The New Jersey gay marriage decision

POINT/COUNTER POINT

only then can i begin to make sense of this madness.

Quotes from people reacting to New Jersey's Supreme Court ruling that homosexuals are entitled to the same rights as heterosexuals, but leaving it to lawmakers to legalize same-sex unions:

"The news is great. The court agreed that you folks are entitled to your equality and that you were denied that." _ Attorney David Buckel, lead counsel for Lambda Legal who argued the case, speaking about the decision to his plaintiffs.

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"I commend the Supreme Court for today's decision and its clear and unanimous commitment to equality and fairness for all New Jerseyans. For a large number of gay and lesbian families, their children, relatives, colleagues, and friends, this decision reinforces what we know to be true _ that their rights and relationships are equally worthy of respect and recognition." _ New Jersey Gov. Jon S. Corzine.

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"I am urging the Legislature to convene as soon as possible, to consider the constitutional amendment I have sponsored that would define marriage in New Jersey as being only between a man and a woman. Not only does this reflect the intent of the current law, but it also would give New Jersey voters a chance to have a voice in this matter when the issue comes to the ballot for a vote." _ Assemblyman Guy Gregg, R-Morris.

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"I feel they were listening and paying attention to us as human beings who wanted to have the same rights." _ Saundra Heath-Toby, a plaintiff in the case.

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"This decision takes us from third-class citizens to second-class. Nowhere near first-class. We get to go from the back of the bus to the middle of the bus." _ Steven Goldstein, executive director of Garden State Equality, New Jersey's main gay rights group.

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"I still believe that marriage is and should be between one man and one woman and I would support an amendment to the state constitution reaffirming that definition." _ Republican Senate candidate Tom Kean Jr., who is also a state senator.

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"I have always believed that marriage is between a man and a woman, and I have also always supported civil unions that allow couples with a lifetime commitment to each other to get full legal benefits, such as the right to visit each other in the hospital. The Supreme Court affirmed those rights today, and it is now up to the legislature to decide how they are to be administered. I will not support any constitutional amendment that takes away people's legal rights." _ Democratic U.S. Sen. Robert Menendez.

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"Today's court ruling not only weakens a sacred institution that has been recognized throughout history, it also usurps the power of the Legislature to make policy decisions that are properly within the scope of the legislative branch. The idea that marriage is between a man and a woman is firmly rooted not just in custom and history, but also in the policies of our institutions of government." _ Assemblywoman Alison Littell McHose, R-Sussex.

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"I would have hoped that the court would have recognized there would be full equality, but I guess that's up to the Legislature." _ Assemblyman Reed Gusciora, D-Mercer.

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"Today's unanimous NJ Supreme Court ruling is a recognition of the equal needs and common humanity of committed same-sex couples and their kids. ... The easiest next step is not to cobble together a separate new system with two lines at the clerks' office, but rather, to end the exclusion from marriage itself with two simple words, 'I do."' _ Evan Wolfson, director of Freedom to Marry.

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"It should be put back in the hands of the people to decide. I hope as time goes on we'll have the proper decision that marriage is nothing more and nothing less than the relationship between one man and one woman." _ Pastor Bob Leek, Midlife Community Church in West Hampton, N.J.

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"There will undoubtedly be those who think a civil unions arrangement is a separate but equal situation. But there will also be those who think 'separate but equal' is too good." _ Marc Spindelman, associate professor of law at Ohio State University.

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"Under our state constitution, judges are charged with deciding cases impartially based on laws enacted by the people's elected representatives. They are not empowered to substitute their own personal preferences for decisions duly voted by the Legislature. When they do, they violate their constitutional purpose, as well as their oath of office. Such a violation is judicial misconduct warranting their removal from the bench." _ Assemblyman Richard Merkt, R-Morris.

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"Legislators should recognize that our nation has decided that 'separate but equal' is no solution to discrimination. The legislature should catch up with the people, seize the opportunity presented by the Court and allow same sex couples to marry." _ Ralph G. Neas, president of People For the American Way Foundation.

