While the New Jersey court pats itself on the back for advancing the civil rights of gays and lesbians, lets pause for a moment to note what gays and lesbians have not won: actual equality.
The Supreme Court of New Jersey has ruled in favor of gay marriage, sort of. By a vote of 4 to 3, the court says the state must afford gay couples all the “rights and benefits” that straight couples have under the law. But the majority punted on the question of what to call gay marriages. If it doesn’t want to call them marriages, the legislature is free to come up with a term of its choosing for committed gay relationships.
In other words, the court is fine with a nomenclature under which some marriages would be separate—but equal. In a sentence that will seem silly—and unjust—in 20 years, the court says this explicitly: “We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples.” The Plessy court couldn’t have said it better: separate railway cars for blacks are fine, as long as they are just as nice as the ones for whites. Don’t bother about that curtain between the black and white cars. “Marriages,” “civil unions,” “two guys shacking up with a lot of All-Clad cookware”—does the term really matter?
It does. Actually, I have a bit of sympathy for the court on what to call gay relationships. I was never certain what to call my boyfriend of eight years—ick, “boyfriend.” I’m 35, not 15. But “partner” sounds clinical, “lover” sounds too ’70s and “longtime companion” sounds pathetic, evoking two old queens in cardigans watching Bette Davis movies.
Nothing else sounds right because we already have a terminology for our better halves—spouses, husbands, wives. But because Michael and I couldn’t marry, calling him my “spouse” was a lie. So I always introduced him as my “partner” and put my hand around his waist, to show we didn’t just run a pet store or a restaurant or a Hollywood studio together. I also showed pictures of our two beautiful cats (wait a second, do we sound like “longtime companions” now?).
To be sure, the New Jersey decision has moments of ringing clarity. It enumerates specific ways in which gay couples suffer when they can’t marry, even gay couples in a state like New Jersey that protects gay individuals from discrimination. For instance, the court noted that if a lesbian dies, her partner doesn’t currently have access to survivor benefits under the state Workers’ Compensation Act. She can’t get the back wages owed to her deceased girlfriend. She can’t get the compensation available to spouses and other relatives of homicide victims. Gay parents in New Jersey can go through the long, expensive process of adopting the children of their partners, but straight people must only get married—anywhere, even in a quickie Vegas hitch—and the state automatically presumes dual parentage.
The court’s decision will end these (and many other) inequalities, and in that sense it stands in contrast to the embarrassing New York high court ruling from earlier this year. A skein of twisted reasoning, that 4-2 decision went against marriage equality. In an unpersuasive bit of reverse bigotry, the New York court said that because straight relationships “are all too often casual or temporary” and can lead to children born out of wedlock, the state needed to help straights by maintaining an exclusive, all-heterosexual club called marriage. Straight people used to be obsessed with the dangers of gay bathhouses; I guess sports bars and hetero dating sites are now the real dangers to society.
The New Jersey court didn’t engage in gimcrack sociology. It stuck to the law and declared that “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…enter into committed same-sex relationships.” And yet like their New York counterparts, the New Jersey judges threw the decision of what to call these relationships back “to the democratic process.” The New Jersey court continued, rather lyrically: “In searching for the meaning of ‘liberty’…we must resist the temptation of seeing in the majesty of that word only a mirror image of our own strongly felt opinions and beliefs. 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.”
The contrarian in me appreciates this part of the ruling: as a libertarian, I don’t believe the state has much business approving or disapproving relationships in the first place, so it makes sense that the people, not the courts, should decide what to call the arrangements under which those relationships are codified.
But if the state is going to be in the marriage business, and if we all agree there’s no rational basis for denying marriage rights to gay couples, how could there possibly be a rational basis for creating a separate-but-equal “marriage but not really marriage” statute for gays?
The court says allowing gays to wed is such a profound reconceptualization of marriage that it “must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government.” Similarly, in July, fellow contrarians like Kurt Andersen of New York magazine argued that “when courts make certain ‘good’ decisions too far ahead of public opinion and legislative consensus, the result can be hugely problematic, as we’ve seen since Roe v. Wade.”
But Andersen was wrong on the facts: since Roe was decided, support for abortion rights has increased, according to Gallup polls. Opposition to abortion has also intensified, but it’s silly to think that anti-abortion purists would be fine with baby killing as long as a legislature rather than a court had decided to allow it. On the flip side, millions of women didn’t have to resort to self-abortions while they waited for “civil dialogue and reasoned discourse” to arrive in state legislatures.
There’s an even more relevant example: since a court decided in favor of equality for same-sex couples in Massachusetts, support for gay marriage in that state has increased, not decreased, as Andersen’s theory would suggest. And more importantly, thousands of gay couples have been able to enjoy the rights and benefits to which they are entitled.
Obviously judicial activism can go too far. But this isn’t judicial activism; it’s judicial hair-splitting. While the New Jersey court pats itself on the back by saying “Our decision today significantly advances the civil rights of gays and lesbians,” let’s pause for a moment to note what gays and lesbians have not won: actual equality.
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