Ellen Andersen


Filed By Ellen Andersen | October 25, 2006 3:20 PM | comments

Filed in: Marriage Equality, Politics, Politics, The Movement, The Movement, Transgender & Intersex
Tags: LGBT community, marriage, New Jersey

NJ Supreme Court rules gay couples have equal right to all benefits of marriage. Leaves name up to legislature. 4-3 decision. Here's the thing: the 3 who dissented argued that only marriage would do. That 7 votes for civil unions and 3 for marriage! More later.

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the good guys | October 25, 2006 3:35 PM

The New Jersey Supreme Court just ruled in the marriage case. The majority ruled that all the legal protections of marriage must be given to same-sex couples. The legislature is given 180 days either to amend the marriage statutes or to create some other system to give same-sex couples the same legal rights under state law that heterosexuals have (as Vermont, Connecticut and California do). Three of the seven judges would have ruled that same-sex couples must be allowed to marry outright. There were no dissents.

Here's the decision.

Matt Coles
American Civil Liberties Union Foundation
LGBT & AIDS Project

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Marla R. Stevens | October 25, 2006 4:52 PM

"We won!" is a little over the top.

We didn't win. Winning would have been for the court to say that we have the equal right to civilly marry and for them to have ordered the state to make any necessary changes in forms and processes necessary to facilitate that in short order with actual civil marriages taking place immediately thereafter.

Civil unions are not marriages. They're insults with benefits attached.

There is no way to accord all the legal rights of marriage without granting marriage itself. The New Jersey Court is pretending there is and passing the buck to their legislature that has already shown itself incapable of dealing with this appropriately.

One of the best state constitutions in the land and they give us this muddy mess? Count me unimpressed!

I think it is not as bleak as you hold. The court unanimously said that all couples have equal civil rights. They went on by four to three to say that they would let the legislature either decide to legalize marriage equality or to propose some way to reserve the word "marriage" that would not violate anyone's equal civil rights. They did not say that was possible, only that they would judge if and when the legislature acted. Courts often are, as they should be, reluctant to tell legislatures that they cannot do something. They prefer to find fault once the legislature has acted and they do not have to try to imagine all possible ideas the legislature could come up with.

The court has told the legislature that they must act to assure equality. Let's see what the legislature does now.

My guess is that the legislature (unless they are very dense) will realize that, to satisfy the court, would have to craft a law that said, in effect "we insist that only heterosexuals can use the word 'marriage' even if such a distinction has no weigth whatsoever in law". That would be a pretty embarrasing bill. (Not that legislators are shy of embarrising themselves as a rule.)

Let's celebrate that this court (NJ) disposed of the arguments for unequal treatment with proper dispatch and shamed NY and WA, and let's hope that in the next six months, the legislature realizes that the game is over.

Marla R. Stevens | October 25, 2006 7:11 PM

There is no way to "reserve the word 'marriage'" that doesn't violate my right to equality under the law yet the majority on the New Jersey Court is pretending there might be.

If you reserve marriage when there is no compelling state interest (of which there is none) to do so, then you've unconstitutionally created a two-tiered citizenship system. Worse, equal access to marriage isn't even supposed to be dependent on citizenship but is supposed to be open to all humans. The New Jersey Court, then, is toying with gay people's very access to simple membership in the human race.

Hets have, as a group, had no problem in the past doing things that ought to make them blush (or worse) when laying claim to caring about equality under the law. The very head of the Democrats, Howard Dean, a physician, threatened gay activists in Vermont with loss of HIV funding if they didn't support his civil unions bill instead of forcing the issue back to court where an actual marriage ruling would have been all but a certainty when the legislature balked at granting them civil marriage. (Dean was already planning a run for Prez and was desperately trying to soften the effect of what was happening on his watch.)

These half measures are like bribes -- in effect asking what benefits we are willing to sell our equality under the law, our citizenship, even our very status as human beings under the law for.

What's your price? My price tag says, "NOT FOR SALE!"

Ellen Andersen | October 25, 2006 8:38 PM

I disagree, Marla. As I see it, we did win. Is it a perfect statement of our common humanity? No. I'm still waiting for a court to recognize that the question isn't whether there's a fundamental right to same-sex marriage but rather whether the fundamental right to marry encompasses the right to marry the person of one's choosing.

At the same time, this decision is a damn sight better than the decisions handed down in New York and California. The court *unanimously* found that same-sex couples and opposite-sex couples were similarly situated with respect to the legal rights, benefits, and responsibilities of marriage and so must be treated equally. Three out of seven believed that nothing short of marriage would do.

I'll accept that, for the moment, especially given that *marriage* for same-sex couples doesn't come with all the legal rights and benefits automatically granted to opposite-sex couples. So long as DOMA stands, civil unions are the functional legal equivalent of marriage because neither provide access to federal benefits, and neither are automatically transportable across state lines. So yes, we won.

Of course, the *timing* of the decision sucks eggs from an electoral standpoint. But you know what? I'll worry about that tomorrow. Today I'm content that New Jersey will shortly provide same-sex couples with "insults with privileges." It's certainly more pleasant than the insult with injury scenario we face here in Hoosierland.

I personally thought it was a great day. Unlike Marla, I will enjoy each little victory as they unfold. Excellent news!

The function of the court is not to implement social policy, but to make judgements according to law. Three justices said that there was no conceivable way to separate marriage without violating equal rights. I like that ruling, but what the majority said was not "separate marriage is ok" but "if the legislature can come up with separate marriage that they think does not violate equal rights we will consider it then rather than pretend to know what they might come up with." Some would call that weasel words, some would call it judicial temperament, some would say they mean the same thing. I doubt that there is any separate marriage that could pass the court's muster, but we will see in about 180 days.

