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.