[GCFL-discuss] New Jersey

[Discussion of the Good, Clean Funnies List]

OK, I have downloaded and partially read the NJ Supreme Court decision on
marriage. I recommend anyone concerned about it read the actual decision,
or at least the accurate 2-page syllabus summarizing the decision. Both
are available at this link:

http://www.judiciary.state.nj.us/opinions/supreme/a-68-05.pdf

I note that U.S. Supreme Court justices Scalia and Alito both commented
at a recent public forum that media coverage of court decisions distorts
the entire judicial process and meaning of cases. They are correct -- and
going straight to the source is the best remedy.

The decision is in some respects a rather conservative one. The court
acknowledged that those who drafted the provisions of the state
constitution could not possibly have considered a right to marriage for
same-sex couples as a protected right -- it was not even on their radar
screen. But, the state LEGISLATURE has for many years been in the
forefront of state laws protecting gay men and women from all kinds of
discrimination. The court therefore found that to discriminate against
such individuals when they form couples is not tenable. There is
substantial acknowledgment that the courts should not simply create new
rights.

On the other hand, it is interesting that the court was unanimous in
leaning toward same-sex couples having a right to "the benefits of
marriage." In Massachusetts, three of seven justices dissented from the
idea that any constitutional right was at stake at all. In New Jersey,
the only dissent was justices who thought there IS a constitutional right
to marriage, period, under the state constitution.

I would probably agree with the initial local state court decision, which
said that there is no discrimination in defining marriage as between a
man and a woman. I haven't read that decision in full, but it is
referenced in the state supreme court decision.

It seems this court decision does reflect a steady trend in the state
involving all three branches of government, and therefore, presumably,
the thinking of a substantial majority of state residents.

The court essentially said that the traditional definition of marriage
doesn't have to be changed, but since the state grants substantial
benefits to couples who marry (man and woman), equal protection requires
that same-sex couples be granted the same benefits, under whatever name
it may be called. Chances are, the legislature will expand the Domestic
Partner law it already passed.

I don't agree that homosexuals are a class of persons being discriminated
against. They are simply people who don't want what every INDIVIDUAL man
or woman has a right to, to enter into a marriage.

Still, I think we will end up with James Watkins proposal, that the
government should license domestic partnerships, no matter what the
foundation of the partnership, and leave marriage to the church. (There
will be "gay marriages" performed in Metropolitan Baptist churches and
some Episcopalian churches, not in other Episcopalian churches, nor in
Southern Baptists churches.)

Siarlys

P.S. The distorted analysis in these cases arises in part from the
language used by the clerks who are the front line in granting or denying
licenses. Apparently they are telling same-sex couples that state law
prohibits issuing marriage licenses to such couples. There is no
prohibition in state law. State law does not provide for any human
relationship to be licensed as a marriage other than a man and a woman.
That is not discrimination, any more than the state is discriminating
against bad drivers as a class when it denies licenses to individuals who
fail their road test.
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