Glenn Reynolds has a roundup of links on the decision by the New Jersey Supreme Court that denying equal rights to gay and married couples is a violation of the New Jersey Constitution. Reynolds notes that civil unions might be sufficient under the decision, but even that is questionable.
I don’t have the time to read the decision quite yet (plenty of other decisions to read at the moment), but from what cursory reading I’ve done, I have a feeling that this may energize Republican voters who are opposed to gay marriage. Putting such sweeping social changes into the hands of the judiciary is likely to inflame those who want this to be a matter for the legislative domain. Indeed, Senate candidate Tom Kean has come out in favor of an amendment to define marriage as being between one man and one woman. Given the massive margins by which similar measures have passed in other states, that’s likely to be the outcome in New Jersey as well.
I’ve always been somewhat skeptical of arguments that gay marriage will somehow destroy the sanctity of marriage as an institution. I’m personally for some kind of civil union arrangement for gay couples, but I also agree that the cultural baggage that goes along with the concept of marriage does not allow that term to be stretched that far beyond it’s centuries-old common law meaning. Marriage has never been anything else but the union between one man and one woman, and to stretch that term to fit all sorts of social arrangements is not going to fly in this country. However, if gay couples were allowed to engage in civil unions, would that really destroy the sanctity of marriage? After all, there are gay people, and gay people do have sex — isn’t it a better argument to say that using monogamy as a healthy standard for both relationships will strengthen it for all? (Andrew Sullivan’s made that argument before, and I think it’s a rather good one.) Does the mere existence of married gay couples somehow present an existential threat to marriage as an institution? I’ve yet to see any truly convincing and rigorous data that says that it does.
However, that doesn’t mean that all advocates of traditional marriage are mindless bigots. There is quite a lot of philosophical and cultural ground to argue that extending marriage that far diminishes the currency of marriage until it becomes virtually meaningless. That’s not an argument that can be easily brushed aside. The state has an interest in healthy families, as healthy families are the primary way that democratic values are inculcated into the body politic. Marriage and healthy families are undoubtedly strongly correlated. The state has a definite interest in making sure that marriage as an institution stays healthy and strong. The New Jersey Supreme Court seems to broadly dismiss those arguments, and I’m not sure that line of reasoning is necessarily all that solid. If government has no interest in marriage, then it should be purely a matter of contract — and that’s where I could foresee this all ending up.
Until then, one thing is clear: a majority of Americans do not support gay marriage. If there is one thing recent history has taught us, it’s that major societal changes have to come from the bottom up rather than the top down. A judicial imposition of such a sweeping culture change will inevitably lead to a backlash, and ultimately this sort of judicial activism may prove to further politicize an issue which belongs in the domain of culture and persuasion rather than judicial edict and legislative pronouncement.
UPDATE: Some commenters have pointed out that the decision doesn’t actually uphold gay marriage — which may be technically true, but I don’t think that technicality ultimately matters. The New Jersey Supreme Court held that:
enying 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. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.
So gay couples are afforded the same rights and protections as heterosexual couples as a matter of the New Jersey Constitution — and “on equal terms.” The New Jersey Supreme Court doesn’t preclude a later suit demanding that gays be given full marriage rights, including the term itself. In fact, 3 justices did indeed specially concur to state they felt that was the case. As loathe as I normally am to accept slippery slope arguments, I think this decision inevitably leads in the direction of full gay marriage.
I’m guessing that based on New Jersey law, to afford the same rights “on equal terms” to homosexual couples as heterosexual couples, it would be absolutely necessary to uphold gay marriage as a full and complete package. Giving gay couples only “civil unions” while allowing straight couples to be legally “married’ seems utterly inconsistent with this ruling. If I were on the side of full gay marriage, that’s the argument that I’d be making in future litigation — which seems inevitable at this point.