Gay Marriage Fight Moving to New Jersey
Close on the heels of the proposition 8 battle in California, the public debate over gay marriage may be moving over to the East coast. It seems that a blue ribbon panel commissioned by the Governor has returned findings that the Garden State’s current program of civil unions doesn’t meet constitutional muster and should be replaced with full and equal marriage as an option for same sex partners.
In a report that could lead to New Jersey legalizing gay marriage, the Civil Union Review Commission said same-sex couples cannot achieve equality with heterosexual couples if their legal status is restricted to civil unions.
Full marriage is the only way to meet a state constitutional requirement for equality, said the 13-member panel of public officials, clergy, lawyers and same-sex marriage advocates.
There are two questions I would like to address today on this subject. The first involves the legal aspects of the question in terms of whether or not this is a subject which should even be addressed by the courts, and what precedent may exist for us to draw upon. The second are the common arguments in the social court of public opinion which are frequently used to argue against such a proposal.
Should this be a matter subject to governmental regulation? In a perfect world designed and managed by yours truly it would not. After all, if you assume that the government has the power to grant you a “right” to such a relationship, this assumes that you also grant them the power to take that “right” away. Can the government regulate the number of friends you can have? How about jogging partners? (Yes, they may be able to regulate where you can jog, but not who you may run with.) Unfortunately, right from our nation’s inception we inherited a system where marriage was embedded in our legal system, with tax benefits, incentives and property division and control attached to a religious ceremony. Since we seem to be stuck with the situation for now, how has our legal system viewed this question (if at all) in the past?
The primary source, and the one which will probably be pivotal if this question ever makes it to the Supreme Court, is the 14th amendment.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Right off the bat it becomes hard to pass laws which will pass constitutional muster saying that gays don’t qualify as “persons born or naturalized in the United States” and can somehow be treated differently. But have the Supremes addressed similar questions before? In fact they have. It came in answer to the question of anti-miscegenation laws (which banned inter-racial marriage across most of the country for a very long time) and was finally decided in the case of Loving v. Virginia. The court’s decision read, in part:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Even though this case speaks to racial divisions, the court decided – for some reason – to declare that marriage is a “basic civil right.” They cloud the issue by mentioning the “fundamental to our very existence and survival” aspect – and opponents of gay rights strive mightily to latch on to that one – but the original clause stands alone. Civil rights are civil rights, and in America they are granted to all by default.
This dovetails nicely into the common arguments against gay marriage. One of the first and most common is the insistence that marriage is not a right, but a privilege. Personally I would tend to agree, but since this question always seems to arise in reference to laws and legal challenges, I’m afraid we’ll have to go with the Supreme Court on that one. The second argument moves to the field of etymology and seeks to argue that we can not “change the definition of marriage” which has been the same for thousands of years. It’s an interesting challenge, but only if you don’t examine it too closely. As people from legal eagles to late night comedians have pointed out, “thousands of years” takes us back to biblical times, when marriage was frequently defined as being between “one man and any number of women.” Most opponents seem hard pressed to tell us exactly when the definition was changed to lower the number of participants to two.
But even given the age of that citation, we can look for more solid legal ground in the recent past here in the United States. A brief look at the aforementioned miscegenation laws will show that marriage was “defined” as not only being between two people, but only between couples with the same relative amount of melanin in their skin. Unions between different races did not legally qualify as marriages. That “definition” changed in 1967 and I seriously doubt you would find many people today arguing it. (Well, outside of some holdouts at the more odious white supremacy fora, anyway.) We change the definitions of of words in their legal context, up to and including marriage, all of the time.
The final argument I tend to hear is that “the courts should not get involved” and it should be left to the people and their elected representatives either through the passage of legislation or a public vote via referendum. We’ve saved the weakest of the arguments for last, of course. In general we don’t like the courts getting involved in the legislative process unless we don’t like the results of that process. Looking deeper, though, we come to realize that the people and their elected representatives have passed many laws which were popular and widely accepted – constitution be damned – until the courts were forced to step in and point out uncomfortable facts. Nowhere was this so common as in the field of civil rights. Were we to adopt this argument there would have been no reason to stop having separate water fountains, lunch counters and schools for blacks.
It’s going to take longer for this battle to come to its inevitable conclusion, but the day is most certainly coming. There are still enough dinosaurs in the system that work will remain to be done for some time to come, but it’s worth remembering that Rome wasn’t built in a day. (It was, however, burned to the ground in about 12 hours.)
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23 Responses to “Gay Marriage Fight Moving to New Jersey”
Jazz, you bypassed “fly-over”country on your way to New Jersey:
http://www.nytimes.com/2008/12/10/us/10iowa.html
That's why they call it fly over country. I flew right over it!! Thanks for the link.
The problem with using the 14th and Loving to force states to allow gay marriage is the slippery slope issue. What legal justification would remain against polygamy or incestuous marriages, between consenting adults, to name two other marriage types currently disallowed?
