If youâ€™re not sure whether we won or lost in the New Jersey supreme courtâ€™s decision on same sex marriage, youâ€™re in good company. The headlines in the New York Times on the day after the high courtâ€™s Oct. 25 marriage decision captured the confusion. â€śNew Jersey Court Backs Full Rights for Gay Couples,â€ť read the main title in capital letters. â€śBut Justices Direct Legislature to Decide on Issue of Marriage,â€ť added the subhead.
The schizophrenic result makes sense once you make a distinction between â€śmarriageâ€ť and â€śmarriage rights.â€ť Four members of the seven-member court managed this semantic sleight of hand, concluding flatly that the state constitution does not oblige New Jersey to extend â€śmarriageâ€ť to same-sex couples. Their legal analysis was arguably not as offensive as the rationales offered by the majorities in Washington and New York, where same-sex couples lost their bids for marriage equality even more decisively last summer. But the end result was nonetheless the same: Same sex couples may not get married in the Garden State unless the state legislature changes the marriage statutes.
As for the â€śrights of marriage,â€ť the court decided that these were an entirely different matter. By all means, same-sex couples should enjoy all the rights and responsibilities accorded heterosexual couples, they ruled. The mechanism by which that might be achieved was left to the lawmakers, who must act within six months.
Of course the legislature could theoretically revise state marriage law to include same-sex couples. Indeed, a bill to that effect is expected to be introduced as soon as the next session begins and will be heavily pushed by the stateâ€™s energetic gay rights activists. But early reports suggest that New Jersey politicians are disinclined to take the difficult high road, when the well-traveled middle ground of civil unions has also won the courtâ€™s stamp of approval. As long as the institution provides equal status, the court directed, the nomenclature is inconsequential. Or, as the majority put it: â€śWe will not presume that a difference in name alone is of constitutional magnitude.â€ť
So once again, was this a victory, a defeat, or something in between?
The answer depends in large part on oneâ€™s attitude towards marriage. Is it really just a word or a name? Or is it the public embrace of a private relationship? Is it a technical status, or a profound institution that surrounds the union of two people with the respect and support of the larger community? For those who believe the rights are more important than the rites, New Jersey was a win. For those fighting for the intangible benefits rather than the pension benefits, New Jersey was a loss.
â€śWe cannot escape the reality that the shared societal meaning of marriageâ€”passed down through the common law into our statutory lawâ€”has always been the union of a man and a woman,n,â€ť wrote the New Jersey majority. â€śTo alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin.â€ť
Yes, this is the same majority that cavalierly tossed off the distinction between marriage and civil unions as a â€śdifference in name alone.â€ť But as the main opinion makes clear, the court was acutely aware of the social chasm between â€śmarriageâ€ť and â€śwhatchmacallit for gays.â€ť
The majority was equally aware of the political environment, which by rights should not be a factor in constitutional analysis. â€śThe great engine for social change in this country has always been the democratic process,â€ť they announced. â€śAlthough courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffsâ€™ quest does not end here. Their next appeal must be to their fellow citizens whose voices are heard through their popularly elected representatives.â€ť
These concluding remarks completely discount the role of the courts as a co-equal part of the â€śengine for social change,â€ť particularly when it comes to protecting the rights of an unpopular minority against a hostile majority. Think Brown v. Board of Education. And, of course, none of the plaintiffs were asking the court to â€śguarantee social acceptance.â€ť They were asking for a constitutional ruling on the question of whether the fundamental right to marry may be withheld from two members of the same sex. On the eve of a midterm election, in a climate when other courts have been severely criticized for usurping the role of the legislature, it appears that the majority just might have been sidestepping political controversy.
