the NJ Constitution. The ruling leaves to the Legislature the decision of what to call these benefits, and so falls short of the "separate is never equal" conclusion reached by the Massachusetts SJC - but this is still a big deal. Forty-eight states remain that embrace bigotry.

Reading through the ruling now...

The Court rejected the plaintiff's Due Process arguments -- 'the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution.' However, the justices noted that 'the Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples. Significantly, the economic and financial inequities that are borne by same-sex domestic partners are also borne by their children. Further, even though same-sex couples are provided fewer benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering a marriage.' For once, the courts really *are* thinking of the children -- and this appears to have set off alarm bells about Equal Protection: ' the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.'

Pretty careful wording, there.

One of the big issues here is that the State was not arguing that marriage was necessary to encourage child-rearing. That separates this from the Washington State ruling, where the justices somehow contorted common sense into an argument that, why, with no more exclusively straight marriage, people would cease raising kids. In contrast, in New Jersey, '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.'

The ruling does rely heavily on New Jersey's extensive discrimination protections for individuals, noting that 'Article I, Paragraph 1 protects not only the rights of the majority but also the rights of the disfavored and the disadvantaged; they too are promised a fair opportunity for "pursuing and obtaining safety and happiness."' It also notes that the definitions of marriage have changed a lot in the last couple hundred years, and that equality of partners is a pretty new idea. It's nice to see some context given here, as the Massachusetts SJC did in its ruling, to show that this isn't a single end-of-the-world change, but one of many changes that, while striking at the time, have seemed only natural in retrospect.

I find it pretty curious that the Court doesn't hold that separate is rarely if ever equal, in terms of the "what will we call this relationship that's completely equal with marriage?" thing. However, it's probably politically expedient -- and I did feel, in November 2003, when the Mass. SJC released its initial ruling, that they were copping out on separate but equal, as well. The New Jersey ruling makes it very clear that it will not tolerate the legislature creating 'a distinction [between same-sex and heterosexual marriage] that would offend Article I, Paragraph.' It gives them 180 days to come up with a plan.

So, how do we frame this in the light of the election? Well, here's an attempt:

The courts properly decided, in New Jersey, that the State has no interest in prohibiting marriage. As such, this is a fundamentally conservative ruling.

I mean, if we let the State tell us whom we can marry, what's next - coming and taking away our guns? :)
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