Wednesday, December 13, 2006

Union New Jersey

“If terms be not correct, language is not in accordance with the truth of things.” - Confucius

Tomorrow the New Jersey Legislature is expected to vote on a bill establishing civil unions for same-sex couples, which would grant them all the same rights, privileges and protections as opposite-sex marriages. All except one.

In late October, the Supreme Court of New Jesey ruled that “the State must provide to committed same-sex couples, on equal terms, the full rights and benefits enjoyed by heterosexual married couples” and gave the legislature 180 days in which to comply. Still, the majority left it to lawmakers to determine whether civil recognition for same sex relationships can be called “marriage” or should be set up under a “parallel statutory structure,” citing customary judicial deference, and also arguing that while the New Jersey constitution compels equality, it does not require same-sex “marriage.”

Does it matter? What is the difference between a civil union and a marriage, if the civil union entails “the full rights and benefits” of marriage? The answer lies in the question itself. Calling this package of rights “marriage” for one group and “civil unions” for another group implies that the second group is not entitled to the preferred term; it implies that the term “marriage” is itself a right, which under the court’s own reasoning must therefore be extended to same-sex couples as required by New Jersey’s equal protection laws.

All three same-sex marriage rulings this year in New York, New Jersey and Washington State, as well as Massachusetts in 2003, recognized that “marriage” includes tangible as well as intangible benefits. Indeed, the Massachusetts court concluded, “[M]arriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity and family….Because it fulfils yearnings for security, safe haven and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”

The court added, "The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex couples to second-class status."

As one of the plaintiffs in the New Jersey case wrote to the court, “When I am asked about my relationship, I want my words to match my life, so I want to say I am married and know that my relationship is immediately understood, and after that nothing more needs be explained.”

The New Jersey Legislature should reject the civil union bill tomorrow and hold out for a marriage bill that will fulfill its constitutional obligations to same sex couples.


Anonymous said...

So if it does pass, will it be found to be unconstitutional?

Andy said...

Hard to say, because in order for that to happen, the case would have to go before a Court that has already declared, "We will not presume that a difference in name alone is of constitutional magnitude." I think there's a compelling case to be made that that is not true (obviously). But if their former Chief Justice Deborah Poritz, who authored the dissent in Lewis v. Harris, was not able to convince these jurists that there is "no principled basis...on which to distinguish those rights and benefits from the right to the title of marriage," then I'd venture it's an uphill battle.

Whatever the outcome, the floor has been raised. This is a huge advance for civil rights. Marriage equality across the country is now an inevitability. It would be nice if NJ makes the right choice tomorrow, but eventually civil unions will be obsolete.

DJRainDog said...

I enjoy your optimism, Andy, but I think it's a bit misguided. What of the states who've written discrimination into their Constitutions? They will not, I think, be so easily swayed, and even if their laws are forced to comply with reasonable standards of equality, the opinions of their people will not be quickly changed. I hail from that oppressive Commonwealth of Virginia, which has, as I believe you've noted, some of the most harshly discriminatory legislation against homosexuals, and I can tell you that, at least south of Richmond, most people, for reasons I shall never comprehend, hate faggots and believe we should be killed. It comes as no real surprise in an area where the "N-word" is still pretty well socially acceptable out of the mouths of white folk.

Andy said...

I think we have to look at the civil rights movement history as it pertains to marriage, and the closest model is interracial marriage. There were several lawsuits attempting to legalize interracial marriage, all of which failed, and in response, several states enacted constitutional amendments banning it. (I forget the total number.) It wasn't until 1948 that the anti-miscegenation camp won a victory with the California Supreme Court; and it wasn't until 1967 that the SCOTUS finally overturned all interracial marriage bans in the nation with Loving v....*drum roll*...Virginia. It will happen. We must be patient and we must be prepared for the inevitable delays and setbacks. But it's a done deal, and the conservatives know it.

Andy said...

Wanted to add: people have a right to hold whatever opinions of gay people and their relationships they may have. The question at hand is whether courts can allow those opinions -- even if they represent the vast majority of Americans -- to trump fundamental guarantees of liberty and equality. The anti-equality forces simply do not have an intellectually sound case to make. The battles aren't over, but the war's outcome is certain.

kr said...

it's a done deal, and the conservatives know it

just like the only people surprised when Clinton won against GWB I were the Democrats ... ; ).

The Law Fairy said...

