A Half-Step Toward Equality

In a unanimous Oct. 25 decision, the Supreme Court of New Jersey ruled that same-sex couples are entitled to the same rights as heterosexual couples. Yet its decision split 4-3 over the name of this union, with the majority deferring to the legislature to decide between “marriage” and some other term. While the Court certainly moved the state in the right direction, the New Jersey state legislature should have acted to ensure gay rights before forcing the hand of the judiciary.

New Jersey is unique among states in that its population overwhelmingly supports some form of equal partnership rights for gays. According to a Rutgers-Eagleton poll from June, over 66 percent of New Jersey residents are in favor of same-sex unions, while nearly 50 percent specifically favor same-sex “marriage.” Given the popular support for equal gay rights, the legislature ought to have seized the opportunity to voice the beliefs of its constituency. To do so would not have threatened their political careers, since such a bill would have merely been reflective of widespread public opinion. In solidifying same-sex rights through legislative, rather than judicial, action, the victory for the gay community would have been legitimized by the people themselves, through the act of their representatives.

A legislative overture harnesses the power of popular support in a way that an unelected judiciary simply cannot. Especially given the conservative condemnation of judicial activism in the arena of gay rights, legislative action would have been an especially powerful testament to the shift in culture. The handful of other states that have made progress on the issue of gay marriage have all done so through judicial recourse—Vermont and Massachusetts being notable examples. But conservative opponents have lambasted such rulings as undemocratic legislation from the bench. Had the New Jersey legislature acted promptly, no such attack could have been launched against this measure. Instead, its inaction forced the issue before the bench, which yielded a decision that stands vulnerable to criticism as it lacks the force of a public appeal of a democratic bill.

While popular opinion certainly does influence conceptions of legitimacy in the democratic process, it does not grant moral force to gay marriage. Rather, gay marriage ought to be recognized as its own substantive fundamental right, a right grounded in our nation’s conception of equality—and it’s the duty of the courts to uphold those rights when a legislature fails to. While we are unequivocally glad that the New Jersey Court unanimously agreed on the equality of rights, we cannot help but lament its refusal to make same-sex marriage equal in both name and content. Its decision to defer to the legislature on the question of nomenclature threatens to undermine the minority whom it is the judiciary’s obligation to protect. This decision is especially unfortunate as there have already been indications from the New Jersey Senate and Assembly that the legislature will settle for terming this union as simply a “civil union.”

In recognizing that gay marriage is a fundamental right, we can only hope that individual states will employ the most expedient means to legalize same-sex marriages. That New Jersey is making progress is certainly admirable, but that it forfeited the opportunity to solidify complete legal equality in name and content through legislative action is unfortunate.