New Jersey’s Gay Marriage decision

It is a little early to see what the political impact of the New Jersey Supreme Court's decision on gay marriage will be, but I wanted to go ahead and weigh in with some thoughts on the decision.  Basically, what the court decided is that New Jersey must allow civil unions– whether they will be “marriage” or not is up to the state legislature, but the legal rights of a marriage, i.e., taxes, survivorship, health care decisions, etc. cannot be denied to same sex couples. This is actually quite similar to the position the Vermont Supreme Court took several years ago.  It is also worth noting that in the 4-3 decision, the dissent did so because they thought the NJ Constitution demanded actual marriage, not just civil unions. 

Surely, the conservative Christian right sees this as a big break before the elections to help mobilize their base.  It may very well do that (though I think at this point it would take a lot more to keep the House from going to the Democrats).  Nonetheless, this decision actually captures, as well as any can, the sense of the American public on the issue.  Public opinion polls tend to show that, by a small margin, more Americans are in favor of some sort of legal recognition for same-sex unions (marriage or civil union) than are completely opposed to gay marriage or civil unions. 

There is admittedly some variance based on question wording, but the civil union position clearly has wide acceptance. 

In her column, Dahlia Lithwick also nicely explained that this is not judicial activism, as its critics are surely already claiming.  I'll let her have the last word:

This case is about New Jersey. It's about that state's constitution
and that state's statutory scheme, which rejects the treatment of
homosexuals as “second class” citizens. This 4-3 decision reflects a
compromise position between mandating gay marriage and tolerating
bigotry. It also happens to reflect the preferences of the majority of
New Jersey citizens?not that this matters for legal purposes, but it
should certainly diffuse claims about judicial activists who override
the will of the people.

If you care at all about states' rights
and state autonomy, read this decision. If you believe in judicial
minimalism, read this decision. If you think judges should engage in
careful scrutiny of state law, read this decision before blasting it as
activism. This was a state court taking care of state business.

Memo to Karl Rove: Those who oppose this decision aren't opposed to judicial activism. They are opposed to judges.

About Steve Greene
Professor of Political Science at NC State

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