New Jersey Gay Marriage Ruling

So what how will the AFA institute a boycott of a state? And will Dobson's head explode if he ventures into New Jersey airspace?

I don't undertand why people think the term 'marriage' is some sort of holy word reserved for their religion's specific couple-bonding ceremony, but the more important part of the couple-bonding went through, so I guess I'm okay with it for now.

The AFA with Dobson's assistance (and probably that of the Creation Research Institute) is probably looking into how New Jersey can be unmmoored from the East Coast and pushed out to sea. That way the Gay Virus can be kept at bay. They're probably already in touch with Kim Jong Il about obtaining some nukes to blow apart the seams that now bind New Jersey to New York and Pennsylvania.

Don't cue the outrage, cue the upcoming chaos that is going to spread around New Jersey because gay people get to visit their partners in the hospital. Just like Massachusetts.

Has anybody ever made the case in court that this "same rights, different name" is inherently flawed, as it is a "separate but equal" paradigm?

Has anybody ever made the case in court that this "same rights, different name" is inherently flawed, as it is a "separate but equal" paradigm?

I don't know -- but I'm not sure it's fully comparable.

"Separate but equal" really was discrimination, and indeed was used as a way of seeming to legitimze it.

Calling one marriage and the other not marriage-- well, yeah, there's an asymmetry in nomenclature, but in this case the things that are going to the people (rights, benefits, etc.) are truly identical, where as in the "separate butequal" case, kids of different races were going to different schools-- they were supposed to be equal, but they obviuosly weren't identical.

To me, the right answer is for governments to stop defining or approving marriage altogether-- just approve civil unions, and require from those unions the benefits, duties, etc. etc. etc., and define a civil union as between two adults. Leave it at that. Then each individual church or couple or whatever can decide if they are marrying people or not based on whatever criteria they want. Let the religious organizations have the word "marry," so long as the practical civil upshot ends up non-discriminatory.

In a more serious vein, I find the flap over nomenclature to be a lot of hot air. For years we've had both religious and civil marriages in this country. All religious marriages are also civil (that is approved of by the state). But not all civil marriages are religious. Essentially what the NJ Supreme Court has done is to say that same-sex civil marriages are just fine; but it's up to the legislature to name them something else, if they wish.

Maybe to some gays the symbolism of the marriage is important. If so, then they should lobby the legislature to make civil marriages open to same-sex couples too. Then any church can decide for itself whether it will bless such unions. And there are many who will do just that, just not the Southern Baptists and other fundamentalist denominations.

Instead of 'husband' and 'wife', you'll be "Butt Buddies".

I don't undertand why people think the term 'marriage' is some sort of holy word reserved for their religion's specific couple-bonding ceremony...

I don't understand that either. Civil marriage is a secular kinship contract. Perhaps the term 'marriage' ought to be dumped for the civil contract. The state can not enforce any religious obligations that flow from a religious marriage, so why not make the civil and religious distinction explicit. Of course, this won't help the AFA and other bigots since the UCC and other religious organizations already have religious marriages for same-sex couples. The AFA and their ilk want the state to enforce their bigotry.

Has anybody ever made the case in court that this "same rights, different name" is inherently flawed, as it is a "separate but equal" paradigm?

I expect the people trying such things in court are just trying to get to the point of "separate but equal" before trying to take the next step of saying "separate but equal isn't enough, we need to actually be equal".

From an ideological perspective this may seem abhorrent, but from a legal perspective it might make sense. It's a lot easier to "compromise" today on a "separate but equal" system of marriage, and then come back in ten years and do the Brown v Board thing-- pointing out that the separate systems have turned out to be unequal in practice-- than it would be to convince the courts ahead of time the commonsense fact that given even a smidgen of statutory wiggle room, separate will never manage to ever be completely equal.

To me, the right answer is for governments to stop defining or approving marriage altogether-- just approve civil unions, and require from those unions the benefits, duties, etc. etc. etc., and define a civil union as between two adults.

Can't do that. Then you actually are taking away the rights of heterosexual couples (even if that right is a right to a distinction of semantics).

Can't do that. Then you actually are taking away the rights of heterosexual couples (even if that right is a right to a distinction of semantics).
I don't understand. What right are you referring to exactly?

