Is gay marriage
already legal?
EDITORIAL, The
Star-Ledger (nj.com) from the Web. February 19, 2006
Last week, the New Jersey Supreme
Court heard Lambda Legal, a gay-rights organization, make the case that the
state constitution guarantees same-sex couples the same right to marry that is
enjoyed by heterosexual couples. The plaintiffs asked the court to issue a
ruling to that effect, as the Massachusetts Supreme Court did two years ago in
interpreting its own state's constitution.
On the other side, the state attorney general's office advised the court that
only the Legislature and governor, through the normal lawmaking process, can
authorize gay marriages.
This newspaper's view, stated in the past, is that New Jersey should recognize
marriage as a basic civil right that should not be denied to committed adults,
regardless of their gender. Such a recognition would be consistent with
this state's long tradition of opposing discrimination and protecting privacy.
The standard contention of opponents of same-sex marriage -- that it would pose
a threat to heterosexual unions -- has never been backed up by a shred of logic
or evidence, which leads to the inevitable conclusion that there is none to be
found.
Ideally, this civil right should be established by legislation. But if the
Legislature and governor lack the nerve to take this controversial step, we hope
the court, in its wisdom, will find that the right is already there.
-- -- --
Chief Justice Deborah Poritz, during questioning, identified an option available
to the court that would establish the right to marriage without gender
restriction and at the same time acknowledge the role of the Legislature in
establishing state policy on this important question.
She noted that New Jersey, in its marriage laws, doesn't restrict marriage to
one man and one woman, as most states do. Reading those statutes together
with the guarantee of civil rights on the basis of sexual orientation, she
suggested, could support an argument that the law already permits same-sex
marriage.
Lambda Legal's lawyer passed up that approach, preferring to pursue a finding by
the court of a constitutional guarantee. But if the justices were to
follow the Poritz road map and choose to not address the constitutional issue,
but simply to rule that existing law gives the plaintiffs the end they have
sought, that in itself would transform the political landscape. No longer
would it be necessary for proponents to ask the Legislature to be pro-active,
and brave the wrath of fundamentalist church groups, by formally legalizing gay
marriage. Rather, the burden would be on the opponents to try to enact a
bill rewriting the state's marriage statutes. Such a bill, moreover, would
be subject to veto by Gov. Jon Corzine, whose record is one of strong support
for civil rights. The chances are good that the present marriage laws --
and the court's interpretation of them -- would stand.
-- -- --
It's ironic that those most bitter in their opposition to gay marriage, the
so-called defenders of marriage, want to narrow rather than expand the number of
those eligible for its benefits. They should understand that embracing an
institution as venerable and as regulated as marriage is a conservative act.
New York Times and Times of Trenton columnist David Brooks put that proposition
eloquently when he wrote:
"The conservative course is not to banish gay people from making such
commitments. It is to expect that they make such commitments. We
shouldn't just allow gay marriage. We should insist on gay marriage.
We should regard it as scandalous that two people could claim to love each other
and not want to sanctify their love with marriage and fidelity."
The continued success of the institution of marriage doesn't rest on who is
permitted to marry whom. Marriage will endure as long as it continues to
improve the couples who enter into it and to bestow benefits on society at
large.
In one way or another, last week's arguments at the Justice Complex may have
advanced the day when the benefits and responsibilities of marriage will be
available to all, regardless of sexual orientation. We profoundly hope so.
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