New Jersey and Beyond

^{Category: Gender and Sexuality}

Photo: Copyright © 2006 Craig Jewell.

Last week, the New Jersey Supreme Court ruled that same-sex couples are entitled to the same legal benefits as heterosexual couples. The New Jersey state legislature has 180 days to decide whether it's going to grant equality by expanding marriage rights (like Massachusetts), or by setting up a separate but equal civil unions policy for same-sex couples (like Vermont).

In a state where 56 percent of residents favor full marriage rights for same-sex couples, the legislature can go either way. My colleague Ramon Johnson has more on the ruling and what it means.

Anticipating a flurry of homophobic last-minute Republican ads condemning "judicial activism," Slate's Dahlia Lithwick argues otherwise:

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.

But same-sex couples deserve more than gradual, state-by-state progress. If federal courts--especially the U.S. Supreme Court--did their job in interpreting the Constitution, they would have no choice but to legalize same-sex marriage in every state--just as they legalized interracial marriage in Loving v. Virginia (1967). Section 1 of the Fourteenth Amendment leaves little room for ambiguity on this matter:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Contrary to conventional wisdom, the Fourteenth Amendment says absolutely nothing about race. The language applies to sexual orientation, age, gender, religion, and disability status just as fully as it does race. Taken on its face, it is a statement of radical inclusion--limited only by the federal court system's timid reluctance to enforce it, a reluctance that history will one day condemn.

See also:

• What the New Jersey Gay Marriage Ruling Really Means (Ramon Johnson / About Gay Life)