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tagged: speech, freedom of expression
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NJ SSM decision

Wednesday, October 25th, 2006 9:42 am

The NJ Supreme Court is releasing its SSM decision today @ 3pm. [available at NJSC website]

Will they help us out but energize the Republicans and lead to queers being blamed if the Dems don’t take the House or Senate? or will they fuck us over leaving everyone, but us, happy?

(And if I’m writing to a general audience comprised mostly of non-queers, should I really use the pronoun “us”? I’m doing it anyway—learn to read as The Other.)

update: A winnah!

So all 7 justices agreed NJ could not deny the benefits of marriage to same-sex couples, but four of them said the terminology (“marriage” or “civil unions” etc.) should be up to the democratic process. Very politic of the 4-justice majority to split it this way. (Three justices dissented from the marital-terminology holding.) I’m happy & feelin’ the love from NJ, and hopefully will get to avoid most of the ugly Blame Game should the Dems manage to screw up between now and Election Day.

The holding was an equal protection rationale, and didn’t address the best environment for kids / encourage procreation arguments because the State didn’t raise those arguments.

I’m still going through the opinion — made it halfway through before I arrived at a meeting. More later.


The unanimity is one of the highlights, for me. All 7 justices agreed that governments may not use the standard state-benefits of marriage in order to persuade its citizens who to marry, or what kinds of marriages to have.

Purity versus pragmatism. Yes, of course, terminology isn’t meaningless, and indeed, the term “marriage” will make a real difference in all kinds of situations — recognition by other states or nations, for instance. Yes, it’s separate but equal. So why am I happy about the ruling? For a bunch of reasons:

  1. It will make a real and substantial difference in the lives of same-sex couples in NJ and take care of almost all legal issues that they might face in NJ.
  2. It breaks the negative momentum of the last few major decisions on same-sex marriage.
  3. In my judgment it threads the needle of the best outcome, practically, for same-sex couples: Practical benefits and (mostly) rhetorical avoidance of feeding into negative practical outcomes. That is, it’ll be a little harder to muster middle-to-rightwing outrage in, for instance, Colorado. So this tailoring helps couples in and out of NJ.
  4. The Court didn’t foreclose the argument over the term marriage, and folks in NJ can argue about it for the next 6 months. It’s likely that NJ same-sex couples will get “civil unions” or some term of that nature. But it’s possible that NJ will go for marriage now, or do something experimental and fun, like convert civil “marriage” to “civil unions” for all couples. Whatever happens in the legislature, there are two real benefits. (1) The argument lives on, in public. Which is good, because gay advocacy for same-sex marriage has been the best way to get actual, equal treatment in terms of relational benefits. And getting folks talking about it is the surest path to tolerance and equality (and beyond). And (2) Best of all, same-sex couples will have the luxury of (mostly) equal treatment while the legislature and public spends the next years or decades getting over it and coming to full equality. Queers and the rightwing can argue over the terminology to their heart’s delight (and queers will, ultimately, win) — and arguing over terminology instead of rights eliminates the real, lived angst for same-sex couples who live, couple, parent, adopt, transact, own real estate, work, share benefits, visit each other in hospitals, and die in New Jersey.

So, in my view, a triumph for the Homosexual Conspiracy.

update 10/27: I liked the way the Court framed the point that “marriage” is not the same thing as the term for the state’s package of rights:

We are mindful that in the cultural clash over same-sex marriage, the word marriage itself — independent of the rights and benefits of marriage — has an evocative and important meaning to both parties. … However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship.

Sure, it’s a rationalization. But it’s a good rationalization, and as far as I’m concerned, it properly frames the State in relationship to individual decision-making. We as individuals establish our own relationships, outside the confines and constraints of the State. I know that some people feel that their relationship is granted them by the State, and that until and unless the State recognizes their relationship by the name of marriage, it’s not “real” in some fashion. One couple quoted in the furor (in one of the NYT articles, I’ll dig it up later) described the State’s role in marriage as “sanctifying”, which speaks to the ways that statism is effectively a religion. But for me and my partner, the State does not sanctify, it does not create, it has no effect on our relationship to each other. The State can merely choose to recognize, or not, the fact of my relationship and my family — my choices about my personal relationships and arrangements. The State can attempt to coerce people into State-approved relationships with financial and legal penalties and benefits. But the State cannot create a relationship, it cannot maintain one, and it certainly cannot sanctify one.

My partner’s and my vows to each other read, in part,

Our promise to each other, in the presence of loving family and friends, is valid and binding by our wills, human principles that predate and subsume any laws of church and state.

Some folks may call the NJ Supreme Court’s “call it what you will” merely a rationalization, but to me it places the State where it should be in relation to my relationship: separate (and subsidiary).

algorithmically similar posts:

» same-sex marriage decisions, 2004-10-06 (score:50)
» what is rational: rationally angry about irrational decisions, 2006-07-06 (score:47)
» Canada Supreme Court OKs SSM, 2004-12-09 (score:45)
» gayness, 2006-06-09 (score:40)

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