Based on my reading of the Times headline, they emphatically didn't decide on use of the word "marriage," just the incidents thereof.
Yeah, I updated. It's still good news.
Well done, New Jersey Supreme Court.
Can heterosexuals sign up for a sodomarriage? If not, I'm going to sue. (Or would if I lived in Jersey.) Reverse discrimination is a bitch.
On the way to work, I heard that Chief Justice Deborah Poritz was retiring after today, and I was hoping she'd go out on a high note. This is great news. I just hope there's no backlash with increased turnout among Teh Anti-Gays.
NRO and RedState were trying to whip up opposition to this ruling, but I got the sense that it was a little halfhearted.
"...just the incidents thereof."
Which is the entire point. It will be very hard to provide the full benefits without the word, because the legal code is riddled with the word "marriage".
If they try to limit it with a cafeteria bill, we...whoever can go back to court.
I think this is a solid long-term winner for Democrats, but like the other civil rights fights, it will be ugly and have consequences. Civil War II coming soon.
9- unfortunately we once again face the problem where the people with the guns are mostly on one side of the issue.
I'd really prefer it if people would fire their politicians and not their guns on my behalf, thanks.
good news as in one fewer D in the senate? terrible timing.
11- It would be nice if you could fire a politician the way you fired a gun. Like, you would pull his finger and his head would rocket up into the sky with a BANG!
Oh, screw it. If we have to put off every bit of progress until after the next election, we'll never win anything. There's always a next election.
Like, you would pull his finger and his head would rocket up into the sky with a BANG!
Was this meant for the Beantown thread?
10: Well possibly not violent, and maybe should be numbered Civil War III, if the 60s and their extended aftermath is Civil War II.. And certainly not limited to Dixie, and I really don't know how it play out. Better, I think, than last time. I see the present era as the last grasp of the traditionalist right.
11:They do have the guns and the attitude, and like the other times, it is up to them how much the country is bruised by their recalcitrance and obstruction. They have amazed me my entire life.
Once again, I think the dissent has the better of it -- which is why I'm fine calling this a 'loss:'
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. Whether an issue with such far-reaching social implications as how to define marriage falls within the judicial or the democratic realm, to many, is debatable. Some may think that this Court should settle the matter, insulating it from public discussion and the political process. Nevertheless, a court must discern not only the limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy of its decisions rests on reason, not power. We will not short-circuit the democratic process from running its course.
Oh, that quote is from the majority opinion, pp 61-62.
Rather than send people to a 90 page pdf, I'll quote the heart of the dissent (footnotes omitted, apologies for the length, but this is pretty good stuff):
The majority begins its discussion, as it should,
with the first prong of the test, the nature of the affected right. Ante at ___ (slip op. at 37). The inquiry is grounded in substantive due process concerns that include whether the affected right is so basic to the liberty interests found in Article I, Paragraph 1, that it is “fundamental.”3 When we ask the question whether there is a fundamental right to same-sex marriage “rooted in the traditions, and collective conscience of our people,” ante at ___ (slip op. at 22), we suggest the answer, and it is “no”.4 That is because the liberty interest has been framed “so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.” Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS 1836, at *56-57, 2006 N.Y. slip op. 5239, at *14 (Kaye, C.J., dissenting from majority decision upholding law limiting marriage to heterosexual couples). When we ask, however, whether there is a fundamental right to marriage rooted in the traditions, history and conscience of our people, there is universal agreement that the answer is “yes.” See Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Turner v. Safley; 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1977); see also J.B. v. M.B., 170 N.J. 9, 23-24 (2001) (noting that the right to marry is a fundamental right protected by both the federal and state constitutions); In re Baby M., 109 N.J. 396, 447 (1988) (same); Greenberg v. Kimmelman, 99 N.J. 552, 571 (1985) (same). What same-sex couples seek is admission to that most valuable institution, what they seek is the liberty to choose, as a matter of personal autonomy, to commit to another person, a same-sex person, in a civil marriage. Of course there is no history or tradition including same-sex couples; if there were, there would have been no need to bring this case to the courts. As Judge Collester points out in his dissent below, “[t]he argument is circular: plaintiffs cannot marry because by definition they cannot marry.” Lewis v. Harris, 378 N.J. Super. 168, 204 (App. Div. 2005) (Collester, J., dissenting); see Hernandez v. Robles, Nos. 86-89, 2006 N.Y. LEXIS 1836 at *63-64, 2006 N.Y. slip op. 5239, at *23-24 (Kaye, C.J., dissenting) (“It is no answer that samesex couples can be excluded from marriage because ‘marriage,’ by definition, does not include them. In the end, ‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning.’” (quoting Halpern v. Attorney Gen. of Can., 65 O.R.3d 161, 181 (2003))).