Are you suggesting heterosexual couples have an inherent right to get special recognition from the state for not being homosexual?

Cue the outrage in 3, 2, 1...

Like those who would be outraged had forgotten to be, since the last reminder? Pardon my being rational in the face of the Collapse of Civilization (tm), but how does the NJ ruling change anything for anyone outside of New Jersey? Especially with regard to the upcoming elections.

Instead of 'husband' and 'wife', you'll be "Butt Buddies".

Careful, Stogoe. Not everybody saw that episode.

Wait till Schwarzenegger signs a SSM law in CA next year because he no longer has to worry about re-election. THEN, you'll hear the squawking!

but how does the NJ ruling change anything for anyone outside of New Jersey?

Personally I'd find the impact it has on New Jersey interesting all by itself. Isn't New Jersey one of the big tossup Senate races this year?

Then any church can decide for itself whether it will bless such unions. And there are many who will do just that, just not the Southern Baptist

No need to use the future tense -- there are many that bless such unions already, even if they aren't fully legal unions in the sense of a civil marriage as far as the government is concerned.

Isn't New Jersey one of the big tossup Senate races this year?

Yes, Menendez vs. Kean Jr. is close, but New Jersey is firmly blue thanks to the city of Newark.

Paul Begala was just on CNN and he compared New Jersey Republican candidates to Lucy pulling the football away from Charlie Brown. It's so appetizing and they think they're going to win, and at the last minute the Democrats turn out the vote and support their candidate. It's an accurate analogy. Every two years, I think the Republicans have a chance, and then the Democrats always win.

I hope Menendez wins. He's been very good since Corzine left to become governor.

I don't know -- but I'm not sure it's fully comparable.

"Separate but equal" really was discrimination, and indeed was used as a way of seeming to legitimze it.

Calling one marriage and the other not marriage-- well, yeah, there's an asymmetry in nomenclature, but in this case the things that are going to the people (rights, benefits, etc.) are truly identical, where as in the "separate butequal" case, kids of different races were going to different schools-- they were supposed to be equal, but they obviuosly weren't identical.

Perhaps, Mr. Knop, but let's look at the text of Brown v. Board and see what they have to say about that:

Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

...

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

...

Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

Sigh... stupid scienceblog commenting system.

Calling one marriage and the other not marriage-- well, yeah, there's an asymmetry in nomenclature, but in this case the things that are going to the people (rights, benefits, etc.) are truly identical, where as in the "separate butequal" case, kids of different races were going to different schools-- they were supposed to be equal, but they obviuosly weren't identical.

What they're called determines what they are, unless

1. every single law, corporate policy, or policy of a private institution in the entire state magically has somebody do an s/marriage/marriage or civil unions/g find and replace on it, and
2. no law, corporate policy, or policy of a private institution in the entire state ever again contains a reference to "marriages" without the person writing it remembering to add "or civil unions" afterward.

The difference in names reflects that they are separate legal institutions. This ruing, incidentally, demands that the two legal institutions must be offered the same rights. This does not automatically mean that they will be offered the same rights.

I've always liked calling it "stalliage". You do it with a mare, it's marriage; you do it with a stallion, it's stalliage. :-)

(Sorry, don't have a good idea for a lesbian couple.)

The text of the NJ Supreme Court's decision is at http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf (obviously, PDF). I haven't read the full decision (it's 90 pages long), but the operative summary of the decision appears to be in paragraphs 12-15 on page 3. Like VT and MA, the court held that the state legislature had 180 days to bring the state's statutes in conformity with the decision. The decision is more in line with the VT decision than that of MA, in the the NJ court did not require that the legislature call same-sex relationships "marriage."

Ed didn't post the quote from the ruling that looked like it could have been written by him:

....Gays and lesbians work in every profession, business, and trade. They are educators, architects, police officers, fire officials, doctors, lawyers, electricians, and construction workers. They serve on township boards, in civic organizations, and in church groups that minister to the needy. They are mothers and fathers. They are our neighbors, our co-workers, and our friends. In light of the policies reflected in the statutory and decisional laws of this State, we cannot find a legitimate public need for an unequal legal scheme of benefits and privileges that disadvantages committed same-sex couples.

I guess it could be argued that NJ civil unions are not equal to NJ marriage; because outside NJ states won't recognize the NJ civil unions.

