Thursday, February 16, 2006

New Jersey Supreme Court Hears Gay Marriage Argument

Yesterday's Supreme Court battle in Trenton over gay marriage is something I was glad to be a part of, even if all I did was stand outside holding a sign. While it's impossible to predict the outcome, I can't help but being encouraged by what transpired......

I was part of a conference call last night debriefing activists, and according to the uber-smart Rutgers Law professor (and Garden State Equality member) Suzanne Goldberg, "from a litigators perspective, we (gays) got everything we wanted."

According to Prof Goldberg, the judges asked just the types of engaging questions that we hoped they would:
*How can the state justify baring gays from marriage?
*What compelling interest does the state have to draw the line between gays and straights?

It seemed like the Court's questions focused on 3 areas.
1) How to best interpret NJ constitutional doctrine.
2) If the court does recognize expanding the definition of marriage, what are the limits?
(eg: if we strike down the dividing line between gays and straights, is bigamy next? I should note that this red-herring-of-an-argument has floated around each case challenging the traditional idea of marriage including mix-race couples back in the olden days. In the NJ case, the Court seemed to recognize that bigamy, etc was *not* at issue here.)
3) The final focus of the proceedings asked if Gay Marriage was a matter best left to the legislators to decide. Should the legislature's preogative be underminded by a four judge majority? One judge's reply hinted that NJ has a long tradition of relying on the State Supreme Court to enforce constitutional rights.....that the court must not defer to the legislators when they (state legislators) violate their (gay and lesbian) constituents' constitutional rights.

Closing arguments were straight forward:
The plaintiffs asserted that NJ has a traditon of public policy against discrimination. The arugment that there is a guarantee of equality in the constitution, that "similarly situated people should not be differentiated unless the state can provide a compelling reason to do so."

The state countered that the state is entitled to make the gay/straight marriage distinction based on "history" and "tradition."

I should add that the judges seemed to be aware that the concept of marriage is ever-evolving and that the state also has a history of sexual equaltiy-- that a *history* of discrimination does not justify further discrimination.

As I mentioned earlier, the Judges seemed engaged. Most of them anyway. While five of the seven were actively asking "the right kinds of" questions, Two judges: Wallace and Rivera-Soto asked nothing. Not sure what to infer from that....of the two, only Soto is considered conservative. Perhaps the justices have different areas of expertise?
Again, i stress, it's foolish to predict an outcome, but I can't help but try to make sense of all the tea leaves.

When the plaintiffs came out of the courtroom, they were positively beaming. You could tell that they were all relieved that this phase of the battle is behind them.

Garden State Equality hosted a big, gay lunch at the Mariott afterwards. After standing out in the cold all morning, it was nice to be well-fed. That was a nice touch! Mostly it was a chance to cross-pollinate with other bloggers, activists and journalists.

A decision is expected from the Court in a few months. I believe we will prevail on this one.


Anonymous said...

An excellent recap of the arguments and phone call. I would like to have seen the plaintiffs (especially those with children) explain the reason for wanting marriage equality in terms that most people can understand and relate to. It's more that just a desire to be legally recognized as spouses. It's about protecting family and children, something that heterosexual couples take for granted.

Did you see the interview of one of the protesters? I don't remember which network it was on, maybe NJN. The woman said that allowing same-sex couples to marry would damage the institution of marriage by making it meaningless and heterosexual couples would not get married. This is a ridiculous argument. People will continue to get married to take advantage of the priviledges and rights that marriage provides.

Ben Heller said...

No protesters over here Jay. We've had Gay and Lesbian marriages since the back end of last year. And it's been really well accepted by the UK population.

Anonymous said...

I think I'm missing something. What exactly is being challenged? State law? Local law? Ballot resolution?

Please expand.

We had our little act of defiance struck down by a state appeals court judge. One of the most ecstatic weeks in the history of monogamous unions (SF marrying every gay couple that could manage to get to city hall) followed less than one year later by one of the most craven (the judge not only ruled against the mayor's argument of upholding the CA Constitution, but he then invalidated all 3000+ unions).


Anonymous said...

Very revealing; and encouraging that the gay marriage bill may go in favour of everyone geting married..bigamy? No way.

Keep up the great work Jay..Deb

Jim said...

Thanks for the info, Jay. Looks like some good questions and arguments. I'd love to see someone demonstrate actual "harm" to straight marriages. "Look! One of them gays got married down the street and now my dawg is breaking out in hives!" Sheesh.