Bil Browning

New Jersey

Filed By Bil Browning | December 18, 2006 5:25 PM | comments

Filed in: Marriage Equality, Politics, The Movement, Transgender & Intersex
Tags: New Jersey; Legal; Equality; Discrimination; Legislation; Court

As dissappointed as we are that New Jersey's legislature decided to weasel out and give gays and lesbians civil unions rather than marriage, it is important to recognize what is happening there; even if it is happening too slowly for our taste.

First: civil unions are spreading around the edges of the United States. A few years ago, that would have been unthinkable. As inadequate as they are, they afford gays and lesbians in those states real protections and the opportunity to become more visible and less threatening in the febrile immaginations of their fellow citizens. Civil unions beat a marriage amendment all hollow.

Second: The judgement of the New Jersey Supreme Court that forced the hand of the legislature did not come out of the blue, as it has in other states. Along with New Jersey's constitution, the court cited the activities of that same legislature in passing clear and sweeping equal rights legislation and following that up with the amendment of several laws to make them conform. On December 14 the legislature completed passing trans-Inclusive nondiscrimination legislation by a wide margin in both houses. Thus the court's action cannot be seen as counter to the will of the legislature; rather the court is explaining to the legislature that the equality the legislature has endorsed cannot be partial. Saddly that is not the case in Indiana nor most of the United States, but think back a decade or two; think back only a couple of years . . . There has been a paroxism of hateful amendments, but otherwise the tide is all going the way of equal civil rights. As it should.

Third: The New Jersey court was unanimous and categorical about equal marriage rights for gays and lesbians, but divided four to three on the question of the word marriage. I am glad to see that Lambda agrees with me that the latter decision was far from categorical. The court left the door wide open for a further suit that would argue that civil unions cannot be equal (as someone, I think it was Bob Ray, said in the Canadian debates: "Separate but equal did not work for water fountains, it will not work for marriage."). At that time, having heard arguments explicitly addressing that question, I think there is a good chance that the court would follow its own decision and declare that a union that is not a marriage is not equal to a marriage.

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As maddening and frustrating as it is.. it's clear that all of this will take time-- and our consistent constant pressure and effort -- to achieve full equality. Don't give up hope! The tide is on our side...