Wedges are In: Return to the Gay Marriage Debate

On October 25, 2006, the New Jersey State Supreme Court decided it was unconstitutional for same-sex couples to be denied marriage rights in that state. However, the Court left the door open for the New Jersey State Legislature to grant these rights under a different name - civil unions.

The legislature has 180 days to secure full rights to same-sex couples, but they don’t have to call them "marriage rights." Rather, the legislature may augment civil unions so that they match marriages in terms or rights, meaning they will be equal in deed but not in name.

What’s in a name?

Advocates of gay marriage have had mixed reactions to the ruling. Most are pleased by the Court’s decision to grant same-sex couples equal rights. However, some argue that denying same-sex couples the term "marriage" denies them status and prevents them from arguing that their union must be recognized in other jurisdictions and by the federal government. What happens if they move from one state to another?

Justice Deborah T. Poritz expressed in her opinion that there is no distinction between the rights of marriage and the term "marriage," arguing that keeping the two separate is not supportable.

Further, Poritz argued that the state Constitution grants same-sex couples the fundamental right to marry, a view not shared by the majority of her colleagues.

Yes on equal protection no on fundamental right

The Court had two votes, one to determine if the civil unions law violated the equal protection requirement of the state Constitution, the other to determine if same-sex couples have a "fundamental right" to marry.

The Court voted unanimously on the first, agreeing that same-sex couples were not given equal rights through civil unions and demanding that the legislature expand those rights. For example, there are over a thousand tax advantages to couples who are legally married.

However, the Court rejected the argument 4-3 that same-sex couples have a fundamental right to marry. The majority concluded that the Constitution requires same-sex couples to have full rights and protections, but that the Court did not have the right to impose the term "marriage" on the legislature, as long as they granted same-sex couples equal rights.

But Portiz and two other Justices dissented, arguing that words have power and meaning, and that withholding the term "marriage" from same sex couples inflicts both legal and social harm.

A wider view - looking beyond New Jersey

Even beyond New Jersey, the ruling is having a major impact. The 2006 midterm elections are being affected, with Republican candidates using the ruling as a way to activate their base of voters - social conservatives.

President Bush has been arguing against the ruling, as are Republicans in contested Senate races, especially in states where voters are considering constitutional amendments to ban gay marriage.

For example, Tennessee has a popular marriage ban on the ballot, and Democratic Representative Harold E. Ford Jr. has decided to back the ban and deny any support of gay marriage to compete in the race.

A "wedge" issue

Americans don’t agree on gay marriage. It’s an issue that those in politics call a "wedge," since it wedges and divides the people. A wedge issue can be used for political gain, since it polarizes voters and, often, scares them into voting a certain way.

No one denies that the U.S. Senate debate on the Bush-backed Federal Marriage Amendment was timed strategically before the 2004 presidential elections to create a wedge that favored the Republicans. The wedge is continuing to divide voters in 2006, though many say its impact has faded.

Do you feel that state constitutions should be altered to block gay and lesbian marriages? What are the consequences of denying a portion of the population equal rights under the law? How does a ban on same-sex marriage affect women’s rights, when only some women are allowed to marry? In your view is this the responsibility of government? Why or why not?

What do you think?

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Update Posted on: 11/3/2006