Oct 282006

The New Jersey Supreme Court ruled this week that same-sex couples and their families are entitled to the “same rights and benefits enjoyed by opposite-sex couples” under the state’s civil marriage laws. In a 4-3 split, the court rejected the claim that same-sex couples have a constitutional right to have their relationships recognized as “marriages.” Instead, it left that decision “to the democratic process,” ruling that the state legislature must now decide whether to “amend its marriage law to include same-sex couples” or provide these equal benefits, protections, and obligations “by some other means such as civil unions.” This decision is a positive step toward equality, and an affirmation of the importance of committed relationships and healthy families. (The case was brought by seven gay and lesbian couples who have been together from 14 to 35 years, five of whom have children.) The right wing is now trying to use the New Jersey decision to draw a contrast for voters in November’s election, and they’re right, there is a contrast. Some Americans believe in equal rights for all, and some — a shrinking minority — do not.

This week’s decision is consistent with the democratic will of New Jersey voters. The Court’s ruling specifically cites the state’s already “robust set of anti-discrimination protections for gay men and lesbians,” most of which were passed through the legislature. In 2004, state legislators enacted a strong domestic partnership law that granted same-sex couples many of the same financial and legal benefits as married couples. “But the way the laws were written, some rights were still assigned only to ‘married’ couples. The court decision today simply requires that those same-sex partnerships have all of the rights which are given to married couples.” A poll of New Jersey residents taken in June “found that 50 percent said they supported allowing same-sex couples to marry legally, while 44 percent were opposed.”

Conservatives are trying to portray the decision as the work of “radical activists.” But even President Bush, who believes the U.S. Constitution should be amended to discriminate against same-sex couples, has repeatedly said, “I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so.” Indeed, from a “purely legal perspective, the decision is of narrow and limited significance.” The justices state that their intention in this case was not to “consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples.” Like the Vermont Supreme Court ruling in 1999, their decision is not “binding on any courts outside New Jersey or relevant to any other state’s laws.” The ruling also involves only the protection and benefits of civil marriage — not religious ceremonies. “This case does not affect religious institutions’ freedom to decide if they want to honor and recognize same-sex unions.”  

Naturally, conservative activists hope the ruling will energize their right-wing base. Bill Donohue, president of the Catholic League, “called the ruling ‘a plus’ on the premise it would stir up resentment of ‘arrogant judges’ and boost conservative election prospects.” But to enrage voters, the right has resorted to making false claims about the ruling. Religious right leader James Dobson claimed the court had “blatantly and arrogantly ordered the state Legislature to rip up what marriage has meant for thousands of years.” The Alliance for Marriage, a leading advocacy group for a federal gay marriage ban, said that “radical activist groups” had “convinced state court judges to hold a gun to the head of the legislature.” And conservative pundit Hugh Hewitt falsely declared that the “the imperial judiciary” had “impose[d] same sex marriage in New Jersey.”

The right’s distortions are further evidence that the tide is turning in the equality debate. Polls taken this summer show over 50 percent of Americans support protecting same-sex couples’ rights through civil unions (compared to roughly 40 percent opposed). State ballot initiatives banning gay marriage passed overwhelmingly in 2004, but this year, USA Today reports, “polls in three of the eight states that will vote on banning same-sex marriage show the measures either trailing or leading narrowly,” while “Colorado’s first-in-the-nation ballot proposal to create same-sex domestic partnerships had strong support in a recent poll.” Political experts say the shift towards anti-gay initiatives is in large part because “their emotional force in drawing committed, conservative voters to the polls…has been muted or spent.” But the fight for equal rights is far from over. Even in New Jersey, same-sex families will “remain ineligible for the 1,138 federal benefits that are afforded to married couples and their families, including the ability to collect Social Security survivor benefits and file a joint federal tax return.”

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