Actually, to give your question a slight bit of credit, it's not unthinkable that a few scattered people might one day complain that prohibitions on polygamy and polyandry somehow violate the essence of who they are as people; someone, somewhere, might potentially claim the same thing about an incestuous relationship; some mentally ill person might, per Congressional hypothetical, want to marry a box turtle. Trying to deploy that as an argument regarding gay marriage, though, is underhanded, history-deaf, and insulting in and of itself, because it tries to equate fringe (or even insane) requests with the sexual orientations of millions of people -- sexual orientations that have existed throughout history and all around the world, even despite heavy taboos. (There's a level on which that sort of argument verges on responding to the suffrage movement with "so, what, do children get the vote next?")

Also P.S. polygamists can't really make much of a case for wanting to enter into the current system of marriage, since the current notion of marriage is too based on the two-person model to even be applicable to more -- polygamists would have to push for some kind of ground-up rewriting of the entire American legal system, complete with whole tomes titled stuff like "Estate and Probate Law with Fewer than Ten Spouses," which I think we can probably assume polygamists wouldn't want, since then a specific system of polygamy would be established, and it looks to me like every wannabe polygamist or polyandrix out there has his or her or their own system for this kind of stuff.

(I think I posted a link on one these gay threads about why gay marriage laws will never lead to polygamy being legal, and it made much more sense than what I've noted here.)

U.S. sen. menendez has already spoken his piece, which is unsurprising (and guaranteed to not piss off anyone who's not going to be pissed off by this sort of thing in the first place).

as far as both of these things go, i guess someone (NOT me -- a hardier and less busy person than myself please!) will have to keep an ear open on what kind of shit the right-wing knuckleheads on NJ101.5 will have to say re this. given their track record, i'm sure that it won't be pretty.

The NJ gay marriage decision, not this silly thread.

Did we just miss a huge dose of sarcasm in Don's first post Nabisco?

But I'd be pleased to think the two of us agree here -- that (a) the basic civil contract aspect of marriage should be blind to sexual orientation, and that (b) that doesn't really lead to similar claims for polygamists, since they would require reconfiguring what the whole contract of marriage means, and how it works. (For those who do like the bring up the slippery-slope thing -- and I explained above why I think that's insulting and underhanded -- I think there are perfectly valid unrelated reasons for frowning on, e.g., incestuous relationships.)

I agree 100% with (a) but think that you have not made a good argument for (b), which is where I attempted to explain myself in my previous post. By allowing homosexual marriage to be recognized by the state, we are indeed reconfiguring the whole contract and definition of marriage, and how it works both in society and the legal implications downstream. So while the slippery slope argument may be indeed somewhat faint, it's nevertheless there. As I noted, this issue to me is about discrimination and the freedom to enter consensual contractual relationships with other people.

(Whereas my sidenote point about polygamy is that it can't quite work that way; it complicates with multiples. Hence the joke about estate law: specific rights of the spouse become meaningless when there are multiple spouses. And this alone makes it impossible for polygamists to request that the contract of marriage be extended to cover them, because for that to happen it would necessarily have to be a whole different more complicated contract.)

To your other point: obviously, everything is complicated by multiples whether the number is two or three or more, but that's merely a question of how the contract is written. From a legal perspective, what is the difference between a multitude of investors entering a contractual relationship for business purposes and one for marriage purposes?

the point is more why it is necessarily too complicated to involve multiple parties, assuming there are no statutes barring them from occuring. By "too" complicated, I mean why is it somehow beyond the ability of the law to address? I don't see why it's less discriminatory to not allow three people to marry any more than it would be to forbid the same three people from, say, forming an LLC.

ARRGH Don this is exactly my point, though. The "contract" of marriage is already written into law. It's written throughout the legal code, in fact -- e.g., like I said earlier, into probate and estate law. Apart from some niggling details of property and pre-nups, people don't have the opportunity to negotiate their own marriage contracts. The state dictates the main terms of that contract, and those terms tend to overrule any private agreements you might come to about what your marriage covenant might be. And those rules -- which are written into countless different types of law -- are all predicated on this union being between two people, such that changing that would not be as simple as extending the existing system of marriage to same-sex couples; it would mean something way bigger than that, and something I'm not sure most polygamists actually want.

I mean, I feel like you're claiming marriage involves the state recognizing a contract reached by two individual people. But that's not presently the case: as it stands, the state is outlining the rules of a type of contract, and allowing couples to enter into it. If you think it should be the other way around -- that the state should be applying legal force to whatever contracts people reach between themselves -- then you should say so, and we can talk about how that would work. (My guess is that it'd be a mess, because the contracts people would reach for themselves -- indeed, a lot of people's conceptions of how marriage should work -- would run afoul of some our basic notions of personal liberty and gender equality and stuff like that.)

