[As I type this, in a pretty badly played game -- though the Giants showed some more life in the Second Half -- the Giants finally won, finding a team more inept than themselves. The 10-7 score at the half was a bit scary.]
Someone I know was upset at the turn of events here, though accepting (like many, a change from not that long ago) the idea of civil unions. I think the person's understandings is important here, in part because that is how it is supposed to work -- that is, in our republican democracy, the understandings of the average person is important. The understandings are going to be imperfect (someone at Volokh Conspiracy wrote a book on political ignorance and made various somewhat confused/drawn out points on the matter in recent days, but the basic idea of political ignorance, including it being in various cases rational as a matter of limited time and resources is not that profound), but we should try to do our best to make it as sound as possible. It's an uphill battle.
The basic logic of the ruling is that the NJ Supreme Court eight or so years back held that NJ needed to provide equal benefits to same sex couples as different sex couples, but marriage is not necessary. Shades of Vermont back at the start of it all. This was somewhat reasonable given the state of affairs at the time, if not really enough as to equal protection, less so as over ten states now have same sex marriage. It is somewhat dubious, especially given it was a split vote then, that the NJ Supreme Court would rule the same way now -- it very well would do what the Connecticut Supreme Court did and require same sex marriages.
Anyway, after Windsor, state marriages now will have federal benefits, even in various cases when the persons reside in states that do not recognize them (as long as the marriages were performed where they are). So, civil unions are not enough. Now, there is an argument to be made that the federal government should treat NJ-like full civil union regimes like marriages for federal benefits (William Baude at VC has talked about this issue), either as a matter of policy (as the laws are written now) or as a constitutional matter. I'm iffy there -- civil unions are imperfect creations and are not marriages. They might not be recognized by various states. If the feds provide benefits to civil unions, I think they should change the laws first. And, since civil unions are not marriages, there is a reason to not provide the benefits under current law. And, unlike DOMA, sec. 3, it is not that the feds are denying benefits out of their own animus.
But, this is a state court case and under state constitutional law the courts do not have some ability to force the feds' hands. They are left with the situation at hand -- same sex marriages get federal benefits, same sex civil unions do not. This is not equality under the law pursuant to the state constitution per the earlier ruling. If you accept, like the person I mentioned, same sex couples should get equal government benefits, what is the right move there? I guess pressure Congress to pass a new law supplying benefits to civil unions. This still won't truly supply equality, including as a matter of social understanding, which is partially important in various situations involving rights (at the hospital, e.g.).
The person, however, if forced to consider the point, probably would accept some problems given that "marriage" just doesn't mean same sex couples. Why? Well, the person was explicit -- God does not want that. That cannot be a grounds for the law under the First Amendment. There has to be a secular reason. But, many people ultimately oppose things on what amounts to be religious grounds, including here and in the abortion context. The person did not want to accept that various religious groups, including Christian in nature, accepted same sex marriage.
As Mayor Booker, awaiting his swear in date for the Senate, marries same sex couples, my overall concern here is for people to understand the basics of this litigation. First, the NJ legislature, not the courts, were ready to recognize same sex marriage. Second, without federal action, state civil unions are not equal to same sex marriage. Even if you don't like it, if you support basic equality of benefits, there is no easy solution there. At the very least, you should, on principle, push Congress to support a civil union benefit law, which Obama did when running for POTUS.
I think that is not true equality, but it's better than nothing. Which same sex couples had as to federal benefits, underlining the court was right.
Governor Christie’s office said that the opinion released last Friday by the state supreme court “left no ambiguity about the unanimous court’s view on the ultimate decision in this matter.” While the governor “strongly disagrees with the Court substituting its judgment for the constitutional process of the elected branches or a vote of the people,” he said that the court had now ”spoken clearly” on New Jersey law and he would carry out the ruling through state agencies.The "elected branches" voted for same sex marriage already, let us recall, and he vetoed it, saying it was public referendum or nothing. So, any cry of judicial activism is a bit weak. Gov. Cuomo (Sr.) blocked a legislative move to re-establish the death penalty, but didn't claim he was just doing it so the "people can decide" or something. I would note there that when the legislature's action was upheld under Gov. Pataki, the law was struck down by the state court of appeals, the legislature never getting around to correct the provision that caused the problem.
Someone I know was upset at the turn of events here, though accepting (like many, a change from not that long ago) the idea of civil unions. I think the person's understandings is important here, in part because that is how it is supposed to work -- that is, in our republican democracy, the understandings of the average person is important. The understandings are going to be imperfect (someone at Volokh Conspiracy wrote a book on political ignorance and made various somewhat confused/drawn out points on the matter in recent days, but the basic idea of political ignorance, including it being in various cases rational as a matter of limited time and resources is not that profound), but we should try to do our best to make it as sound as possible. It's an uphill battle.
The basic logic of the ruling is that the NJ Supreme Court eight or so years back held that NJ needed to provide equal benefits to same sex couples as different sex couples, but marriage is not necessary. Shades of Vermont back at the start of it all. This was somewhat reasonable given the state of affairs at the time, if not really enough as to equal protection, less so as over ten states now have same sex marriage. It is somewhat dubious, especially given it was a split vote then, that the NJ Supreme Court would rule the same way now -- it very well would do what the Connecticut Supreme Court did and require same sex marriages.
Anyway, after Windsor, state marriages now will have federal benefits, even in various cases when the persons reside in states that do not recognize them (as long as the marriages were performed where they are). So, civil unions are not enough. Now, there is an argument to be made that the federal government should treat NJ-like full civil union regimes like marriages for federal benefits (William Baude at VC has talked about this issue), either as a matter of policy (as the laws are written now) or as a constitutional matter. I'm iffy there -- civil unions are imperfect creations and are not marriages. They might not be recognized by various states. If the feds provide benefits to civil unions, I think they should change the laws first. And, since civil unions are not marriages, there is a reason to not provide the benefits under current law. And, unlike DOMA, sec. 3, it is not that the feds are denying benefits out of their own animus.
But, this is a state court case and under state constitutional law the courts do not have some ability to force the feds' hands. They are left with the situation at hand -- same sex marriages get federal benefits, same sex civil unions do not. This is not equality under the law pursuant to the state constitution per the earlier ruling. If you accept, like the person I mentioned, same sex couples should get equal government benefits, what is the right move there? I guess pressure Congress to pass a new law supplying benefits to civil unions. This still won't truly supply equality, including as a matter of social understanding, which is partially important in various situations involving rights (at the hospital, e.g.).
The person, however, if forced to consider the point, probably would accept some problems given that "marriage" just doesn't mean same sex couples. Why? Well, the person was explicit -- God does not want that. That cannot be a grounds for the law under the First Amendment. There has to be a secular reason. But, many people ultimately oppose things on what amounts to be religious grounds, including here and in the abortion context. The person did not want to accept that various religious groups, including Christian in nature, accepted same sex marriage.
As Mayor Booker, awaiting his swear in date for the Senate, marries same sex couples, my overall concern here is for people to understand the basics of this litigation. First, the NJ legislature, not the courts, were ready to recognize same sex marriage. Second, without federal action, state civil unions are not equal to same sex marriage. Even if you don't like it, if you support basic equality of benefits, there is no easy solution there. At the very least, you should, on principle, push Congress to support a civil union benefit law, which Obama did when running for POTUS.
I think that is not true equality, but it's better than nothing. Which same sex couples had as to federal benefits, underlining the court was right.
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Thanks for your .02!