At the very least this is better than NY and WA. Much, much better.

W.E.B. DuBois has a whole chapter on "the meaning of the word 'progress'".

Quite frankly, Marla's comments piss me off. Perhaps she can afford the luxury of sacrificing the very real and tangible benefits that the Court's decision affords couples here and now in order to fall on the sword of principle. But martyrdom for Marla, however chic, is neither a pragmatic nor plausible approach for achieving real and lasting progress and equality. Call it Plessy vs. Ferguson all over again if you wish, but Plessy was progress over what went before, and Brown v. Board of Education (I and II) arguably could not have existed without it.

I prefer to think of the glass as half full today. Tomorrow I might see it as half empty, but for today...

I want to say to Marla that I do not dismiss her sense of outrage. It is highly appropriate at any point in this discussion of just how human she is (and all of us are, if you think about it). My comments were informed by my relief at seeing a court that unanimously held that gays and lesbians have equal rights not only as individuals but as couples. After NY and WA that was a blessing.

In coming to this decision, the court considered the issue of equal rights as separate from the explosive issue of the word "marriage". That, it seems to me, was a reasonable judicial move and led to the complete rout of our mortal foes and their nonsense and a unanimous decision in favor of absolutely equal rights for all.

The court was split on whether they should presume to judge a possible law that the legislature had not in fact adopted. I hope (I suspect the New Jersey court does too) that the legislature will realize that they cannot meet the court's challenge and will simply amend the marriage laws as directed. If not, they will have a heated debate (debates are always good for our side) and either do the right thing or end up in court again. I cannot imagine that a court, especially one that has ruled as this one just did, will accept any version of separate but "equal, well not really". As a Canadian legislator said when they had their debate because of a similar demurral by their Supreme Court, "'Separate but equal' . . . did not work for water fountains and it will not work for marriage."

Marla, you are quite right to feel outrage, and I share it. With Bil, I will hope until I am either proved correct, or force to fight.

Marla R. Stevens | October 27, 2006 7:28 AM

The damned Type Key system that does not work as promised just ate the response I carefully crafted for the last hour and a half.

Marla R. Stevens | October 27, 2006 7:36 AM

Thanks Ed.

The court abdicated its responsibility to rule on the law, saying, in essence that a right is not really a right and is instead something that ought to be subject to majority tyranny. I was taught from when I was knee-high to a grasshopper that you don't put rights up to a popular vote because popular votes are for options, not rights.

Marla R. Stevens | October 27, 2006 8:51 AM

Evan --

What makes you think I "can afford" what you call a "luxury" of refusing to cooperate in my own oppression. How dare you term it "martyrdom" from a pursuit of "chic"! How pitiful that you do not exhibit the ability to imagine the co-existence of both sober, consider-all-the-angles strategic thought and passion for justice enough to fuel the pursuit of it.

I have a medical condition that leaves me in near-constant pain and unable to walk more than a few feet most of the time. The resultant endorphin fog is debilitating sometimes to the point of narcolepsy. As a disabled woman, I do not take the rights of civil marriage -- particularly those regarding healthcare and fiscal comingling -- some of which are sometimes offered in domestic partnerships and civil unions, anything but acutely seriously.

I know the consequences of the lack of them at the level of my skin and the ganglia beneath it.

I remember vividly waking up in the recovery room at St. Vincent's after exploratory surgery for cancer. I was in pain and it was getting worse. I was frightened about what they doctors might tell me -- whether the tumor was localized or if it had spread beyond their ability to get clean margins on the tumor they'd gone in to excise. I felt very alone and vulnerable. I wanted more than anything else to feel the soft touch of my wife's hand and her protective presence as I fought through the fog of pain and fear and surgical drugs.

But time and more time passed without her appearing even though we'd been assured by the medical team that she would be allowed in as soon as I was awake. She was, unbeknownst to them and to me, being held back by an antigay bigot who ruled the access from the surgical waiting room, who took it on herself to define for us what our family was despite that we had completed everything that defined my wife's rights as my chosen healthcare representative and power of attorney both medical and otherwise available to us under Indiana law with copies of the documents firmly attached to my medical chart.

This woman made it subtly clear that contradicting her or otherwise standing on one's rights would come at a cost one might not want to pay. My wife, fearful that a challenge would get her booted from the hospital altogether, bided her time until the old bat went on break, whereupon she pretended to be my sister to the old bat's substitute -- something girlfriends-in-arms and I have done a time or few to ensure that friends got the medical care or burials they wanted but that their blood families would have denied them.

I am not bullet-proof. I bleed just like you do.

But I am also, from my own experiences and those of others, fully aware of the consequences of being treated as 'less than' -- less than equal under the law, less than fully human.

Besides the wierdnesses of existence in a non-portable second-class lower tier of a two-tiered system of family under the law -- wierdnesses that include that Aunt-Tilly-who-doesn't-'approve'-but-who-gets-it-that-marriage-confers-family-status-in-a-way-that-being-civilly-in-union-doesn't thing, there are the suicides of our young people, the slower path to self-destruction of substance abuse and Exodus hell taken by too many of our youth and adults alike, and the violence and discrimination of antiqueer bigots -- all motivated by taking that 'less than' message to heart.

These are real consequences. The "m" word really does matter.

I can't decide for anyone else what their price is but, as I've obviously struck a nerve just in asking, obviously it's a question that needs to be asked.

Marla R. Stevens | October 27, 2006 9:25 AM

Ellen --

Of course it's better but we must be very careful not to let any acknowledgement of that be remotely construable as tacit acceptance of the differences that remain. I think a statement that we won crosses that line.