"The question at hand is whether courts can allow those opinions -- even if they represent the vast majority of Americans -- to trump fundamental guarantees of liberty and equality."

Precisely, Andy.

Which is why the most recent SCOTUS picks are so troubling. I want so badly to share your optimism, I truly do... at the very least, those of us who believe in substantive equality can work toward and pray for a better outcome, legislatively or judicially, sooner rather than later.

Meanwhile, I wish my own damn state would make up its mind which course to pursue. You've got Ah-nuld passing the buck to the court, and the court passing it right back... wake up! Civil rights are not a game of hot potato!!

Matthew said...

I acknowledge the substance of your argument as well founded, but I am not personally persuaded. In my case, as a person currently enjoying the benefits of a heterosexual marraige, when I imagine things turned around the other way, and everyone else gettings marraiges when I can only have a civil union, I don't really mind. I recognize that projecting my reaction onto you or another group is problematic, so I'm interested to see why you believe that civil unions of this nature are unfair. At this point, the bottom line for me it that I wouldn't mind it if the shoe was on the other foot, so I don't think there is an injustice happening here.

Anonymous said...

Watching the whole US 'marriage/civil partnership' debate from the UK I have to confess to an almost crippling degree of puzzlement. On the 'If it walks like a duck, quacks like a duck...' principle where on earth is the problem?

I met one of the lawyers who sat on the Labour party's internal study group on gay marriage and they were perfectly clear about why it was the be Civil Partnership. In essence the arguement was that the principle was too important and too pressing to allow it to be held up by what Mr Sullivan calls the Christianists.

By calling it CP and excluding churches from having to celebrate them, the religious right was completely stymied. They tried of course but entirely failed to gain any traction at all, simply because the matter was entirely one of civil law and, so far as was possible, their right not to become involved was protected.

I mean I am all for 'hoorah for the principle' and all that, but don't you think that by insisting on the word marriage you (plural) are cutting off your nose to spite your face?


Andy said...

Matthew and Campbell: you both raise extremely valid points.

No question, whatever happens today in New Jersey, we are leaps and bounds beyond where we were. It is a huge, huge advance.

So why aren't we satisfied?

Well, we are and we aren't. As I said, it's a significant legal victory. But I feel that the reasons there is hesitation over the word "marriage" are also very significant.

Matthew, you may say that you wouldn't mind if your legal status were changed to a civil union. But would you, in the course of casual conversation, say that you were "married" or "civil unioned"? The latter is the clumsier phrase, yes? And people might say to you, what is a civil union? A lot of people feel it is insulting to have to explain and defend your relationship like that all the time; furthermore, there are legal repercussions. We have documented cases of hospital workers in emergency situations who aren't aware that "domestic partners" have the same rights as married people, and have denied them access to their partners at critical moments. Then the partner has to call a lawyer who has to call the hospital's lawyer, and maybe by that time, it's too late. If the person can say, "We're married," that settles it. People know what that means. Gay people would like to just be able to say, "We're married," but it wouldn't be the truth, because the state has decided that gay people can't have marriages, they can only have civil unions.

By calling it CP and excluding churches from having to celebrate them, the religious right was completely stymied.

Well, first of all, I guess I haven't been following the events in the UK all that closely, but here in th United States, the government is powerless to compel a religious organization to do anything. And our government already gives civil recognition to marriages that are NOT recognized by religious groups, for example interfaith marriages or remarriages for Catholics. So that's irrelevant here, and I rather assumed it was the same in the UK.

As it specifically relates to New Jersey, the court has ordered that whatever gay people get, it has to be identical to what straight people get, with the possible exception of the label. They have to do one of two things, civil union or marriage. There is no other possibility. So why only go half way at this point and say, "Gay couples can have all these rights and privileges, but they can't have access to the term marriage"? There are serious Equal Protection issues in play here. Our civil rights history shows that separate is not equal; the fact that some feel there needs to be a separation shows exactly why.

As for the larger, national picture: it's not a level playing field. In New Jersey, we have a real shot at legitimate marriage. In other places, like Nebraska, we'll be thrilled just to win hospital visitation rights, cross-adoption or maybe even (dream big!) domestic partner insurance in light of their constitutional amendment. The gay marriage bans are so sweeping -- banning ANY recognition for any relationship outside of heterosexual marriage -- that in Ohio, there are actually men in long-term (but unmarried) heterosexual relationships charged with domestic violence who are pleading immunity under the constitutional amendment because the domestic violence laws would require the government to recognize a relationship other than marriage. So there is a strategy, and a realism in play here. We push hard for marriage in NJ because it's a REAL possibility.

