Loving v. New Jersey

by: ACLUNJ

Fri Jun 25, 2010 at 02:42:56 PM EDT

Rights that exist merely in theory or on paper are meaningless. They only mean something to people's lives if they exist in reality. For rights to mean something, they must be on paper and in practice for perpetuity.

On February 19, 2007, New Jersey's Civil Unions Law took effect. While same-sex couples and their families throughout the state were, on paper, afforded some of the rights and responsibilities previously denied them, the day also marked a sad and unfulfilling moment in the history of our state. It has gone down as the day New Jersey officially wrote back into law the notion of "separate but equal."

The past three years have served as a reminder - for some unnecessary -  that separate is never equal. And the same couples that initially brought the battle for equality to the courts in 2004 have once again petitioned the New Jersey Supreme Court for their constitutional right to equality.

During the Civil Unions Commission hearings that the Legislature mandated to review the effects of the law, as well as the Senate Judiciary Committee hearings during the December 2009 run-up to the vote on marriage equality, family after family testified about the discrimination they experienced because the title given to them, "civil unions," was an inferior institution that excluded them from well-understood title of marriage.

The titles we give to our rights matter. They affect whether those rights will be respected throughout our state at hospitals, in schools, in everyday business transactions, and in practically every endeavor susceptible to human error. Many New Jerseyans have no idea what civil unions are, much less a nuanced understanding of the rights they carry.

Simply put, the Civil Unions Law has failed to fulfill the promise of equality. And children of civil union couples suffer most of all.

The most compelling stories during the Senate hearings on marriage equality in December came from school children. One student had been mercilessly bullied at school, while other children told the committee how excluded they felt when their classmates failed understand their parents' (non)marital status. When businesses and hospital personnel routinely don't understand civil unions, how can we expect our children to?

Justice Louis Brandeis said, "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."

What kind of statement does the government make when it segregates one group from all of the others? That it's acceptable to have two classes of people with two sets of rights. When the state itself segregates people, it grants the rest of society permission to do the same. Through its example, the Civil Unions Law excuses bigotry and emboldens bullies.

Last month, the ACLU-NJ submitted a friend-of-the-court brief to the New Jersey Supreme Court on behalf of ourselves and seven other leading rights organizations. It explained that, even when courts in the past initially permitted "separate but equal" institutions or systems to exist, those courts struck down, the segregated systems once evidence established that they continued to lead to different treatment. Even ardent opponents of marriage equality have conceded that denying same-sex couples the title of marriage has perpetuated these disparities.

If a system so separate were established on the basis of race, religion, ethnicity or gender, we would decry it, call it bigotry, see it as an affront to all New Jerseyans, and call it abhorrent and wrong. When it is done on the basis of sexual orientation, it is no less of an affront to all New Jerseyans, and no less abhorrent and wrong.

Hopefully, the New Jersey Supreme Court will be on the correct side of history - the side that long ago established that segregation of rights and people can never result in full equality.