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Washington Post Editorial
New Jersey's Step Forward
A court's order on same-sex partnerships leaves plenty of room for democratic decisions.
Thursday, October 26, 2006; A24
IN REQUIRING that state law grant the same benefits to same-sex couples that it gives to married ones, the New Jersey Supreme Court has given the Garden State a nudge down a road it was already traveling. For those, like us, who support same-sex marriage, such steps are welcome. There is no good reason why same-sex couples in loving and committed relationships should not be granted affirmative recognition from state governments -- recognition that carries with it the rights and responsibilities of marriage. The New Jersey court unanimously pushed in a direction we would like to see all states ultimately go.
What role judges should play in that process is always a difficult question, and yesterday's decision will no doubt spark controversy. So it is worth emphasizing that the judicial impetus here is actually a gentle one. New Jersey's legal landscape -- both its case law and the statutes passed by its legislature -- was already fairly advanced. The state has a robust set of anti-discrimination protections for gay men and lesbians, and it has a domestic partnership law that confers many of the benefits of marriage on same-sex couples.
What's more, the court specifically declined to require that marriage itself be available to same-sex couples -- provoking a dissent from three justices who would have gone further and simply mandated marriage rights. Instead the judges distinguished between the right to marriage and the rights and benefits flowing from marriage. They argued that it makes no sense "on the one hand, [to give] gays and lesbians full civil rights in their status as individuals, and, on the other, [to give] them an incomplete set of rights when they . . . enter into committed same-sex relationships."
The New Jersey legislature has not -- as was the legislature in Massachusetts after its court acted in 2003 -- been denied the democratic prerogative of deciding state policy on this question. It could, if it chooses, do as little as extend the state's domestic partnership law to confer additional rights on same-sex couples. Or, it could create civil unions or extend marriage rights themselves. Like all actions by state supreme courts, the decision affects nobody outside New Jersey and is ultimately subject to the will of the people of that state, who are free to change their constitution if they dislike their court's view of it -- as many other states have done on this issue. In other words, the court has required only a modest step, one to which the people's representatives will decide how to respond.
Coming, unfortunately, only two weeks before the Nov. 7 elections, this nuanced decision risks getting lost beneath angry rhetoric about activist judges and protecting marriage. That would be unfortunate. No reasonable reading of this decision could argue for, say, changing Virginia's constitution to ban same-sex marriages that are already illegal there or for adding a noxious amendment to the federal Constitution. It argues only for letting the residents of New Jersey digest what their court has said and decide how best to make same-sex couples equal under the law.