Friday, October 27, 2006

A Rose by Any Other Name: New Jersey and Same-Sex Civil Unions

On October 25, 2006, the New Jersey Supreme Court rendered its decision in the case of Lewis v. Harris. The case involved seven same-sex couples who sought to marry. The couples, who had been denied marriage licenses in their municipalities, brought suit challenging the constitutionality of New Jersey’s marriage statutes.

The Court decided, 4-3, that the state of New Jersey had not articulated a legitimate public need for continuing to deprive committed same-sex couples of the full range of benefits and privileges enjoyed by married heterosexual couples. The Court relied upon the equal protection guarantee of New Jersey’s Constitution.

The ruling exponentially increased the legal benefits available to same-sex couples in New Jersey. Same-sex couples could previously form "domestic partnerships" but that only afforded them a relatively small percentage of the rights conferred by marriage.

Here’s where a line was drawn in the proverbial sand, however.

The Court went on to state that the “name to be given 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.”

In other words, we’re not touching the issue of whether the union we’ve just described is a “marriage” or something else.

If you think this looks like “separate, but equal”, I agree with you completely.

The Court was actually unanimous on the equal protection aspects of the case. The split was over the issue of defining same sex unions. Ironically, the four justices who held that it should be directed to the legislature were Democrat-appointees. The dissenting justices, Republican-appointees, argued for full marriage rights, including the right to the term “marriage”.

Marriages, from a legal standpoint, are simply legally recognized partnerships. When I see a heterosexual married couple, I don’t feel that the government is necessarily endorsing any other aspect of their relationship. They may be getting married because of an unplanned pregnancy. They may be getting married because she feels her biological clock is ticking. They may be getting married because one of them is wealthy and the other is a gold-digger. The government really takes no position on the dynamics of the relationship itself . . .unless and until one of them sues for divorce.

Still, when the issue of homosexual marriage is raised, counter-arguments either imply or explicitly state that recognizing the right of same-sex couples to marry would be tantamount to a government endorsement of specific sexual acts. Huh?

When a heterosexual couple gets married, the state is simply recognizing the desire of two individuals to form a legal partnership, with the attendant rights, privileges, and responsibilities. The government is not, to my knowledge, endorsing any aspect of their sexual activity. They can have as much sex as they want (and probably less than he wants). It’s no one else’s business (again, until it comes time to get that divorce).

I have several acquaintances who, while they support the notion of state-recognized same-sex civil unions, adamantly draw the line at referring to such a union as a “marriage”. One friend of mine even told me that it would cause confusion as to which person would be referred to as the husband and which would be referred to as the wife. I told him that the use of “spouse” or “partner” to refer to both might solve this confusion. I forget how he responded to this, but the sentence started with the obligatory “Yeah, but . . .”

Those who speak of preserving the "sanctity of marriage" usually fail to recognize that churches can still decide whether to grant their blessing or not. This is the same way churches have always handled marriages between heterosexual couples. I admit I am amused when I hear someone who was married by a justice of the peace or a ship captain refer to marriage as a sacred institution.

Still, the distinction (i.e. between marriage and civil union) carries a tremendous amount of weight for a great many people. It will continue to do so, as it touches upon issues of tradition, psychology, language, and behavior.

Here comes the spouse, all dressed in . . .

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