Of course, it will be a few years until that argument can be made, after states like Texas have refused to recognize a NJ couples civil union.

Of course, it will be a few years until that argument can be made, after states like Texas have refused to recognize a NJ couples civil union.

I think we're still waiting on the test case where a state like Texas refuses to recognize an MA couples' marriage...

HAHAHAHAHAHAHAHAHAHA!
Those ee-dee-ots at the ADF are telling people that THEY won.

http://www.alliancedefensefund.org/news/story.aspx?cid=3898

HAHAHAHAHAHAHAHAHAHA!

Give marriage to the churches. Anybody married in a church has to have a civil ceremony anyway - unless their priest/rabbi/whatever is licensed by the state - to make it valid, so just make all civil marriages into civil unions. Period. Let 'em have their word for their religious rite - it's already not legal purely as a religious thing.

I really don't see it as an outrage. As a gay man, I'm not so much concerned with labels as I am rights and protections. Call it "flying to the moon" if you must; just give me the same that's given to heterosexual couples and I'll be quite happy with it. Does that put me in the minority?

I think the reason for all of the uproar is this simple equation, to these "open minded" individuals ...

Gay = man on man anal sex

therefore, if

gay can = married

then

married = man on man anal sex

They'd be offended if you suggested that the only reason they are with their spouse is sex, but can't seem to figure out that a same sex couple can have the same emotional, economic, social, non-sexual reasons for wanting to be together that they equate to "straight" marriage.

To me, the right answer is for governments to stop defining or approving marriage altogether-- just approve civil unions, and require from those unions the benefits, duties, etc. etc. etc., and define a civil union as between two adults. Leave it at that. Then each individual church or couple or whatever can decide if they are marrying people or not based on whatever criteria they want. Let the religious organizations have the word "marry," so long as the practical civil upshot ends up non-discriminatory.

Government in one form or another has always been involved with the marriage contract. Religion is a johnny come lately to the party and it is amusing to see how people view marriage as a 'religious' idea.

I absolutely refuse to give an inch to any religion that sees marriage as 'their' realm. It's a bullshit view. No one is married without a marriage contract. All the pop and circumstance surounding the signing of said contract is nice but it's the contract that makes it a marriage. Otherwise you have a relationship in whatever form it happens to be.

Let 'em have their word for their religious rite - it's already not legal purely as a religious thing

It never has been so. The contract is the marriage.

ADF saying they won, great! then no reason for them to go out an vote.

One reason I see the civil union and marriage dichotomy as merely semantic is because, although they appear different, they both (at least in the VT and CT examples, and presumably NJ if they go down that path) have the same exact overall effect - they are both mechanisms for adults to create a new familial relationship not based on birth or adoption. All the rights and privileges of marriage come not from the name, but from the state recognition that this person, the spouse, now supersedes all other relatives. The married couple become the most important people to one another, and the same is true for the truly equal civil unions.

Not to mention, the fundies are completely correct on one point about civil unions - they will eventually segue into marriage because of the lack of true distinction between them. Look at England, where almost as soon as their civil union law went into effect, the media was already calling it marriage.

Are you suggesting heterosexual couples have an inherent right to get special recognition from the state for not being homosexual?

I think what he meant was that if you had the state only doing civil unions and "gave marriage back to religion" (I agree with Uber that this is crap), then all those heterosexual couples wouldn't be able to get married anymore. That is, their right to marriage would be taken away. I definitely think people need to differentiate more strongly between civil marriage and religious marriage, but I do NOT want the state giving up the word at all. Religion doesn't have more of a right to it, and I want to get married someday and have a husband and be his wife - why should we have to give that up?

All the rights and privileges of marriage come not from the name, but from the state recognition that this person, the spouse, now supersedes all other relatives.

The rights and priviliges come from laws, laws which in some or all cases mention marriage by name.

If the gays and lesbians are smart, they skip the name and just go for the equal rights. Thet is less loaden and easier to achieve....

All the rights and privileges of marriage come not from the name, but from the state recognition that this person, the spouse, now supersedes all other relatives.

