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.
[1]Available from http://news.findlaw.com/hdocs/docs/conlaw/goodridge111803opn.pdf
<!–[if !supportFootnotes]–>[2]<!–[endif]–>Justin Katz, “Scandinavian Marriage by the Numbers”; available from http://dustinthelight.timshelarts.com/lint/000460.html; Internet, accessed 16 September 2004.
Thinking to Believe 
October 28, 2006 at 8:11 am
How dare the Supreme Court rule that people should have rights we don’t want them to have! This has gone too far!!!!
Harumph!!!
LikeLike
October 30, 2006 at 3:50 pm
You have missed the point entirely. Whether I agree with their decision ideologically or not is irrelevant to the point. The judicial branch should not be making these kinds of decisions.
LikeLike
November 16, 2006 at 3:07 pm
Justice Cordy’s arguments are not very persuasive. In fact, they work in favor of same-sex marriages on several grounds:
First, the fact is that many homosexuals do have children and raise families. The means of becoming parents vary: the couple could adopt; gay males could use a surrogate; lesbian females could use a sperm donor, etc. The law (at least in CA) recognizes the ones who “intend to create” the child as the legal parents, not the ones who actually create the child.
In law school I attended a seminar on the topic of genetic engineering, a large portion of which addressed homosexuals having children. The main guest speaker was the first gay man to have his name, and the name of his partner, legally on a child’s birth certificate. These men had a surrogate and a separate sperm donor (don’t know why, but I suspect HIV). So, the biological parents are actually two people outside the gay couple. But the law recognizes the gay men as the parents for all purposes: custody, child support, etc.
The common conception of homosexuals are the wackos we see stripping naked in the gay parade. But the fact is that many homosexuals are in long-term, committed relationships. (Just as an example, Bro. Nello lived with his partner for 15 years.) So, the argument goes for proponents of Same Sex Marriage, that gay marriages also encourage procreation of the next society.
The fact that homosexuals have children also poses a significant challeng to your point that “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).” Children are most definitely involved in homosexual relationships. The relationships already “look like a duck, walk like a duck,” etc. So, should the government step in and regulate it?
Homosexuals having children is not a rare situation either. It’s the norm. It’s especially common to have a homosexual with children from a previous marriage have his/her new partner adopt the children.
Second, the argument goes, since homosexuals are creating children, it would be better to allow them to marry. Allowing same-sex marriages will provide stable and legit families in which the children may thrive. Depriving homosexuals of the right to marry, deprives their children of the opportunity to live in home with married parents. So, arguing, as did Justice Cordy, that “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” applies equally to gay parents. And “tying those parents to those children is a crucial social objective,” as stated by Justice Cordy, is argued by proponents of SSM, as well.
Third, proponents of SSM point out that heterosexual marriages do not guarantee that a child will be raised in one home by a mom and dad. With divorce rates ever climbing, the chances are high that children of heterosexuals will be raised with only one parent (and consequently an adult of only one sex).
Finally, not all heterosexuals decide to have children. Many opt not to. Justic Cordy said, “Procreation has always been at the root of marriage and the reasons for its existence as a social institution.” Historically, sure, but currently, no. Society sees marriage as a means to have an exclusive relationship and the benefits derived therefrom, which may or may not include children. Even many Bible-believing Christians opt not to have children.
You see how gradually we’ve moved away from traditional marriages and toward homosexual marriages? The mentality of society is so far removed from the assertions set forth by Justice Cordy, that it’s difficult to advocate for such concepts.
It’s very hard to make apologetic arguments against SSM. In fact, I have yet to hear a persuasive apologetic argument against SSM.
The only reason I’m not in favor of SSM are due to my personal preferences and religious beliefs. And while that’s fine on a personal level, I need something more than special revelation to make persuasive arguments for legislative purposes. These “procreation” and “traditional family” arguments fail on too many grounds.
Andy and I have discussed this many times and have come up blank.
You study apologetics more than we do. What else do you got?
LikeLike
December 1, 2006 at 10:43 pm
Seni,
Andy and I were discussing your first and main objection in an off-line email dialogue (subject “10/26/06 post”). I will refer you to our correspondence rather than repeating everything here.
