New Jersey: Are Civil Unions Enough?
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"Because this State has no experience with a civil union construct that provides equal rights and benefits to same-sex couples, we will not speculate that identical schemes called by different names would create a distinction that would offend Article I, Paragraph 1. We will not presume that a difference in name alone is of constitutional magnitude."
--Lewis v. Harris, No A-68-05 (S. Ct. New Jersey, October 25, 2006)
A bit late, but I have one hasty stitch about the New Jersey not-quite-gay-marriage decision, Lewis v. Harris.
It seems to me that anything other than full and equal access to marriage cannot achieve the results that the court demands, for precisely the reason that the bigots fear. Marriage is portable in a way that a marriage alternative is not.
It is naive, and incorrect, to proclaim that the Full Faith and Credit Clause requires states to recognize any and every marriage performed legally in another state. But it is indeed true that, under many states' statutes concerning marriage directly and "choice of law rules" indirectly, a marriage that is valid in the state where it was performed will be recognized as valid in the foreign state, even if the marriage would have been invalid in the foreign state itself.
This is not a new issue — states' marriage laws differ on many fronts: first cousins marrying, age of consent, mental competency, etc. And divorce laws are even more diverse. But this much is certain: a couple married in one state will have at least some recognition of that marriage in at least some states. And the word "some" is actually a vast understatement: "nearly universal recognition" in "nearly all states" is closer to accurate.
But civil unions? Not so much.
So when the New Jersey Supreme Court says that the legislature must craft a solution that provides all the rights and privileges of marriage, does that not include the right or privilege to (try to) have that status recognized as marriage outside the state? An emigrating "civil union" gay couple will, almost always, face a burden in the foreign state that a married gay couple would not face.
Suddenly "separate but equal" becomes demonstrably unequal, and not just in the idealistic sense of Brown v. Board of Education.
Another even less equivocal example is federal DOMA. The single biggest reason that this obnoxious, bigoted and quite possibly unconstitutional law has not been challenged is simply because essentially no one has standing to challenge it. You cannot sue to force the federal government to recognize your marriage unless you are in fact married. A "civil union" couple has no standing to challenge DOMA's federal marriage ban because — full circle — they're not married. Right now, only Massachusetts same-sex couples could, theoretically, sue over DOMA.
So again, if the New Jersey legislature does not confer full marriage equality to gays, then a fundamental "right or privilege" — the ability to sue the federal government in federal court over the question of recognition — is denied. Which was precisely what the New Jersey Supreme Court said must not happen.
What a sublime catch-22.
I suppose the counterargument to this reasoning is that the New Jersey government — its courts and legislature — can only be held responsible for guaranteeing rights and privileges within its own borders and within its own machinations. The burdens that would apply to civil union couples but not married couples when trying to export their status outward to other states or upward to the federal government are simply not New Jersey's problem and do not fall within the scope of Lewis v. Harris.
That would be a sad excuse to use, but if it was the price to pay for what was clearly an important victory, then so be it — for now.
Over time, as New Jersey gay couples (who should, regardless of the legislature's ultimate action, always refer to themselves as being "married") proliferate and as the bigot backlash finally peters out, the problematic after-effects of the separate-but-equal model will proliferate and prove themselves intractable. At which time the system will likely be scrapped in favor of full marriage equality in that state, and elsewhere.
A journey of a thousand miles must start with a first step.
--Lewis v. Harris, No A-68-05 (S. Ct. New Jersey, October 25, 2006)
A bit late, but I have one hasty stitch about the New Jersey not-quite-gay-marriage decision, Lewis v. Harris.
It seems to me that anything other than full and equal access to marriage cannot achieve the results that the court demands, for precisely the reason that the bigots fear. Marriage is portable in a way that a marriage alternative is not.
It is naive, and incorrect, to proclaim that the Full Faith and Credit Clause requires states to recognize any and every marriage performed legally in another state. But it is indeed true that, under many states' statutes concerning marriage directly and "choice of law rules" indirectly, a marriage that is valid in the state where it was performed will be recognized as valid in the foreign state, even if the marriage would have been invalid in the foreign state itself.
This is not a new issue — states' marriage laws differ on many fronts: first cousins marrying, age of consent, mental competency, etc. And divorce laws are even more diverse. But this much is certain: a couple married in one state will have at least some recognition of that marriage in at least some states. And the word "some" is actually a vast understatement: "nearly universal recognition" in "nearly all states" is closer to accurate.
But civil unions? Not so much.
So when the New Jersey Supreme Court says that the legislature must craft a solution that provides all the rights and privileges of marriage, does that not include the right or privilege to (try to) have that status recognized as marriage outside the state? An emigrating "civil union" gay couple will, almost always, face a burden in the foreign state that a married gay couple would not face.
Suddenly "separate but equal" becomes demonstrably unequal, and not just in the idealistic sense of Brown v. Board of Education.
Another even less equivocal example is federal DOMA. The single biggest reason that this obnoxious, bigoted and quite possibly unconstitutional law has not been challenged is simply because essentially no one has standing to challenge it. You cannot sue to force the federal government to recognize your marriage unless you are in fact married. A "civil union" couple has no standing to challenge DOMA's federal marriage ban because — full circle — they're not married. Right now, only Massachusetts same-sex couples could, theoretically, sue over DOMA.
So again, if the New Jersey legislature does not confer full marriage equality to gays, then a fundamental "right or privilege" — the ability to sue the federal government in federal court over the question of recognition — is denied. Which was precisely what the New Jersey Supreme Court said must not happen.
What a sublime catch-22.
I suppose the counterargument to this reasoning is that the New Jersey government — its courts and legislature — can only be held responsible for guaranteeing rights and privileges within its own borders and within its own machinations. The burdens that would apply to civil union couples but not married couples when trying to export their status outward to other states or upward to the federal government are simply not New Jersey's problem and do not fall within the scope of Lewis v. Harris.
That would be a sad excuse to use, but if it was the price to pay for what was clearly an important victory, then so be it — for now.
Over time, as New Jersey gay couples (who should, regardless of the legislature's ultimate action, always refer to themselves as being "married") proliferate and as the bigot backlash finally peters out, the problematic after-effects of the separate-but-equal model will proliferate and prove themselves intractable. At which time the system will likely be scrapped in favor of full marriage equality in that state, and elsewhere.
A journey of a thousand miles must start with a first step.
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1 November 2006
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