DJRainDog said...

Andy: [H]ere in th[e] United States, the government is powerless to compel a religious organization to do anything"

Would that the converse were true, as well! (Oh, and by the way, Evangelatheist betches, you may not be organised under a banner, but I'm lumping you in with "religious organizations" on this one.)

Andy said...

Ack, a typo! Vergogna. Sorry.

Raindog, I must respectfully but emphatically disagree!

The civil rights movement has historically been led by religious people. Right now, religious Americans -- increasingly including evangelicals -- are desperately trying to get the President to notice that something is going on in Darfur and that global warming is real and that the US is uniquely positioned to combat global poverty. If you read the OT prophets, I think you will see that people of faith are in fact called upon to yell at their governments and attempt to persuade them.

I don't fault conservatives for using religious arguments to inspire government action; I fault their actual religious arguments.

Anonymous said...

Well again your thoughtful explanation just leaves me as puzzled as ever.

I mean what do you think gay men in the UK say? Well, they say "I'm married" of course they do, and that is what straight people ask, "When are you two getting married?" etc.

Likewise the state rarely, if ever, compels churches it is true, but by explicitly excluding them the legislation it left them fighting entirely in the civil sphere. The arguement was about the arrangement of society rather than a sacrament.

If the state already recognises non-religious unions, why then is it so important to gays in the US to insist on the religiously heavily-freighted word 'marriage'.
By doing this surely all you end up with, is fighting the issue on the turf of the religious nutcases and that is just crummy tactics.
As the UK experience shows, marriage is the word everyone is going to use anyway.

Call it Civil Partnership; tell the rightwingers to take a walk and enjoy the benefits.

The rectification of terms is an important idea in Confucius but wrongly applied it leads to discussions akin to asking how many angels can squeeze onto a pinhead.

What's wrong with a bit of pragmatism.


Andy said...

Nothing's wrong with pragmatism; in fact that is why the legal arm of the LGBT civil rights movement in America is deliberately steering clear of making federal claims in marriage lawsuits, because the expert opinion is that the current Supreme Court make-up is likely to hand down an adverse ruling that would affect our hard-won victories in other states.

So yeah, my answer to you is, nothing is wrong with pragmatism, especially in the short term.

But I would ask, what is wrong with principle, especially in the long-term view?

The legal argument is complicated but essentially goes like this: marriage in the United States has been repeatedly identified by the Supreme Court and several state courts under our federal system as what we term a "fundamental" right. Access to this right can be restricted, but only when the government can demonstrate a) a compelling state interest in doing so and b) a rational way that the restriction furthers the interest. The easiest examples are the ban on marriage between close relatives because of the procreative health risks and age limits which protects children from exploitation.

Our question, then, is what legitimate government interest is served by limiting marriage to heterosexual couples? The answer that has been coming back is that for the survival of mankind and the proper rearing of children, it is necessary that the government "steer procreation into marriage." Now, that is all well and good, except no one is able to demonstrate a way in which allowing same-sex couples to legally marry discourages heterosexuals from marriage and procreation. And indeed, since a significant percentage of same-sex couple households are raising children, withholding access to marriage from their parents disadvantages the children the conservatives claim they're trying to protect.

The bottom line is, the government is saying to people, you are not worthy of the term "marriage," but they're not able to provide a constitutionally sound reason for why that is. Forget same-sex marriage; that is a dangerous precedent to set and a bad tradition to go back to.

The Law Fairy said...

"Gay people would like to just be able to say, "We're married," but it wouldn't be the truth, because the state has decided that gay people can't have marriages, they can only have civil unions."

Actually, Andy, a thought just now occurred to me.

Why don't gay people just start calling themselves married? I mean, the government can't make a law against gay people CALLING their civil unions "marriage" (this law would be a clear violation of the First Amendment, unless we also pass laws declaring that we must refer to everything by its proper legal denomination, like, we're not allowed to call the current conflict in Iraq a "war", or we're not allowed to call driving under the influence "drunk driving," etc., etc., etc.). It's far from a perfect solution, of course, but just like the gay rights movement was largely successful in turning around the term "queer," maybe we could turn this around too. The only people who would understand the difference would be the ones persnickety enough to be familiar with the law... in which case, they'd have to know that gay couples have all the same rights as straight couples.

