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Chicago Tribune Editorial
Marriage by any other name
October 27, 2006
Three years ago, Massachusetts' highest court usurped the power of the state legislature and declared that gay couples have a right to marriage. Gays in Massachusetts won, but the decision sparked a backlash around the country. In 2004, voters in 11 states approved constitutional amendments to prohibit same-sex marriage. Next month, voters in eight states will consider such amendments.
So New Jersey's Supreme Court may have had one eye on the polls and the other on politics when it narrowly ruled Wednesday that the state legislature had to provide equal treatment for gay couples, but didn't necessarily have to call it marriage.
Semantic hairsplitting? The New Jersey ruling is not nearly as sweeping as the one in Massachusetts. If New Jersey is going to recognize gay marriage, the majority said, "such change must come from the crucible of the Democratic process."
The Massachusetts ruling posed a conundrum for other states--if a gay couple married in Massachusetts moves to Nevada, must Nevada recognize the marriage? The New Jersey ruling poses no such issue for other states.
And the ruling may not require a great leap for the New Jersey legislature, which already has enacted a domestic partnership law that provides to homosexual couples many, but not all, of the rights of married couples.
There is something quirky about the New Jersey ruling. The court gave the legislature 180 days to expand the marriage statute to include same-sex couples or enact a parallel statute conferring the same rights and privileges.
That's not much time. And if the legislature misses the deadline? Well, the court didn't say what would happen then.
A third option--a constitutional amendment banning same-sex marriage--isn't likely to happen in New Jersey, a state whose public policy toward gays has been changing faster than it has been in most of the rest of the country.
This page has supported the idea of civil unions, which confer the rights and protections of marriage without inviting the difficult and emotional debate over whether marriage, which was a religious and social institution long before it was a legal contract, can or should be redefined. Such decisions are best left in the hands of state legislatures--not decided at the federal level and not by judges, who are supposed to interpret laws, not make them.
State statute in New Jersey didn't necessarily help the judges there. State law there broadly and explicitly prohibits discrimination based on sexual orientation. But state law also limits marriage to heterosexual couples.
So the court had to find its way through seemingly conflicting statutes. The court found that the equal protection clause of the state constitution provides broader rights than those now provided by law, but didn't upend the law's definition of marriage.
As legal hairsplitting goes, the decision in New Jersey was pretty deft.
"Plaintiffs' quest does not end here," the majority said. "They must now appeal to their fellow citizens, whose voices are heard through their popularly elected representatives." As it should be.
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