October 25, 2006

GAY MARRIAGE UPHELD IN NEW JERSEY: The Supreme Court of New Jersey rules: "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 same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes."

A copy of the opinion can be found here.

UPDATE: Having (very quickly) skimmed the opinion, it seems the Court is allowing that civil unions might be good enough, so long as they're comparable to marriage in terms of benefits, but it seems to leave open the possibility that only marriage that's called marriage might be good enough.

I agree with the result (that is, I favor gay marriage as a policy matter). The reasoning is okay (based on a cursory reading it seems consistent with this approach), though the 90-page opinion shares a flabbiness with earlier cases like Goodridge. I think, though, that changes like this are better made through legislative than judicial means, and that this may well benefit the Republicans substantially in the coming elections, as people like my reader Steve White who worry about judicial activism are given a new reason to go to the polls and vote for anti-gay-marriage initiatives.

ANOTHER UPDATE: Jeff Soyer agrees.

Brendan Loy: "As a proponent of gay marriage, Iím happy with the result. As one who hopes the Democrats take back at least one house of Congress, I am fearful of the backlash. But perhaps the possibility of 'civil unions,' as opposed to 'gay marriage,' will blunt the backlash somewhat."

The opinion allows that something not called "marriage" might be enough, but it pretty clearly leaves open the door to hold otherwise later. And the concurrence/dissent says: "I can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage, and therefore dissent from the majorityís opinion insofar as it declines to recognize that right among all of the other rights and benefits that will be available to samesex couples in the future."

It thus seems that this isn't really a "third way" approach to gay marriage. This is a clean win for gay marriage advocates, not a partial victory.

MORE: Eugene Volokh has further thoughts, and observes: "this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon."

MORE STILL: Dale Carpenter, having reviewed the opinion, says it's an example of how unstable the middle ground is:

New Jersey ran into trouble because, having started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. Whatís the basis for granting a select list of the rights but not the others? . . .

The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren't there to do more or because of simple fiat.

I believe that Justice Scalia has made just that point. Carpenter concludes: "The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?" I agree that the "civil union" approach is unlikely to last in light of this decision, which carefully doesn not rule out an equal-status requirement.