The New Jersey Supreme Court today ruled (.pdf) that its State Constitution requires that same-sex couples be given exactly the same set of marital ri
October 24, 2006

The New Jersey Supreme Court today ruled (.pdf) that its State Constitution requires that same-sex couples be given exactly the same set of marital rights and privileges which are granted to opposite-sex married couples. But the Court rejected the claim that same-sex couples have a constitutional right to have their relationships recognized as "marriages," ruling instead that it is the right of the legislature to decide whether the institution of marriage should include same-sex couples.

The court's "compromise" decision came in the case of Lewis v. Harris, in which seven same-sex New Jersey couples argued that the state's marriage laws violate the State Constitution's guarantee of equal protection and basic liberties by granting certain marital rights only to opposite-sex couples and by excluding gay couples from the institution of marriage. Already, Bush followers desperate for some issue to cling to are attempting to seize upon this ruling and exploit it for political gain.

Even worse, other Bush followers who are law professors -- namely, Ann Althouse -- are either outright lying about the decision or are incapable of reading (which is worse?), since she is telling her readers today that the "New Jersey Supreme Court finds right to same-sex marriage," even though the court did exactly the opposite: namely, it refused to find a same-sex marriage right and said it was up to the legislature to decide that issue.

Based on her patently false description of the court's ruling, Althouse excitedly announces that today's court decision "helps the Republicans" and "lights a fire under social conservatives and those who worry about overactive judges." But that is a total distortion of what the court actually did. What kind of law professor reads about a judicial opinion and then writes on her blog that it says the exact opposite of what it actually says?

In any event, attempts by Bush supporters to exploit this issue for political gain are plainly destined to fail, for several reasons:

(1) There is nothing new here. The ruling today is almost identical to what the Vermont Supreme Court ruled seven years ago, back in 1999 -- namely, that the state constitution requires that same-sex couples have the same rights and privileges as married couples, but it is up to the democratic processes (the legislature) to decide whether to allow gay couples to "marry" (as opposed to enter civil unions).

(2) Today's decision is very limited in scope and reach. After the Vermont ruling, the Vermont legislature enacted a domestic partnership bill (signed into law by then-Gov. Howard Dean) in order to comply with the court decision. That bill gave full rights to same-sex domestic partnerships but did not legalize gay marriage, and it thus had no impact on anyone other than Vermont residents. That is almost certain to happen here.

(3) The decision today is entirely consistent with the democratic will of New Jersey residents. The New Jersey legislature already enacted a domestic partnership bill two years ago which recognizes, and grants a whole array of marital rights to, same-sex couples. But the way the laws were written, some rights were still assigned only to "married" couples. The court decision today simply requires that those same-sex partnerships have all of the rights which are given to married couples. But New Jersey voters, through their representatives, already approved of recognition of same-sex relationships two years ago.

(4) Finally, a majority of Americans have long (since at least 2004) approved of civil unions of the sort which this decision mandates. The decision is purely within the mainstream of American beliefs. It is those who oppose not just gay marriages, but also civil unions, who are on the fringe. Polls even show that the anti-gay-marriage referenda which Republicans placed on the ballot this year in states such as Virginia and Wisconson have far less support than they did in the past. The ability of Bush followers to distract from their ineptitude and corruption by demonizing gay people and exploiting the gay marriage issue is rapidly diminishing.

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