New Jersey's highest court opened the door Wednesday to making the state the second in the nation to allow gay marriage, ruling that lawmakers must offer same-sex couples either marriage or something like it, such as civil unions.
In a ruling that fell short of what either side wanted or most feared, the state Supreme Court declared 4-3 that gay couples are entitled to the same rights as heterosexual ones. The justices gave lawmakers 180 days to rewrite the laws.
..."Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state Constitution," Justice Barry T. Albin wrote for the four-member majority.
The court said the Legislature "must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure" that gives gays all the privileges and obligations married couples have.
The three dissenters argued that the majority did not go far enough. They demanded full marriage for gays.
In a decision likely to stoke the contentious election-year debate over same-sex marriage, the New Jersey Supreme Court has ruled that state lawmakers must provide the rights and benefits of marriage to gay and lesbian couples.
The high court on Wednesday gave legislators six months to either change state marriage laws to include same-sex couples, or come up with another mechanism, such as civil unions, that would provide the same protections and benefits.
The court's vote was 4-to-3. But the ruling was more strongly in favor of same-sex marriage than that split would indicate. The three dissenting justices argued the court should have extended full marriage rights to homosexuals, without kicking the issue back to legislators.
It should be noted that the New Jersey decision today does not tell the legislature that they have to impose “gay marriage” on the states. Rather, it tells the legislature that they have 6 months to come up with a plan to give gay couples the same benefits and rights as opposite sex couples.
The court is sticking strictly to an equal protection argument and declines to get into the business of whether marriage can be labeled a fundamental right. At least, the majority does. The dissent is interesting, because it’s not opposition to the equal protection argument. Instead, it’s an argument in favor of just going for gay marriage full out. No reason to punt the question of semantics back to the legislature (which now has 6 months to decide on a label: domestic partnerships, civil unions, etc.): just do it. The dissenters also argue that there is a fundamental right to same-sex marriage encompassed in the liberty clause of the NJ State Constitution, so we’re now at a point where there’s a 7-0 consensus on the recognition of same-sex partnerships, which, frankly, is a major step up from the previous string of defeats for SSM advocates.
Cobb calls it "a decision I can live with".
As you might presume, I am against gay marriage, in the same way I am against human rights for animals. Misinterpret what as you may but they are apples and oranges. The very declaration of being gay is OK, but don't call it marriage. So I think this decision, from the way it is reported here, is exactly the proper ruling for a court. Defend civil liberties, but leave it to the people to determine the social acceptability of the declaration. Once again, I have no problem with the state acknowledging and defending civil unions, and I think the precedent for matters such as medical benefits, etc is well established in the law. But don't call it marriage.
I hope that the people of NJ recognize the importance of recognizing the difference between the civil and statutory definitions of civil union and the social convention of marriage and that they uphold the status quo with regard to the current definition of marriage as between a man and a woman. It is the people's right to decide, as I've said before we all have a say in these matters. By not being activist and establishing gay marriage by legal fiat, the NJ judiciary did the right thing, and they should be commended.
Commentary. I'm very, very happy with this decision. It's a clear victory for gay equality; and by refraining from a judicially-mandated redefinition of "marriage", the court allows moderate conservatives like Cobb to find common ground, and respects the legislative process.
Of course, I will call it "marriage" if I damn well please. As a citizen, I am free to do that, just as I am free to call a milkshake a frappe or a grinder a sub. (Or more to the point, as our Secretary of State is free to refer to a gay man's partner's mother as his mother-in-law.) If you disagree with my use of the term, we can argue about it - and that's all to the good.
What matters is not the name but the substance.