Thursday, December 7

More News from New Jersey

I really don’t know what New Jersey’s highest court expected would happen when they opened the door for the state’s lawmakers to draft a bill creating civil unions for same-sex couples as an alternative to marriage. Back in October, the court held that same-sex couples could not be denied marriage rights, but left it up to the legislature to decide whether marriage or civil unions would be the final product, declaring that “[t]he name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.”

Fearing the backlash that has occurred in Massachusetts, the New Jersey legislature has chosen the same course chosen by the Vermont legislature when it found itself in a similar situation following Baker v. Vermont, which said that the state could not deny the benefits of marriage to same-sex couples, but left it up to the legislature to decide how to proceed around this thorny issue.

Predictably, New Jersey lawmakers have chosen a compromise bill that satisfies neither the GLBT community nor social conservatives opposed to any validation of same-sex couples, however half-assed. The only difference is that back in 2000, most people hailed Vermont’s civil union bill as a victory. That was before Massachusetts chose to extend marriage rights to same-sex couples. In the aftermath of that historic decision, civil unions pale by comparison.

Many are tired of hearing it, but it needs to be repeated: the name matters. It simply won’t work to set up two separate institutions, one of which is recognized at the federal level, the other of which is not. To be sure, even if the New Jersey legislature chose to extend marriage rights—and called it marriage—to same-sex couples, the federal government would not be required to recognize those marriages.

However, a same-sex marriage coming out of New Jersey, like a same-sex marriage coming out of Massachusetts stands a much better chance of challenging the 1996 federal Defense of Marriage Act (DOMA) in federal court. Two people united by a civil union are arguably much less likely to be granted standing in a challenge to DOMA because civil unions do not exist at the federal level. I would be curious as to whether (non-homophobic) legal experts agree with me on that. I welcome correction if I am wrong in my assessment.

Perhaps both New Jersey’s highest court and its legislature felt that civil unions would create a more manageable uproar than same-sex marriage. Right now, that remains to be seen. The proposed bill has angered both sides. I myself would like to applaud civil unions as a step forward, but my heart just isn’t in it. By reserving marriage as a special right for straight couples, New Jersey is offering same-sex couples prejudice masquerading as progress.

4 Comments:

Blogger Marcelo Daniel said...

But in light of the fact that so many states have outright banned same-sex marriage, and in some cases, even civil unions, isn't this at least something hopeful? Sometimes I wonder whether if more states had gone the Vermont way, there might have been more progress, as Americans reluctantly come to accept the idea of legal civil unions between same-sex couples, without raising so much ire from religionists over the word "marriage". Separate is certainly not equal, but right now most gay Americans don't even have the "separate" option.

7:52 PM  
Blogger Sandouri Dean Bey said...

i'm torn. true, i'm using a bit of hyperbole to suggest there's no progress whatsoever in civil unions, but i'm also being honest when i say that deep down, i can't get excited about them. i find it difficult to settle for less than full equality and full inclusion.

10:10 PM  
Blogger gay super hero said...

It was a very propitious moment for the N.J. legislature to do the right thing. Apparently they just chose boring and safe. In my opinion they are not very far-sighted politically. It is better to lead the bandwagon than to chase the train afterwards panting and heaving.

12:27 PM  
Blogger Will said...

Marcelo, one could just as well say that right now all we have is the "separate" option. The problem with Civil Unions is that they institutionalize the second-class status of gays and lesbians under the law permanently.

The joy--and also in this political atmosphere, the burden--of Massachusetts's having given us full gay marriage is that we are completely equal here. It enrages the bigots and homophobes, but it points up the fact that gays elsewhere really don't have all the rights and priviledges guaranteed to American citizens under the Constitution. And we MUST have all the rights.

6:48 AM  

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