Those are not hypotheticals, but very real offshoots. Once you disallow the ability of the states to decide what is or is not an acceptable state of affairs for marriage, what legal barriers would remain?
If you argue that gay marriage is different than those two examples, you are forced into being hypocritical. What would the basis be for those exceptions, that would not also be applicable to gay marriage? Religion? Will of the people? Reproduction? It is 'icky'?
That is why this needs to be addressed via legislation, not judicial fiat.
Those are fine questions, Austin. So show us the legal basis (not moral) for banning polygamy or incestuous marriage between those of legal age to be adults? Not saying I like them, but show us the legal ability of the government to ban them?
Jazz -
That is my exact point – that the more broadly you define the right to marriage in the specific, the more broadly it must be applied in the general.
Congress passed the Morrill Anti-Bigamy Act in 1862, outlawed polygamy throughout the United States. In 1879, SCOTUS upheld that law (and others) in Reynolds v. US, the only time SCOTUS specifically ruled on polygamy. But Reynolds was based on the First Amendment, not the 14th, which was ratified after the Morrill Act became law, but prior to the Reynolds ruling. It was not raised by the plaintiff Reynolds, however.
Recently, both the Romer and Lawrence rulings seem to possibly open the door to revisiting Reynolds, and by extension incestuous relationships, and in the dissent of both cases this exact possibility was raised as a concern. Last year, SCOTUS refused to take on a Utah case that tried to get them to explore the polygamy question in light of Romer and Lawrence.
I am unaware of any SCOTUS case involving the legality of incest or incestuous marriage laws; however, as with polygamy, all 50 states have laws barring them, and the SCOTUS has indicated that at least for now, those laws are valid.
Here is some US Supreme Court rulings and background on polygamy:
http://law.jrank.org/pages/12602/Reynolds-v-Uni…
http://writ.news.findlaw.com/hamilton/20040212….
http://www.pro-polygamy.com/articles.php?news=0004
http://www.csmonitor.com/2007/0227/p25s01-usju….
As long as you're willing to say that gay marriage is on the same level as incest, polygamy, beastiality, etc. then ok, fine. Consider your opinion registered. I'll disagree with you and be angry, but you're entitled.
Whoa! Where did I say that? When did the words 'beastiality' come into play? I expressed a concern of legal ramifications, among humans, nothing about 'morality' or 'on the same level' or creatures that would not be covered by the Constitution.
If I thought they were on the same level, why would I be concerned? So save your anger.
That said, I absolutely do not accept or support the concept of incestuous relationships and marriage (defined as biological parent/child or direct siblings).
Nut I am not so sure if one is going to accept gay marriage, why would there be an objection against consensual adult polygamy?
Ok, Austin. You have my apology since that clearly came out badly. But the slippery slope theory is just so abused and dangerous. Why extend voting rights to blacks? What's next? Monkeys? See what I mean?
The point is, you're posing the slippery slope theory saying we shouldn't extend this “right” to gay citizens. Does that not imply that, in terms of the 14th amendment and Loving that gays are somehow “less than everyone else” even if they are good enough for the “right” so if we give it to them, we have to keep “lowering the bar”? That's the point here. Either you think of gays as somehow being citizens who are less entitled, if still entitled, to certain rights or you don't.
Oh, and there is at least some medical history to give cover to “protecting the citizens” in terms of allowing incestuous marriage, since the children can be at risk medically. There won't be any kids in a gay marriage, so that one kind of falls apart as near as I can tell.
You're looking at the wrong Constitution. The Constitution of New Jersey is the controlling document (at least at this time). You can find it here: http://www.njleg.state.nj.us/lawsconstitution/c…
The controlling clauses are Article 1, Clause 1 and 5.
1: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. “
5: “No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.”
The State Supreme Court has basically found the objections to gay marriage to be founded in religious beliefs, and, as such, they cannot be used to deny equal legal rights to anyone. The ruled that same sex couples cannot be denied the legal rights of marriage, though the legislature could grant non-marriage status that guaranteed the same rights. This latest report shows that, guess what – separate is not equal.
Right now, it is the state legislature that is being pressured. If they fail to act, I think you will see another court case to force them to either abolish special rights for marriage or grant same sex couples the right to marry.
I've written about this elsewhere: http://blog.nj.com/njv_thurman_hart/2007/11/mr_…
Jazz -
I already conceded incestuous relationships. So, please answer my polygamy question, if you would be so kind to share your thoughts on that one, especially in the context of this discussion.
And I did not express in this thread my thoughts on gay marriage, although I admit I am against it. I was talking to a weakness, IMHO, to the strategy proposed by those that DO support gay marriage, to prevail via the courts. Frankly, if voters and/or Legislators passed laws supporting it, that would be fine by me.
I am not vehemently opposed to gay marriage; I just don't agree with it in general, and I really don't agree with it being forced upon the American people via the courts.