I want to address a few things you said about gay couples, and some other miscellaneous points.
The SF Gay Parade is not Representative of Most Gays
It is true that not all gays are the crazies we see in the SF gay parade. I know quite a few homosexuals, and all of them (for all I know) act like normal, civilized citizens. But that is irrelevant to whether they should be allowed to marry.
Duration of Homosexual Relationships
You also said many of them are in long-term, committed relationships. The statistics point in the opposite direction. There is a huge gap between heterosexuals and homosexuals in this area. Most gay relationships are short-term, and anything but committed. Only 5% of homosexuals live in committed relationships for 20 years, compared to 50% of married heterosexuals. That’s a big discrepancy. If only 5% of homosexuals live in a committed relationship for 20 years that means 95% of them “divorce.” You (and I) decry what heterosexual divorce is doing to our children with a ~50% divorce rate. Adding another 45% to that can’t be good! If all homosexuals raised kids, 95% of those kids would go through a divorce! Why would we want them raising children? See http://www.frc.org/get.cfm?i=IS04C02&f=PG03I03 for this, and more data.
Those few homosexuals who do have long-term relationships are not “committed” in the traditional sense of commitment. Commitment does not mean two people merely keep the relationship going over a long period of time, but rather the exclusivity of the relationship (you wouldn’t say your husband was committed to you if he was sleeping with other women on the side, but still came home to you every night). That is something almost foreign to homosexual relationships. A long-term monogamous relationship is almost an oxymoron in the gay community. Two homosexuals may set up house together and live there for a long time, but there are always partners on the side—many of them.
Homosexuals Raising Children
You also said homosexuals raising children is not a rare situation. Depending on how you define rare, I don’t agree. Only 29% of homosexuals live with a partner. Of this number, about 20% have children living with them. That means only 8% of the entire homosexual population is raising children as a couple.
to be continued…
LikeLike
December 1, 2006 at 10:44 pm
continued….
Heterosexual Marriage is No Guarantee of a Stable Environment
You are right, heterosexual marriage does not guarantee a stable environment for a child. Divorce rates are high, and if I’m not mistaken, less than ½ the kids in this country are being raised in a home with both parents. Two points should be made. First, would homosexuals do any better? The evidence suggests not. Homosexual relationships are less-stable, and shorter than heterosexual relationships. If we recognize that the high rate of divorce among heterosexuals is not good for kids, why grant gays the right to marry for the sake of protecting kids when they stay together less than heterosexuals? It doesn’t make any sense.
Second, given the purpose of marriage, we shot ourselves in the foot when we liberalized the divorce laws in this country, making no-fault divorce possible. We weakened the social goal of marriage that Justice Cordy spoke of.
SSM Does Not Tie Children to Their Parents
As far as Cordy’s statement about tying children to their parents, SSM does not accomplish that goal. It actually prevents it. In every case homosexual COUPLES are not the parentS of the children in their home (maybe in a legal sense they are, but not in a biological sense). It could be that one person is the parent, or neither person. But in all situations the children are not tied to their biological parents. They are being tied to someone else. And I don’t think that is good for the children (adopting orphans is a separate issue that I will not discuss here).
to be continued…
LikeLike
December 1, 2006 at 10:45 pm
continued…
Society No Longer Sees Procreation as the Purpose of Marriage
I wouldn’t go so far as to say we no longer connect the two, but the association is becoming much looser than in days gone by. But the fact that society is increasingly divorcing the concept of children from marriage does not mean that the two are not connected in reality…including legal reality. It just means that society has become confused about the purpose of marriage, and the government/church needs to re-educate the public on this matter. You don’t redefine the intrinsic purpose of something just because people are using it the wrong way. As a poor example, you wouldn’t say cars are for sleeping in rather than driving if one day people start using their cars as apartments rather than as transportation. That’s not what a car is for, and those who use it this way (or more properly fail to use it for the purpose for which it was designed) are using it improperly.
Just because American (Western) attitudes and ideas about marriage are shifting does not mean the social-legal purpose of marriage needs to be changed to fit it. Marriage is not an evolving and fluid institution that can be defined and redefined by society. It is something that is fixed. Societies do not invent marriage, but rather recognize marriage. See my article on SSM I referenced in my correspondence with Andy for more on this.
