What's in a marriage?
EDITORIAL, Home News
Tribune Online, October 29, 2006
Shakespeare's Juliet insisted that "a
rose by any other name would smell as sweet," but, in light of the state Supreme
Court's divided decision on gay marriage, it is clear that Juliet was wrong.
There is something in a name, and in this case that name is "marriage."
There was a wonderful clarity and reasonableness to the justices' unanimous
decision that the New Jersey Constitution gave the state the responsibility of
recognizing unions between committed homosexuals. In writing for the
majority, Justice Barry Albin outlined the broad steps to which both New Jersey
courts and legislators have gone in protecting the rights of gays and lesbians,
and then wrote, "There is no rational basis for, on the one hand, giving gays
and lesbians full civil rights in their status as individuals, and, on the
other, giving them an incomplete set of rights when they follow the inclination
of their sexual orientation and enter into committed same-sex relationships."
In other words, if the state believes it ought to end discrimination, then it
must extend its protections to all the areas of life it controls. This
seems both obvious and impossible to refute.
But the justices could not agree whether those unions had to be called
marriages. Albin, in the majority, argued that the social and historic
importance of marriage made the decision of what to call same-sex unions better
left to the democratic process, therefore the publicly elected Legislature.
The nature of the debate that followed has shown that people are not concerned
as much with giving homosexuals rights. The objection has to do with
people's sense of marriage. Obviously this sense has infiltrated the
Legislature, which seems determined not to allow gay unions to be called
marriages. Even Gov. Jon S. Corzine, in saying he preferred civil unions
to marriage, used as his defense that he was a traditionalist.
The question then is not whether homosexuals ought to have the right to marry,
but whether the state ought to be in the business of blessing marriages at all.
American University law professor Nancy D. Polikoff, writing in The Philadelphia
Inquirer, argued that this was the perfect opportunity for the state to do away
with weddings and to recognize only civil ceremonies. She suggested that
New Jersey could do as some other countries have and force couples who want to
be "married" civilly as well as religiously to go through two ceremonies.
That seems unnecessarily antagonistic and cumbersome. But, perhaps, as it
looks for a middle road, the Legislature might consider the possibility of
taking the word "marriage" out of its law. It could still recognize
religious ceremonies performed by clergy; but it would also recognize civil
unions performed by judges and mayors. In other words, the state would get
out of the business of deciding what does and does not constitute marriage; it
would simply be in the business of recognizing committed partnerships, whoever
was in them, and whatever they were called. It could, therefore, bestow
all the rights, privileges and responsibilities it ought as a free and open
society; and it could leave marriage and its definition, as it ought to have
been left, to religious organizations and their congregations.
Undoubtedly there are those who would see this as an extreme position; and yet
it seems the perfect middle ground. Let the traditionalists have their
way. But don't let the state be in the business of playing favorites. It
will be a difficult job to get all this done in 180 days, as the Supreme Court
ordered, but hopefully if the Legislature makes a committed attempt at an
invigorating debate, the court will give lawmakers the time they need to craft
workable, sensible, truly groundbreaking legislation.
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