I also agree with Judge Collester that Loving should have put to rest the notion that fundamental rights can be found only in the historical traditions and conscience of the people. See id. at 205. Had the United States Supreme Court followed the traditions of the people of Virginia, the Court would have sustained the law that barred marriage between members of racial minorities and caucasians. The Court nevertheless found that the Lovings, an interracial couple, could not be deprived of “the freedom to marry [that] has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving, supra, 388 U.S. at 12, 87 S. Ct. at 1824, 18 L. Ed. at 1018. Most telling, the Court did not frame the issue as a right to interracial marriage but, simply, as a right to marry sought by individuals who had traditionally been denied that right. Loving teaches that the fundamental right to marry no more can be limited to same-race couples than it can be limited to those who choose a committed relationship with persons of the opposite sex. By imposing that limitation on same-sex couples, the majority denies them access to one of our most cherished institutions simply because they are homosexuals.
Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), in overruling Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), made a different but equally powerful point. In Bowers, the Court had sustained a Georgia statute that made sodomy a crime. 478 U.S. at 189, 106 S. Ct. at 2843, 93 L. Ed. 2d at 145. When it rejected the Bowers holding seventeen years later, the Court stated bluntly that “Bowers was not correct when it was decided, and it is not correct today.” Lawrence, supra, 539 U.S. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 525. Justice Kennedy explained further that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Id. at 579, 123 S. Ct. at 2484, 156 L. Ed. 2d at 526.
We are told that when the Justices who decided Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), finally rejected legal segregation in public schools, they were deeply conflicted over the issue. Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431, 433 (2005). “The sources of constitutional interpretation to which they ordinarily looked for guidance -- text, original understanding, precedent, and custom -- indicated that school segregation was permissible. By contrast, most of the Justices privately condemned segregation, which Justice Hugo Black called ‘Hitler’s creed.’ Their quandary was how to reconcile their legal and moral views.” Ibid. (footnote omitted). Today, it is difficult to believe that “Brown was a hard case for the Justices.” Ibid.
Without analysis, our Court turns to history and tradition and finds that marriage has never been available to same-sex couples. That may be so -- but the Court has not asked whether the limitation in our marriage laws, “once thought necessary and proper in fact serve[s] only to oppress.” I would hold that plaintiffs have a liberty interest in civil marriage that cannot be withheld by the State. Framed differently, the right that is burdened under the first prong of the Court’s equal protection/due process test is a right of constitutional dimension.
Calling it a loss seems harsh, though understandable. It's simply amazing to me how quickly the terms of this debate have shifted: 5 years ago the idea of 'civil unions' was seen as hugely progressive, and the right balked at anything even resembling marital "rights" for gays. Now a majority on the right support them. And we've moved to a place where a court saying that nothing *less* than that is unconstitutional, and that's now a considered a loss by the left? Wow. I mean, I don't think you're being atypical in your assessment, and that honest stuns me when I stop and think about it.
20 was me, and should have said "honestly".
This comment rhymes, a sign of the times.
From the outset of the discussion, I've been saying that Loving controls, and that sooner or later everyone is going to end up agreeing with that. Maybe a decade, maybe a generation.
20: I agree. 15 years ago, the queer student monthly I worked on at my college ran a staff photo on the inside cover for the first time, and half the staff refused to be photographed for it. I'm sure my earnestness would be loathed in some quarters, but I am honestly unable to express what I feel when I realize I've seen both that environment and this one - where the "loss" requires something good happen - and I've got decades to go.
I should note that I do not consider this a loss. Any step forward is a good one if it makes a difference in someone's life.
