The New Jersey court has simply brought the gay marriage issue
one step forward in its ineluctable march to the Supreme Court --
or to a constitutional amendment.
The New Jersey majority did a very cool thing politically. It
reasoned as follows:
(l) If people are gay, they do not therefore forfeit rights,
never mind that these rights were specifically written for
non-gays.
(2) Therefore, we hereby promulgate the right of marriage for
New Jersey gays. Same-sex unions are, effective immediately, to
have the identical rights and privileges that are given by New
Jersey to man-woman unions, including tax benefits.
(3) However, we acknowledge that the word "marriage" attaches
by tradition to unions between members of different sexes. That
tradition has been respected by the legislature, and therefore
the legislature should have the responsibility of remedying the
extant disparity. We cede to the legislature 180 days in which to
engage this issue. After that, the question may very well come
back to the courts to settle.
There is a ton of interventionist mischief in this ruling. But
begin at the beginning.
Legislatures are entitled to concern themselves with social
questions. At what age should people be permitted to vote? At
what age to claim old-age benefits?
Now, decisions on such questions as these get modified if the
petitioner can point to illegal discrimination by lawmakers,
either intentional or unintentional. The central question raised
three years ago in Massachusetts and adjudicated by the courts
had to do with discrimination against gays.
Social policy throughout the United States has evolved from
the conviction that unions between men and women bring forth
welcome fruits, primarily the children who become
citizen-successors and provide for the continuation of the state.
In terms of civil status, such a union is -- and is called --
marriage. A marriage has derivative rights and responsibilities,
including child care.
The gay lobby seeks to neutralize those special inducements to
marriage. But something more than equivalent tax accommodations
is sought. The lobby wishes that unions between gays be treated
under the law as "marriages." It is not absolutely plain whether
what is being sought is much more than a terminological
promotion, from "union" to "marriage." If gay unions succeed in
acquiring such rights as married couples now have, then they will
be acquiring not only rights but responsibilities, including
responsibilities toward their partners.
It is not difficult to divorce nowadays, for instance, but it
is harder to do than simply to file a change of address, whereas
members of gay unions at present can separate without recourse to
law. It will require a generation of adjustments, assuming that
the courts in Massachusetts and New Jersey prevail in this, to
know exactly what will be won or lost. But the commotion at the
moment is over the nominal point: Can the courts pronounce that a
marriage can be entered into by members of the same sex?
It was immediately understood, after the 2003 ruling of the
Massachusetts Supreme Judicial Court in Goodridge v. Department
of Public Health, that a solution embodying the popular will may
need to be achieved through a constitutional amendment. The same
arguments that prevailed early in the week in New Jersey will
certainly be used in arguing before the Supreme Court. And that
court is certain to confront, sometime soon ahead, the question
whether individual rights extend to the right of gay persons to
contract a "marriage" as defined by law and common practice.
President Bush has acknowledged the implications of the New
Jersey ruling, and the fever that built up three years ago is
reignited. There are men and women in America who have no designs
to limit the movements of gay Americans, but who believe that
notwithstanding this, there are sanctuaries that are naturally,
and organically, reserved for traditional arrangements between
men and women. There is something ranging between innocent
frustration and raw fury over the proposition that a society of
equal rights is required to disregard those characteristics that
make up a married couple. Mr. Bush may elect to launch a movement
for a clarification of the Constitution. |