Thursday, October 26, 2006

This is gonna be a long one...

OK, so, the ruling is out in New Jersey, to mixed reviews.

The good news is that the New Jersey Supreme Court backs equal rights for same-sex couples.

The bad news is that they "punted" the issue to the State Legislature with the understanding that any new law will be reviewed so ensure that it does not "run afoul of the Constitution." They have ordered the Legislature to write and enact law, within 180 days that will either allow same-sex couples to marry, or enter into a Civil Union.

I read through all 90 pages of the ruling yesterday afternoon, with my yellow highlighter in hand. What follows is some excerpts that I was particularly struck by, either in their insight, or lack of sight -- with, of course, my own editorializing in red. I'm just going to jump right in...

"In defending the constitutionality of its marriage laws, the State submits that same-sex marriage has no historical roots in the traditions or collective conscience of the people of New Jersey to give it the ranking of a fundamental right, and that limiting marriage to opposite-sex couples is a rational exercise of social policy by the Legislature." Have you ever run into those sorts of people at work who do things the hard way and justify it by "it's always been done that way?" This is a similar argument. To say "it's always been this way" is not to justify denying marriage to same-sex couples, it's a cop-out and weak, at best.

"Indeed, the State not only recognizes the right of gay and lesbian parents to raise their own children, but also places foster children in same-sex parent homes through the Division of Youth and Family Services." At least the state didn't argue that same-sex relationships are bad for children.

"The State rests its case on age-old traditions, beliefs, and laws, which have defined the essential nature of marriage to be the union of a man and a woman." It's always been that way...

"In Romer v Evans, Colorado passed an amendment to its constitution that prohibited all legislative, executive, or judicial action designed to afford homosexuals protection from discrimination based on sexual orientation. The Supreme Court declared that Colorado's constitutional provision violated the Fourteenth Amendment's Equal Protection Clause because it 'impos[ed] a broad and undifferentiated disability on a single named group' and appeared to be motivated by an 'animus toward' gays and lesbians. The Court concluded that a state could not make 'a class of persons a stranger to its laws.'" It would seem to me that this ruling would also apply to all of the state constitutional amendments that have been passed in the last couple of years that prohibit same-sex couples from marrying or even having their relationships recognized through civil unions. No wonder the Supreme Court keeps dodging this issue...

"Under the guise of newly found rights, we must be careful not to impose our personal value system on eight-and-one-half million people, thus bypassing the democratic process as the primary means of effecting social change in this State." OK, there's a part of me that understands where this type of mindset comes from (as it is seen throughout the country). "Let the people decide" has been the refrain we've heard since this issue first blew open two years ago. Where this sort of logic fails is in the fact that, by letting the people decide through the democratic process, we lose touch with the reality of the majority oppressing the minority. Had Loving v Virginia been ruled "let the people decide," it's entirely possible that interracial marriages would not be legal today. Laws of equality have always, historically, come from the courts and not the voting booths because of the ability of the majority to oppress the minority through the democratic process of voting. It's a double edged sword.

The court quotes two rulings: "...the more personal the right, the greater the public need must be to justify governmental interference with the exercise of that right," and "Unless the public need justifies statutorily limiting the exercise of a claimed right, the State's action is deemed arbitrary." I think this addresses the heart of the issue. No state or government has yet to provide any reasonable or logical argument for how the public good is served by denying marriage to same-sex couples.

"We next examine the extent to which New Jersey's laws continue to restrict committed same-sex couples from enjoying the full benefits and privileges available through marriage. Although under the Domestic Partnership Act same-sex couples are provided with a number of important rights, they still are denied many benefits and privileges accorded to their similarly situated heterosexual counterparts. Thus the act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples." Domestic Partnership laws only render lip service to equality, and these judges not only saw that, but pointed it out for the Legislature to see. What they failed to see beyond this is that Civil Unions are not a whole lot different than Domestic Partner laws. Separate but equal just doesn't cut it.

"Last, even though they are provided fewer benefits and rights, same-sex couples are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering into marriage." Honestly, I never thought about that but it's absolutely true. When I enrolled Lisa in my benefit plan here at work, I had to provide proof that we were financially interdependent on each other, that we resided together, and had been together for more than a year. Our marriage license was not on the list of accepted documents of proof.

