Centerblue.org

Gay activists have much to rejoice over for the New Jersey Supreme Court’s decision in Lewis v. Harris extending the right of marriage to same-sex couples–it is a good step forward in the battle for marriage equality. However, there are some aspects of the decision that I find disturbing.

The essence of the decision was essentially this: while same-sex marriage is not a fundamental right, prohibiting it runs afoul of the Equal Protection clause in New Jersey’s constitution. As such, while same-sex couples should have the right to the benefits of marriage, they do not have an accompanying right to have those benefits called “marriage.” The legislature was therefore directed within 180 days to either include same-sex couples in its marriage statutes, or draft a duplicate set of guidelines that provides the same rights as marriage but calls it by another name (e.g., “civil unions.”)

My first concern is on the issue of same-sex marriage not being a fundamental right. A fundamental right is one that is deeply rooted in history and traditions. Marriage itself is universally considered to meet that test. However, the New Jersey Court ruled that while marriage may meet that test, same-sex marriage does not and therefore cannot be considered a fundamental right.

That’s putting too fine a point on it. Why not simply focus on the issue of marriage itself? Same-sex marriage is nothing but one type of marriage, and it’s the issue of marriage itself that ought to have been addressed. An analogy lies in Loving v. Virginia, the US Supreme Court case that struck down bans on interracial marriage. In that case, the Supreme Court could have said “well, marriage meets the fundamental right test, but inter-racial marriage does not and therefore it should not be considered the same.” That’s not what the Court did in that case. Instead, it re-affirmed that marriage itself was the issue, that it is a fundamental right, and that inter-racial marriage was simply a form of the protected right itself. It wasn’t something separate or different. I don’t see why the same logic doesn’t apply on the issue of same-sex marriage.

While this may sound like a nitpick, it’s actually very important. Once a right is found to be fundamental it is extremely difficult for the government to impinge on it in any way–it may do so only to meet a compelling state interest in a way that’s narrowly tailored to meet that interest. That’s a really hard standard to meet…as opposed to the much squishier standard applied under equal protection logic, which in New Jersey meant simply a balancing of the importance of the right versus the need for governmental restriction (a test the court said New Jersey failed to meet in opposing same-sex marriage). While the end result is the same, my belief is that the declaration of a fundamental right would have been a much stronger statement for future courts in other places to weigh when deciding what to do.

The second concern I have is the willingness of the court to send the matter to the legislature, even if it’s with a directive to craft some kind of equal marriage rights. This smacks of the whole “let the legislature decide the issue” argument that conservatives often put forward, knowing fully well that when any proposed minority right is presented to a majority that it is likely to strike it down. Rights are all about protecting minorities against the predations of majorities. It would have been unconscionable to “leave it to the legislature” to decide whether segregation was right or not, whether interracial marriage was right or not, whether “one-person-one-vote” was really in place or not, and so on. The “leave it to the legislature” argument is one that conservatives use to adopt a false veneer of tolerance when they are fully aware and approve of the final outcome. Same goes for the protest about “activist judges”–the justices who decided Brown v. Board of Education would surely have been called “activist” by any measure, and yet today we could not fathom their having decided the case any differently. There would be no social progress without these so-called “activist judges”, who are really judges brave enough to think outside the box–and yet they cause consternation to conservatives because they’d really rather “leave it to the legislature.” In ruling as it did, the New Jersey court seemed to kowtow to some of this logic by giving the legislature some element of choice over something that, as I argued before, should be a fundamental right not subject to a vote

My last concern is with the court’s willingness to let the legislature adopt a “separate but equal” system of marital-type benefits and then call it something other than marriage. If something smells, looks, and acts like a rose then it should be called a rose instead of catering to people’s “sensitivities” about it, which is what the unstated purpose of this provision seems to be. History has shown that “separate but equal” is never equal.

Overall, I give kudos to the court for its bravery in the current political climate, although it would have been better if the court’s language in defense of marriage equality had been stronger. One victory at a time…