NJ Marriage Decision: Initial Thoughts

Woot!

I know you have all been waiting impatiently for me to post on this, hungry as you are for the kind of insightful legal analysis that can only be provided by a human resources assistant with a master's degree in classical voice.

Yesterday was something of a nailbiter, having to wait until 3:00 (after having waited over eight months) to finally get the decision in Lewis v. Harris, the New Jersey Supreme Court case weighing whether same-sex couples were permitted to marry under the state constitution.

After a string of disappointments this year in New York, Washington, California, Nebraska and Georgia, I wondered if there was any cause for optimism. I also worried about potential ramifications of the decision this close to elections, whichever way it came down.

When the decision was finally posted, it was not immediately clear what it said. The first language that caught my eye, in the syllabus by the court clerk, was that the decision of the appellate court had been modified but affirmed, which -- since we lost at the appellate level -- to my mind meant that the court had reached the same conclusion by different reasoning, but we had still lost.

Furthermore, I saw that there was a split 4-3 decision, and Chief Justice Poritz, who I personally had assumed to be in favor of marriage equality based on watching her during the oral arguments, had voted with the dissent. That looked like trouble.

But in fact, it was one huge ginormous victory.

There was no "dissent" in the normal sense, where one part of the court reaches an opposite conclusion of the majority. All seven justices found that the present situation in New Jersey unfairly disadvantages same-sex couples and violates the liberty and equal protection guarantees of the state constitution. In short, the court ruled unanimously in our favor, which I think was both unexpected and unprecedented.*

The split occurred because the majority found that under their understanding of the term "fundamental right," there was no fundamental right to same-sex marriage (even though they explicitly state that marriage is a state and federally-recognized fundamental right) because it is not deeply rooted in history, tradition and collective conscience. So while they have instructed the state legislature to make available to same-sex couples all rights, privileges, protections and responsibilities of married opposite-sex couples, they chose to defer to the legislature on whether to call that "marriage" or instead set up an identical system (presumably civil unions) for same-sex couples.

The three dissenting judges, led by Chief Justice Deborah Poritz on the occasion of her mandatory retirement, disagreed with the majority conclusion. If the issue of same-sex marriage is one of equal protection, then a separate classification, no matter how closely it mirrors opposite-sex marriage, is by definition a violation of that principle. Judge Poritz also found that, based on Loving v. Virginia, it is not necessary that a practice (interracial marriage or same-sex marriage) be rooted in tradition or collective conscience in order for it to be qualified as a fundamental right. The dissent found that same-sex couples should be allowed to marry, and call it marriage.

The New Jersey Legislature must act within 180 days. While of course I believe they should apply the term marriage to civil partnerships of both same- and opposite-sex couples, even should they choose "civil unions" or other terminology, it will be a huge step forward toward equality.

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As far as the elections go: in my deepest heart of hearts, I believe most Americans really do not give a flying one about gay marriage. I think people are concerned about national security, about the war in Iraq, about the economy, about fiscal responsibility, and about government transparency. The New Jersey decision may rejuvenate some of the disenchanted far right, but Democrats should not allow this silly wedge issue to overshadow the pressing questions of the day which affect us all. As Red Leader says in Star Wars, "Stay on target."

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* See comments for correction.