Friday, January 8, 2010

I Can't! I Can't! I Can't!

By the power not vested in anyone by the state of New Jersey, no gay couple can be pronounced married. The New Jersey state Senate voted down a law that would have made New Jersey the sixth state to legalize gay marriage, and with the Assembly now a moot point and incoming governor and noted reckless driver Chris Christie opposing the idea, the fight is over. At least the legislative part is. But Steven Goldstein, a gay activist and gay rights advocate, has vowed to take the issue to the courts. Good for him. I wish him and his fellow activists well, and maybe this will lead to a happier ending for the issue.
The legal path is always tricky, though, because subverting a social issue that is normally decided in state legislatures can inflame passions on both sides of the issue even more - witness Roe vs. Wade and the ongoing battle over abortion that caused. But since gay marriage, unlike abortion, has hardly been shown to have any detrimental effects on anyone, and since the arguments against it are redolent of the arguments made against interracial marriage back in the 1950s, it's just inexplicable that gay marriage can't gain acceptance so easily - not even in "intellectual" New York or "laid-back" California.
Supreme Court Justice Antonin Scalia's "originalist" interpretation of constitutional text comes to mind here. Scalia's "originalist" philosophy says that if a protection or right isn't spelled out constitutionally, all you have to do is pass a law. Well, so much for that idea. But, on the other hand, neither the Constitution nor the New Jersey state constitution says anything about marriage being between a man and a woman. The gay rights movement may have an opening here as a result. The legal path may be fraught with danger, but it's probably the only path available right now - in New Jersey or anywhere else.
This is an issue that Democrats, controlling every branch of the state government, were expected to win on, but it was far from clear cut. True, the vote was mainly on party lines, but six Democrats voted with the majority - without them, there would have been no majority. And it's not a case of bigoted white middle-class conservatives versus a rainbow coalition involving everyone else; though the issue was touted as one of civil rights, Senator Ronald Rice (D-Essex), who is black, voted against it. A picture in today's Star-Ledger shows a black woman cheering the outcome in a room full of mostly white gay marriage supporters.
Some gay marriage opponents still support civil unions, legal in New Jersey but not offering the full benefits of marriage - the civil union law doesn't guarantee health benefits for same-sex partners, for example. One Republican state senator, a same-sex marriage opponent, has vowed to help amend the civil union law to strengthen it. But as long as same-sex partners are denied the right of full marriage - and can only be considered "kind of" married - that's just as insulting as pre-abolition standard of making a black slave equal to three-fifths of a person.

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