The pros and cons of the New Jersey marriage ruling

When the New Jersey supreme court decided Wednesday in favor of giving gay couples the same rights as married couples, there was a lot to celebrate, but the ruling also raised a lot of questions. For starters, the court declined to grant gay couples the title of marriage, saying it was a matter for the legislature to decide within 180 days—and lawmakers in Trenton, the state capital, seem intent on providing civil unions. Is that good enough? The Advocateasked Ed Stein, author ofThe Mismeasure of Desire: The Science, Theory, and Ethics of Sexual Orientation(Oxford University Press) and a professor of law at the Cardozo School of Law in New York, to break down the decision.

What’s your opinion of the ruling?
This is an incredibly good result. This is a unanimous court coming out very strongly in favor of gay rights. Even if you just look at the dissent, the three judges said there was both an equality argument and a fundamental right-to-marry argument, and having that out there is, in the long run, a very good thing for us. There’s also some ambiguous language in the majority opinion that leaves the door open, although just a crack, for a legal challenge to civil unions. They said there’d be a presumption in favor of the constitutionality [of civil unions], but there are still arguments you can make [against that]. So I would hold out hope that if the New Jersey legislature comes back with civil unions, which is the most likely result right now, there could be a future challenge to that that the court might embrace.

So if civil unions are implemented by the legislature, the plaintiffs could sue again for marriage?
It could be a lawsuit, or what happens if after 180 days we have legislative gridlock? Lambda Legal would say [to the court], "Hey, you ordered a remedy and it hasn’t been delivered. We ask you to order marriage." Now, they could decide to order civil unions instead, but if I were a legislator in favor of marriage, I might find it useful to sort of create gridlock. That might get us marriage more than advocating for marriage. I don't know.

How will the legislature go about writing the new law?
Keep in mind, the civil unions law that the Vermont legislature passed is actually very simple. In effect, it says wherever you see the words “spouse,” “marriage,” “husband,” or “wife” anywhere in the statutory law, the case law, or the common law of Vermont, it now means marriage orcivil union. They didn’t have to write much. It’s not like they wrote a new law—they just wrote something that was parasitic on the existing marriage law. The New Jersey legislature could photocopy the Vermont law, change a few things, and they could make it work.

What implications will this ruling have, if any, for same-sex marriage cases currently pending in other states, like California?
We had a string of losers—this gets another case out there. You better believe that the California supreme court is going to read it, but they’re going to read it along with the Washington decision, the Vermont decision, the New York decision. The other thing that is really good about this case is that the main argument in Washington and New York was about child-rearing and reproduction—and the state of New Jersey didn’t even make that argument. One of the judges asked that question, and the state said, "We’re not making that argument—gay people make great parents. We have a law that allows gay couples to adopt." So when the California court looks at that, they will see that they don’t have to do that if they don’t want to.

But the New Jersey court, although buying the equal protection argument and ignoring the procreation argument, still said there was no fundamental right to same-sex marriage. That can’t be good, can it?
Some courts think that fundamental rights are backwards-looking—that we look to history to see if this right is fundamental. What this court said is that if we look back, we see that the right to marry a person of the same sex is not fundamental. Now, the problem with that argument, and the dissent is correct in pointing this out, is that the right to marry a person of a different race also wasn’t fundamental. The dissent also points out that we’re talking about 50% of the population—that’s a serious restriction on who you can marry. I’m slightly disappointed that the whole court didn’t join that, but I’m not terribly surprised.

What else do you take away from this decision?
The other thing is the point that Barney Frank made very early on. He said, once straight people see gay people in relationships and see that the world doesn’t explode, that hell doesn’t freeze over, they will just get used to it. We’ve seen it in Vermont and in Massachusetts. Even if New Jersey just has civil unions, it’s only a matter of time—unless there’s a federal amendment to the U.S. Constitution—until the state recognizes same-sex marriage. Now, it may be 50 years, but I really think that eventually this is a battle we’re going to win.

In terms of a strategy going forward, this is exactly what people are asking now: Should we accept civil unions and hope to upgrade to marriage down the line, or do we hold out for full marriage?
The bad news is, even if you’ve got same-sex marriage in Massachusetts, even if New Jersey has it, if I’m a domicile of one of those states, I still don’t have everything I want because of the federal Defense of Marriage Act. Federal tax benefits, Social Security benefits—some of the things we want, we don’t get. I’m inclined to say that if we can get civil unions in a bunch of states, then we start building pressure in the long run for marriage and to change DOMA. We’re in this for the long haul, because even if we get marriage benefits in a few other states, there’s still a lot of problems. Even if you’re married in Massachusetts today, you might be transferred to Ohio tomorrow, and then your marriage isn’t worth anything.

So you think that civil unions are the way to go?
By all means we should try and get the legislature in New Jersey to vote for marriage—that would be great. But if I had a choice between getting the New Jersey legislature to provide marriage or the New York legislature to provide civil unions, which is more important? I guess I think it’s more important for New York to get civil unions. Not because I live in New York, but because I think it’s important to get equal rights for as many people as possible—start to get more states on the map and create more pressure to make a change at the federal level.

So on balance, how happy are you with this decision?
I’d say 75% to 90%, partly because we’ve had a string of defeats. Washington and New York were very close—we really should’ve won in New York, we really could’ve won Washington. They’re disappointing misses. But this shifts things.