(If so, they may have been somewhat chagrined by the reaction of the GOP spin machine, which totally ignored their carefully wrought reasoning and proceeded to issue generic attacks on New Jerseyâ€™s â€śactivist court.â€ť George Bush, who himself came out for civil unions as an alternative to same-sex marriage a couple of years ago, has spent the last week telling campaign crowds that the ruling â€śraises doubts about the institution of marriageâ€¦ a sacred institution that is critical to the health of society and the well being of families.â€ť)
Writing on the progressive Web site Tompaine.com, veteran GLBT journalist Doug Ireland called the opinion a â€śSolomon-like decision that cut the baby in half, so to speakâ€”giving a partial victory to gay and lesbian couples and a potential victory to marriage equality opponents.â€ť
Solomon, however, simply threatened to cut the baby in half. He didnâ€™t actually go through with it. In their efforts to find a middle ground, the New Jersey majority has disappointed people on both sides of the debate, and won wholehearted praise only from those on the sidelines who have little stake in the eventual outcome but who like the concept of compromise.
Indeed, compromise can be a good thing. But like pregnancy, itâ€™s impossible to be a â€ślittle bit equal.â€ť There is no such thing as a new and different status that is equal to marriage, so a civil union or domestic partnership inherently comes up short. These alternatives may be good enough for many in the GLBT community, â€śbetter than nothingâ€ť for some, and necessary strategic stepping stones to full marriage for others.
But for those leading the charge to win entrance into this unique institution, New Jerseyâ€”with its fair minded courts and its history of legislative support for gay rightsâ€”was seen as a likely spot for a second breakthrough ruling. Coming from the Garden State, the consolation prize of civil unions was small consolation. Instead of Champagne, New Jerseyeyâ€™s ruling was an occasion to break out the Miller Lite.
In a Panic
For various reasons I have one hour to summarize the last week of GLBT news in about 1000 words. Please, do not ask or wonder why I have found myself in this perilous situation when I had all the time in the world to draft a thoughtful column as per my usual standards. Know simply that it is only sort of my fault. Why am I wasting time with an irrelevant preface, you ask? Simple. Mindless rambling is by far the fastest method of compiling a high word count. In five minutes I have just accomplished a tenth of my assignment.
No Time for Clever Headlines
Necessity demands that I present the news in a cascade of scattered observations rather than an orderly progression of so-called items. I just read an interesting article about Floridaâ€™s Republican gubernatorial front runner, Charlie Crist, who everyone knows is a closet case. Crist has been the subject of rumors for years, and not just the idle scuttlebutt type rumors, but the kind of incessant discussions from all sorts of different sources that many people (OK, me) find convincing.
Lately, his Reform Party opponent Max Linn called publicly for the man to come out of the closet, telling the press that Crist himself told Linn he was gay back in the 1980s, and that the manâ€™s secret sexual orientation was â€ścommon knowledgeâ€ť in the state.
The interesting thing about the article, written for the express gay news by Phil Lapadula, is that Floridaâ€™s mainstream press has hardly breathed a word of Mr. Linnâ€™s remarks. Apparently, the Miami Herald and company believe that Cristâ€™s orientation is his own business, and the subject is off limits unless he gets caught in a park with his pants around his ankles.
Now, donâ€™t you think thatâ€™s kind of strange? If Crist were openly gay, then yes. Iâ€™d expect the press to treat that information as just another background detail. But Crist insists he is not gay. Further, he got married seven months ago in a celebration that cynics call suspect. The raises the possibility that the candidate is, how shall we put it, a deceitful liar? Isnâ€™t that worthy of investigation? Sexual orientation is not forcibly newsworthy. But surely a shortfall in the integrity department might be worth a word or two in the governorâ€™s race.
Canâ€™t. Think. Of. Headline.
Iâ€™ve already written a piece on the New Jersey opinion. But let me add that the New Jersey legislature seems reluctant to go further than a civil union bill. Iâ€™ve read several reports to this effect and have no time to look them up, although I can tell you that the Senate President Richard Codey expects a civil union bill to move before the end of this year. Speaking on WCBS radio, Codey said that full marriage may well arrive in the Garden State â€śin another six, seven years.â€ť
See why I was disappointed in the New Jersey ruling? I know everyone else is calling it a great step forward or whatever, but just a few days ago we were all expecting marriage in New Jersey to be legalized now. Not in 2012 or when pigs fly, or whenever. Now.