Legal activism can only get us so far under a heavy-handed administration like this one. So let's get back to the grassroots stuff that's been the meat and potatoes of every civil rights movement. If we can't beat them in the courts (or at least, if we can't do it right away), let's beat them at their own culture game. This isn't even civil disobedience -- this is just living your life, without giving a shit what name the government gives to it. Introduce your husband as your "husband." When you're friends ask if you're single, say you're "married." I mean, how gauche would a person have to be to object that, no, he's not your husband, he's your partner, or no, you're not married, you're in a civil union. I mean, in a group of ten you might find one or two people who would have the gall to say that. And then they'd be shamed into silence and eventually learn to keep their bigotry to themselves.

And in twenty-five years, our kids will be scratching their heads and wondering why there was such a fuss about calling gay people "married."

The Law Fairy said...

Ah, and I just now got to Campbell's post and I see that's what they've already done in the UK :)

My hope would be, of course, that once people recognize how silly the distinction is, the law would adjust to bring itself into the 21st century, or whenever. Perhaps through an amendment to get rid of/modify outdated laws, etc.

Andy said...

LF: Interestingly, the NJ court made *exactly* that point, that even if the legislature enacts civil unions, there is nothing to prevent gay people from just saying "We're married."

Except for the sting of knowing that it's not true in the legal sense, because the government has decided you can't have that word. Is that a big issue? Well, it is for some.

It goes back to how much value we want to place on the so-called "intangible" benefits of being married, part of which is a social declaration that we are married, and there is this strong sense that gays have to have civil unions because they don't deserve marriage, marriage is only for these other people, like Britney Spears.

Look, I don't care. I live alone with my cats. Whatever.

I think you're right, too, about the passage of time. And I think the "movement" agrees with that. No one (well, no one sane) is expecting victory tomorrow or this year or anything like that.

And people are already engaging in the kinds of polite civil disobedience that you describe. I have a good friend who refers to his partner of 8 years as his fiance. When people ask, "When are you getting married?" he smiles bitchily and says, "As soon as you let us."

kr said...

The US Christian Religious Righties are partly organized around a martyr complex + an expected Heavenly Reward for absolute obedience, like right wing Muslims (although usually less fatally).

A gay person walking into a US hospital to see their dying civil partner might reasonably expect to lose precious minutes being lectured on not being "married" by a "properly minded" hospital employee--and that employee will not only feel justified, but will take their Testimony to their faith group for he next fellowshipping opportunity to be congratulated and supported in their efforts to stand up to the blatant attacks of Satan.

The Law Fairy said...

To be clear, I think the court was WRONG WRONG WRONG on this one. I'm just trying to think in pragmatic terms.

But I will absolutely argue until I'm blue in the face that we need to legally call it "marriage." I just want to get there any way we can. If the law has to slowly follow the people, so be it. Through I'd rather it not drag its feet, of course.

Andy said...

Oh, actually I'm going to disagree. New York and Washington were WRONG, WRONG, WRONG, but New Jersey was damn close to being absolutely right. I went back and re-read the decision before writing this and even though I don't really understand why the majority didn't see the obvious equal protection flaw with regard to the term "marriage," on second read they made a compelling deference argument that the change in the statutory definition of marriage would have to be effected by the legislature. They basically said, "The court has the power to require that same-sex couples have the same rights, but we do not have the power to change statutory law." That, of course, would be a case of judicial activism! Still, they should (I think) have more carefully guided the Legislature's decision-process.

Matthew said...

This is a bit late, and will seem off-base without comment threading, but I just wanted to respond to Andy's earlier question regarding what you would call it. Frankly, I'm not that concerned by it since it really comes up all the time with heterosexual couples all the time. Particularly in Germany, it wasn't at all uncommon for people to have lived together, had kids, etc. but not be married at all. This caused the social use of terminology to shift. Some people choose to refer to each other as partners and so forth. I don't see any new problems with having people joined or not joined through marraige/civil unions. Frankly, it wouldn't bother me at all for people in civil unions to refer to eachother as husband/wife, or husband/husband, or whatever. As long as the rights involved are funcationally equal, it sounds like a good solution to me.

Andy said...

Well, I think NJ Assemblyman Reed Gusciora (who actually just recently came out) put it into proper perspesctive: "The distance from nothing to civil unions is greater than the distance from civil unions to marriage."