New Jersey's Gay Impasse

The New Jersey court has simply brought the gay marriage issue one step forward in its ineluctable march to the Supreme Court — or to a constitutional amendment.

The New Jersey majority did a very cool thing politically. It reasoned as follows:

(l) If people are gay, they do not therefore forfeit rights, never mind that these rights were specifically written for non-gays.

(2) Therefore, we hereby promulgate the right of marriage for New Jersey gays. Same-sex unions are, effective immediately, to have the identical rights and privileges that are given by New Jersey to man-woman unions, including tax benefits.

(3) However, we acknowledge that the word "marriage" attaches by tradition to unions between members of different sexes. That tradition has been respected by the Legislature, and therefore the Legislature should have the responsibility of remedying the extant disparity. We cede to the Legislature 180 days in which to engage this issue. After that, the question may very well come back to the courts to settle.

There is a ton of interventionist mischief in this ruling. But begin at the beginning.

Legislatures are entitled to concern themselves with social questions. At what age should people be permitted to vote? At what age to claim old-age benefits?

Now, decisions on such questions as these get modified if the petitioner can point to illegal discrimination by lawmakers, either intentional or unintentional. The central question raised three years ago in Massachusetts and adjudicated by the courts had to do with discrimination against gays.

Social policy throughout America has evolved from the conviction that unions between men and women bring forth welcome fruits, primarily the children who become citizen-successors and provide for the continuation of the state. In terms of civil status, such a union is — and is called — marriage. A marriage has derivative rights and responsibilities, including child care.

The gay lobby seeks to neutralize those special inducements to marriage. But something more than equivalent tax accommodations is sought. The lobby wishes that unions between gays be treated under the law as "marriages." It is not absolutely plain whether what is being sought is much more than a terminological promotion, from "union" to "marriage." If gay unions succeed in acquiring such rights as married couples now have, then they will be acquiring not only rights but responsibilities, including responsibilities toward their partners.

It is not difficult to divorce nowadays, for instance, but it is harder to do than simply to file a change of address, whereas members of gay unions at present can separate without recourse to law. It will require a generation of adjustments, assuming that the courts in Massachusetts and New Jersey prevail in this, to know exactly what will be won or lost. But the commotion at the moment is over the nominal point: Can the courts pronounce that a marriage can be entered into by members of the same sex?

It was immediately understood, after the 2003 ruling of the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, that a solution embodying the popular will may need to be achieved through a constitutional amendment. The same arguments that prevailed early in the week in New Jersey will certainly be used in arguing before the Supreme Court. And that court is certain to confront, sometime soon ahead, the question whether individual rights extend to the right of gay persons to contract a "marriage" as defined by law and common practice.

President Bush has acknowledged the implications of the New Jersey ruling, and the fever that built up three years ago is reignited. There are men and women in America who have no designs to limit the movements of gay Americans, but who believe that notwithstanding this, there are sanctuaries that are naturally, and organically, reserved for traditional arrangements between men and women. There is something ranging between innocent frustration and raw fury over the proposition that a society of equal rights is required to disregard those characteristics that make up a married couple. Mr. Bush may elect to launch a movement for a clarification of the Constitution.