The road ahead of us

Today, ten years to the day after its landmark decision striking down Texas’s sodomy law in Lawrence v. Texas, the United States Supreme Court has held Section 3 of the Defense of Marriage Act unconstitutional. In an opinion authored by Justice Anthony Kennedy, the court held that the federal government may not refuse to recognize a marriage that is permitted under state law simply because the marriage happens to be between two people of the same sex.

However, the court did not decide a companion case on the constitutionality of California’s proposition 8, and thus did not decide whether states may exclude same-sex couples from marriage.

We have won a major victory. Married same-sex couples in the 13 states-plus-DC that recognize marriage equality now enjoy all of the rights of their opposite-sex married neighbors. But the fight to win marriage equality for all same-sex couples in this country is not over. And New Jersey is likely the next battlefield.

New Jersey does not allow same-sex couples to marry. Although they may not marry, they may enter into civil unions, which afford the same rights and benefits of marriage-under state law, that is. It is not clear whether civil union partners in New Jersey will reap the benefits of this decision as will same-sex couples whose state affords both the rights and the label of “marriage.”

In the Lewis v. Harris decision that led the legislature to pass the civil union law, the New Jersey Supreme Court held that same-sex couples must be afforded the same set of rights and benefits afforded to married couples in New Jersey. Back in 2006, “marriage” was merely a word, and “civil union” was a badge of inferiority. But today, the difference between “marriage” and “civil unions” may also include some of the 1,138 (or more) benefits and burdens federal law conditions on marriage. Arguably, because separate state-law status now means unequal federal-law treatment, New Jersey’s civil union law now runs afoul of the State Supreme Court’s deicison in Lewis. And the possibility that New Jerseyans will be denied a host of substantive federal rights over a simple word represents a compelling argument to politicians in this state to upgrade civil unions to marriage without delay.

The importance of these decisions and of the upcoming fight in New Jersey extends beyond New Jersey’s borders. Someday, hopefully less than ten years from now, the Supreme Court will extend the rationale of Loving v. Virginia, Lawrence v. Texas, and United States v. Windsor to its logical conclusion, and hold that states may not refuse the benefits, the burdens, and the label of marriage to two people who wish to marry simply because they are both male or both female. The Court’s decision to “punt” in the Prop 8 case may have been motivated in part by a fear of getting too far ahead of the country on such a contentious issue. We must lay the foundation for nationwide legal victory with legal and political victories in the states. The road from Lawrence to Windsor wound through chambers in Concord and Providence, courthouses in Des Moines and Hartford, and polling places in Portland and Pullman. The road from today’s decision to marriage equality nationwide will follow a similar route, but through places like Springfield, Salem, and Trenton.

Comments (4)

  1. Cautious Man

    In Lewis v. Harris, the NJ Supreme Court was split.  Three Justices said that the only constitutional solution was to extend marriage to same-sex couples.  Four said that, if the Legislature could come up with something which was equivalent to marriage (that is, civil unions), that would be constitutional.

    With the DOMA decision, civil unions are not equivalent to marriage.  Only via marriage  will couples receive all of the legal protections and benefits under Federal law.

    So, I would think that under the precedent set in Lewis, only full marriage equality would be constitutional in NJ


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