I'm not sure where this came from, but I'll merely point out that, the more that the nay-sayers complain about the use of the word "marriage" for same-sex relationships, the clearer it is that denying same-sex relationships the use of the word "marriage" is little more than "separate but (un)equal." It is tantamount to saying that Rosa Parks was not discriminated against merely because she was required to ride in the back of the bus--she got to her destination regardless of where she was required to sit.

That said, those who oppose the use of the word "marriage" generally also oppose civil unions.

Note to CPT_Doom: Actually, the difference between "marriage" and "civil unions" is not necessarily semantic. It isn't clear whether Canada, the Netherlands, Belgium, and whereever, would recognize your VT, CT, or (maybe) NJ civil union as being a marriage if you were to go there. They are much more likely to recognize my MA marriage as being a marriage.

I think this and the Vermont decisions will beg to be clarified in a few years. If it turns out, as some people are arguing, that it is not possible to get all the benefits of marriage without the name (because of other places not recognizing civil unions, for example) then those decisions will have to be modified. But we don't have a history to indicate what the legal ramifications of civil unions may be yet.

I have been arguing this on a NJ liberal website. I think we have won a great victory here, if not the whole war. In fact, if, as I understand it, the legislature is permitted, as it implements the decision by legislation, to declare unions ARE marriage, it takes away the claims of the homophobes that this is 'judicial activism run riot.' (And, with Gov. Spitzer -- his election is just a formality -- promising to work for full marriage equality in the NY legislature, this will influence NJ as well.)

Raj said -
That said, those who oppose the use of the word "marriage" generally also oppose civil unions.

Actually, thats not very accurate. There are a lot of people who object to the use of the word "marriage" who are fine with civil unions. In fact, I tend to think that a the majority of moderate and liberal Christians, who actually object to gay "marriage," would be fine with "civil unions" that afford them the same rights as marriage. This is why the AFA and other supporters of constitutional ammendments, defining marriage, make it clear (falsely) that the ammendments won't interfere with domestic partner benifits and such. For a lot of people, it is entirely about semantics.

For a lot of people, it is entirely about semantics.

And those semantic differences are based on religious beliefs, which the State has no obligation to accomodate.

If "marriage" and "civil unions" confer the exact same rights, then there is no reason why we should make a distinction legally. And marriage is really just a legal contract between two people (religious ceremony is optional), so why do we need two legal structures in place when one will cover everybody?

My guess is that when you get down to it, those people who say they don't support gay marriage but are ok with civil unions, they really don't intend for them to be exactly the same. Civil unions will in effect be second-class citizens to marriage (for example, will a non-civil union state recognize a civil union from another state? will insurance companies be compelled to offer benefits for civil unions if they offer them to marriages? will the Federal government recognize a tax return filed as joint civil union instead of a joint marriage?) This is where the concept of "Separate but Equal" comes into play, and we already decided that it isn't equal.

We should not be letting bigots off the hook that easily. If they are fine with civil unions but don't like the idea of gay marriage, go ahead, ask them why? I have yet to come across a good argument that doesn't discriminate in some way against homosexuals.

Actually as an interesting question, right now the DOMA says states don't have to recognize other states marriages... but do they have to recognize other states civil unions? I would find it especially hilarious if after denying gays the right to marry that they brought an alternate definition that forced every state to accept it.

Skemono | October 25, 2006 04:58 PM

"Separate but equal" really was discrimination, and indeed was used as a way of seeming to legitimze it.

I'll use an example that I posted elsewhere late last night:

Rosa Parks would have gotten to her destination just as fast whether she was required to sit in the back of the bus, as if she were permitted to sit in the front of the bus. But she was required to sit in the back of the bus, and by that she was relegated to second class status.

The analogy should be apparent. Obviously, those who oppose same-sex marriage, denying gay people to use the word marriage, do so because they want to relegate gay people to second class status, even if they have the same rights and privileges. Just like Rosa Parks.

Must've been pretty late, raj....you posted it here. ;-)

One of the more hilarious parts of this is that, in the fight for the minds of the middle range of Americans, the wingnuts have essentially surrendered on everything else BUT 'gay marriage.' Most Americans are opposed to other discriminations against gays, and even Bush has supported civil unions, though he hasn't said this recently or loudly. By drawing the soldiers of idiocy around this small hill, they have conceded the rest of the war, and now they are, slowly, losing this final battle. (The opposition to gay marriage has dropped over 10% since the last election and the 'call to arms' on the current amendments is getting greeted with more yawns.)

