Just when we thought that the gay marriage debate was going take a back seat in this election cycle, the New Jersey Supreme Court issued its decision in Lewis v. Harris. The court held that, under the equal protection clause of the New Jersey Constitution, same sex couples must be afforded on equal terms the same rights and benefits afforded to opposite sex couples under the state's marriage statutes. The court left the state legislature to decide the particular statutory scheme to provide these rights. Three of the justices would have gone further than the majority and found that same sex couples are entitled to be married under the state's current statutes.
Sure as night follows day, President Bush and a number of Republican candidates have decided to use this as an opportunity to whip up their right-wing cultural conservative supporters. Decrying "activist judges", they have taken to dredging up support for a constitutional amendment to ban same sex marriages. It's also no coincidence that 8 states have similar proposals on their ballots to amend their state constitutions to do the same, a fact helpful for Republican turnout.
The claptrap about "activist judges" is at once disingenuous and destructive to the tripartate system designed by the constitutional framers. It's always been the province of the judiciary to hold the other two branches accountable to the mandates of the constitution. In this case, the New Jersey Supreme Court did just that. When majoritirian impulses trample on the rights of a minority, it's the judiciary that needs to safeguard those rights. Of course, what's a constitution to this president. If he can convince Congress to ban habeas corpus for alleged war criminals, what can he do to a bunch of gays and lesbians who don't know their place.
However, I think the New Jersey court got it right for a number of reasons and those reasons also call into question the entire quest for recognition of same sex relationships under marriage statutes. It's important to remember that, until not that long ago (say 2001), it would have seemed inconievable that there would be a possibility for same sex couples to obtain legal recognition as marriage. With the decision of the Massachusetts Supreme Judicial Court in 2004 mandating recognition under that state's marriage statutes, the movement accelerated to obtain similar recognition under other states' statutes. However, in the past year, and until Harris, the legal decisions have been a litany of bad news. Even the New York Court of Appeals declined to find a right to marry for same sex couples under that state's laws. So, should we celebrate Harris or mark it as a step backward?
I believe same sex couples deserve to have their relationships recognized by the state, allowing gays and lesbians to receive the same legal protections my wife and I can obtain under the law. When we got married over ten years ago, we discussed whether to do so legally, given the history of discrimination against same sex couples. We ultimately decided that disadvantaging ourselves would not necessarily advance the cause of obtaining recognition for same sex relationships. But we also believed that the time had come for such recognition to be a reality and had many friends in committed same sex relationships that should be regarded the same as ours.
However, by driving towards marriage, legal advocates have raised a red flag for a large portion of the American population uncomfortable with what this would represent. It also had the perhaps unintended consequence of conflating what marriage, the historical and religious institution, is versus how marriage is treated under civil law. If you ask most (sane) people whether gays and lesbians should be treated equally, a majority would probably say yes. But once this treatment is framed under the rubric of marriage, the opinions shift.
Marriage as a civil institution has had a checkered past and its historical origins had much more to do with chattel and property than rights and privileges for those involved. Why link the cause of legal recognition for same sex relationships to such vehicle? Isn't the whole purpose of the enterprise to ensure that the same legal rights and responsibilities be made available to same sex couples?
Also, by linking this cause to the baggage of civil marriage, advocates have allowed opponents to raise marriage as a religious/cultural institution under assault. Instead of arguing against the rights of same sex couples, these reactionary forces can use this as yet another example of the homosexual agenda driving our society to perdition. It also makes potential supporters into opponents by focusing on how marriage has been tied to religious interpretations in the Bible and elsewhere.
Let's get off the marriage hot button and focus on what is needed to make it possible for same sex couples to get legal, as opposed to religious, recognition of their committments. That is what the current legal quest should be about and where I think society is ultimately headed. And let's stop giving right-wingers a potential platform to demagogue (hello, Michelle Bachman) and pander to people's worst instincts.
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2 comments:
The real answer (though not the politically realistic one) is that NO ONE should be able to be "married" as a civil matter. Rather, the state should provide to a committed couple -- be they gay or straight -- a civil union that provides to the couple certain "civil" -- i.e. government-endowed -- rights. Then each religion, whether methodist, quaker, jewish, lutheran, pagan, catholic, hindu, unitarian, or whatever, would make its own decision as to whether the couple qualified for "marriage" pursuant to that particular religion's tenets. Nobody should be entitled to be "married" by the state because "marriage" is properly the domain of theology, not government.
So I've written on this a number of times, but never with your eloquence.
I have to admit that I'm processing your statement. I feel that as long as marriage is a civil concept, it should be available to all citizens without regard to sexual orientation.
And yet your pragmatism is persuasive. There is a value in getting same sex couples under the protections afforded to heterosexual couples. And you're right, most folks would, if ask, support equal rights, even if the extension of those rights to the marriage arena would pull them out of their comfort zone.
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