Regarding Christians who choose not to have children, you are correct in observing that more and more are doing so (following the culture’s lead), and it is a travesty. They are implicitly, if not explicitly objecting to God’s purpose for marriage, and God’s purpose for sex (disclaimer time: I’m not saying sex is only for procreation, but that is its primary and natural purpose. Nor am I saying that people must have as many children as possible. Nor am I referring to those who are childless contrary to their desire. Nor am I referring to those who choose to forego having children for a certain period of time.). When you ask people who choose not to have children the reason for their decision, almost without fail it is rooted in some selfish reason. They view children as objects that get in the way of achieving their own personal desires (career, money, material possessions, etc.)—none of which are necessary, and usually none of which are godly. I’m not advancing the idea that women should be barefoot and pregnant for 25 years of their lives, but I am advancing the idea that purposeful childlessness is contrary to God’s purposes for marriage, and contrary to our design, and not worthy of Christian couples.
I deal with this in my SSM article as well. I wrote:
“Just because some people cannot or choose not to use the marriage relationship for the purpose that culture privileged it does not mean that heterosexual couples should not be privileged. This is the exception, but society is protecting the relationship that brings about the rule.
“A family is what it is even if those who choose to be a family do not, or cannot take advantage of all the benefits and purposes of a family. It’s like a hammer. It could hang on the wall without being used, and yet still be what it is. It still exists for the potential of being used in the way it was purposed, even if its purpose is never realized. The natural potential and purpose is there, and thus it accords with natural law. Homosexuals cannot produce children, and it would be unnatural for them to raise children.
“The fact that a couple cannot have children does not change the fact that they have the biological possibility of doing so. ‘The natural tie of marriage to procreation is not nullified because in some individual cases children are not intended or even possible. Marriage still is what it is even if its essential purpose is never actualized. The exceptions prove the rule; they don’t nullify it. Marriage is intrinsically about and for children.’”
Making Arguments Against SSM
You said, “It’s very hard to make apologetic arguments against SSM. In fact, I have yet to hear a persuasive apologetic argument against SSM. The only reason I’m not in favor of SSM are due to my personal preferences and religious beliefs.” Andy said the same thing. Read my response to him. I have precisely the opposite opinion. While my religious views are consistent with my position on same-sex marriage, my arguments have nothing to do with religion. I don’t see religion, or even moral values, as having anything to do with this debate. The debate is decided in our favor on purely secular grounds. There is every reason to keep marriage an institution exclusively for heterosexuals, and no good reason to open it up to homosexuals.
Furthermore, we don’t need to make arguments against SSM. We don’t bear the burden of proof. It’s homosexuals who want SSM—who want to change our laws and millennia of tradition—so they bear the burden to demonstrate why the institution should be opened up to include them. All we are responsible to do is answer their arguments. And answer them we do! Most of them are extremely impotent, and non-sequitar. Even though it’s not our burden, we can accept it for the sake of argument, and meet it. Our position is firmly rooted on legal, social, historical, and logical grounds.
Jason
LikeLike
December 4, 2006 at 12:54 pm
Jason, thanks for the lengthy response. I haven’t had a chance to read it in full yet, but I look forward to responding when I get the chance.
Could I please have the source of your statistics for reference?
Andy told me you were discussing this off-line after my post. Sorry if I’m making you repeat yourself. 😦 But I think this topic should be on-line, personally. It’s a good one; Christians really need to think critically about these issues.
LikeLike
December 6, 2006 at 8:12 am
Seni,
Take your time.
The source of the statistics was supplied in my comments. It is http://www.frc.org/get.cfm?i=IS04C02&f=PG03I03.
Jason
LikeLike
January 8, 2010 at 3:29 pm
[…] under Apologetics, Politics, Same-sex Marriage Leave a Comment Well, kind of. In 2006 the NJ Supreme Court ruled that the state’s legislature had to provide equal benefits to same-sex […]
LikeLike
October 25, 2013 at 10:01 am
[…] 2006, the New Jersey Supreme Court ruled that the NJ legislature must give same-sex couples all of the same rights and benefits as […]
LikeLike