When was the last ruling on polygamy? I'd love to offer some thoughts on that, but frankly I don't see any legal basis to oppose it. Just religious ones which shouldn't be taken into the courts. I frankly don't understand what the legal basis is against polygamy. One wife is hard enough in my opinion (or husband) but if you can handle more, that doesn't affect my marriage one bit.
I agree with both statements!
If indeed we are going to de-couple marriage from the traditional one mn/one women model, then both gays and polygamists should be accommodated.
As for polygamists, if we were follow the traditions of some countries that allow polygamy, where the first wife is the 'senior' wife and in charge of all the others, well, hmmm. I would have to think about that! Even the first wife might be a little more accepting.
Who am I kidding?
p.s. – you can tell my wife does not read TMV! I would be SO busted.
If you're very bored tonight, half of our radio show will be devoted to this and we'll have a very nice conservative lady debating against gay marriage with us. It's going to be 7 pm eastern and the URL is: http://www.blogtalkradio.com/msr
I enjoyed this exchange, though, and it's given me a lot more to think about.
Good discussion.
We've managed to muddle together “holy matrimony” with civil marriage. A marriage need not be religious, of course. It can be administered by a judge or even a ship's captain. In civil terms, government has afforded rights and advantages to “married” persons, irrespective of whether that union was civil or religious. Since some of those involve tax policy, Social Security benefits, etc., the government has in interest in controlling the civil benefits of marriage. This might impact our civil choices around polygamy. At the very least, the rules would need to be rewritten such that “married filing jointly” can't mean a man and 17 women get a tax break, nor that those 17 women are each entitled to “half their deceased spouse's benefits.”
As for Jazz' point: What should I care if a man (or woman) wants more than one spouse? I suppose the accumulation of available women by polygamists might be said to impinge on the “pursuit of happiness” by the surplus of wifeless men.
I also wonder about the laws governing the issuance of marriage licenses. I'm not sure there is or has ever been a “right” of more than two persons to obtain one.
DEAR AUSTINROTH:
The argument that if you allow Gay couples to marry, you automatically MUST allow polygamy? Sorry, but that's a red herring. I could just as easily claim that if you allow a man to marry ONE woman, it logically follows that you MUST let him marry as many women as he wants. It's a ridiculous argument. The fact is, Gay couples differ from Straight couples ONLY in terms of the sexual orientation of the persons involved. We want the same right Straight couples have always taken for granted … namely, the right to marry SOMEONE we love.
The opponents of marriage equality for Gay couples can pontificate about morals and scriptures and “slippery slopes” all day, but it doesn't negate the fact that there is NO Constitutional justification for denying Gay couples a place at the table. As law-abiding, taxpaying Gay citizens we contribute our fair share to the system of legal and financial benefits that marriage confers. Marriage equality is equal protection under the law.
Polish – that is a mis-representation of what I was saying, and in fact missed the main point I have been trying to make.
At no point during this thread have I made one comment about the morality of gay (or polygamist) marriage, mentioned religion or scriptures in any way (as I would not, bring an atheist).
What I did say that if the basis for allowing gay marriage is to use the 14th Amendment via the courts as a basic right, then indeed you logically get to the same position with polygamy, and likely other forms of marriage, based on that same line of reasoning. They differ by no more a degree from traditional marriage as does gay marriage, and frankly, a stong argument can be made that polygamy differs less so, as it has historically been more accepted throughout the world than gay marriage.
I fully agree that if indeed SCOTUS ultimately rules as you wish, it is OK; but that does mean those same rights belong to others who are also currently denied the right of marriage you desire so strongly.
If, however, you use the legislative and/or initiative processes to get to the goal of gay marriage, then indeed you can limit those actions to strictly gay marriage (assuming well-worded legislation).
But why would you support that? If you are so offended by being denied your right to marriage, why deny polygamists to marry as they see fit? Why is it a ridiculous argument?
In fact, it would also be as equally applicable for gays if they so desired multiple partner marriage, so what would be the problem?
I agree that the law and its concerns about polygamy are a red herring for several reasons.
1. as pointed out in Jazz's article, the traditional definition of marriage IS polygamy.
2. As pointed out above, marriage between a man and a woman doesn't rule out polygamy.
3. There are very legitimate reasons why a state and businesseswould allow marriage only to involve two adults. For example, if a higher-earning spouse dies, who gets the higher social security payments? Who is entitled to be on a family insurance plan? Who gets the kids when there's a divorce? It's a very complicated issue.
Polygamy = multiple spouses
Polyandry = multiple husbands
Polygyny = multiple wives
Interestingly, in the African setting, many (including some Christians) see no problem with polygyny, but are appalled by homosexuality. It is the largely the African delegation of the Anglican communion, for example, that has protested against gay marriage. So, if in Africa it is possible to allow multiple wives but disallow marriage between members of the same sex, it would be theoretically possible here in the U.S. to allow the latter while disallowing the former.
I couldn't make the show last night. Any chance of a recap of how it went?
Actually you can listen to a replay at the link. The first half was pretty much entirely about blago. The second half was all about this and ranged all over the place. Kind of hard to recap.
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