by Chris Crian
SGN Contributing Writer
Last week's New Jersey Supreme Court decision was no treat and all trick, according to activists bitterly disappointed that the court refused to order the state to begin marrying Gay couples.
"Those who would view [the] ruling as a victory for same-sex couples are dead wrong," said an impassioned Steven Goldstein of Garden State Equality, one of the Gay groups that brought the marriage lawsuit.
I disagree, even though I support completely the very next words out of his mouth, when he vowed, "So help us God, New Jersey's LGBTI community and our millions of straight allies will settle for nothing less than 100-percent marriage equality."
Goldstein is dead right, of course, that the court was dead wrong for allowing the state's Legislature the option of civil unions, rather than simply opening up marriage to same-sex couples. But such is the state of things on Gay marriage these days that the decision is, in reality, a very important victory.
By ruling as it did, the New Jersey court followed the middle-of-the-road example set by the Vermont Supreme Court seven years ago, when it struck down that state's heterosexual-only marriage law but left to the legislature to develop a replacement legislative scheme. Let's not forget that back then, Gay activists in Vermont were so thrilled they didn't even try to overcome opposition to marriage from legislators or then-Gov. Howard Dean.
Since then, as we all know, the Massachusetts high court struck down that state's marriage law, and when the legislature came back to the court three months later to ask whether civil unions were sufficient, the court said no.
"The history of our nation has demonstrated that separate is seldom, if ever, equal," wrote Chief Justice Margaret Marshall, in words that ought to echo today in New Jersey.
But once Gay couples in Massachusetts could actually marry, conservatives in other states have used the threat of Gay marriage spreading like wildfire to pass legal bans and constitutional amendments. In the five states where they haven't yet succeeded, it's only been because moderates have often argued that such measures aren't yet necessary.
Judges aren't immune to politics, and whether we like it or not, it's legitimate for them to consider the harm done to the authority and credibility of the courts if their rulings are overruled by constitutional amendments. That's exactly what happened in Alaska and Hawaii in the '90s over this very issue, and 17 other states have followed suit with amendments enacted even before their courts could rule. Voters in eight more states will decide whether to adopt amendments next week.
It's not surprising, then, that the high courts in New York and Washington state couldn't muster majorities in favor of equality for Gay couples, and instead decided this summer to punt the issue entirely to the legislatures to resolve.
We've always known the marriage fight would be won in both the courts and the legislatures, and the dangers of bypassing the democratic process are grave, as the experience of the last few years teaches. Now Gay couples in Massachusetts can marry, which is great, but Gays in 26 other states are blocked by laws from doing so, which is not so great, and in 19 other by state constitutions, which downright sucks.
Don't expect the U.S. Supreme Court to come riding to the rescue, striking down these anti-Gay state laws, especially with President Bush's recent appointees. The high court justices are probably the most obsessed anywhere with never being overruled, and a nationwide right to marry would almost surely be overturned by a federal marriage amendment. Even if by some miracle it didn't, Gay marriage decided entirely by judges would face the same perpetual battlefield as abortion, which remains our most divisive social issue more than three decades after Roe vs. Wade supposedly settled the question.
The New Jersey court threw the issue to the state's legislature, where democratically elected representatives can have a full debate. If Gays succeed in winning marriage there, then "activists judges" won't be blamed, except by the extreme right that is unreachable at any rate.
The New Jersey court majority opinion explains in powerful terms the inequity done to Gay couples by excluding them from marriage, and the dissent eloquently argues why nothing short of the name will be truly equal.
Now it's up to Garden State Equality and its allies in the legislature to carry the ball the last few yards, as difficult as they may be. Much better to fight it out in the Legislature than to see another court victory stolen by constitutional amendment, and judges in other states intimidated into closing completely the courthouse door.
Chris Crain is the former editor of the Washington Blade and Southern Voice newspapers, and can be reached via his blog at www.citizencrain.com.