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Our view on same-sex marriage: This time, judges find sensible compromise on gay unions
N.J. court protects rights, leaves ‘marriage’ up to lawmakers.
Within minutes of the New Jersey Supreme Court's decision Wednesday on same-sex marriage, activists on both sides of the issue went into overheated overdrive.
Opponents of gay marriage blasted "activist" judges for ruling that same-sex couples in the Garden State must be given all the rights and benefits enjoyed by heterosexual married couples, although state legislators would have to decide whether gays can officially wed. The opponents predicted the ruling would give momentum to ballot measures in eight states Nov. 7 that would amend constitutions to ban same-sex marriage.
Gay rights groups in New Jersey, meanwhile, said that because the court refused to authorize same-sex marriage as a constitutional right, its decision amounts to "separate but equal" thinking and leaves gay couples as second-class citizens. They began an ad campaign to urge the state Legislature to authorize gay marriages.
In between the extremes, however, the initial reaction was far more muted than it was three years ago, when the Massachusetts Supreme Judicial Court touched off a furor by legalizing gay marriage there — and that is the best news to come along since.
A closer, calmer look at the New Jersey decision shows that it strikes a reasonable balance that reflects the evolving views of the public. It ends unjustified discrimination against gays and promotes equality under the law. At the same time, it acknowledges that the word "marriage" has deep cultural and religious roots, and therefore is best left to legislatures instead of courts to define.
Now, New Jersey lawmakers must decide whether these relationships are called marriage, civil unions or something else. This distinction is important and provides a sensible "third way" compromise for this increasingly bitter debate.
Americans as a whole have grown more tolerant — thousands of Massachusetts gays have wed, and Western civilization hasn't collapsed — but aren't ready to embrace gay marriage. By overwhelming margins, 19 states have passed constitutional amendments to ban it, and most others have enacted laws against it.
At the same time, the public opposes discrimination. In many states, gay couples aren't entitled to visit each other in the hospital and have been denied property, inheritance and child-custody protections. That's one reason, according to a Pew Research Center poll in July, that 54% of Americans favor civil unions, which convey the same rights under the law that married heterosexual couples take for granted.
Does equality demand the name of marriage? Not necessarily, or perhaps not yet. "Although courts can ensure equal treatment," the New Jersey judges held, "they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society."
Anything but winner-take-all frustrates those on the barricades of any debate. But a middle ground protects the most basic rights of gay couples without imposing same-sex marriage on a nation that isn't ready for it.
Posted at 12:22 AM/ET, October 27, 2006 in Gay marriage - Forum, USA TODAY editorial
Opposing view: Where's judicial restraint?
By Peter Sprigg
The New Jersey Supreme Court has professed respect for judicial restraint by refusing to change the definition of "marriage." But they have imperiously commanded the state Legislature to either redefine marriage itself, or create a "statutory structure" (such as "civil unions") to grant 100% of the legal rights and benefits of marriage to same-sex couples.
This is not judicial restraint. Courts have no power to command the legislative branch to enact a particular law. That the court has given the Legislature a choice (the frying pan or the fire) in no way mitigates this violation of the separation of powers.
The New Jersey Legislature should therefore simply ignore this command. Indeed, we urge them to go further and follow the lead set by 19 other states, by amending the state constitution to define marriage as the union of a man and a woman (and to make clear that only the Legislature may determine and distribute the "benefits of marriage").
The court based its ruling in part on protections against "discrimination" and limited "domestic partnership" rights already granted to homosexuals by the Legislature. This rationale — that because the state offers limited "rights," it must offer more expansive ones — turns logic on its head. It should, however, serve as a cautionary tale for politicians who think that such measures to appease homosexual activists will forestall the counterfeiting of marriage itself. Instead, they merely accelerate it.
Society gives benefits to marriage because marriage gives benefits to society. Therefore, the burden of proof must rest upon the advocates of homosexual unions to demonstrate that such unions benefit society (not just the individuals involved) in the same way and to the same degree as marriage between a man and a woman. Because homosexual unions never result in natural procreation and never provide children with both a mother and a father, this is a burden they simply cannot meet.
Peter Sprigg is vice president for policy at the Family Research Council and author of Outrage: How Gay Activists and Liberal Judges Are Trashing Democracy to Redefine Marriage.
Posted at 12:21 AM/ET, October 27, 2006 in Gay marriage - Editorial, USA TODAY editorial