Goddamn passivist courts.
Speaking of marriage rulings, the Washington Supreme Court has refused to reconsider its fractured decision of last July, when the justices issued six different opinions in rejecting the rights of same-sex couples to tie the knot. Lambda and friends asked the justices to take another look, a long shot request, but one that was not completely outside the range of possibility. Answer was ix-nay, so that tiny spark of hope is now extinguished.
Only Five Minutes Left To Deadline
How am I doing? Another 400 words in another 40 minutes.
Much of the news this week concerns the eight amendment races next Tuesday, and once again I have a fistful of polls that suggest a couple of those races are close. I still donâ€™t believe it, frankly. Rather than speculate on an election thatâ€™s right around the corner, I think it best to just see what happens.
The most interesting race, in my view, is the collision in Colorado between an anti-gay marriage amendment and a full civil union plan. The amendment limits itself to a definition of marriage as a union of one man and one woman, and remains silent on the constitutionality of civil unions or other structures. Therefore, itâ€™s entirely possible that Ski State voters could simultaneously ban marriage for gay men and lesbians and offer same-sex couples all the rights and benefits of marriage. And they donâ€™t even have a court breathing down their necks.
Both measures are leading in the polls, but the civil union plan is close, and polls historically underestimate support for gay rights issues. I suppose some people are reluctant to tell a stranger on the phone that they plan to spend next Tuesday undermining the civil rights of their gay and lesbian neighbors. At least they have a conscience.
Something About Alaska
Letâ€™s see what else we have on hand. The governor of Alaska has called a special session of the legislature to grapple with a state supreme court ruling that directed the state government to provide equal benefits to gay and straight public staff. As I recall, this ruling was handed down ages and ages ago. Maybe last January. And the state has spent the ensuing months squirming and wriggling around in an unbecoming effort to avoid the courtâ€™s clear-cut demand.
Earlier, the governor suggested that the state might pass a constitutional amendment to ban domestic partner benefits, but I havenâ€™t seen much progress on that hysterical idea. Alaska already amended its constitution to ban same-sex marriage back in 1998, which is why the high court ruled that the state may not condition employment benefits on marriage, while specifically denying marriage rights to a subset of its workers. The city of Anchorage was also named in the ACLUâ€™s original lawsuit and I believe the city has long since complied with the court. Or theyâ€™ve done something. I just remember that the city of Anchorage behaved well and the state itself has been behaving badly. Apparently the state has a January 1 deadline to satisfy the justices.
More Sleazy Gossip About Crist
Speaking of deadline. I have 17 minutes. Oh listen! Hereâ€™s more on Charlie Crist. I was just desperately shuffling though pages when I found an article in the Broward County New Times that says a GOP staffer â€ś21-year-old Jason Wetheringtonâ€ť told several friends last August that heâ€™d had a fling with Charlie! Wait! Thereâ€™s more:
â€śWetherington, who recently worked as a field director for U.S. Senate candidate Katherine Harrisâ€¦ also named a man whom he said is Cristâ€™s long term partner, a convicted thief named Bruce Carlton Jordan who also recently worked for Harris in her long shot Senate bid.â€ť
Katherine Harris, nubile young campaign staffers, â€śconvicted thieves.â€ť This is getting better and better, donâ€™t you think? Jordan, I read further along, was charged in 2003 of stealing several grand from the Florida Funeral Directors Association, where he served as executive director.
Apparently, Crist once told the Miami Herald that heâ€™d never heard of Jordan. â€śIt doesnâ€™t mean I havenâ€™t met him. I donâ€™t know who you are speaking about.â€ť
Hmmm. Wish we had more time together, but we donâ€™t. In case you care, I wrote 1,250 words in 55 minutes including all the headlines. Pretty impressive?