Read the previous post for relevant context….

The headline read: “New Jersey High Court Leaves Gay Marriage Rights to Legislature.” When I first read the Fox News headline I thought to myself, “Wow! A court that refuses to legislate from the bench, and that respects the democratic process.” That was…until I read the article. I couldn’t have been more wrong.


I will say from the outset that I have only read news articles about the decision. I have not yet been able to read the 90 page decision itself. But from the quotes I am reading in the news articles, the NJ Supreme Court seems to have done almost the exact same thing the Massachusetts Supreme Court did three years ago in Goodridge: they have declared that same-sex couples must be given the same rights and benefits as married heterosexual couples, and have given the legislature 180 days to reflect this in the law. Unlike MA, however, the court said the NJ legislature can either amend the existing marriage laws to include same-sex couples, or create a separate statutory structure that offers identical benefits (without calling it marriage). MA insisted that same-sex couple unions be called marriage as well.


Even if the legislature opts to create “civil unions” rather than amend the marriage laws, the fact of the matter is that what’s been created by judicial fiat in NJ is same-sex marriage. Why? Because gay couples would have the same social recognition, the same responsibilities, the same obligations, and the same rights as heterosexual married couples. If two animals walk like ducks, talk like ducks, and look like ducks…they are both ducks. The NJ Supreme Court has de facto instituted same-sex marriage in the state, but is merely allowing the legislature to name this new right they just created: “The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.” I’m glad they left something to the democratic process!


They can call it marriage, or they can call it something else. It doesn’t really matter. What’s so ironic is that many conservatives will feel better if the legislature calls it a “civil union” rather than “marriage,” as if avoiding the “M” word is all that matters. I’ve said it before and I’ll say it again…the fight is not over who gets to use the “M” word, but about the social recognition of homosexual relationships. See my article titled “Marriage by Any Other Name is Still Marriage”.


While I am bothered by many of the excerpts I have read thus far, two are very troubling to me (this is how this post ties into the previous post):


  • “The issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.”
  • “We conclude that denying to committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose.”

How can it be said that homosexual relationships are “similarly situated” to heterosexual relationships? How can they say there is no rational basis for privileging heterosexual marriage? There is a clear rational purpose. I wrote about it in my last post. But it doesn’t even need to be clear. Under rational basis scrutiny (which it seems the court used to decide the case) all that needs to be demonstrated to uphold the constitutionality of a law is that it is possible to conceive of a legitimate governmental purpose. Is it possible to conceive that privileging heterosexual marriage bears a rational relation to some legitimate end? Of course it does. Then how can the court say there is no legitimate governmental purpose for the unequal dispensation of benefits and privileges?


Justice Cordy, in his dissenting comments to the Massachusetts Supreme Court’s Goodridge ruling, addressed the assertion that there is no rational basis for privileging heterosexual marriage:


Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. … The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. … The marital family is also the foremost setting for the education and socialization of children. Children learn about the world and their place in it primarily from those who raise them, and those children eventually grow up to exert some influence, great or small, positive or negative, on society. The institution of marriage encourages parents to remain committed to each other and to their children as they grow, thereby encouraging a stable venue for the education and socialization of children.

Civil marriage is the product of society’s critical need to manage procreation as the inevitable consequence of intercourse between members of the opposite sex. Procreation has always been at the root of marriage and the reasons for its existence as a social institution.<!–[if !supportFootnotes]–>[1]<!–[endif]–> (italics mine)


Justice Cordy made it clear that there is only one reason the government has promoted and protected marriage: they produce the next generation of society. Only opposite sex couples can “be the biological parents of shared children. Tying those parents to those children is a crucial social objective.”<!–[if !supportFootnotes]–>[2]<!–[endif]–> Apart from a concern for children the government has no reason to regulate private relationships. If there are no children involved, there is no reason for the government to regulate and protect the relationship (which is why the government does not regulate friendships). How can the NJ court not see that? I would argue it’s because their decision was not motivated by the text of their state constitution, but by their own opinions on the matter. I’ll have to read the opinion for myself to see if that assessment holds true.

<!–[if !supportFootnotes]–>

[1]Available from

<!–[if !supportFootnotes]–>[2]<!–[endif]–>Justin Katz, “Scandinavian Marriage by the Numbers”; available from; Internet, accessed 16 September 2004.