Marriage and Semantics: More on the New Jersey Decision

I’m left with very mixed feelings about the New Jersey marriage ruling. On the one hand, the ruling means definite progress and protections for same-sex couples in New Jersey. As Pam of Pam’s House Blend writes:

The judges in this case may have split hairs over the word “marriage,” but in doing so provide a ruling that goes out of its way to define fairness and equality under the law, which is the crux of this battle, which has often been muddied in blather over tradition, religions, procreation and all sorts of matters that are irrelevant to whether discrimination is occurring (see the NY decision on this for insanity over). Again, from the ruling:

The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples. There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed same-sex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships.

Pam’s absolutely right. The New Jersey ruling is vastly superior to the New York one, which was largely rooted in a worldview that defined marriage by children and a mother and father as the best pair to raise them. New Jersey categorically said same-sex couples must have the same rights and protections as opposite-sex ones.

On the other hand, I find myself agreeing with the dissenting opinion of Chief Justice Deborah T. Poritz and Justices Virginia Long and James R. Zazzali:

[The plaintiffs] speak of the deep and symbolic significance to them of the institution of marriage. They ask to participate, not simply in the tangible benefits that civil marriage provides—although certainly those benefits are of enormous importance—but in the intangible benefits that flow from being civilly married. . . .

When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that “a separate statutory scheme, which uses a title other than marriage,” is presumptively constitutional, we demean plaintiffs’ claim. What we “name” things matters, language matters. . . .

We must not underestimate the power of language. Labels set people apart as surely as physical separation on a bus or in school facilities. Labels are used to perpetuate prejudice about differences that, in this case, are embedded in the law. By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage.

The message of inequality and exclusion matters most to me because of what it conveys to my son. Somewhere along the line, he is going to be in a class where a teacher explains, “When two people love each other and want to live the rest of their lives together, they get married.” She or he isn’t likely to add, “or have a civil union.” Will he be insightful and secure enough to realize his parents’ love and commitment—and by extension, his family—is as strong and valid as anyone else’s? I hope so; but wish I didn’t have to worry about it. I’d rather put my energy into the internal workings of our family life.

The New Jersey Legislature now has 180 days to enact or amend laws extending all the rights of marriage to same-sex couples, and deciding what to call our bonds. Garden State Equality has announced that three legislators will shortly introduce a bill for “100% Marriage Equality,” including use of the term “marriage.” The State Supreme Court has gone more than halfway towards equality. The Legislature should finish the job.

Here’s a final, and somewhat contrary, thought for reflection and discussion: “Marriage” implies universality. If, however, my partner and I marry in Massachusetts, (or, perhaps, New Jersey) we lose that status as soon as we step across the border. Furthermore, state marriage laws do not, as I’ve said before, convey any of the important Federal benefits of marriage. Does it in fact make more sense to call these state recognitions “civil unions,” reserving the term “marriage” for an act and status that are recognized everywhere (at least within this sovereign nation) and carrying equal rights and benefits at any given level of government? Does saying “civil unions” underscore that until we have Federal recognition, we still don’t have “marriage equality”? I pondered this briefly, and decided in the end that it’s better to take the name “marriage” when we can get it. It conveys a set of positive values to our children and carries all the intangibles mentioned above. The legal rights may not be Federal or carry over when a couple visits another state, but I’ve never met any Massachusetts same-sex spouses yet that stopped calling themselves married regardless of where they roamed.