The cry against Pelosi's 'San Francisco values' (and we all know what THAT is a code for) doesn't seem to be working.

Guys, there will always be some bigotry left, but we've WON. It is just a mopping up operation now.

raj, while I agree that using a separate word is, at best silly, and at worst patronizing, that analogy doesn't apply here. In the instance of bus segregation, the seats were of different quality. The back seats were inferior to the front seats. The difference here is only name, the benefits are exactly the same.

I agree with those who want the government out of the marriage business. Let there be civil unions which have certain rights, and let there be religious marriages which are offered by whoever to whomever and carry no legal weight.

To some extent this already exists - I know some people who married civilly for reasons of health insurance but remained living apart and celibate until their religious marriage some months later. I know others who have married religiously but chosen to not have their relationship recorded as a civil marriage - in the eyes of the state they are single, but in the eyes of their religion they are married.

DuWayne | October 26, 2006 02:02 AM

There are a lot of people who object to the use of the word "marriage" who are fine with civil unions.

They may say that they do, but I was paying attention after VT enacted their CU legislation. There was an uproar, and many of those (primarily Democrats) who had voted in favor of the CU legislation--largely because they had to, or the state's Supreme Court would have required marriage--were hounded out of office. They may say that the approve of CUs in the abstract, but when they are confronted with actually confronted with the possibility that CUs may be enacted, they react against it.

Raj -

I am judging by the outcry from those who voted for the anti-gay marriage amendment in MI, when the lawsuits started agaisnt municipal governments and state schools that offered domestic partner benifits.

I am also judging by a number of people I know from my church, who are virtualy unanimously against gay marriage. Out of about, 130 members, three families, including mine support gay marriage. Out of the rest, only about 4 families are against legal protections for gay families, similar to those provided by marriage. Certainly some of those who claim to support similar protections would vote otherwise, but by in large, I don't see that many of them doing so.

I am not going to claim that many are against both. But for a substantial number of people, it is about semantics. Considering how many states have enacted CUs without the citizenry going apeshit, I just think a lot of people are far more concerned about semantics than keeping GLBTs from getting similar legal protections.

I have a friend who is vehemently anti gay marriage but pro civil unions - he is also an equally vehement atheist and anti-religionist, so it's hardly reasonable to claim that all objections to gay marriage are religiously based. His argument is that there is something fundamentally different between a heterosexual marriage and a homo-sexual partnership, and he believes that the language should preserve that distinction.

I personally think that such arguments generally reflect underlying homophobia, which may (and often does) exist in concert with religious sentiments that legitimize such homophobia.

raj, while I agree that using a separate word is, at best silly, and at worst patronizing, that analogy doesn't apply here. In the instance of bus segregation, the seats were of different quality. The back seats were inferior to the front seats. The difference here is only name, the benefits are exactly the same.

That particular analogy may be faulty (although I don't know whether the seats were any different aside from location), but the logic is not. Again, see my excerpt from Brown v. Board, where the Supreme Court recognized that the benefits were exactly the same between schools but ruled separate schools were unconstitutional anyways.

P.S.--raj, that part of my comment wasn't me; it was still me quoting Mr. Knop. Scienceblogs just won't let you blockquote more than one paragraph.

Actually as an interesting question, right now the DOMA says states don't have to recognize other states marriages... but do they have to recognize other states civil unions?

The text of the DOMA uses the phrasing "that is treated as a marriage".

The Ridger said "Let 'em have their word for their religious rite - it's already not legal purely as a religious thing."

They already have their word for their religious rite, its "matrimony", not "marriage".

Skemono | October 26, 2006 02:19 PM

P.S.--raj, that part of my comment wasn't me; it was still me quoting Mr. Knop. Scienceblogs just won't let you blockquote more than one paragraph.

That's fine. I usually refer back in this manner only to provide at least some context for my comment, not to suggest that the material that I had cut-and-pasted from another comment was the opinion of the other commenter.

I find it disturbing that in 2006, we still believe that human rights are a matter of local "public opinion." GLBT people need to have our rights encoded into federal laws just like the Civil Rights Act and Voting Rights Act.