HoodaThunk?

New Jersey’s Supreme Court has ruled, on Constitutional grounds, that the state’s laws barring same-sex marriage are void providing for domestic partnerships but not full marriage don’t go far enough.

New Jersey’s Supreme Court has left it to the Legislature to decide the rules for gay couples who want to marry in the state.

In a 4-3 ruling Wednesday, the court said the state constitution gives same-sex couples the same civil rights afforded to heterosexual couples, but the lawmakers must decide how to grant those rights.

“The Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples,” the court held.

These justices were very careful in how they worded things and they even went further than other courts have done in reminding the plaintiffs – in this case the advocates for same-sex marriage – that they still need to convince the rest of the state’s citizens as to the merits of their position.

The court also suggested that the plaintiffs, seven long-term same-sex couples, must do more than fight their battles in court, they must change social mores.

The courts can ensure equal treatment, the ruling states, but it “cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs’ quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives.”

In Logic, this last statement is recognized as a loaded proposition. The Court assumes that a maturing society with an “evolving ethos” must, indisputably, come to a position of acceptance of same-sex marriage. This is hardly a given but the Court acts like it is. Moreover, you don’t acquire the voluntary acceptance of a group of people by forcing something on them in the courts. What you get is precisely what you got in 2004 when, after the Massachussets Supreme Court decision that was remarkably similar to this one, multiple states passed constitutional amendments elevating their ban statutes to being constitutional laws. The various social conservative groups told citizens that same-sex marriage advocates were uninterested in changing anyone’s opinion except a judge’s. There’s only 1 way to put this issue into the hands of the citizenry and their legislative representatives and disallow a judge from making the call over their heads.

As in 2004, this ruling will backfire. It will gavanize opposition to same-sex marriage and the increasing number of these cases now proceeding in other states will simply prove the point that’s being made about a federal Constitutional amendment. It will add support to such an amendment and if anyone thinks a state constitution is hard to change, wait till they get a load of how a federal one works.
 
I’ve said before that I don’t have a problem with civil unions and I still don’t. But this press to use the courts to override what is clearly a majority opinion of the citizenship, today, is a mistake.

Update: Reader RosyBlue correctly pointed out that I’d misspoke when I said the laws barred same-sex marriage. They provided for domestic partnership. They didn’t ban same-sex marriage but they didn’t explicitly provide for them. The Court’s ruling states that they don’t want to actually force the legislature to use the term “marriage” but even a casual reading tells you that this is precisely the effect they want to see. It’s also been noted around the blogosphere that the ruling does not say that the Court couldn’t later rule that anything not using the term “marriage” won’t be sufficient, they just chose not to make that call in this ruling.

Regardless, I overstepped the situation and I appreciate RosyBlue’s comment to more fully describe what’s happening.