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 Advocate
asked Ed Stein, author of
The 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 or
civil 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.
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