"The Legislature has recognized that the 'rights and benefits' provided in the Domestic Partnership Act are directly related 'to any reasonable conception of basic human dignity and autonomy.' It is difficult to understand how withholding the remaining 'rights and benefits' from committed same-sex couples is compatible with a 'reasonable conception of basic human dignity and autonomy.' There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships." Emphasis my own.

"There is something distinctly unfair about the State recognizing the right of same-sex couples to raise natural and adopted children and placing foster children with those couples, and yet denying those children the financial and social benefits and privileges available to children in heterosexual households." And this practice just slays me. Statistically, same-sex households take into foster care and/or adopt more special needs children than their heterosexual counterparts, and often their medical expenses are paid out-of-pocket because the state's benefits are inadequate. The States are more than happy to dump these "high maintenance" kids off wherever they can yet they fall short of providing the kinds of benefits to the families they dump them off with that they give to those families that can't be bothered with these special children.

"The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done." "Plaintiffs argue that even equal social and financial benefits would not make them whole unless they are allowed to call their committed relationships by the name of marriage. They maintain that a parallel legal structure, called by a name other than marriage, which provides the social and financial benefits they have sought, would be a separate-but-equal classification that offends Article I, Paragraph 1. From plaintiffs' standpoint, the title of marriage is an intangible right, without which they are consigned to second-class citizenship. Plaintiffs seek not just legal standing, but also social acceptance, which in their view is the last step toward true equality. Conversely the State asserts that it has a substantial interest in preserving the historically and almost universally accepted definition of marriage as the union of a man and a woman. For the State, if the age-old definition of marriage is to be discarded, such change must come from the crucible of the democratic process." "Raised here is the perplexing question -- "What's in a name?" -- and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself -- independent of the rights and benefits of marriage -- has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs' claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples.

Addressing this very question -- what's in a name -- and writing for the dissenting opinions, Chief Justice Poritz writes "In their presentation to the court, they speak of the deep and symbolic significance to them of the institution of marriage. They ask to participate, not simply in the tangible benefits that marriage provides -- although certainly those benefits are of enormous importance -- but in the intangible benefits that flow from being civilly married. Chief Justice Marshall, writing for the Massachusetts Supreme Judicial Court, has conveyed some sense of what it means:

Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage 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. 'It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.' Because it fulfills 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.

Chief JusticePoritz very eloquently concludes "When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that 'a separate statutory scheme, which uses a title other than marriage' is presumptively constitutional...we demean plaintiffs' claim. What we 'name' things matters, language matters."

Language DOES matter. A marital status of "Civil Union" as opposed to "Married" automatically flags the private relationship for anyone in the world to see. It establishes a label that separates us from our heterosexual counterparts in much the same way that "African American" separates people of color from their Caucasian counterparts. Aren't we ALL Americans? What is "African" about a person of color who is a tenth generation American? Why would "African Americans" embrace a label that sets them apart from other Americans? Why would same-sex committed couples embrace civil unions that only set them apart from their heterosexual counterparts? Chief Justice Poritz concludes "By excluding same-sex couples from civil marriage, the state declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or significant as 'real' marriage, that such lesser relationships cannot have the name of marriage." Amen.

In the Loving v Virginia case, Poritz points out, Justice Kennedy explained "...times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." Poritz concludes "Without analysis, our Court turns to history and tradition and finds that marriage has never been available to same-sex couples. That may be so -- but the Court has not asked whether the limitation in our marriage laws, 'once thought necessary and proper in face serve[s] only to oppress.'

On the surface, the ruling is a victory for same-sex couples, but only insofar as tangible benefits of marriage equality are concerned. The court seems to have turned a disinterested eye away from the intangible benefits of civil marriage. And with that disregard, it would seem that they have only rendered lip service to true equality.

1 comment:

Jenn said...

Pat - I tried and tried to post this yesterday but it wouldn't stick. Anyway - my first thought about equal rights and benefits as hetero marriage is that the number one right is the actual marriage. It just chaps my hide. I've got Wisconsin to the east and South Dakota to the west...voting on marriage and forbidding abortion....ACK!!!

Anyway - I suppose this NJ ruling is better than it could have been but this country has such a long way to go yet. I'm glad you're willing to fight the good fight but sorry you have to do it.