Breaking: NJ Supreme Court upholds “same-sex unions;” Update: Now with rambling analysis!

Gotta go skim the opinion. Early reports on Fox suggested the court had ruled that nothing in the state constitution prevents gay marriage, but the part quoted by Instapundit says quite a bit more than that.

It sounds like they’ll let the legislature put whatever label they want on it — “marriage,” “civil unions,” etc. — but that the state’s equal protection clause requires that the incidents of marriage be made available to same-sex couples to the same degree as they are to straights.

Good news for the GOP? Probably no effect, I’d bet.

While I’m skimming, click the image and watch the ad that’s running right now in Colorado.

Update: Yup, that’s what they ruled — the legislature can either rewrite the marriage statute to include gays or they can leave marriage for straights and enact a separate civil union statute that grants gays the same rights as married couples.

The media’s describing this as a 4-3 decision, but that’s misleading. The three dissenters didn’t object to the main ruling that marriage rights should be extended to gay couples; on that point, it was 7-0. What they objected to is the fact that the court gave the legislature a choice of labels instead of forcing them to include gay unions under the rubric of “marriage.” I.e., the dissenters were even more radical than the majority.

Update: For the benefit of our readers who aren’t legally trained, there are always two constitutional claims made in gay-marriage challenges: that the ban violates the plaintiff’s fundamental right to marry (the due process claim) and that the ban violates his right to equal treatment (the equal protection claim). The court ruled against the gay couples on the former count, explaining on numbered page 33:

Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right. When looking for the source of our rights under the New Jersey Constitution, we need not look beyond our borders. Nevertheless, we do take note that no jurisdiction, not even Massachusetts, has declared that there is a fundamental right to same-sex marriage under the federal or its own constitution.

Which prompts the inevitable question: is the right here the right to same-sex marriage or the right to marriage, period? The former isn’t rooted in New Jersey tradition but the latter certainly is. The court dealt with that definitional question on numbered pages 24-25:

How the right is defined may dictate whether it is deemed fundamental… The right to marriage is recognized as fundamental by both our Federal and State Constitutions.

That broadly stated right, however, is “subject to reasonable state regulation.” Although the fundamental right to marriage extends even to those imprisoned, and those in noncompliance with their child support obligations, it does not extend to polygamous, incestuous, and adolescent marriages. In this case, the liberty interest at stake is not some undifferentiated, abstract right to marriage, but rather the right of people of the same sex to marry. Thus, we are concerned only with the question of whether the right to same-sex marriage is deeply rooted in this State’s history and its people’s collective conscience.

Update: The gay couples won on the state equal protection claim, the court’s analysis of which is interesting insofar as it differs from the way the Supreme Court approaches federal equal protection cases. Under the U.S. Constitution, whether you win or lose an EP claim depends almost entirely upon what type of discrimination is at stake. There are three tiers:

1. Statutes that discriminate on the basis of race or religion receive “strict scrutiny” and invariably are found to be unconstitutional.
2. Statutes that discriminate on the basis of gender receive “intermediate scrutiny” and are constitutional if the state can show some important purpose behind them.
3. Statutes that discriminate on any other basis (i.e., economic) receive “rational-basis scrutiny” and are almost always constitutional.

The criteria for how any given minority group is assigned to one of these tiers is hazy, although the immutability of the traits for which they’re being targeted, their lack of political power, and the historical track record of discrimination against them are all factors. Gays would seem to be a good candidate for strict scrutiny, then, but the Supreme Court has resisted putting them in that category. (Not that it matters: twice now in recent years the Court has struck down statutes discriminating against gays on grounds that they had no rational basis.) The New Jersey Supreme Court appears to sidestep this analysis entirely by looking not at what type of classification is at stake but by balancing how important the right at issue is with the state’s interest in restricting it. There are no tiers, in other words; as the court says on numbered page 36, it’s a “continuum.”

Rather than present an independent argument for why the right to equal treatment in domestic law is important to gays, though, the court proceeds to cite a laundry list of anti-discrimination statutes passed by the legislature as evidence. Which is odd: the whole point of constitutional rights is that they’re supreme to, and immune from, the vicissitudes of majoritarian impulses. Framing the right in terms of the anti-discrimination laws suggests that if those laws didn’t exist — or were repealed — the right to same-sex unions would disappear with them. Also odd, as noted at the bottom of numbered page 48, is that the state didn’t proffer any procreative rationale to justify the statute. That argument’s been a winner in other jurisdictions. Without it, the state had nothing except the fact that gay-marriage is banned in most of the rest of the country. To which the court, on numbered page 55, essentially responded: we’re different.

The opinion ends with a discordant democratic note, leaving it to the state legislature to decide if gays should be allowed to formally “marry” or not:

We cannot escape the reality that the shared societal meaning of marriage — passed down through the common law into our statutory law — has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such change is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government.

That’s like the Warren Court ordering American public schools to desegregate, but leaving it to legislatures to decide if they want to refer to white children attending “integrated schools” versus black children attending “integrated educational facilities.” If the rights are constitutionally the same, what sense does it make to let the majority play with the semantics except as a way of preserving a nominal stigma?

Anyway. My two cents.

Update: As Jay Stephenson notes, the real significance here is that New Jersey, in theory at least, will allow gay couples from other states to marry there. There’s nothing on the books right now preventing that; whether the legislature will deal with it now as part of the civil union statute remains to be seen.

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