UPDATE: Some friends of mine were confused by the title I gave this post in which I said the court said “no” to gay marriage. Let me clarify. The court said specifically that it did not find a state constitutional right to gay marriage, it DID find a right to benefits for gay couples, AND that the court would not oppose the state giving gays “civil unions” instead of “marriage.”
Basically, the court found that gay couples deserve the same legal benefits as straight couples, and the court said the legislature must figure out a way to provide those benefits – but that the legislature did not “have” to provide those benefits as “marriage.” In the strictest sense, this is a win and a loss for the gay community. Yes, the court said that the legislature “can” make gay marriage legal, if it wants to – but that’s not news, and it’s also not relevant. The legislature always had the right to make gay marriage legal whenever it wants, provided it can find the votes – a state legislature doesn’t need a court’s approval in order to offer and pass legislation on gay marriage or anything else (save, states where a constitutional amendment bars legislatures from making gay marriage legal). So the court saying that the state “can” give gays marriage if it wants is irrelevant to the case, and has no legal impact whatsoever in my view. States already “can” do this, if they want.
What is relevant is that the court said that the legislature “must” provide gay couples the same legal benefits as straight couples, i.e., they must provide gay couples with at least civil unions or something of the sort. But the court expressly said that it was NOT finding that the legislature “must” provide for gay marriage – the court even went on to say that if the legislature didn’t make gay marriage legal, the court would not find that any rights were violated by this “separate but equal” provision of benefits. That is a loss for the gay community in the same way that “separate but equal” is a loss.
George Bush came out in support of gay civil unions before the 2004 election. He believes gay couples should get the benefits of marriage, but not marriage itself. The New Jersey Sup Ct just ruled the same. The rules specifically says NO to gay marriage, but YES to providing some kind of benefits to gay couples. That is George Bush’s position as enunciated prior to the 2004 elections.
Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution….
To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision….
We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.
The New York Times
Published: October 26, 2004
“President Bush said in an interview this past weekend that he disagreed with the Republican Party platform opposing civil unions of same-sex couples and that the matter should be left up to the states.”
“Mr. Bush has previously said that states should be permitted to allow same-sex unions, even though White House officials have said he would not have endorsed such unions as governor of Texas. But Mr. Bush has never before made a point of so publicly disagreeing with his party’s official position on the issue.”
“In an interview on Sunday with Charles Gibson, an anchor of “Good Morning America” on ABC, Mr. Bush said, “I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so.” ABC, which broadcast part of the interview on Monday, is to broadcast the part about civil unions on Tuesday.”….
“I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others.”
CNN already screwed up their coverage of this. The NJ court did NOT just approve of gay marriage – they specifically said NO to marriage. They said that gay couples should be given benefits in a separate arrangement, which is exactly what George Bush said in 2004.