Wednesday, November 01, 2006

What's in a Name? Marriage and "Not Quite Marriage" in New Jersey

Last week, the New Jersey Supreme Court ruled- fairly expectedly- that the state’s current marriage scheme (marriage for opposite-sex partners, and a limited domestic partnership program for same-sex partners) is a violation of the equal protection clause of the State Constitution. For those following the case, the interesting part came in the remedy ordered by the court. While the court was unanimous in its holding that the current scheme was unconstitutional, the court split- the majority deciding that the state didn’t have to offer same-sex couples “marriage”, just something that gave all the rights and benefits of “marriage."

Unfortunately, “marriage” and “something-like-marriage-but-not-called-marriage” are not the same things. The “compromise” reached by the majority, which seems to be a weak-willed “sell out” in response to the demonization of “judicial activism” (also known as Judge’s doing their jobs and protecting minority rights despite majority opposition). While the term “the rights and benefits of marriage” sounds good, it is logically inconsistent with the idea that marriage itself doesn’t have to be granted. The term we use to describe someone’s relationship itself conveys rights and benefits. The court implicitly recognizes this, by acknowledging that people have problems with the use of the term “marriage” to apply to same-sex relationships. If a marriage and a civil union were seen by greater society as the same thing, there wouldn’t be a debate in the New Jersey Legislature about which of the two to adopt. A civil union is simply inferior to a marriage, if only because it is an institution that has derived from a goal of creating something that isn’t quite marriage. Even if it conveys the legal entitlements on paper that a marriage does, the societal recognition of the nature of the relationship is not equal.

Names matter, as they bring with them a sense of credibility and prestige. For example, while a Columbia Law School education and that obtained from a local law school convey all the same legal entitlements- namely, the ability to sit for the bar and a Juris Doctor degree- they, in reality, do not open the same doors. Employers, and even members of the non-legal public, see them differently. And if we didn’t believe that a Columbia education was “better”, we likely wouldn’t be incurring so much debt to be here.

Since we are a nation that expresses its laws through words and text, logistically, what we call a relationship matters. “Marriages” travel across state lines (at least in states without Defense of Marriage Acts or amendments), and often to other countries. “Civil Unions” do not.

In reality, this compromise pleases no one. LGBT New Jerseyans still lack equal rights and the right to marriage. Conservative groups continue to decry “activist judges”, who flout the public will. Republicans are using the court’s decision to galvanize the Religious Right, not seeming to care that subpar “rights” were actually granted. Perhaps the greatest victim in the New Jersey decision is judicial integrity, due to the utter inconsistency of the decision with its remedy: LGBT New Jerseyans are entitled to the same rights and privileges as straight New Jerseyans, except they’re not.

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