New Jersey, Being Subtle
New Jersey’s Supreme Court said today that same-sex couples are entitled to have the same rights as married couples but also punted to the legislature the issue of whether that collection of rights should be called marriage or could be called something else.
That’s interesting to me, and I think a pretty subtle piece of maneuvering by the Supreme Court. It’s recognizing the rights of same-sex couples, but allows New Jersey politicians a certain amount of political cover by allowing them to call the same-sex legal relationships something other than marriage. In doing so it may also defuse the conservative boogeyman issue of same-sex couples from other states getting married in New Jersey and then going back to their home states and demanding recognition for their married status, since, after all, if the legal term for their relationship is not “marriage,” then other states can possibly argue that they are not enjoined to give full faith and credit to them as might otherwise be the case (DOMA notwithstanding) as they don’t have an equivalent relationship status on their own books. In which case the same-sex marriage crowd gets most of what it wants — legal recognition for same-sex couples on a par with married heterosexual couples — while the anti-same-sex crowd can possibly take satisfaction in knowing that what happens in Jersey stays in Jersey, at least from a legal point of view.
Mind you, not that I expect the anti-same-sex people to look at it that way. I certainly expect they’ll vomit up the same old “activist courts/marriage doomed/pedophilia and bestiality are next” and try to use this ruling to rally the troops to beat back the evil Democrats on election day. But I’m not entirely sure this will work very well: The SCOTSONJ didn’t rule for same-sex marriage, it ruled that same-sex couples should have the same rights as married couples. And while most people still are a little twitchy about same-sex marriage, if I remember correctly most Americans think same-sex couples should have some sort of legal recognition for their relationships. And in any event, the SCOTSONJ is leaving it to the legislature to decide what to call this new rights package; if the legislature decides to call it “marriage,” that’s their decision. So I don’t know if this decision will lead to the mainstream America freak-out/Republican voting behavior the anti-same-sex forces are no doubt hoping for.
Personally speaking, I would prefer that marriage be called marriage, regardless of the gender distribution of the two consenting adults within it. But I certainly see the wisdom of how this particular ruling was constructed, particularly so close to an election. This ruling seems to split up the baby pretty adeptly.
To same-sex couples in New Jersey: Congratulations on your new bouncing bundle of legal rights. I hope you enjoy them as much as I enjoy mine.
Here’s a pdf of the ruling, for your reading enjoyment. The relevant paragraph:
HELD: 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. 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.
See? Smartly done.