By Lisa Keen
If Democrats don’t win control of the House or Senate next week, pundits will almost certainly blame gay marriage for their failure.
That’s because the New Jersey Supreme Court decision – while not a total triumph for those who advocate for equal rights in marriage – was enough of a victory for gays to pump up right-wing sheperds into driving their flocks to the polls Nov. 7.
“The New Jersey decision is the exact reason why voters must vote ‘yes’ on Proposition 107,” said a spokeswoman for the group promoting an anti-gay constitutional amendment to ban same-sex marriage in Arizona. In an interview with the Arizona Republic newspaper, the spokesperson said the group “immediately alerted supporters to the decision,” saying, “If we don’t add a definition of marriage to the Arizona Constitution, it is a matter of time before Arizona judges redefine marriage through our court.”
Even though Democratic challenger Jim Pederson had begun to lose ground against Republican incumbent Jon Kyl before the Oct. 25 decision, the slide will almost certainly escalate now and be attributed to New Jersey.
Ditto Virginia, where incumbent Republican George Allen was picking up lost ground before the decision; but since the decision, he’s been hammering home a message about his support of the state’s proposed constitutional amendment, and the Democrat’s opposition to it. Ditto Tennessee.
President Bush led the charge. Less than 24 hours after the New Jersey decision was issued, he was warning voters to support Republicans in order to stop “activist courts” from threatening the sanctity of marriage. In some cases, Republican candidates even claimed that the New Jersey decision declared same-sex marriages to be legal in the Garden State. It did not.
What the decision did
The decision in Lewis v. Harris did pretty much what the decision from the Vermont Supreme Court did in 1999. It said the state constitution’s promise of equal protection requires that same-sex couples be able to enjoy the same benefits of marriage as heterosexual couples. But, like the Vermont court, the majority in New Jersey said how those benefits are delivered to same-sex couples was a matter for the legislature. The majority stated that it would also consider it possible that the equal protection promise could be satisfied through some “parallel” structure called something other than marriage.
The legislature in Vermont chose to deliver them through a parallel structure and to call them “civil unions.” Though not prompted by a lawsuit, the Connecticut legislature did the same last year. Political pundits were quickly predicting New Jersey’s legislature will do the same.
Despite the limited scope of the decision, it was still a significant legal victory for the LGBT community and a significant boost to gay activists focusing on equal rights in marriage.
“The bottom line,” said David Buckel, lead attorney for Lambda Legal Defense and Education Fund in pressing the case, “is that the entire court said that there must be a remedy for the inequality that bars same-sex couples from marriage.”
“The New Jersey decision is very significant for the movement as a whole,” said long-time activist Lorri L. Jean, executive director of the Los Angeles Gay and Lesbian Center, “because it constitutes a significant victory at a time when such victories have been rare. It is an important contribution to the growing body of law in support of equality and to the national dialogue on marriage.”
It was an important contribution to the LGBT community’s national dialogue on marriage, too. A letter from more than 200 activists around the country this summer -when numerous courts ruled against same-sex marriage– urged the movement to stop spending so much focus and resources on the marriage battle. The cheers over the New Jersey decision have drowned those calls out -at least for now. Had the New Jersey Supreme Court gone the way of the courts in New York and Washington, those voices might sound more like a roar.
Not everyone in the community is happy with the decision. Many feel like the dissenting justices felt -that the court did not go far enough.
Davina Kotulski, Executive Director of Marriage Equality USA, calls the Lewis decision “fantastic” but the idea of a “parallel” structure is just another way of saying “separate but equal.”
But it’s still too soon to know the full effect of the New Jersey decision. Gay political activists must now marshal their forces for a legislative campaign in the Garden State. And nationally, many are bracing to see what impact the decision might have on November 7 -both in states where voters have grown cool to anti-gay marriage amendments and in the Democratic Party’s overall bid to win back one or both houses of Congress.
The new legal look
The decision in Lewis v. Harris approached the legal issues in the case in a different way than other courts. The lawsuit challenged the denial of marriage licenses on two grounds – that it violated the state constitution’s guarantee of “liberty” and its guarantee of “equal protection.” But, while the court addressed those arguments, its opinion approached the issue from the point of view that the state’s law prohibiting discrimination based on sexual orientation should cover couples as well as individuals.
“The statutory and decisional laws of this State protect individuals from discrimination based on sexual orientation,” wrote Justice Barry Albin, an appointee of former Democratic Governor James McGreevey. (McGreevey announced he was gay and resigned from office in 2004 after acknowledging that, although he was married to a woman, he had an affair with another man to whom he provided state employment favors.)
“When those individuals are gays and lesbians who follow the inclination of their sexual orientation and enter into a committed relationship with someone of the same sex, wrote Albin, “our laws treat them, as couples, differently than heterosexual couples.”
All seven justices – four Republican appointees and three Democratic ones – agreed with that sentiment and agreed that denial of marriage licenses to same-sex couples violates the state’s guarantee to equal protection.
Ironically enough, three of the Republican appointees would have gone further. In a dissent written by Chief Justice Deborah Poritz, they said the denial violates the state constitution’s guarantee to liberty and the fundamental right to marriage in exercise of that liberty. They also said they could find “no principled basis” on which to consider separating those benefits from the “title of marriage.”
The majority acknowledged that the “right to marriage” is recognized as a “fundamental right” under both federal and state constitutions but that there are also recognized limits to that right – such as prohibitions on “polygamous, incestuous, and adolescent marriages.” It also stated emphatically that it would “never abandon its responsibility to protect the fundamental rights of all of our citizens, even the most alienated and disfavored, no matter how strong the winds of popular opinion may blow.”