And then there are people who enter these kinds of arrangements more of their own volition, but the sense I get is that part of their doing that involves not wanting to be involved in traditional legal systems of marriage. I mean, if we got to a point where family courts are suddenly having to deal with child custody in polygamous marriages, or something, that would say one thing, but the truth is that we don't appear to be anywhere near that. People who are interested in having relationships like these seems to be doing just fine on their own without much interacting with conventional marriage, and so long as that continues, there's hardly much point fussing with it. (Not like I have statistics on this, or anything -- I might be wrong -- but my sense is that most such arrangements come and go for people without ever needing legal status.)

What? Inasmuch as it's a thoroughly sexist practice, yes.

I think part of my problem is that I sense you're basing a lot of your argument on our culture's rejection of the concept, which is probably a similiar revulsion this country had towards gay marriage 30 years ago. And bi-racial marriage before that.

I'm pretty sure my thinking on this whole issue stems from this posting and several of the linked articles within it...I used to read that blog a lot.

Mr. Bush — who has not been talking about gay marriage in recent weeks — took pains to insert a reference into his stump speech warning that Democrats would raise taxes and make America less safe.

I'm not saying the law couldn't address these things, just that it doesn't. So many questions: if a polygamist dies, does that end the legal connection between his wives? Are children under the communal guardianship of everyone involved, or do the biological mother and father have parental rights? How does alimony work in the aftermath of a polyandrous divorce -- will the guy with the good job be sending checks to the unemployed guy?

Point being that our law and culture both have a complex network of rules for what it means when two people marry -- and we have no laws, and no cultural history, to tell us what it might mean for more than two people to marry. A like I said, even if these hypothetical enlightened consenting polygamists and polyandrixes existed, I'm guessing they wouldn't want either law or culture telling them what the rules of their arrangements are supposed to be.

All of which is, as everyone seems to agree, a totally moot point, since polygamy as it actually exists tends to just be a matter of brainwashing and enslaving teenage girls as isolated house-slaves and breeding stock.

*i.e. not ever

(a) Religious weirdos in Arizona or Utah or Idaho who want nothing to do with the state and couldn't care less what your earthly laws say about impregnating 14-year-olds

(b) Two skinny IT guys who live with one unskinny IT girl and are "beyond" conventions like marriage

(1) We certainly haven't seen any immigrant groups, Muslim or not, seriously petitioning the state for recognition of polygamy.

(2) Even in areas with dense Muslim immigrant populations, I haven't seen much indication that courts, police, or social services are struggling with any alarming incidence of polygamy. You'd have to show me something to convince me this is a significant problem, and you'd have to show me even more to convince me it's somehow a bigger problem than, say, arranged marriages of individual very-young women.

(3) Most importantly: assimilation of American Muslims has been working out incredibly well. Even if we were to have recent immigrants who wanted to maintain polygamist culture, it wouldn't follow that that would be some sort of growing or "potential" problem. (Polygamy is the kind of very major cultural thing that can get assimilated right the hell out of first-generation folks damned quickly, too.)

So it seems alarmist and scaremongery to imagine there's any problem with that on the horizon. (Especially if your "lot of articles" have been published during the past few years of worldwide paranoia about Muslim cultural compatibility with the west.)

And as for what we might call like "enlightened" alternative-lifestyle poly-gamists/andrists, they remain largely hypothetical outside of Montel or whatever.

xpost

haha. after two years of domesticity, those two guys ain't so skinny after all.

At the very center of our constitutional republic is the principle that the overarching obligation of courts is to nullify any and all laws that conflict with the guarantees of the Constitution. Or, as Hamilton put it in Federalist No. 78: "wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former." Courts in these cases have only one question to answer -- do the relevant constitutional provisions (in this case, Article I, Paragraph 1 of the New Jersey State Constitution) bar the law in question? -- and if so, courts are required to nullify that law. There is no discretion or political judgment involved, and they are not permitted to simply decide that they won't involve themselves in such matters...

I'd imagine the articles in question take the familiar "imagine all the brown terrorist babies produced by Muslim polygamy; they'll outnumber our white ones!" line.