Thanks, Charley. I was going to post something nasty about the opponents, but CC leads me to pass for a second. Sausagly has an interesting post on this, openly cheering judicial activism. CC at 17 makes me pause, I have had such discussions for years, and I really would like liberals to do more grass roots organizing and education. But tho Brown and Roe and Lawrence have helped create some very ugly politics, I guess they have helped some people who needed and deserved it.
"Candy Loving? "
70s Playmate? Must google. Nobody would remember Dede Lind if the punks hadn't written a song about her.
Conveniently, today provides an opportunity for one of my favorite activities: linking to A Softer World.
I view the failure to recognize the proper limitations on a state's power to infringe human rights a loss. Now, it's not a devastating loss, mind you . . .
I'm pretty optimistic on this one. Unlike the principles laid down in Brown and Loving, which I do not think would be adopted in some locales in 1,000 years, I expect our society to be openly accepting ssm in the nearish future. Armed resistance won't be required, I don't think.
good news as in one fewer D in the senate? terrible timing
As LB said, fuck that. There will never be a "good" time to fight bigotry and injustice from the point of view of beating the bigoted and unjust. Telling the couples facing such discrimination to wait until it's convenient for the Democratic party is bullshit.
And, as someone else said, look at all the progress that's been made since the first ruling or two came down and the world didn't end.
I think it's worth noting that I'm not kicking back and unfurling the MISSION ACCOMPLISHED banner and deciding we've won; but neither am I going to wring my hands over a very real step forward.
32: Yeah, it's not a full victory at all, and the reaction of the couple in question to the decision (basically "We want to be MARRIED, not just thrown the bone of civil unions. We want our children to be able to say that their parents are married.") put a lump in my throat.
But, it was a unanimous affirmation that NJ's Constitution guarantees the same rights and benefits to all couples, and that really is a real step forward.
My sense is that the court's holding back on the word 'marriage' as opposed to the legal incidents thereof is wrong, but is going to look really unimportant five years out. What a court has in its power to give is legal rights, and it gave those. On the symbolic equality front, I'm fairly sure that a civil union that's fully legally equivalent to marriage, as required by the NJSC, is going to be referred to and thought of as marriage by the people getting married and the people who interact with them, barring the few hard core bigots who wouldn't have accepted same-sex marriage even if the court had used the word.
On a less earnest note, someone should tip off the guys in the photo accompanying that article about the many benefits to tilting one's head while kissing. Nosebumpery!
Whoa, my prepositions kinda got away from me there.
Just to continue contradicting myself, I will also say that I do really, really want the word marriage. It's only symbolic, yes, but to the serious asshole bigots symbolism is everything. They battle us on purely subjective, contextual terms, using words like "traditional" because they are fuzzy and can be defined and redefined to match their argument as they wish. I don't just want to beat them by having the law recognize my right to be treated like any other citizen - the real, substantive victory - I want to also beat them by getting and taking their words from them. I want to win, yes, but I want to twist the knife once it goes in.
To some degree that's just me being bitter and ornery, and to some degree that's the result of coming of age in a time when reclaiming harmful words (like "queer," which I use a lot as a blanket descriptor of the glbtt communities and about which there was a very conscious effort to make that word ours and positive again in the circles where I ran) was a big deal among lefty students when I was a lefty student.
I hope that same-sex couples will be allowed to use fiancé visas someday, and I hope that calling it 'civil union' wouldn't preclude that.
I still really want to see the US make a distinction between civil marriage, the part that's legally-based and which can and should be opened to all, and religious marriage, which can be performed for whoever each church wishes to marry. Then the fundies can go off in their little corner and claim that their marriages are better because they happen with the blessing of their own special version of Jesus and leave the rest of us alone.
Of course, it won't happen, partly because the fundies will never leave the rest of us alone, and partly because the civil/religious split is what the French do.
We don't call it getting "married," Magpie, we call it getting "Freedomed," thank you very much.
I don't think "freedom" is really a very descriptive term for the institution.
And I laughed at "gohmarriage", but I'm also fully expecting that term to come into use by fundies.
I laughed at it, too, as I did at sodomarriage. But surely anyone who used that term seriously would only be able to use it with an audience of the already-faithful or they'd be laughed off the stage, wouldn't they?