But “Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law,” wrote Albin, “we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right.”
The majority also felt it could not “escape the reality that the shared societal meaning of marriage – passed down through the common law into our statutory law – has always been the union of a man and a woman.”
“To alter that meaning” to include same-sex couples, said the majority “would render a profound change in the public consciousness of a social institution of ancient origin” and such changes, it said, “must come about through civil dialogue and reasoned discourse,” and a vote of the legislature.
“New language is developing to describe new social and familial relationships, and in time will find its place in our common vocabulary,” wrote the majority. “Through a better understanding of those new relationships and acceptance forged in the democratic process, rather than by judicial fiat, the proper labels will take hold.”
Chief Justice Poritz’s dissent remarked that, gay couples “ask to participate, not simply in the tangible benefits that civil marriage provides – although certainly those benefits are of enormous importance – but in the intangible benefits that flow from being civilly married.”
“When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that “a separate statutory scheme, which uses a title other than marriage,” is presumptively constitutional,” wrote Poritz, “we demean plaintiffs’ claim. What we “name” things matters, language matters….”
“Labels set people apart,” wrote Poritz, “as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law. By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as `real’ marriage, that such lesser relationships cannot have the name of marriage.”
That debate – whether to insist that same-sex couples have the right to both the tangible benefits of marriage and the intangible benefits of the same term – is one the LGBT community has been engaged in, too.
“I think our community has had a hard time articulating what the inequality in a parallel structure is,” said Matt Coles, executive director of the ACLU’s National Lesbian and Gay Rights Project, which has also been pressing marriage cases. “It’s basically intangible: Marriage is portable and civil unions are not.” Even marriage in Massachusetts, which does provide marriage licenses to same-sex couples, isn’t portable, said Coles, because 45 states ban legal recognition of them.
Coles said he is “not all that troubled by” the prospect of New Jersey choosing a parallel structure instead of including gays under the marriage laws.
“This is how you make change,” said Coles. “In the history of any civil rights movement in America, it’s very, very rare that you get your end goal on the first step. The fact is that this decision takes us 90 percent of the way and not 100, and that’s a big deal. It’s a huge step forward.”
Evan Wolfson, executive director of the national Freedom to Marry group, said he hopes the legislature won’t try to “repackage” benefits into some kind of parallel structure for gay couples.
“The unanimous New Jersey Supreme Court ruling … is a resounding recognition of the equal needs and common humanity of committed same-sex couples and their kids,” said Wolfson. “The easiest next step is not to cobble together a separate new system with two lines at the clerk’s office, but rather, to end the exclusion from marriage itself.”
But measuring the level of success from the New Jersey decision and what might happen in the legislature is lost for the moment in the more urgent concern of what the decision might mean for November 7. And in that arena, nuances are lost.
The political impact
There are two key battlefronts for the community on November 7: One is the state constitutional bans on marriage – on the ballots of eight states – and the other is the Democratic effort to regain control of the House or Senate or both in Congress.
Up until a month or so ago, activists presumed all eight state marriage bans would pass easily because similar measures in 20 other states had passed easily in recent years. But polls recently started showing voters in some states were beginning to back away from them. Activists both for and against the measures predicted the New Jersey decision might reinvigorate voter support.
In Wisconsin, for instance, Fair Wisconsin scrambled the day following the New Jersey decision to correct the record on claims made by a constitutional ban supporter there that the New Jersey decision legalized marriage for same-sex couples.
The marriage initiatives are in eight states. But some gay activists believe there could be impact in every state on Nov. 7 – not the least of which involves the mid-term Congressional elections. The October 25 news in New Jersey could have impact on a growing enthusiasm in the electorate to dispossess Republicans of their majority in the House and Senate.
Former White House staffer Keith Boykin of New York, who served under President Clinton and later founded the National Black Justice Coalition, notes the New Jersey decision “comes at an awkward time, just two weeks before a major midterm election in this country.”
“For the first time in years,” says Boykin on his website, “the voting public is focused on the failed war in Iraq instead of divisive social issues like marriage and abortion. Now with the New Jersey case, if the Republicans are able to exploit this decision and use it to resurrect fear among their conservative base, the Democrats’ hopes of taking back both houses of Congress could easily be dashed.”
Republican candidates in key contests jumped in, too. In Virginia, where incumbent Republican Senator George Allen has been in an unexpectedly tight race to keep his seat, one political reporter noted that Allen “may have found in a New Jersey Supreme Court ruling legalizing same-sex unions the bogeyman he needed to energize social and religious conservatives dispirited by recent Republican scandals to vote in the Nov. 7 election.” A long-time advisor to Allen told the reporter that Allen planned to say repeatedly over the remaining days of the campaign that Allen supports the ban and his Democratic opponent does not.
In New Jersey, where pro-gay Democratic Senator Robert Menendez is in a tight race against Republican Tom Kean Jr., the Star-Ledger reported that Kean, an opponent of same-sex marriage, moved quickly to use the ruling against his opponent. Menendez then issued a statement saying he believes marriage is between one man and one woman but that he opposes a constitutional ban and supports equal benefits for gay couples. But a Kean staffer continued to state publicly that Menendez is for gay marriage.
Certainly Republicans and right-wing fundamentalist groups are eager to employ any argument they can against Democrats, and almost anything “gay” can be hurled against them with some effectiveness.